|
MalcolmEvansFirstPaper 6 - 06 Apr 2018 - Main.MalcolmEvans
|
| |
| META TOPICPARENT | name="FirstPaper" |
|---|
| | | "The Englishry of English law" lies precisely in its diversity of origin. While Maitland’s phrase highlights the fact Englishmen came to “recognize [their law] as distinctively English,” this notion belies the reality that English law is highly influenced by diverse, non-English, traditions and customs.
Notes
:
| |
<
< | This paper has three purposes. First, it discusses the diverse origins of English law. Second, it examines how these origins were harmonized to create local, yet central political arrangements. Lastly, it explores how such arrangements have strained US common law and why as such we should be wary of the trump administration's increasing insistence of defining situations as “local matter(s).”
Notes
:
| >
> | This paper has three purposes. First, it discusses the origins of English law. Second, it examines how these origins were used to create a central political arrangement. Lastly, it explores how folding these origins into arrangements have created a strained US legal system and why as such we should be wary of the trump administration's increasing insistence of defining situations as “local matter(s).” | | |
The Englishry of English law | | | English law developed to enforce societal hierarchy. Historically, England was “organized” around a system of tribes, chiefdoms, and proto-states. Undergirding this decentralized system was feudalism. Feudal lords required disputes be submitted to local “courts” for settlement. This early system was a financial strategy as lords required damages be paid to the lord presiding over the hundred where the dispute took place.
Notes
:
:
| |
<
< | In addition to the proceedings happening at the hundred level, lords of the counties could compel the lords of the hundreds to come to their courts for proceedings. While this dual-level system helped bring some sense of uniformity to the hundreds within a particular county, understandably customs between hundreds and counties varied widely. | >
> | In addition to the proceedings happening at the hundred level, lords of the counties could compel the lords of the hundreds to come to their courts for proceedings. While this dual-level system helped bring some sense of uniformity to the hundreds within a particular county, understandably rulings between hundreds and counties varied widely. And while lords were free to apply their own “law,” to settle disputes, they were influenced by custom, which, in turn, was influenced by several non-English regions. Anglo-saxon legal customs originated from ancient Germanic legal principles; Roman influence was seen through the church; and Scandanavian influence was seen due to the Viking invasions. These various influences – and the different weights assigned to them by lords - lead to different bodies of law, which exhibited “Englishry” to varying degrees. | | | | |
<
< | While lords were free to apply their own “law,” to settle disputes, they were influenced by custom, which, in turn, was influenced by several non-English regions. Anglo-saxon legal customs originated from ancient Germanic customs and legal principles; Roman influence was seen through the church; and Scandanavian influence was seen due to the Viking invasions. These various influences – and the different weights assigned to them by lords - lead to different bodies of law, which exhibited “Englishry” to varying degrees. | >
> | A central political arrangement
After the Norman conquest, the King - William the First – wanted to centralize England. Unsurprisingly, he proclaimed that all land-based rights were vested in the King. This included the right of holding court, which ensured the profits previously flowing to the feudal lords, flowed to the King. The Justices in Eyre (Eyre) facilitated this process by traveling to different “circuits” to communicate the custom of the king’s court and adjudicate disputes accordingly. | | | | |
<
< | Centralization
After the Norman conquest, the King - William the First – wanted to centralize England. Unsurprisingly, he proclaimed that all land-based rights were vested in the King. This included the right of holding court, which ensured the profits previously flowing to the feudal lords, flowed to the King. The Justices in Eyre (Eyre)solidified this process by traveling to different “circuits” to communicate the custom of the king’s court and adjudicate disputes accordingly.
The process of applying the custom of the king's court was intended to create a sense of relative uniformity, whereby the king could solidify his political arrangement; this uniformity in turn became the basis of the common law system.
And yet, despite these intent of “centralizing” the law, when the Eyre traveled to different circuits, they encountered many local customs being used to adjudicate disputes, which while clearly not established by the king, were nonetheless respected by the Eyre. “We see no signs of any consciously conceived desire to root them out.” However, it was clear that they were not allowed to grow any further, “especially in all matters of procedure.” .
Notes
:
| >
> | The process of applying the custom of the king's court was intended to create uniformity, and yet, when the Eyre traveled to different circuits, they encountered local courts using their own customs, which while not established by the king, were nonetheless respected by the Eyre. The decisions that resulted from this hybrid approach became the foundation of the common law system.
