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The Invention of the Modern World 11.

Spring-Summer Serial 2012.

Chapter 11: LAW AND VIOLENCE

 By Alan Macfarlane.

THIS IS, IN many ways, the most important peculiarity of England, both expressing and causing its different trajectory. It is really significant because the law and legal process is like the oil which allows the parts of a civilization to work together. If the essence of modernity is the separation and tension between the contrary demands of politics, religion, economy and society, it is the legal system which holds them in balance – and which underpins them all. It is difficult to conceive of a game of football or cricket without rules, referee or umpire.

In relation to the economy, for example, Adam Smith placed ‘a due administration of justice’, alongside peace and easy taxes, as one of the three requisites for wealth. The other half of The Wealth of Nations are his recently discovered Lectures on Jurisprudence, first published in 1978.  Smith wrote about how English law seemed in its certainty, its complexity and its concern with property to be ideally suited to be a foundation for commercial capitalism. He noted for that ‘there is no country in Europe, Holland itself non-excepted, of which the law is, upon the whole more favourable in this sort of industry.'[1. Smith, Wealth, I, 442.] He also writes of ‘that equal and impartial administration of justice which renders the rights of the meanest British subject respectable to the greatest, and which, by securing to every man the fruits of his own industry, gives the greatest and most effectual encouragement to ever sort of industry…'[2. Quoted in Wrigley, ‘Modernization’, 238.]

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Almost all legal systems in history, including Roman Law, are based on the assumption that people are born unequal and remain so. Nobles and commoners, men and women, parents and children, free and slaves, all are permanently unequal. It is one of the central features of modern legal systems that this premise of legal inequality is rejected. Many believe that the premise of equal rights and duties was a product of the American or French revolutions. It is quite clear, however, that the idea of legal equality was fully established in England by the thirteenth century and that it was taken first to America, then to France and Europe. It has now come to dominate much of the world.

The idea that everyone is equal in the eyes of the law, that women, children, lower castes, all have rights of their own, was both a premise of English law and also, for example during the extension of British law in India, a deeply shocking concept. It cut across birth status and subverted the power relations of the castes and the family. In the middle of the nineteenth century, Maine noted that many complained that ‘life in India had become intolerable since the English criminal laws had begun to treat women and children as if they were men.'[3. Maine, Communities, 116.]

Maitland shows that equality was found in England from very early. We have seen that the social classes had no particular legal status – aristocracy, gentry, yeomen and others were not legal, but culturally ascribed statuses. A duke was subject to the same law and had no privileges by birth even in comparison to a labourer. If the Queen breaks a speed limit or commits a crime she will be tried in the normal courts in England today.

This absence of birth-given status differences applies to everything. An uncle could not expect superior treatment to his nephew, a father to a son, a man to a woman, a King to his subject. The law regarded them all as individuals with rights to be adjudicated. ‘The world into which Maitland’s real actions fit is essentially a flat world, inhabited by equal neighbours.'[4. Milsom in Maitland, History, I, xlvii.]

The great shift which Maine thought of as the hallmark of modernity had happened in feudalism. ‘The master who taught us that “the movement of the progressive societies has hitherto been a movement from Status to Contract,” was quick to add that feudal society was governed by the law of contract. There is no paradox here.'[5. Maitland, History, II, 232-3] This was widespread in the tenth and eleventh centuries. Yet all over Europe contract turned back into status so that by the eighteenth century, most continental countries had legal and social systems based on blood and birth status differences, or in Tocqueville’s well-chosen analogy a ‘caste’ society. Yet this never happened in England – the modern, egalitarian legal framework continued.

Of course, this does not mean that there was no inequality in practice. In the legal game you started with equal rights, but, as in any game, clever, and, in this case, well-funded players often had a great advantage. Money could buy better legal services, though, to a surprising degree, money could not buy the decisions. The jury system made it more difficult to buy and browbeat twelve other people, and high pay and prestige helped English judges avoid serious corruption. So that while money could be applied to making a better case, the outcome could only partially be determined through wealth and connections. Even the Crown could not buy itself out of its contractual obligations and when found at fault was also subject to a remorseless law. ‘The distinction between high and low justice always remained foreign to the English system’.[6. Bloch, Feudal, II, 370.]

