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This chapter discusses how a criminal justice system can operate without state input. Conventional wisdom states that the state is an essential aspect of any criminal justice system, based on three assumptions: first, only the state can delineate exactly what acts constitute a crime; second, the purpose of the criminal law is a collective, society-wide statement of condemnation against certain acts; and third, coercion and violence are often used in a criminal justice system and the state has a monopoly on the leigitmate use of force. The chapter rebuts each of these assumptions. First, the chapter notes that, through a combination of natural law and societal mores, there is a consensus on what actions should be considered criminal, even without a state legislature promulgating specific crimes. Second, private responses to criminal activity can further society's goals of deterrence and retribution, even though they also fulfill the needs of the private actors. Third, many responses to criminal activity do not require coercion or force and, even if they do, the state has authorized private uses of force in certain circumstances.
This chapter traces the history of each phase of private law enforcement, from private policing, to private adjudications, to private dispositions (also known as vigilante actions).The chapter points out that, throughout history, private parties have played a larger role in the criminal justice system than most people expected.
The introduction provides an indepth overview of the book's focus, theoretical orientation, critical methodology, significance, originality, and chapter synopisis. It begins by noting that while many analysts may have a sense that accusations initiate criminal matters, neither sociology, history, nor criminal law have focused critical attention on the socio-political forces which first select people to face criminal trials. This is in many the overlooked foundation of criminal law, and state criminalization. In an attempt at redress, examines though socio-political foundations by analyzing (criminal) cases a 'paradigmatic' examples of how criminalization begins. It does so by turning to a unique context and time -- Alberta, Canada circa 1874 –1884 –- where the Dominion of Canada deliberately formed a police force to enforce colonial law. Relying on Wittgenstein and Foucault, and 'law as performance' scholars it indicates how one might approach the idioms, powers, and performances through which pretrial criminal accusations translate social lore into law.
The Christianization of Knowledge in Late Antiquity: Intellectual and Material Transformations traces the beginning of Late Antiquity from a new angle. Shifting the focus away from the Christianization of people or the transformation of institutions, Mark Letteney interrogates the creation of novel and durable structures of knowledge across the Roman scholarly landscape, and the embedding of those changes in manuscript witnesses. Letteney explores scholarly productions ranging from juristic writings and legal compendia to theological tractates, military handbooks, historical accounts, miscellanies, grammatical treatises, and the Palestinian Talmud. He demonstrates how imperial Christianity inflected the production of truth far beyond the domain of theology — and how intellectual tools forged in the fires of doctrinal controversy shed their theological baggage and came to undergird the great intellectual productions of the Theodosian Age, and their material expressions. Letteney's volume offers new insights and a new approach to answering the perennial question: What does it mean for Rome to become Christian? This title is also available as Open Access on Cambridge Core.
This chapter considers the socioeconomic functionality of legal codes and codification through the lens of late imperial Chinese legal history. Specifically, it asks whether formal legal codes can wield significant influence over private socioeconomic behavior despite being poorly enforced—or even unenforced—and whether such influence derives, in part, from the symbolic value of codification itself. It argues that the answer to both questions is likely “yes,” at least in the context of Qing Dynasty private law. This contains potentially generalizable insights into the nature of legal authority and prestige, some of which may potentially be applied to the recent passage of the Chinese Civil Code in 2020.
Ireland’s history within the United Kingdom is, not to put too fine a point upon it, complicated. The question of the shared constitutional history of Ireland and Great Britain is more complicated again by the uncodified nature of the constitution of the United Kingdom. This chapter explores the constitutional links between Ireland and the United Kingdom after 1800. It does so by examining both the experience of constitutionalism in Ireland, and the manner in which this experience was understood and how it influenced constitutional development in the United Kingdom.
