Monday 20 September 2010

Common sense law versus nonsensical legalism

“Until the thirteenth century most countries continued to use the old legal codes that they had followed for generations.

“In these codes, the legal process was started when a member of the public made a formal ‘accusation’.

“When criminal accusations were made, the defendant had a number of ways in which he could demonstrate his innocence. One was to produce a number of character witnesses who would demand an acquittal. Another was to undergo trial by ordeal.

“In neither case did real evidence have much relevance. Furthermore the accuser was vulnerable to punishment if the defendant was acquitted.

“Someone with a bad reputation could never win a legal battle against someone who was generally thought of as honest.”

God’s philosophers. James Hannam. Icon Books, London, 2010. Pages 84-5.


In the above excerpt, Hannam is describing what was probably an improvement in the legal system introduced by the Roman Catholic Inquisition – a new system in which the authorities would appoint a magistrate or inquisitor to investigate the crime, interview witnesses, examine the evidence and reach a verdict.

However, the point I wish to make is that the old, pre-1200, legal system did have *some* merit. Although clearly there will be exeptions and potential abuses, as a general rule of thumb it is rational and fair that “Someone with a bad reputation could never win a legal battle against someone who was generally thought of as honest.”

So the old legal code had the advantage of being underpinned by the common sense knowledge that an habitually honest person is more likely to be telling the truth in any specific instance than one who habitually tells lies; and that an habitual thief/ thug is more likely to have committed a specific robbery/ assault than is someone known to be habitually honest and gentle.


But 800 years down the line, this common sense has been almost-completely discarded from formal discourse (and, increasingly, also from even private and informal discourse among the elites).

Now if an habitual liar and an habitual truth-teller disagree, then it is ‘just one person’s word against another's', and the law does nothing.


Indeed, political correctness has offered us a moral inversion, whereby we are most concerned to avoid the ‘prejudice’ of assuming that because a person is habitually dishonest, then they are likely to be lying in this specific instance.

Instead we focus on the fact that the habitually dishonest individual *might* uncharacteristically be telling the truth, for once – and this so obsesses us that that we construct systems which actually assume that knowledge about the past is an intrinsically misleading guide to the future.

Modern legal and other codes are indeed always biased against the people with a track record of sociable behaviour whom the early medieval codes would have assumed were ‘always’ in-the-right.

This is utterly typical of modernity. In the wish to set ourselves above and apart from our ancestors, we in the modern world have created social systems that avoid the specific and rare mistakes of the past at the cost of enforcing systematic error.


In order to avoid infrequent injustice against people of bad character, which happened in the past; we nowadays enforce routine injustice against people of good character.

Is this progress?

1 comment:

dearieme said...

There's a case for "Jeddart Justice". First you hang the wrongdoer, then you hold the trial. That way he can't subborn the witnesses.