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MalcolmEvansFirstPaper 2 - 28 Nov 2017 - Main.MalcolmEvans
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< | The Englishry of English law in the age of Trumpism | >
> | The Englishry of English law in the age of trumpism
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| | | -- By MalcolmEvans - 28 Nov 2017 | | | -- By MalcolmEvans - 28 Nov 2017 | |
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< | | | | Introduction | |
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< | 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.
Notes
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> | "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?
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> | 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?
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< | The Englishry of English Law | >
> | The Englishry of English law | | | | |
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< | Establishing the law | >
> | Establishing custom | | | | |
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< | 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.
Notes
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:
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> | 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
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> | 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.
Notes
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<
< | 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.”
Notes
:
| >
> | 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? | | | | |
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< | 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. | | | | |
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< | 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.
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> | 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 | | | | |
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> | 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.
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MalcolmEvansFirstPaper 1 - 28 Nov 2017 - Main.MalcolmEvans
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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:
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