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The Englishry of English law | |
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< | 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.
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| | | 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 | |
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< | 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.
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> | 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. | | | | |
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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 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. | | | | |
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< | 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.”
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> | 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.” . | | | | |
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< | 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.
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| | | 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 | |
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< | 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.
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> | 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.
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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 | | | | |
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> | 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. |
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