The British constitution has always been an imperial constitution. To deny this is a common, if mistaken, position in the civil war over its true nature. The institutional structure and ideological discourse of the British constitution always extended beyond the pale of England and the English people. For nearly a millennium the British imperial constitution has expanded and contracted across the globe to govern millions of disparate peoples as subjects of a common Crown. The Norman reconstitution of the English nation began by fusing the multiplicity of local laws into a single common law for English people. Over the seventeenth century the rise, demise and then compromise of the Crown against Parliament was played out in a long civil war fought across the Atlantic and fuelled by novel political arguments drawing on new colonial knowledge about Indigenous peoples. A second civil war in the following century saw most American colonists break free from the imperial constitution, which was then reconstituted to satisfy some remaining subjects and to suppress others. In the nineteenth century a third civil war of sorts erupted across the empire as Hindu and Muslim, Métis and Māori, and Black men and women from Jamaica to the Gold Coast rose up in armed resistance to British imperial governance. Each rebellion drew on a global discourse on the British imperial constitution that justified or rejected competing political visions of collective life.
This article explores the relationship between tax law and settler colonialism by looking at the ways in which taxes can be part of the “civilizing” process of Indigenous peoples. In 1921, the Territory of Alaska enacted a “license tax on the business of fur-farming, trapping and trading in pelts and skins of fur-bearing animals.” Since most trappers were Natives, the “fur tax” de facto targeted them. This article unpacks the sociocultural and political dimensions of the fur tax against the backdrop of Alaska’s settler colonial history. Despite what the Alaska attorney general claimed was its “strict” revenue-raising function, the tax was part of a much broader settler colonial agenda. That agenda sought to turn semi-nomadic, “uncivilized” Native hunters into spatially grounded, “civilized” farmers, gardeners, reindeer herders, or wage workers. Ultimately, I suggest, within many if not most settler colonial spaces political and sociocultural ideologies alter the initial revenue-raising function of taxes.
George Garnett explores the roles of time and history in English Common Law, and how they gave the Common Law its political salience. He begins by picking apart F.W. Maitland’s celebrated contrast between the ‘logic of evidence’, deemed to be characteristic of historical understanding, and the ‘logic of authority’, deemed to be characteristic of legal understanding. Celebrated as this statement has been, Garnett contends that the almost – but crucially not quite – antithetical relationship has never been properly understood, and that it rests in part on Maitland’s misunderstanding of how legal development and continuity worked in the period before judicial precedent became central, in the late sixteenth century. The chapter is therefore concerned both with Maitland and with the peculiar problems encountered in tracing legal development and continuity in a system which was primarily customary rather than statutory. By extension, Garnett considers the implications for explaining the use of English legal history in political thinking, particularly in the seventeenth century. Emphasis is laid on Maitland’s distaste for Sir Edward Coke, then as now, the most influential Common Law jurist.
This short epilogue completes our story by giving a glimpse into what happened next. It surveys in outline some of the major developments affecting the common law after the Civil War. We return to the space ship, Freedonia and to our narrator the Man of Law as he reflects on the stories he has told and tells one last tale: of murder and trial by battle ... in nineteenth-century England.
Our penultimate chapter explores the extent to which the Tudor period saw a legal renaissance. It examines developments in the common law courts but also explores the development of new conciliar courts outside the common law, most notably star chamber and the court of equity, which were to prove influential. It also examines the further rise in the use and importance of statute law in this period, demonstrating that the Reformation statutes that split England from the Roman Catholic Church underscored the power of Parliamentary statute. Attention is also given to some developments in the common law courts during this period concerning the law of obligations (the development of the principle of consideration in contract law), property law (the development of the writ of ejectment that replaced the older land law writs and the origins of the law of trusts) and criminal law (the development of the distinction between murder and manslaughter).
Modern legal systems generally have a category of obligations known variously as restitution, unjust enrichment, unjustified enrichment or some variant of these. Whichever legal system they are found in, they have a common source in Roman law: the stoic idea that enrichment at the expense of another is unjust, obligations quasi ex contractu and the different forms of non-contractual condictiones. This chapter traces the development of the ideas from Justinian to the modern day, picking up ideas of equity along the way. It focuses on the shifting principles underlying the category, typified by its name, rather than its concrete instantiations, aiming to trace the largely unthinking patterns of borrowing from one legal system to another and from one language to another.