Notes
:
| | | A strained system | |
<
< | The result of the process used by the Eyre, whereby they “applied” the king's custom, and yet accepted the use of local custom, created a strained common law system. However, in many ways, the codification of local custom was a necessary prerequisite to implementing the broader centralized structure. Given the range of diversity in the society – of "ethnicity," language, and culture – the integration of localism made the acceptance of the political arrangement more appetizing and harmonious.
But the result of this system isn't always beneficial. While it may ease the tensions that arise from creating a hierarchical political structure, and a sense of relative uniformity which comes with such a central structure, the reality is that localism is still enshrined within the larger structure, and such localism often has the potential for perverse outcomes.
The current US common law system presents a strong illustration of this concept at work. The laws of the state of Louisiana reflect a common law localism that leads them to have distinct nature from those of, say, New York, both of which may be materially different from federal law which governs the entirety of the US. Let's take this illustration further by discussing the recent death of Alton Sterling. The police officers involved were recently acquitted and will not face criminal charges. In Louisiana, were the events took place, a police officer is allowed to use “reasonable force to effect the arrest and detention, and also to overcome any resistance or threatened resistance of the person being arrested or detained.”
As one can see, in the case of Alton Sterling, the governing law reads differently depending upon the local jurisdiction, even if the underlying outcomes in police shootings are mostly the same.
By now we’ve established that the king centralized the law by applying his own customs brought from Normandy. As such, it is clear that the establishment of English law owes its roots to several places: Germany, Rome, Scandinavia, and Normandy to name a few. Although after the conquest Englishmen consciously sought to make their law distinctly English, – often by objecting to following foreign principles simply because they were not English – the diverse origins of the law are impossible to wash away.
But how can we apply this discussion to our current lives?
A billboard for law students
Notes
:
:
| >
> | The hybrid approach created a strained common law system since it lacked uniformity. However the codification of local custom was a necessary prerequisite to implementing the broader centralized structure. Given the range of diversity in society – of "ethnicity," language, and culture – the integration of localism made the acceptance of the political arrangement more harmonious. | | | | |
<
< | English common law developed to institutionalize profit streams and reinforce existing hierarchies. In using the English common law as the foundation of its legal system, the US adopted this relationship between money, law, and power. | >
> | However, the localism enshrined in the central governing structure can lead to perverse outcomes. US common law presents a strong illustration. For instance, Louisiana's laws reflect localism that leads them to have a distinct nature from those of, say, New York, both of which may be materially different from US federal law. Let's take this illustration further by discussing the recent death of Alton Sterling. The police officers involved were recently acquitted and will not face criminal charges. In Louisiana, were the events took place, a police officer is allowed to use “reasonable force” in such situations, whereas in the New York analog, there are specific provision governs the use of deadly force . Regarding federal law, while a citation to the governing law might be helpful, it would be mostly academic since bringing charges against officers for violating federal law is "rare."
Notes
:
:
:
:
| | | | |
<
< | Specifically, there are noticeable aspects of US law that have direct ties to English law. First, the law is used for reinforcing and creating social order. Second, it’s a tool for maximizing profits. Third, the law is used to ensure an adequate supply of cheap labor. Fourth, the law labels people, particularly as criminals, which releases those in power of responsibility for improving the lives of common persons because, well, they are “criminals.”
Notes
:
| >
> | As one can see, in the case of Alton Sterling, the governing law reads differently depending upon the applicable jurisdiction. But how can we apply this reality to our current lives? | | | | |
<
< | The trump administration | >
> | The trump administration | | | | |
<
< | The current administration speaks tirelessly about “law and order,” and giving power back to the states Trump: We will give power back to the states. This is a large billboard addressed to us knowledgeable about the roots of our law. Law and order were used as means of consolidating power at the top. This administration is seeking to do the same. Moreover, the localism that was architected into US common law has created strained relationships through the North American empire and many possibilities for perverse outcomes due to different approaches to local matters. Moreover, the administration and republican leadership conveniently wields it's desire for localism, pushing back on the notion that States can't have “sanctuary cities” Trump criticizes 'sanctuary' cities in weekly address yet saying in other matters, like determining who should get a gun, are best left to the states, and that once that decision has been made, other states must accept it . The inconsistency between localism and our centralized political arrangement has lead to a reality and one where our president endorses states’ rights — but only when he agrees with the state. This strained reality should scare all of us.
