English Legal History and its Materials

The Englishry of English law in the age of trumpism

-- By MalcolmEvans - 19 Jul 2018

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,” (1) this notion belies the reality that English law is highly influenced by diverse, non-English, traditions and customs.

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).”(2)

The Englishry of English law

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. (3) 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 (4) where the dispute took place.

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.

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&#8221 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 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. (5) The decisions that resulted from this hybrid approach became the foundation of the common law system.

A strained system

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.

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 (6) 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 (7) in the New York analog, there are specific provision governs the use of deadly force (8). 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." (9)

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 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 (10). 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 how strained the system is, and how such vulnerabilities are strategically leveraged. Beyond this any and all suggestions are welcome!


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Notes

1 : F. Pollock & F.W. Maitland, History of English Law Before the Time of Edward I (2nd ed. 1899), 188

2 : Given this broader purpose, I’m writing this paper for an uniformed audience. Certain concepts will be explained in the footnotes, so read them, please!

3 : Feudalism in short is the idea of a lord’s granting of a fief, or property right, to a vassal (person) in exchange for the vassal’s labor and military support / protection.

4 : A “Hundred” is simply an area, similar to the concept of a zip code.

5 : _Maitland_, 184. “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.”

6 : Putting aside the technicality that part of Louisiana's law has a civil law character, even this law is influenced by the common law.

7 : An officer can 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.” See the full statute CCRP 220 here

8 : The provision states “deadly physical force may be used for such purposes only when [the police officer] reasonably believes that one of several categories is present. See the full statute here

9 : “[e]ven the Obama administration, which cultivated an aggressive reputation on such cases, declined to prosecute officers in several high-profile killings.” See Officers Won’t Be Charged in Black Man’s Shooting Death in Louisiana

10 : See Conceding to N.R.A., Trump Abandons Brief Gun Control Promise(“[trump] said that his administration was studying the [gun] issue and suggested that states should decide whether to prohibit people under 21 from buying the kind of assault weapon”) and Concealed-carry gun permit 'reciprocity' means every state would accept all states' permits


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r7 - 06 Apr 2018 - 18:24:10 - MalcolmEvans
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