I’m only in the middle of the introduction, but it appears the primary thesis of Harold Berman’s “Law and Revolution” is that the development of papal law & ecclesiastical autonomy represented a radical break with the past that defined the “modern” era (which he defines as taking place from about 1050 AD until 1945). He acknowledges that there was also more gradual evolution interacting with his specified periods of revolution (in addition to the usual ones he refers to the reformation as the “German Revolution”) we can also detect more extreme discontinuities in the law (which has always served a role of transmitting tradition). For instance “One cannot say, for example, that trial by ordeal and trial by battle gave rise to trial by jury [...]“. Perhaps not trial by jury itself, but allegedly there is a hallowed feature derived from trial by combat: the right to confront one’s accusers. At least that’s the basis of this feminist argument that the right should be “unincorporated” for cases of domestic violence. Since I never bought into incorporation, I agree, though I don’t know what the state constitutions say. Peter Leeson argues that trial by battle was an efficient means of solving the disputes faced by courts of that time.
July 21, 2010
Your honor, my client requests the opportunity to respond to his accuser by whacking him over the head, or failing that to impeach his testimony through glaring and rude faces
Posted by teageegeepea under Uncategorized[14] Comments
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July 22, 2010 at 1:38 pm
I find this depiction of trial by combat hilarious.
July 22, 2010 at 5:03 pm
Efficient, sure. Effective? Probably not.
“If you lost the contact inside the house, why are you searching underneath the streetlight?”
“Well, the light was better there.”
July 22, 2010 at 5:38 pm
What do you mean by efficient versus effective?
All you need for dispute resolution is a set of rules of the game that are agreed upon ahead of time. I doubt it really matters what the rules are.
Once I thought there was a strong justification for the right against self-incrimination in criminal cases, but now I think it’s just as arbitrary as most of the other procedural rules.
Confrontation makes more sense, but it can end up being fairly meaningless when you add in the rest of the rules of the procedural game. I’ve gotten dozens of domestic violence protective orders against unrepresented restrained parties (abusers) – they’d have the right to cross-examine the victim at the hearing, but almost never were they able to formulate a question that I couldn’t successfully object to. Silly rules like hearsay and lack of foundation would get them every time.
July 23, 2010 at 1:18 pm
It certainly is easier to carry out the task of searching in a well-lit area, isn’t it. But if what you’re looking for isn’t there, it doesn’t matter how much easier to search it is – you will never be successful in your ultimate goal, no matter how much more smoothly your proximate goals are met.
In terms of justice, trial by combat does not and cannot be used to reach the ultimate goal. It doesn’t matter how convenient the process is – it doesn’t work.
I suspect that justice wasn’t the point.
July 23, 2010 at 3:19 pm
I see what you mean – I am so jaded I hadn’t even considered that an “effective” trial would, ya know, punish guilty people.
July 25, 2010 at 1:41 pm
What’s “justice”? As a kid I thought it meant the accurate application of the law, but that seems a non-standard definition these days. Leeson frames the purpose of trial-by-combat as allocating resources to those with the highest willingness to pay.
Sister Y, the focus was more on restitution than punishment.
July 26, 2010 at 3:32 pm
But laws can themselves be unjust.
‘Justice’ seems to mean “when the application of law matches certain intuitive standards people have about fairness”.
July 25, 2010 at 10:38 pm
“Once I thought there was a strong justification for the right against self-incrimination in criminal cases, but now I think it’s just as arbitrary as most of the other procedural rules.”
I always thought this was a straightforward extension of the State bearing the burden of proof against those who are presumed innocent, and that the right provided some safeguard against the admission of coerced testimony.
July 26, 2010 at 10:19 pm
Yes, melendwyr, that idea confused me as a kid. Then “justice” ceased to be all that meaningful, particularly since “justice as fairness” is distinctive to Rawls rather than a universally agreed synonym. And of course “fairness” is quite vague as well. Any outcome a kid doesn’t like they tend to deem unfair.
