I recommend Norman Cantor's Imagining the Law to all. Cantor is a cranky
right wing medeivalist of note who is a Marxist malgre lui --his account his
pure historical materialist, but he doesn't know this. He writes in a
a deceptively colloquial and accessible style, and, from what I can tell,
having read a certain amount of the specialized literature, reasonably
accurately. He knows about civil law and canon law too, and has a good grip
on the really difficult intricacies of the land law and old common law
pleading. (If you want to get your head bent out of shape, try to understand
the forms of action at common law!) It's amazing how little we know about
legal history, though; it's very hard, and the evidence, especially for the
early stuff, is quite fragmentary.
"The" jury system, that is, the common law jury as a fact-finder, was not in
existence in pre-Norman England, however, that is clear. Indeed, the whole
idea of facts to be found and determined in a court of law, as opposed to
some sort of appeal to heaven (e.g,, by trial by battle or water or fire) is
an Angevin invention. It emerged with difficulty, and it is quite hard to
say just when. If one has to put a specific time on it, it's around the
period in Henry II's reign when the Catholic Church suspended the authority
of anyone to offer a trial by one of these nonhuman means, which left a gap
that hadto be filled,. Because the jury was associated with the King's
courts, it was part of a massive centralization of power.
Juries can be independent, and they are certainly an important democratic
institution. Referring to events in the 17th and 18th century tells us
nothing, however, about the early origins of the jury in the 13th and 14th
centuries.
I and my fellow common lawyers are certainly flattered by the idea that we
have the best justice system in the world. It's a prejudice that is part of
the ideological underpinnings of my trade. However, I really doubt that it
is true. I suspect the Code systems of Europe are just fine. I know too
little about them. I can also tell you from personal experience that the US
justice system is pretty awful. Maybe everyone else is worse; I doubt it.
--jks
>
>Many thanks to Justin for the corrections and clarifications. I am
>pretty sure that the jury system was in use in Anglo-Saxon England, in
>the form however of the hundreds. Regardless of the form it took juries
>are a decentralization of power. It is true, as Justin points out,
>that the juries were associated with the King's Courts. Nevertheless,
>as King Charles II learned, in association with William Penn, juries
>can be independently minded. (It was a grand jury that famously refused
>to indict Penn for holding a religious service on a street corner.) To
>this day, juries are the key reason why the Anglo-American system of
>justice is the best in the world.
>
>The gradual process of making the justice system more responsive to
>social needs was a key part of the emergent of the bourgeois class.
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