Notes
:
| >
> | The current administration speaks tirelessly about “law and order,” and giving power back to the states Trump: We will give power back to the states. This is a large billboard addressed to us knowledgeable about the roots of our law. Law and order were used as means of consolidating power at the top. This administration is seeking to do the same. Moreover, the localism that was architected into US common law has created strained relationships through the US and many possibilities for perverse outcomes due to differing approaches to local matters. Moreover, the administration and republican leadership wields it's desire for localism only when convenient, pushing back on the notion that States can't have “sanctuary cities” Trump criticizes 'sanctuary' cities in weekly address yet saying in other matters, like determining who should get a gun, are best left to the states, and that once that decision has been made, other states must accept it . The inconsistency between localism and our centralized political arrangement has lead to a reality and one where our president endorses states’ rights — but only when he agrees with the state. This should scare all of us. | | | Our call to action | |
<
< | So how do we prevent the current administration from leveraging our strained common law empire to it's advantage? I admittedly struggle with solutions. Perhaps first is bringing awareness to our strained common law empire, and second how this is strategically leveraged. Beyond this any and all suggestions are welcome. | >
> | So how do we prevent the current administration from leveraging our strained common law empire to it's advantage? I admittedly struggle with solutions. Perhaps first is bringing awareness to how strained the system is, and how such vulnerabilities are strategically leveraged. Beyond this any and all suggestions are welcome! | | |
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. |
|
|
MalcolmEvansFirstPaper 5 - 06 Apr 2018 - Main.MalcolmEvans
|
| |
| META TOPICPARENT | name="FirstPaper" |
|---|
| | |
The Englishry of English law | |
<
< | Establishing custom | >
> | Architecting localism | | | English law developed to enforce societal hierarchy. Historically, England was “organized” around a system of tribes, chiefdoms, and proto-states. Undergirding this decentralized system was feudalism. Feudal lords required disputes be submitted to local “courts” for settlement. This early system was a financial strategy as lords required damages be paid to the lord presiding over the hundred where the dispute took place. | | | While lords were free to apply their own “law,” to settle disputes, they were influenced by custom, which, in turn, was influenced by several non-English regions. Anglo-saxon legal customs originated from ancient Germanic customs and legal principles; Roman influence was seen through the church; and Scandanavian influence was seen due to the Viking invasions. These various influences – and the different weights assigned to them by lords - lead to different bodies of law, which exhibited “Englishry” to varying degrees.
Centralization | |
<
< | After the Norman conquest, the King - William the First – wanted to centralize England. Unsurprisingly, he proclaimed that all land-based rights were vested in the King. This included the right of holding court, which ensured the profits previously flowing to the feudal lords, flowed to the King. The Justices in Eyre (Eyre) were responsible for creating the necessary pipeline(s) between the hundreds and the King to ensure the proper flow of profits.
Notes
:
:
| >
> | After the Norman conquest, the King - William the First – wanted to centralize England. Unsurprisingly, he proclaimed that all land-based rights were vested in the King. This included the right of holding court, which ensured the profits previously flowing to the feudal lords, flowed to the King. The Justices in Eyre (Eyre)solidified this process by traveling to different “circuits” to communicate the custom of the king’s court and adjudicate disputes accordingly. | | | | |
<
< | As part of this process, the Eyre recorded the decisions of the cases adjudicated in the courts, though they did not record the accompanying reasoning. The entire process of settling disputes, and recording decisions, created uniformity and precedent within the realm – precedent which became the basis of “common law.” | >
> | The process of applying the custom of the king's court was intended to create a sense of relative uniformity, whereby the king could solidify his political arrangement; this uniformity in turn became the basis of the common law system. | | | | |
<
< | When the judges traveled to different circuits, they encountered many local customs being used to adjudicate disputes. And while these customs clearly were not established by the king, the king’s justices expressed general respect for the local customs. “We see no signs of any consciously conceived desire to root them out.” However, it was clear that they were not allowed to grow any further, “especially in all matters of procedure.” | >
> | And yet, despite these intent of “centralizing” the law, when the Eyre traveled to different circuits, they encountered many local customs being used to adjudicate disputes, which while clearly not established by the king, were nonetheless respected by the Eyre. “We see no signs of any consciously conceived desire to root them out.” However, it was clear that they were not allowed to grow any further, “especially in all matters of procedure.” . | | | | |
<
< | Putting it all together | >
> | A strained system
The result of the process used by the Eyre, whereby they “applied” the king's custom, and yet accepted the use of local custom, created a strained common law system. However, in many ways, the codification of local custom was a necessary prerequisite to implementing the broader centralized structure. Given the range of diversity in the society – of "ethnicity," language, and culture – the integration of localism made the acceptance of the political arrangement more appetizing and harmonious.