I think all evidence should be admissable but if the state violates things we deem rights, those reponsible should be punished. Letting the guilty go free and violations that produce evidence of innocence to go unpunished is the worst of both worlds.
July 22, 2010 at 11:11 pm
Carter, I agree but have a suspicion that there are much more hilarious depictions from the period.
I think there can be sub-optimal procedural rules. If the outcome of a trial is decided by something as arbitrary as a coin toss, that could encourage people to file lots of frivolous lawsuits. Leeson argues that people had to make investments in the trial by combat and so it revealed willingness-to-pay.
July 27, 2010 at 11:13 am
That is no more a problem for the concept of fairness than the fundamentalist objection that fitness is tautological impedes evolutionary biology.
Humans have inborn concepts of fairness which arise naturally out of resource-sharing issues; those inherited traits are known to be shared with various apes and monkeys.
They’re about as accurate, and as useful, as the inborn heuristics which make visual illusions possible – that is, they’re known to be wrong much of the time, but their utility-expenditure ratio makes them evolutionarily favored.
***
In a system where outcomes of trials were determined by a coin toss, there’s no advantage to being innocent, there are plenty of reasons for people with no cases to begin prosecutions, and few reasons for people who have valid cases to do so. Result: lots of nuisance and revenge cases, few valid ones, and no deterrent effect.
July 29, 2010 at 11:52 am
Lord Dacre (Hugh Trevor-Roper) makes the point in his long essay on “The Witch Craze in Western Europe” that the rediscovery of Roman law gave rise to the renewed persecution of witches and to the reintroduction of torture. In Carolingian times the Christian position was that witchcraft was mere superstition, and that anyone who put a person to death for the supposed crime of sorcery was guilty of murder.
This changed in the later middle ages, when the belief in witchcraft revived; and as north European legal systems became Romanized, torture (which was a feature of Roman criminal procedure) was used to extract confessions from accused witches. Witch persecutions were not, it turns out, a feature of the “dark ages,” but rather of the Renaissance and early modern period; the use of torture, a result of the rebirth of classical learning.
July 29, 2010 at 9:19 pm
I didn’t know the Romans had witch trials. But I had heard earlier that the heyday of that started in the renaissance. The Puritans, for example, bought heavily into it, and I believe it was less common in Catholic areas.
July 30, 2010 at 11:08 am
The legal status of magic in classical antiquity was ambivalent. Many officially sanctioned religious observances had magical elements, e.g., augury in ancient Rome, the Eleusinian mysteries in Greece. Such magic was approved as serving the common good. It was the abuse of magic for antisocial purposes the ancients condemned; Plato wanted to penalize it in the utopian state he outlined in the “Republic,” and Rome actually did so in the Twelve Tables, which are the founding documents of Roman law. Many laws were passed under the early principate to forbid magical practices, and the fourth century AD saw more such legislation against “prava religio” and “superstitio.”
Belief in witchcraft was common amongst the Germanic pagan tribes, and was typically punished by death. It was this practice that the Carolingian ecclesiastical constitutions I mentioned in the previous post attempted to suppress, because it was part of pagan superstition.
The revival of witchcraft prosecutions took place before the Reformation, and the famous fifteenth-century textbook on the subject, the “Malleus maleficarum,” was written by two Dominican monks, Sprenger and Kramer. The revival of Roman-law criminal procedure, in which torture was a procedural necessity, made the extraction of confessions easy. The remarkable similarity of recorded witch confessions suggests that the torture was accompanied by leading questions.
Puritan enthusiasm for witch trials came late; the Salem trials of 1692 were among the last that took place under English law. Torture, while intermittently practiced in England, was never legally countenanced under common law as it was under Roman law. Francis Hutchinson’s “An Historical Essay Concerning Witchcraft” (1720) claimed that witch panics were commonest in “superstitious” Catholic countries.