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Early English law screwed the masses to benefit the aristocracy

In my ongoing and very occasional progression through Bruce Benson’s masterpiece The Enterprise of Law, I am learning more and more about the origins of authoritarian (State-originated and -enforced) law and its usurpation of customary (community-originated and reciprocal-incentive-enforced) law in Medieval England. The main thrust of chapter 3 is that State-centered laws and law-enforcement agencies implemented by William the Conqueror and his descendants were detrimental to the common man because they were designed specifically to benefit the king, the barons, and their cronies at the expense of everyone else. It worked.

After an introduction to the workings of customary legal systems in earlier societies, the rest of Benson’s book to this point focuses on the “transfer theory of government,” i.e., the hypothesis that modern legal systems were consciously and specifically directed towards taking property from less powerful people to give it to more powerful people.

He explains how local judges and other authorities, who were employed by and reported to the king, forced the king’s laws onto the public and forcibly extracted payment from them:

By 1168, circuit tax collectors and itinerant justices had become another “great subdivision” of the royal court. The itinerant justices conducted royal inquests regarding financial issues and issues of justice, and they transmitted royal commands to counties and hundreds [towns or groups of towns; a subdivision of a county in Medieval England]. The justices also amerced [fined] frankpledge groups that failed to or refused to fulfill their policing duties, fined communities that did not form all men into frankpledge groups, and amerced both communities and hundreds that failed to pursue criminals or report all crimes through inquest juries. Such amercements were increasingly important, implying that the positive reciprocal incentives of the populace to participate in law enforcement were extremely weak.

I.e., whereas everyone in the community has a common, reciprocal interest in both obeying customary law and demanding obeyance in others, they see no such benefit in obeying Statist law, which is why they must be forced to.

Perhaps you will be as intrigued as I was in this interpretation of the meaning and purpose of the Magna Carta, which I had never heard before:

The king’s drive for revenues and power caused considerable discontent, particularly during John’s reign. In 1215, powerful barons renounced their homage to the king and revolted, demanding a document that would specify the laws and customs that would govern them.

On June 19, 1215, John put his seal on the Magna Carta, which is widely perceived as a significant foundation of Anglo-American constitutional government. “According to the great justice Sir Edward Coke and others, Magna Carta had saved England from the rule of tyrants, had consecrated basic civil and political rights, and had germinated English Constitutional government.”¹ The thirteenth-century barons were depicted as men seeking to secure the rights of all men, not just the nobles. In fact, the charter reflected an effort by barons and other powerful groups (e.g., the English Church) to regain their power and privilege that kings subsequent to Henry I had been eroding. The revenue-taking of the kings in many forms was now considered illegal, and Magna Carta re-established the barons’ feudal right to confiscate felons’ land. In addition, “no free man shall be taken or imprisoned or disseised or outlawed or exiled or in any wise destroyed, save by the lawful judgement of his peers or the law of the land.”² This passage is widely interpreted as a guarantee of trial by jury for all Englishmen, as a prohibition of arbitrary imprisonment, and as a grant of equal justice for all (due process). In fact, it was intended to force King John to guarantee trial for barons before their peers under existing feudal procedure, and it established the “germ” of due process for the feudal aristocracy.

From this very early period of government expansion in law and law enforcement, legal “reform” was carried out in the context of the government institutional system of the time. This should not be surprising. Those institutions were developed to transfer wealth to powerful groups; the barons would likely retain them, anticipating their own benefit.

Three powerful groups combined in competition with King John to force him to affirm Magna Carta. In addition to the barons and the prelates of the English Church, the merchants were eager to translate their growing economic power into political power. Magna Carta guaranteed freedom of travel, for instance (a privilege merchants had had for some time), merchants were freed from “evil and excessive tolls,” and the boroughs were guaranteed the liberties and privileges already granted.³ None of these really represented significant changes, but most of Magna Carta was backward-looking rather than forward-looking, re-establishing rights and privileges that barons had once enjoyed.

This vaunted document and glorious occasion might have been an improvement on the status quo, but we see two things that were true of states in 1215 that remain equally true today: 1) monopolistic states engender conflict and competition between individuals and groups, they create incentives for people to organize themselves into factions that will compete against each other, and they both encourage and allow these groups to use the violent, deadly police power of the law to harm others for their own benefit; 2) further legislation, such as the Magna Carta, is not the best way to ensure freedom, privileges, wealth, and peace; rather, simply getting rid of existing State activities would allow peace and prosperity to return as it naturally would have existed all along in the absence of the State and its encroaching laws.