But the result of this system isn't always beneficial. While it may ease the tensions that arise from creating a hierarchical political structure, and a sense of relative uniformity which comes with such a central structure, the reality is that localism is still enshrined within the larger structure, and such localism often has the potential for perverse outcomes.
The current US common law system presents a strong illustration of this concept at work. The laws of the state of Louisiana reflect a common law localism that leads them to have distinct nature from those of, say, New York, both of which may be materially different from federal law which governs the entirety of the US. Let's take this illustration further by discussing the recent death of Alton Sterling. The police officers involved were recently acquitted and will not face criminal charges. In Louisiana, were the events took place, a police officer is allowed to use “reasonable force to effect the arrest and detention, and also to overcome any resistance or threatened resistance of the person being arrested or detained.”
As one can see, in the case of Alton Sterling, the governing law reads differently depending upon the local jurisdiction, even if the underlying outcomes in police shootings are mostly the same. | | | By now we’ve established that the king centralized the law by applying his own customs brought from Normandy. As such, it is clear that the establishment of English law owes its roots to several places: Germany, Rome, Scandinavia, and Normandy to name a few. Although after the conquest Englishmen consciously sought to make their law distinctly English, – often by objecting to following foreign principles simply because they were not English – the diverse origins of the law are impossible to wash away. | | | The trump administration | |
<
< | The current administration speaks tirelessly about “law and order,” and restoring American values. This is a large billboard addressed to us knowledgeable about the roots of our law. Law and order were used as means of consolidating power at the top. This administration is seeking to do the same. Moreover, American Law is based on English common law, which we’ve demonstrated, is not only diverse in its origins, but is not uniquely “English.” Similarly, American law is not uniquely American, but a combination of concepts from diverse origins.
So what exactly is the current administration seeking to achieve with their emphasis on “law and order”? We’ll have to go back to the foundation and why law was developed. It wasn’t a means of ensuring fairness, but the exact opposite – a means of systematizing inequality. As law students we need to fight more “law and order.”
Our call to action
So what to do? We know, making phone calls doesn’t work. So, we show up. And we make sure we inform people about the foundations of our legal system. But beyond that, I admittedly struggle with how to fight back against Trumpism, so this section is short and any and all suggestions are welcome.
Notes
:
| >
> | The current administration speaks tirelessly about “law and order,” and giving power back to the states Trump: We will give power back to the states. This is a large billboard addressed to us knowledgeable about the roots of our law. Law and order were used as means of consolidating power at the top. This administration is seeking to do the same. Moreover, the localism that was architected into US common law has created strained relationships through the North American empire and many possibilities for perverse outcomes due to different approaches to local matters. Moreover, the administration and republican leadership conveniently wields it's desire for localism, pushing back on the notion that States can't have “sanctuary cities” Trump criticizes 'sanctuary' cities in weekly address yet saying in other matters, like determining who should get a gun, are best left to the states, and that once that decision has been made, other states must accept it . The inconsistency between localism and our centralized political arrangement has lead to a reality and one where our president endorses states’ rights — but only when he agrees with the state. This strained reality should scare all of us. | | | | |
<
< |
I think the primary route to improvement here is in changing the
relationship between the past and your presentist second part. It
might be that the present is too present here, and that more
attention should be paid to the past, but I'm willing to grant the
ratio. What is needed, then, is a close and more analytical
connection. To say that law structures power on behalf of those who
own enough to make law is pretty easy, but precisely for that reason
not very informative. To say that diversity in the society---of
"ethnicity," language, and culture---was made more harmonious and
less oppressive over time because the common law was a system for
architecting localism into a centralizing political arrangement is
not so easy, but you can show it. That may have direct relevance to
the state of our large, diverse, and very strained common law empire
in North America. | >
> | Our call to action | | | | |
<
< | | >
> | So how do we prevent the current administration from leveraging our strained common law empire to it's advantage? I admittedly struggle with solutions. Perhaps first is bringing awareness to our strained common law empire, and second how this is strategically leveraged. Beyond this any and all suggestions are welcome. | | |
