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.