THIS UNIFORMITY AND equality was implicit in Anglo-Saxon law, but was given its permanent stamp mainly in the eleventh to thirteenth centuries. Looking back from the present, it all seems very early. As Maitland wrote, ‘If we could look at western Europe in the year 1272, perhaps the characteristic of English law which would earn the most prominence would be its precocity.’ And it was modern; by 1272 ‘English law is modern in its uniformity, its simplicity and its certainty…'[7. Maitland, History, I, 224, 225.]

This was its attraction. Sir Edward Coke in the early seventeenth century wrote,

There is no jewel in the world comparable to learning; no learning so excellent both for prince and subject, as knowledge of laws; and no knowledge of any laws (I speak of human) so necessary for all estates and for all causes, concerning goods, lands, or life, as the common laws of England. If the beauty of other countries be faded and wasted with bloody wars, thank God for the admirable peace, wherein this realm hath long flourished under the due administration of these laws: if thou readest of the tyranny of other nations, wherein powerful will and pleasure stands for law and reason, and where, upon conceit of mislike, men are suddenly poisoned, or otherwise murdered, and never called to answer; praise God for the justice of thy gracious Sovereign, who (to the world’s admiration) governeth her people by god’s goodness, in peace and prosperity by these laws, and punisheth not the greatest offender, no, though his offence be crimen laesae Majestatis, treason against her sacred person, but by the just and equal proceedings of law.[8. Coke, Reports, II, preface.]

How and why England remained what John Baker calls ‘an island of law’ is a large subject. Baker himself gives one of the most succinct accounts of how England resisted status-based Roman Law which swept across the rest of Europe from the fifteenth to eighteenth centuries.[9. Baker, History, 11ff] Tocqueville gives an even more concise account. ‘Aided by Roman law and by its interpreters, the kings of the fourteenth and fifteenth centuries succeeded in founding absolute monarchy on the ruins of the free institutions of the middle ages. The English alone refused to adopt it, and they alone have preserved their independence’.[10. Tocqueville, Memoir, I 428.]

ONE ASPECT WHICH made the English legal system feel ‘modern’ was that it was, from a very early period, universal in its geographical coverage. The Anglo-Saxons in unifying England had brought it into one unified legal system and the Angevins finalized this. As Tocqueville noted, ‘That is what happened in France, where the barons went so far as to abolish the right of appeal to the king’s courts. That is what did not happen in England. William, master of all, gave lavishly but kept still more’.[11. Tocqueville, Journeys, 4.] Bloch later wrote,

Thus it might be said that the kings reassembled France rather than unified it. Observe the contrasts between France and England.  In England there was the Great Charter; in France, in 1314-5, the Charters granted to the Normans, to the people of Languedoc, to the Bretons, the Burgundians, to the Picards, to the people of Champagne, of Auvergne, of the Basses Marches of the West, of Berry, and of Nevers. In England there was Parliament; in France, the provincial Estates, always much more frequently convoked and on the whole more active than the States-General. In England there was the common law, almost untouched by regional exceptions; in France the vast medley of regional “customs”.[12. Bloch, Feudal, II, 425-6.]

