The Brehon laws of ancient Ireland, which were remarkable in many ways
for their humanity and moderation in an era characterised elsewhere in Europe by capital
punishment for the most trivial of crimes and judicial procedure based upon the
ordeal, operated entirely on this principle.
When Ireland had High Kings, they would call a feis or gathering of all the educated people and leaders of the
country every three years to discuss matters of law. The promulgation of laws was not a monopoly
of kings; in order to pass a law, the king had to call together a council of at
least nine people of particular stations, including a teacher of law, a teacher
of history, a bard, clergymen and so on. The king
himself was bound by certain specific laws.
The laws themselves were essentially the product of and guide to the
negotiations of the different parts of society with each other, each part
having certain rights.
That this process
of negotiation was ongoing can be seen in the advancement of women’s rights in
recorded laws. Despite a low status in
the earlier law tracts, by the late "Dark Ages," Irish women were the freest in
Europe, able to divorce as well as to own, accumulate and transmit property. The very legal process itself took on the
aspect of a negotiation mediated by the jurist, and the
consequences for even serious crimes were often shockingly lenient in
modern eyes. The process of negotiation
within the society over time leant the Irish laws a remarkable humanity,
mirrored in the other Celtic law systems for which we have evidence, and
arguably in the Anglo-Saxon laws of Alfred the Great, who, likely due to centuries of Irish missionising, seems to have adopted many similar legal concepts.
The laws of Norman England were by far the darkest in
British history, reverting to trial by ordeal, not to mention hanging for offenses ranging
from adultery to petty theft to killing the King’s game. The nobility
and the Church had their own courts, and the power of life and death over their serfs. Of the legal systems in play, the king’s law was, for the average person, perhaps
the least significant.
Rivalry between
kings and nobles led to the collective agreement (soon broken) known as Magna
Carta, and later to a particularly interesting rebellion led Simon de Montfort,
Earl of Leicester. Simon, whose
anniversary of death was this past week, was responsible the first directly-elected
Parliament, also the first which had substantial rights of government and in
which commoners had a substantial role, and was one of the first pioneers of
democracy in England. Simon was one of
the first to see beyond the rights of his own class and to try for a
constitution beneficial to the nation writ large.
It was around this time (the 13th Century) that the English monarchy smartened
up. Royal law had enjoyed minimal presence
in the Shires, and to lend it credibility, the idea of indictment, and later
trial, by a jury of freemen was introduced.
The former kind of jury seems to have been a significant influence on the abandonment of the ordeal system, and there are records of accused persons throwing themselves "on the verdict of the country" before the trial jury was introduced. The free farmers and the burgers of the growing charter boroughs, the
minority of the non-noble population directly affected by the King’s law, would
henceforth be judged firstly by the fair mind of the community (your mileage
may vary) and secondly by the distillation of the fair mind of the law (ditto),
embodied in the precedents of the Common Law. The power of the jury was of great help to the non-noble classes in resisting the nobility on certain points, such as the noble monopoly on game. A jury composed of poachers and those sympathetic to poachers was unlikely to uphold an unfair noble privilege when one of their peers was caught.
The negotiations and arguments around the role of the jury have a
fascinating history, (almost every argument made against juries today is at
least four hundred years old), with many vicissitudes, but it was in the early
modern period, with the disappearance of serfdom, an educated middle class and
juries willing and able to defy the letter of the law to preserve the spirit of
justice that the jury came into its own. Notably in the trials of Quakers, juries refused to convict and withstood judicial sanctions including fines and imprisonment for it. It was this issue which ultimately forced the law to fully
recognise the right of jury nullification, which had in practice been occurring
since the dawn of the jury trial. The
fair mind of the (property-owning male) community could overturn unjust laws,
such as those restricting the freedom of worship.
English history is often read as a process of negotiation
between the classes: the king and the nobility, the lower nobility and the
higher, the nobility and the middle class, and so on. The markers of these negotiations- Magna
Carta, the English Revolution, the Restoration, the Glorious Revolution, th 19th Century reforms, the extensions of the franchise, each
represent a renegotiation of the rights and privileges of particular classes
and of the monarchy. The negotiated
nature of law is inherent in the Westminster system, as every written law is a
signed agreement between the monarch and the representatives of the
people. In that way, the monarch
gradually became the embodiment and guarantor of the constitution, rather than a lawgiver, in a way that
gives the whole system an incredible resilience.
The intervals between the Saxon and Danish invasions, the Norman
Conquest in 1066 and the reforms of the 19th Century in Britain can be read as a gradual amelioration of the legal concepts brought by the invaders, through the extension of the right of collective bargaining to ever-wider portions
of society. It is from this process that our most treasured legal
principles, from Habeas Corpus to the presumption of innocence to the right to
legal council, gradually emerged.
Even
so, it is striking that until the parliamentary and legal reforms of the 19th
Century and the extensions of the franchise to most of the population, the system seems scarcely recognisable.
Until that time, we see mainly a sort of theatre of justice, quick
trials conducted with private prosecution and easily decided by the prejudices
of judge and jury, and culminating too often in the spectacle of a public
hanging for offenses ranging from the trivial to the unrecognisable. Only when women and the lower classes were
included in the conversation did the law start to become more human and less a
system for the defence of the upper-class male and his property, social and
sexual rights.
Despite all its disadvantages- a slow learning curve and
tendency to periodically forget the lessons of the past- the principle of collective agreement as the basis for law
is the irreplaceable foundation of modern democracy. In place of a lawgiver and a rigid code of
penalties policed by force, this ideal places the monarch and the people, the
rich and the poor, the state and the citizen, and each section of society with
every other, in negotiation and seeks a credible collective arrangement. The system is admittedly imperfect. But it does not stand for perfection. It stands for humanity and legitimacy, and imposes a series
of time-tested speed bumps on any one force of state or society running
roughshod over any other. That is why, whenever I read
a comment by police or crown lawyers decrying the fact that juries, unlike
judges, are not inclined to take police testimony uncritically and are likely
to demand a high standard of proof (I can produce studies on both points), I
think, “Great! An example of the system
working!”
None of this is to say that the law in the UK, here in
Canada or down south in the US is anywhere close to working right. Trivial offenses fill dockets and prisons
while violent criminals are paroled early to make room. Political priorities and not the safety of
the people apportion the resources of the law and the police. The right to speedy trial is a sick joke, as
is the right to effective representation.
Laws are tangled, criminally lengthy and totally inaccessible to the
citizen. The bar and the judiciary are
self-selecting interest groups with no interest in cleaning up the situation. The police in many places are disturbingly
occupied with questions of public order and paramilitary training and
disturbingly unoccupied with community relations and catching serious
criminals, not to mention the training and behaviours of their own officers
which too often bring the administration of justice into disrepute. Corporate and white-collar crime is remarkably
unchecked, while small-time street crooks are the focus of every political
campaign.
As we ponder these and other problems, the subjects for the
next great renegotiation of the law and the social compact, we the people could
do worse than remember this heritage of collective negotiation, its lessons,
and the ways in which it empowers us.
The law and the legal system stands or falls on the legitimacy we give it. If we refuse to put up with the status quo-
well, that is what workers and women did in the 19th Century, the
slave-trade abolitionists before that and the jury and its supporters before
that. That is how the social compact and
the laws which embody it get renegotiated in a democratic society.
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