One more passage, on lawyers and their licensing:

There were well-formulated reasons why the “evolution of the class [of legal advisors] had been slow, for it has been withstood by ancient principles.”⁴ Individuals not skilled in the art of pleading were less likely to be able to conceal their guilt. Furthermore, one litigant might be unable to hire a skilled spokesman while another could. Thus, rather than give one litigant an unfair advantage, custom developed whereby professional councillors and pleaders were not allowed. By the early thirteenth century, however, pleaders had begun to appear. The earliest records of a pleader identify John de Planez as pleading on behalf of Henry II, and Richard had a permanent contingency of pleaders. As with other legal developments under the English kings, the legal profession was developed to give additional advantage to the king. [emphasis added]

London began to license two distinct groups of legal professionals—attorneys and pleaders—in 1280, but the king’s justices took control of the licensing function in 1292 and severely limited entry into both branches of the profession. …Attorneys and counters had become licensed court appointees and quickly evolved into an organized professional group. Common law was becoming case law; those who wished to learn the profession joined guilds or fraternities that
eventually developed into the Inns of Court, the English law schools.

These professional lawyers had an immediate effect. Legal procedure became much more complex than it had previously been…. In addition, lawyers, rather than ecclesiastical clerics, became the primary candidates for royal judges. The resulting insulation from Roman law “permitted the common law system to become a confusing puzzle of undefined principles. It became cumbersome and ill-equipped to keep pace with the new demands made upon it by political, economic, and social change.”⁵

Benson also goes on to note that trial by jury was considered to imply an automatic guilty verdict, so defendants were coaxed and forced to accept trial by jury. This is slightly different from today’s Western jury-trial systems, in which prosecutors pressure innocent defendants to accept plea-bargains; but our system is similar in that juries are easily manipulated by trickery, legal jargon, intimidation, emotionalism, and outright exclusion by Statist lawyers and judges, leading to the same result of juries rendering guilty verdicts too often, especially for victimless crimes, and anyway, lots of innocent defendants accept plea bargains because they (or, their attorneys) know how reliably juries will rule in favor of the State.

In summary: 1) There is much evidence, in the legal structure Medieval England after the Norman conquest, in favor of the transfer theory of government, with many activities and institutions clearly having been instituted deliberately and consciously to benefit the rich at the expense of the poor. (If a State apologist would claim that such deliberate malice was unlikely and, anyway, doesn’t continue today, then that makes the case against authoritarian Statist law and in favor of anarchic customary law even stronger because then no reform, not even electing exclusively honest and upstanding statesmen of a certain political party, can rescue the system of pervasive injustice.)

2) From very early on, there was a vast disconnect between what was legal or illegal and what was right or wrong. The law was completely unprincipled and arbitrary. This corrupting trend, which continues more strongly than ever today, sows contempt for the law and disrespect for other members of society.

3) When State employees and other powerful lobbying groups institute reforms that they claim are for the common good, the State employees and those who deal with the State are probably the ones who will benefit, and any peripheral benefits the masses enjoy are minimal and coincidental. While it is true that the Magna Carta led to further reforms of English common law that might have provided real benefit to the public, it seems obvious that abolishing the government activities that necessitated such proclamations in the first place would have been a faster, fairer, and longer-lasting method of giving justice (and thereby peace and prosperity) to the masses.

4) Beginning in the infant stages of proto-English common law, the positions of lawyer, judge, and juror were created, licensed, and employed specifically and deliberately to ensure verdicts favorable to the State and thereby increase its theft of the public’s wealth. The profession of attorney was created, licensed, and supervised by the king’s underlings and, to some extent, the King of England himself, for the specific purposes of giving the State an advantage in trials, reducing competition/erecting barriers to entry, making the law so needlessly complex and esoteric that only licensed attorneys could understand it, and ensuring that lawyers (who would eventually become judges) were lackeys of the king from day one. Sound familiar?

Benson’s references:
1. Bruce Lyon, A Constitutional and Legal History of Medieval England, 2nd ed., pp. 310-311.
2. Sir Frederick Pollock and Frederick W. Maitland, History of English Law, vol. 2, pp. 171-172.
3. Lyon, pg. 316.
4. Pollock and Maitland, vol. 1, pg. 211.
5. Lyon, pg. 438.

Posted in Constitutionality, Divisiveness, Philosophy, Police/law enforcement, Power elite