Maitland outlines the process. The custom of the King’s court becomes the custom of England, the Common Law. The process was one where ‘Slowly but surely justice done in the King’s name by men who are the King’s servants becomes the most important kind of justice, reaches into the remotest corners of the land, grasps the small affairs of small folk as well as the great affairs of earls and barons.'[13. Maitland, English Law, I, 84.] ‘Our system is a single system and revolves round Westminster Hall’.[14. Maitland ‘Why’, 483.] This was strongly related to the small island effect: ‘England is small: it can be governed by uniform law: it seems to invite general legislation. Also we should notice that the kingship of England, when once it exists, preserves its unity: it is not partitioned among brothers and cousins.'[15. Maitland, History, I, 21.] By the end of Maitland’s history of English Law (1307), and indeed before, all of England was governed by a centralized, yet delegated, unified and tough Common Law

One striking feature throughout its history is that despite the voluminous records of cases, the law was ultimately based on oral traditions and on remembered precedents rather than a fixed written code. An oral, precedent based, system has only been found in two of the fourteen legal traditions surveyed by Wigmore, namely England and Japan.[16. Wigmore, Panorama] So there was an inbuilt flexibility and subjectivity. Orality allows constant small change and adjustment;  ‘the memory of man’ is fairly flexible. It is constantly made and re-made by judges.

In the thirteenth century compendium which formed the basis of English law, Bracton’s On the Laws and Customs of England, a distinction was made between law and custom. This has always been central to English civilization. Law is the language, custom is the dialect. Laws are the underlying rules of the game – thou shalt not kill, thou shalt not rob, thou shalt not pick up the ball in football unless you are the goalkeeper, thou shalt not hit below the belt. The customs are variable,  cultural and local – you can eat, dress, believe as you like within the laws and according to your customs. The law requires an heir if property has not been disposed of before death – but whether it is one heir or a group, the youngest or the oldest, a man or a woman, that is up to local custom as found, for example, in the various customs of each English manor. The law requires that a man leaves property to his widow. but what part should be left is often determined by custom. The Statutes of the University of Cambridge determine the general rules. But the customs of each Cambridge College are different.

This distinction between English Common Law and local custom, which started on one island, became a flexible device to provide the underpinning of a world Empire. There were the British laws, but local magistrates and rulers could also keep the customs of their own peoples.

Another parallel system of increasing importance was the development of Equity courts, which dealt with equity or fairness, rather than strict law. Laws, however detailed, can never produce real justice, for there are many situations where something is clearly wrong, but not strictly provable to be so by law. So ‘equity’, which grew up in England under the protection of the powerful Lord Chancellor from the fourteenth century, filled a large gap. It was particularly important in relation to property, with which no systematic legal system can properly deal on the basis of written laws and documents. Thus the Court of Chancery, for example, dealt with cases concerned with unwritten promises, good faith, trust, lost documents, the rights of disadvantaged groups including women, children and the poor. It was particularly important in dealing with the ambiguities and complexities created by the growth of a capitalistic world system where rigid laws could often not be applied.[17. See Maitland, Equity.]

Finally there was a parallel system of the law of the Church, canon law, which dealt with morality, sin and strictly church matters which lie outside Common law. The Church was under the Law, and the secular courts never condemned people to prison or death on the basis of trials in the Church courts, as happened in Catholic countries with the Inquisition. Yet much of the popular control of morality could be left to the Church Courts until the later seventeenth century when they died away.

ONE CENTRAL MANIFESTATION of these differences was in legal process, particularly in criminal cases where the subject and the Crown clashed. In the Roman law system of the examining magistrate, a State appointed official is both the interrogator and the judge. He could in the past use torture, he could use informers, he could threaten and lie, he could use all and any means to try to extract ‘the truth’ and when he was satisfied of guilt, he must force a confession – again under torture if necessary. After the confession, in serious cases the person who confessed was burnt, hung drawn and quartered, broken on the wheel or whatever the often extremely harsh punishment was.

In England it was different. A formal accusation in the form of an indictment, stating precisely what, where and when the offence took place, had to be entered. This was first examined by the Grand Jury – a group of local gentry unafraid of the Crown or of the accused and his friends. If they thought the case needed to be answered it was entered as an indictment to proceed to trial.

The trial was in open court, which the public could attend. There was a jury made of the peers of the accused. Even this jury was subject to some approval by the accused. ‘Six-and-thirty persons are chosen as jurymen. The accused is allowed to refuse twelve of the number without giving any reason, and twelve others, but giving his reasons, and the twelve remaining men will constitute the jury.'[18. Saussure, Foreign, 118.]