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. |
|
|
MalcolmEvansFirstPaper 4 - 03 Apr 2018 - Main.MalcolmEvans
|
| |
| META TOPICPARENT | name="FirstPaper" |
|---|
The Englishry of English law in the age of trumpism | |
<
< | -- By MalcolmEvans - 28 Nov 2017 | >
> | -- By MalcolmEvans - 31 Dec 2024 | | | Introduction
"The Englishry of English law" lies precisely in its diversity of origin. While Maitland’s phrase highlights the fact Englishmen came to “recognize [their law] as distinctively English,” this notion belies the reality that English law is highly influenced by diverse, non-English, traditions and customs. | |
<
< | This paper has two purposes. First, it discusses the diverse origins of English law. Second, it explores whether by analyzing the origins of English law, can we better understand the trump administration’s legal tactics and develop strategies to combat their actions? | >
> | This paper has three purposes. First, it discusses the diverse origins of English law. Second, it examines how these origins were harmonized to create local, yet central political arrangements. Lastly, it explores how such arrangements have strained US common law and why as such we should be wary of the trump administration's increasing insistence of defining situations as “local matter(s).” | | |
The Englishry of English law | | | In addition to the proceedings happening at the hundred level, lords of the counties could compel the lords of the hundreds to come to their courts for proceedings. While this dual-level system helped bring some sense of uniformity to the hundreds within a particular county, understandably customs between hundreds and counties varied widely. | |
<
< | Lords were free to apply their own “law,” to settle disputes, however they were influenced by custom, which, in turn, was influenced by several non-English regions. Anglo-saxon legal customs originated from ancient Germanic customs and legal principles; Roman influence was seen through the church; and Scandanavian influence was seen due to the Viking invasions. These various influences – and the different weights assigned to them by lords - lead to different bodies of law, which exhibited “Englishry” to varying degrees. | >
> | While lords were free to apply their own “law,” to settle disputes, they were influenced by custom, which, in turn, was influenced by several non-English regions. Anglo-saxon legal customs originated from ancient Germanic customs and legal principles; Roman influence was seen through the church; and Scandanavian influence was seen due to the Viking invasions. These various influences – and the different weights assigned to them by lords - lead to different bodies of law, which exhibited “Englishry” to varying degrees. | | | Centralization | |
<
< | After the Norman conquest, the King - William the First – wanted to centralize England. Unsurprisingly, he proclaimed that all land-based rights were vested in the King. This included the right of holding court, which ensured the profits previously flowing to the feudal lords, would flow to the King.
The Justices in Eyre (Eyre) created a pipeline between the hundreds and the king to ensure the proper flow of profits. The Eyre consisted of judges who traveled to different “circuits” to make sure the custom of the king’s court were applied consistently throughout England. | >
> | After the Norman conquest, the King - William the First – wanted to centralize England. Unsurprisingly, he proclaimed that all land-based rights were vested in the King. This included the right of holding court, which ensured the profits previously flowing to the feudal lords, flowed to the King. The Justices in Eyre (Eyre) were responsible for creating the necessary pipeline(s) between the hundreds and the King to ensure the proper flow of profits. | | | As part of this process, the Eyre recorded the decisions of the cases adjudicated in the courts, though they did not record the accompanying reasoning. The entire process of settling disputes, and recording decisions, created uniformity and precedent within the realm – precedent which became the basis of “common law.” |
|
|
MalcolmEvansFirstPaper 3 - 20 Dec 2017 - Main.EbenMoglen
|
| |
| META TOPICPARENT | name="FirstPaper" |
|---|
| | | Our call to action
So what to do? We know, making phone calls doesn’t work. So, we show up. And we make sure we inform people about the foundations of our legal system. But beyond that, I admittedly struggle with how to fight back against Trumpism, so this section is short and any and all suggestions are welcome. | |
>
> |
I think the primary route to improvement here is in changing the
relationship between the past and your presentist second part. It
might be that the present is too present here, and that more
attention should be paid to the past, but I'm willing to grant the
ratio. What is needed, then, is a close and more analytical
connection. To say that law structures power on behalf of those who
own enough to make law is pretty easy, but precisely for that reason
not very informative. To say that diversity in the society---of
"ethnicity," language, and culture---was made more harmonious and
less oppressive over time because the common law was a system for
architecting localism into a centralizing political arrangement is
not so easy, but you can show it. That may have direct relevance to
the state of our large, diverse, and very strained common law empire
in North America.
| | |
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable.