This book seeks to tell you what you are unlikely to be told as part of your law course. It provides the ‘back stories’ of some of the main topics that you are likely to study during your degree. This book is designed to give you a head start and should mean that your study of the current law makes more sense. The chapters that follow tell some of the main stories of the history of English law. They focus on stories told about the origins of the common law, tracing elements of the development of English law from around the time of the Norman Conquest to the outbreak of Civil War in the Stuart period. This introductory chapter provides a run-through of some of the main arguments. It falls into three parts. The first part explains what the common law is and provides an introduction to Maitland, our chosen tour guide. The second part identifies seven reasons why a historical approach to law is needed. The third part of the chapter provides a brief guide to further reading and an outline of the chapters that follow, which will explore some of the stories of the common law.
This short prologue provides an introduction to the main features of the English law for those readers who are new to the study of law. It introduces our narrator, the Man of Law, as he explains some of the curious features of the common law.
This final chapter examines the early Stuart period in the years leading to the Civil War. This ending point, though necessarily arbitrary, has been chosen because of the entwinement between centralised royal power and the origins of the common law described in previous chapters means that it can be said that the common law had reached a level of maturity when it was able to survive for an extended period of time without a monarch. The Civil War further provides an appropriate conclusion to our survey given that it was the culmination of the conflicts between the king and his advisers, which date back centuries to Magna Carta and beyond. The chapter explores this final time period by exploring the work, behaviour and legacy of Sir Edward Coke, who has been likened to the Shakespeare of the law, and who is often seen as the bridge between the medieval and the modern laws.
Although we will be taking Maitland as our main tour guide, this chapter will explore the various storytellers by introducing the various perspectives. It will begin by distinguishing between what may be referred to as the intellectual history tradition in legal history, which explores the development of legal ideas within legal sources, and the social history tradition, which explores legal changes within their social context. It will demonstrate that both approaches complement one another and that, although Maitland is often regarded as a significant figure in the intellectual history tradition, some of his work can also be situated in the social history tradition. Further, it will be shown that Maitland’s work often demonstrated what may be styled a radical approach to legal history. The chapter will conclude by examining a number of radical perspectives that have been taken to the interaction between law and history, namely critical legal history, feminist legal history, critical race theory and my own call for a subversive legal history. These approaches are presented so that you can critique and apply insights from these perspectives as we re-tell and question the conventional stories of the genesis of the common law.
This chapter completes our examination of the long Plantagenet period, which culminated in the bloody War of the Roses. However, as the chapter title makes plain, the focus is on the impact that the deadly plague of this period had upon law and order. The chapter explores the different interpretations made of the importance of the Black Death and surveys developments of this period such as the origins of what we would today call employment law, significant increases in the effectiveness of the administration of justice chiefly through increased powers for justices of the peace and important developments in both law of obligations (exploring how actions on the case developed from the writ of trespass and how it further developed into the action on the case for assumpsit) and the criminal law (focusing on treason and murder).
This chapter explores the influence of the rhetorical tradition on the early modern common law of interpretation. It focuses on William Fulbecke’s A Direction or Preparative to the Study of the Lawe (1600), a guidebook that instructed law students on principles of legal interpretation. Fulbecke was writing at a time when interest in interpretation was particularly intense, but his discussion is striking for its unusual sophistication. The chapter argues that Fulbecke’s account was strongly influenced by works on rhetoric, the art of speech and persuasion. Fulbecke was a pioneering comparative lawyer, and would have known that rhetoric was often used to aid interpretation by lawyers of the ius commune. The chapter demonstrates that rhetorical ideas also pervaded the English law of interpretation. Their influence is clear in Fulbecke’s work: Fulbecke aimed to set out a clear method of legal interpretation for beginners, based on the rhetorical works that students encountered at school and university. This chapter broadens our understanding of the relationship between the common law and the rhetorical tradition, demonstrating the importance of understanding the history of English law in its wider intellectual context.
This chapter explores the most well-known English constitutional text and the period that followed its enactment. It explores how Magna Carta was a much more mundane and feudal document than its reputation suggests. It also examines how it was by no means the sole kingly concession during this period and discusses the origins of Parliament and how this affected the common law. The chapter falls into three sections. The first section discusses the importance and effect of Magna Carta. It explores what Magna Carta said and what effect it had upon feudalism, the operation of courts, governance and upon immigration. The second section will then explore the debate concerning the role the charter played in the development of Parliament, examining what Magna Carta said and also the importance of alter developments during this period. The final section will examine the impact of the charter upon the position of women.