The judge was an umpire, there to see fair play between the prosecutors and the defence. The jury were there to state who had won. It was like a boxing match or dancing competition. Only if the prosecution could prove ‘beyond reasonable doubt’, and on the basis that a person was ‘innocent until proven guilty’, was the accused pronounced guilty. ‘Englishmen say that it is better that twelve culprits should escape human justice rather than that one innocent man should perish’.[19. Saussure, Foreign, 119.]

No torture or threat of torture was permissible. Barbaro, a Venetian ambassador in the sixteenth century reported the non-use of torture as an interesting fact in England.[20. Sumner, Folkways, 256.] In the early eighteenth century Saussure wrote that ‘In this country torture is not resorted to make a man confess a crime; it is thought that many an innocent person might be sacrificed were this barbarous custom adopted’.[21. Saussure, Foreign, 119.] The major exception was that a person must plead guilty or not guilty (ie recognize that the court had the right to hear him or her). If they refused, physical pressure could be applied – in earlier periods squashing with heavy weights until they pleaded one way or the other. There was no need for a forced confession. If found guilty by their peers, those accused could maintain their innocence – but were guilty in the eyes of the law. They were then fined, imprisoned or executed by hanging.

IN DICKENS’ BLEAK House, the Chancery lawyer answers Mr Jarndyce’s complaint about the judicial systemby saying, ‘we are a prosperous community, Mr Jarndyce, a very prosperous community, Mr. Jarndyce, a very great country. This is a great system, Mr Jarndyce, and would you wish a great country to have a little system?’ He was right.

If we look at the business of the various courts of England, or if we look at the great legal treatises explaining the laws and customs of England, from Bracton through Coke to Blackstone, we see that about ninety percent of the cases and the discussion is about property law. The English obsession with wealth is reflected in the most complex, sophisticated and inscrutable set of clashing and contested sets of rules about making money in the world. The types of property, the complex bundles of rights which could be distinguished, the ability to share, sub-let, protect and pass around these rights leads into a bewildering maze of property law. As David Sugarman, director of Lancaster University’s Centre for Law and Society, noted, ‘A King’s Counsel informed the Royal Property Commissioners in 1829 that there were no more than six persons who understood the laws of real property’.[22. Sugarman, ‘Law’, 17.]

Max Weber was faced with a problem here, for the English case, the first capitalist country, seemed to go against his idea that rationalization is the central background feature of capitalism. ‘On the one hand, England seemed to lack the calculable, logically formal, legal system that he frequently identified as necessary for initial capitalist development. On the other hand, capitalism once it became established in England, had little, if any, appreciable effect on the rationalisation of English law…'[23. Trubek, quoted in Sugarman, ‘Law’, 10.]

A number of features provided the essential tools for capitalist growth. I have already touched on the absolute support for individual property, which cannot be violated by naked power. A person was safeguarded against the Crown or his fellows. If property – that is, rights of many different kinds – were formally attacked, there were a host of lawyers and courts to whom the attacker could be taken. As Maitland observes, by the thirteenth century, and drawing on earlier centuries, there had emerged ‘that wonderful calculus of estates which, even in our own day, is perhaps the most distinctive feature of English private law.'[24. Maitland, History, II, 11.] As Emerson was also to write,

With this power of creation, and this passion for independence, property has reached an ideal perfection. It is felt and treated as the national life-blood. The laws are framed to give property the securest possible basis, and the provisions to lock and transmit it have exercised the cunningest heads in a profession which never admits a fool. The rights of property nothing but felony and treason can override. The house is a castle which the king cannot enter. The Bank is a strong-box to which the king has no key.'[25. Emerson, English, 127.]