To restrict access to your paper simply delete the "#" character on the next two lines: |
|
|
MalcolmEvansFirstPaper 2 - 28 Nov 2017 - Main.MalcolmEvans
|
| |
| META TOPICPARENT | name="FirstPaper" |
|---|
| |
<
< | The Englishry of English law in the age of Trumpism | >
> | The Englishry of English law in the age of trumpism | | | -- By MalcolmEvans - 28 Nov 2017 | | | -- By MalcolmEvans - 28 Nov 2017 | |
<
< | | | | Introduction | |
<
< | What Maitland called "the Englishry of English law" indeed lies precisely in its diversity of origin. “Englishry” as a legal concept referred to the status of someone as a natural-born Englishman; Maitland’s phrase highlights the fact that Englishmen came to “recognize [their law] as distinctively English.” However, this notion belies the reality that English law is highly influenced by diverse, non-English, traditions and customs. | >
> | "The Englishry of English law" lies precisely in its diversity of origin. While Maitland’s phrase highlights the fact Englishmen came to “recognize [their law] as distinctively English,” this notion belies the reality that English law is highly influenced by diverse, non-English, traditions and customs. | | | | |
<
< | This paper serves two purposes. First, it discusses the diverse origins of English law. The second purpose is more ambitious: how can use the false believe in the “Englishry of English Law” and apply it to today’s world? Specifically, by analyzing the origins of English law, can we better understand the current US administration’s legal tactics and develop strategies to combatting their future actions?
Notes
:
| >
> | This paper has two purposes. First, it discusses the diverse origins of English law. Second, it explores whether by analyzing the origins of English law, can we better understand the trump administration’s legal tactics and develop strategies to combat their actions? | | | | |
<
< | The Englishry of English Law | >
> | The Englishry of English law | | | | |
<
< | Establishing the law | >
> | Establishing custom | | | | |
<
< | English law developed as a means establishing and enforcing a societal hierarchy. Historically, England was “organized” around a system of tribes, chiefdoms, and proto-states. Undergirding this decentralized system was feudalism. Feudal lords required disputes be submitted to local “courts” for settlement. This early system was a financial strategy as lords required compensatory damages be paid, not to the offended party, but to the lord who presided over the hundred where the dispute took place. | >
> | English law developed to enforce societal hierarchy. Historically, England was “organized” around a system of tribes, chiefdoms, and proto-states. Undergirding this decentralized system was feudalism. Feudal lords required disputes be submitted to local “courts” for settlement. This early system was a financial strategy as lords required damages be paid to the lord presiding over the hundred where the dispute took place. | | | | |
<
< | Given the decentralization of England, lords were theoretically free to apply their own law, but they often were influenced by custom – custom, which, in turn, was influenced by several non-English regions. English legal customs originated, in part, from ancient Germanic customs and legal principles; Roman influence made its way into custom through the church; Scandanavian influence could be seen as a result of the Viking invasions of the 8th and 9th centuries. These various influences – and the different weights assigned to them by different lords, lead to the simultaneous development of different customs – or several bodies of law, which exhibited “Englishry” to varying degrees.
Notes
:
| >
> | In addition to the proceedings happening at the hundred level, lords of the counties could compel the lords of the hundreds to come to their courts for proceedings. While this dual-level system helped bring some sense of uniformity to the hundreds within a particular county, understandably customs between hundreds and counties varied widely. | | | | |
<
< | Moreover, in addition to the proceedings happening at the hundred level, lords of the counties could compel the lords of the hundreds to come to their courts for proceedings. While this dual-level system helped bring some sense of uniformity to the hundreds within a particular county, understandably customs between hundreds and counties varied widely. | >
> | Lords were free to apply their own “law,” to settle disputes, however they were influenced by custom, which, in turn, was influenced by several non-English regions. Anglo-saxon legal customs originated from ancient Germanic customs and legal principles; Roman influence was seen through the church; and Scandanavian influence was seen due to the Viking invasions. These various influences – and the different weights assigned to them by lords - lead to different bodies of law, which exhibited “Englishry” to varying degrees. | | | Centralization | |
<
< | After England was conquered by the Normans, the King - William the First – wanted to centralize England. Unsurprisingly, he proclaimed that all land and land-based rights were vested in the King. This included the right of holding court, which became a means of ensuring that the profits previously flowing to the feudal lords, would now flow to the King. | >
> | After the Norman conquest, the King - William the First – wanted to centralize England. Unsurprisingly, he proclaimed that all land-based rights were vested in the King. This included the right of holding court, which ensured the profits previously flowing to the feudal lords, would flow to the King. | | | | |
<
< | To ensure the flow of profits was uninterrupted, the king instituted a system of courts. The Justices in Eyre (Eyre) were principally responsible for creating a pipeline between the hundreds and the king. To do so, the Eyre consisted of judges who represented the King and traveled to see different counties and hundreds – known as “circuits” - to make sure the law was applied consistently throughout England.
