Thursday, 27 December 2012

The social function of Law: ancient and modern


I have posted before on the modern conception of Law as contrasted with the pre-modern:

My point being that we tend to focus on the deficiencies of ancient law as evaluated from the context and with the assumptions of modern law, but ancient law was much more in-line withthe assumptions and purposes of spontaneous human common sense; as is well described by Peter Frost :

...Murder cases were rarely solved during the Middle Ages. Executions were largely for more common and less serious crimes like highway robbery and horse theft (although such offences would have been difficult to commit without a willingness to kill). 

Yes, medieval justice was worse than modern justice at solving specific murder cases. In general, it was less effective at finding the specific criminal behind any one crime. But it was more effective, and ruthlessly so, at profiling likely criminals.

This explains the seemingly irrational harshness of medieval punishment for petty crimes. The punishment was aimed not so much at the crime but at the underlying criminal mindset.

If someone had crossed the psychological barrier of committing one crime, however petty it might be, he or she would probably commit—or may have already committed— other crimes of greater importance.


Interestingly, one area of modern 'law' in which medieval methods are used, is the enforcement of that most modern of phenomena: political correctnes. 

One microscopic infraction of, say, speech codes (e.g. the use of a taboo word) may lead to catastrophic punishment including heavy fines (often inflicted in the mode of legal costs), public labeling as a social pariah (or outlaw, to use the medieval term - meaning that any harm or violence done to one marked as being outwith-the-law goes unpunished), deportation or exclusion from a nation, and prison. 

Indeed, even to be accused of a 'hate crime' by a representative of a PC-privileged group is regarded as sufficient evidence of guilt. 

So, if you are the kind of person who attracts accusation from PC-privileged group representatives for PC-violations, then you are judged to be the kind of person that society wants rid of; and 'open season' is (in effect) declared upon such outlaws. 



dearieme said...

Oliver Rackham, the great historian of the countryside, has challenged anybody to name anyone punished by the violent means promised in the Forest Laws for poaching deer or hare, or .... He says nobody can: that the modern view of those laws misunderstands how they worked - people typically got fined, they did not get hacked to pieces. It was, in effect, a sort of rent charged by the holders of the hunting rights.

Bruce Charlton said...

@d - Oh good grief! You'll be telling me next that the Industrial Revolution was good for the working class, or that majority rule has been a disaster for South Africa/ West Indies, or that the British ruling class lost more by the 1914-18 war than the proletariat, or that FDR did not cure the great depression - and that almost everything we think we know is just a vast conspiracy of Leftist propaganda...


But seriously, I hadn't heard that about the forest laws - it sounds all too probable.

stephens said...

It's one of the many Leftist contradictions that "prison doesn't work" yet there are longer prison sentences for their designated "hate" crimes.
(Sections 145 & 146 of the Criminal Justice Act 2003 caters specifically for increased sentencing.)

Anthony said...

Interesting analysis...One other key difference between classical/medieval/pre-modern laws and modern laws (which transcends issues surrounding their enforcement/non-enforcement) might be in their views on the potential for rehabilitating criminals.

Daybreaker said...

George Monbiot: The day my inner anarchist lost out...

"Everyone was welcome at the site and, as they were travellers, one of the groups marginalised by the concentration of control and ownership of land in Britain, we went out of our way to accommodate them. They must have thought they had died and gone to heaven."


"We had no idea how to handle them without offending our agonised liberal consciences. They saw this and exploited it ruthlessly."

The travelers are the sort of group medieval law "marginalized".

Monbiot's encounters with travelers, focusing on the uselessness of his liberal principles in dealing with them, are funnier if you let slip from your mind that he has spent a lifetime making honest people as helpless as possible against "marginalized groups" like these and worse, and that he and his liberal peers are all for importing into white lands where people have been genetically pacified non-whites from "oppressed" parts of the world where violence has stayed dominant, genetically and in every other way.