There were many ingenious fictions and devices developed which have become the bedrocks of modern global capitalism. For example the idea of patents. ‘Here Britain led the Continent by a large margin. British patent law dates from 1624, whereas France did not have a similar law until 1791 and most other European countries established patent laws only in the early nineteenth century.'[26. Mokyr, Lever, 247.]

THE  ENGLISH CREATED hybrids which are impossible in the more centralized and principled Roman Law. Maitland showed in his work on trusts how the English developed artificial communities, non-incorporated corporations, which merged the law of persons and of things and which appalled European lawyers. The English could do this partly, as M.G. Smith notes, because the fundamental starting point is different in Roman and Common Law. ‘British law permits equally flexible accommodation. Per contra, French law which most perfectly expresses the dominant rational Western theory of law, assumes a primary sovereign corporation, the state, and accordingly denies the legality of prior or independent units unless the latter are expressly recognized by the state’.[27. Smith, Corporations, 131.] So in England the Crown, as Adam Smith advocated, is the umpire, the referee, the arbitrator, but ultimately a spectator in the capitalist game.

Of course it was all largely a game or fiction. Emerson noted, ‘Their law is a network of fictions. Their property, a scrip of certificate of right to interest on money that no man ever saw.'[28. Emerson, English, 77.] There were fictions which have made the City of London, the Stock Exchange, the Bank of England, the heart of English wealth throughout the imperial and post-imperial period. It was higgledy-piggledy because it has to deal with compromises, to overcome contradictions. As Taine wrote, in England ‘there is no code of laws as with us, based on implied philosophical principles, but a mass of statutes and precedents more or less disparate and sometimes contradictory’.[29. Taine, Notes, 210.]

This is the innate nature of a system where there is constant tension between the separated spheres  – economic, political, social, and economic. From the vantage point of systematizers, it is a mess, yet ‘ the creation of a completely original legal system’ in England was an achievement.[30. Bloch, Feudal, I 274.] English law adjudicates between the powerful contesting forces and thereby keeps the productive balance and tension to stop the Crown, the Church, the Nobility and the Merchants from becoming dominant. It turns anger into process – drawing it out, breaking it into small bits, and channeling it like a complex game. Law is the essential underpinning for self-confidence and sustained development.

The end of all this is a paradox. On the one hand, English behaviour is minutely regulated by a combination of law, customs and social etiquette. On the other hand, people feel free. Huizinga had found that ‘Life in England had seemed less earnest, the air less heavy and the people, puritanical as their law-makers might be, more light-hearted.’ This seems to be because they choose between the rival pulls of their political, social, economic and religious obligations, none of which dominates their life to the exclusion of the rest. This combination of constraint and freedom is described by Pierre Maillaud, approvingly quoted by Huizinga:

There are more restrictions in England on the exercise of the daily freedoms than elsewhere, yet there is at the same time an almost unrivalled sense of personal independence because the plain human relationship between people is uncommonly flexible, because acquaintanceship, friendship or even kinship places neither burdens nor fetters on the individual nor do they trespass on his privacy…Attraction, love, companionship are all less binding, less exacting … The foreign visitor feels an uncanny elasticity…he senses, without fathoming it, what Clive Bell describes as the “frivolity” of the English, a disinclination to overstress, to strain things, activities, pastimes or human beings to the utmost.”[31. Huizinga, Confessions, 68.]

AS FOR THE policing which led to the maintenance of order and the avoiding of offences against the Crown, this again was unusual and an example of distributed and consensual system.[32. For a longer account,  Macfarlane, Culture, chapter 3.] The basic system in medieval England onwards combined two law-enforcement and detection systems. One was that people were divided into small units or ‘tithings’, required mutually to police their group and to be communally responsible. As well, each householder took it in turn to be a parish constable.