Notes
:
| >
> | The Justices in Eyre (Eyre) created a pipeline between the hundreds and the king to ensure the proper flow of profits. The Eyre consisted of judges who traveled to different “circuits” to make sure the custom of the king’s court were applied consistently throughout England. | | | | |
<
< | As part of this process, the Eyre recorded the decisions of the cases adjudicated in the courts, though they did not record the accompanying reasoning. The entire process of settling disputes, and recording decisions, created precedent within the realm – precedent which became the basis of common law. Moreover, the concept of “case law” derives from the fact common law was established on a case-by-case basis. | | | | |
<
< | While the Eyre was responsible for maintaining the conformity of the law, they conformed the law not by looking to general principles, but rather at the custom of the king’s court. Said differently, “the custom of the king’s court is the custom of England and [became] the common law.” | >
> | As part of this process, the Eyre recorded the decisions of the cases adjudicated in the courts, though they did not record the accompanying reasoning. The entire process of settling disputes, and recording decisions, created uniformity and precedent within the realm – precedent which became the basis of “common law.” | | | | |
<
< | Nonetheless, when the Eyre judges were traveling to different circuits, they encountered many local customs being used as the basis of adjudicating disputes. And while these customs clearly were not established by the king, the king’s justices expressed general respect for the local customs. “We see no signs of any consciously conceived desire to root them out.” However, it was clear that they were not allowed to grow any further, “especially in all matters of procedure.” | >
> | When the judges traveled to different circuits, they encountered many local customs being used to adjudicate disputes. And while these customs clearly were not established by the king, the king’s justices expressed general respect for the local customs. “We see no signs of any consciously conceived desire to root them out.” However, it was clear that they were not allowed to grow any further, “especially in all matters of procedure.” | | | Putting it all together | |
<
< | By now we’ve established that the King centralized the administration of law throughout the country. This centralization was based, in large part, on customs that the King brought from Normandy. For instance, when a person was slain, they were assumed to be a Norman and the hundred where the person was found would owe the King fine, unless the hundred could prove the person’s “Englishry.” | >
> | By now we’ve established that the king centralized the law by applying his own customs brought from Normandy. As such, it is clear that the establishment of English law owes its roots to several places: Germany, Rome, Scandinavia, and Normandy to name a few. Although after the conquest Englishmen consciously sought to make their law distinctly English, – often by objecting to following foreign principles simply because they were not English – the diverse origins of the law are impossible to wash away. | | | | |
<
< | As such, it is clear that the establishment of English law owes its roots to several places: Germany, Rome, Scandinavia, and Normandy to name a few. Although after the conquest Englishmen consciously sought to make their law distinctly English – by often objecting to following foreign principles simply because they were not English – the diverse origins of the law are impossible to wash away. | >
> | But how can we apply this discussion to our current lives? | | | | |
<
< | But now that we’ve arrived at an answer, how can we apply these concepts to our current lives? | >
> | A billboard for law students | | | | |
>
> | English common law developed to institutionalize profit streams and reinforce existing hierarchies. In using the English common law as the foundation of its legal system, the US adopted this relationship between money, law, and power. | | | | |
<
< | A billboard for law students | >
> | Specifically, there are noticeable aspects of US law that have direct ties to English law. First, the law is used for reinforcing and creating social order. Second, it’s a tool for maximizing profits. Third, the law is used to ensure an adequate supply of cheap labor. Fourth, the law labels people, particularly as criminals, which releases those in power of responsibility for improving the lives of common persons because, well, they are “criminals.”
The trump administration
The current administration speaks tirelessly about “law and order,” and restoring American values. This is a large billboard addressed to us knowledgeable about the roots of our law. Law and order were used as means of consolidating power at the top. This administration is seeking to do the same. Moreover, American Law is based on English common law, which we’ve demonstrated, is not only diverse in its origins, but is not uniquely “English.” Similarly, American law is not uniquely American, but a combination of concepts from diverse origins. | | | | |
>
> | So what exactly is the current administration seeking to achieve with their emphasis on “law and order”? We’ll have to go back to the foundation and why law was developed. It wasn’t a means of ensuring fairness, but the exact opposite – a means of systematizing inequality. As law students we need to fight more “law and order.” | | | | |
>
> | Our call to action | | | | |
>
> | So what to do? We know, making phone calls doesn’t work. So, we show up. And we make sure we inform people about the foundations of our legal system. But beyond that, I admittedly struggle with how to fight back against Trumpism, so this section is short and any and all suggestions are welcome. | | |
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable.
To restrict access to your paper simply delete the "#" character on the next two lines: |
|
|
MalcolmEvansFirstPaper 1 - 28 Nov 2017 - Main.MalcolmEvans
|
|
>
> |
| META TOPICPARENT | name="FirstPaper" |
|---|
The Englishry of English law in the age of Trumpism
-- By MalcolmEvans - 28 Nov 2017
Introduction
What Maitland called "the Englishry of English law" indeed lies precisely in its diversity of origin. “Englishry” as a legal concept referred to the status of someone as a natural-born Englishman; Maitland’s phrase highlights the fact that Englishmen came to “recognize [their law] as distinctively English.” However, this notion belies the reality that English law is highly influenced by diverse, non-English, traditions and customs.
This paper serves two purposes. First, it discusses the diverse origins of English law. The second purpose is more ambitious: how can use the false believe in the “Englishry of English Law” and apply it to today’s world? Specifically, by analyzing the origins of English law, can we better understand the current US administration’s legal tactics and develop strategies to combatting their future actions?
The Englishry of English Law
Establishing the law
English law developed as a means establishing and enforcing a societal hierarchy. Historically, England was “organized” around a system of tribes, chiefdoms, and proto-states. Undergirding this decentralized system was feudalism. Feudal lords required disputes be submitted to local “courts” for settlement. This early system was a financial strategy as lords required compensatory damages be paid, not to the offended party, but to the lord who presided over the hundred where the dispute took place.
Given the decentralization of England, lords were theoretically free to apply their own law, but they often were influenced by custom – custom, which, in turn, was influenced by several non-English regions. English legal customs originated, in part, from ancient Germanic customs and legal principles; Roman influence made its way into custom through the church; Scandanavian influence could be seen as a result of the Viking invasions of the 8th and 9th centuries. These various influences – and the different weights assigned to them by different lords, lead to the simultaneous development of different customs – or several bodies of law, which exhibited “Englishry” to varying degrees.
Moreover, in addition to the proceedings happening at the hundred level, lords of the counties could compel the lords of the hundreds to come to their courts for proceedings. While this dual-level system helped bring some sense of uniformity to the hundreds within a particular county, understandably customs between hundreds and counties varied widely.
Centralization
After England was conquered by the Normans, the King - William the First – wanted to centralize England. Unsurprisingly, he proclaimed that all land and land-based rights were vested in the King. This included the right of holding court, which became a means of ensuring that the profits previously flowing to the feudal lords, would now flow to the King.
To ensure the flow of profits was uninterrupted, the king instituted a system of courts. The Justices in Eyre (Eyre) were principally responsible for creating a pipeline between the hundreds and the king. To do so, the Eyre consisted of judges who represented the King and traveled to see different counties and hundreds – known as “circuits” - to make sure the law was applied consistently throughout England.
As part of this process, the Eyre recorded the decisions of the cases adjudicated in the courts, though they did not record the accompanying reasoning. The entire process of settling disputes, and recording decisions, created precedent within the realm – precedent which became the basis of common law. Moreover, the concept of “case law” derives from the fact common law was established on a case-by-case basis.
While the Eyre was responsible for maintaining the conformity of the law, they conformed the law not by looking to general principles, but rather at the custom of the king’s court. Said differently, “the custom of the king’s court is the custom of England and [became] the common law.”
Nonetheless, when the Eyre judges were traveling to different circuits, they encountered many local customs being used as the basis of adjudicating disputes. And while these customs clearly were not established by the king, the king’s justices expressed general respect for the local customs. “We see no signs of any consciously conceived desire to root them out.” However, it was clear that they were not allowed to grow any further, “especially in all matters of procedure.”
Putting it all together
By now we’ve established that the King centralized the administration of law throughout the country. This centralization was based, in large part, on customs that the King brought from Normandy. For instance, when a person was slain, they were assumed to be a Norman and the hundred where the person was found would owe the King fine, unless the hundred could prove the person’s “Englishry.”
As such, it is clear that the establishment of English law owes its roots to several places: Germany, Rome, Scandinavia, and Normandy to name a few. Although after the conquest Englishmen consciously sought to make their law distinctly English – by often objecting to following foreign principles simply because they were not English – the diverse origins of the law are impossible to wash away.
But now that we’ve arrived at an answer, how can we apply these concepts to our current lives?
A billboard for law students
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable.
To restrict access to your paper simply delete the "#" character on the next two lines:
Note: TWiki has strict formatting rules for preference declarations. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of these lines. If you wish to give access to any other users simply add them to the comma separated ALLOWTOPICVIEW list. |
|
|
|
|
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
|
|