The duties of such an officer listed in the sixteenth century are described by Mildred Campbell:

In his oath the constable swore to arrest all rioters or persons breaking the king’s peace; to apprehend all felons and barrators [people contentious in law], or pursue them with hue and cry if they tried to escape to another parish; to apprehend all rogues, vagabonds, nightwalkers, and other suspects; to keep an eye on the people who managed alehouses, ordinaries and inns, for the curbing of unlawful games and inordinate drinking; and to present all offenders to the proper court, according to the nature of their misdemeanor.’ Furthermore, they should arrest all those who were supporters of the pope, failed to attend church regularly, maintain archery, help to find labourers to save crops at harvest time, see that the surveyors of the highways were chosen, test the quality of malt, execute all warrants given to them by J.P.’s. They were frequently given other duties, including levying money for the repair of bridges or to supplement the poor stock. ‘And often a multitude of smaller details, from the mending of the village stocks to assisting unfortunates who came through the parish with a permit to beg, fell within the range of their duties.'[33. Campbell, Yeoman, 320-1.]

Just as the gentry class provided the magistracy, so it was the ‘middling sort’ – the yeomen and husband and large numbers of artisans and small shopkeepers – who acted as constables. They were not armed, they were part of the community, and they took it in turn. If they failed in their duties or colluded in crime, those just above them, the Justices of the Peace, could discipline them.

In other words there was no professional police force; ‘the feeling that professional police on the French model would be the death of traditional English liberties was deeply rooted in the political culture’.[34. McLynn, Crime, 17] There was no use of the army. ‘The English form of government does not admit of the maintenance of any standing troops, even in small numbers, for the arrest of malefactors, such as would correspond to our constabulary.'[35. Rochefoucauld, Frenchman, 118.]

The absence of armed police reflected an unarmed populace. People might have had small knives, but guns or large weapons were strictly controlled and only the gentry tended to have them.  For example, a study of an English parish quite near to the Scottish border between 1500 and 1720 showed, from inventories taken at death, that over nine-tenths of the population seem not to have had even hunting weapons.[36. Macfarlane, Culture, 66.]

It was a country where there was real support for the police. ‘My friend added that here, when an arrested man starts to struggle, the people on the spot ask what it’s all about and if they consider the policeman within his rights, lend him a hand. In the same way, whenever there are disturbances all classes provide volunteer constables. On the whole, whereas we suffer our government, the English support theirs.'[37. Taine, Notes, 179] The police were usually not seen as oppressive, armed, agents of the state as they almost always are, but local, ‘one of us’, yet with responsibilities to maintain the peace.

It seems to have worked in creating a safe countryside. As Sir Thomas Overbuy put it, a milkmaid ‘dares go alone and unfold sheep in the night, and fears no manners of ill because she means none’.[38. In Morley Seventeenth, 70.] Much earlier, a churchwarden in the reign of William I wrote that ‘everyone may travel through England with his belt full of gold without danger…'[39. Bloch, Feudal, II 412.] Another form of safety was that people felt secure from arbitrary arrest. As Rochefoucauld wrote, ‘The right of not being arrested save for felony is peculiar to England. If you happen to be unjustly arrested you may always proceed against the magistrate who has made an unjust use of his power, and the considerable fine which he will incur will make him hesitate to make the mistake a second time.'[40. Rochefoucauld, Frenchman, 117.] Orwell singled this out: ‘… everyone takes it for granted that the law, such as it is, will be respected, and feels a sense of outrage when it is not. Remarks like “They can’t run me in, I haven’t done anything wrong”, or “They can’t do that; it’s against the law”, are part of the atmosphere of England’.[41. Orwell, Lion, 45.]

There were some highwaymen near London in the early eighteenth century. Yet there were no lawless regions – water margins, forests, and mountain fastnesses, legal no-go areas which we find in most peasant civilizations where bandits live. Even Robin Hood was probably a myth. My study of the borders of England and Scotland, the likely area for banditry showed crime, but capitalist crime and not banditry.

The outcome is well captured by George Orwell. He had not been impressed by arrogant English imperialism in Burma and was not fond of the ruling class. Yet he also wrote, ‘Here one comes upon an all-important English trait: the respect for constitutionalism and legality, the belief in “the law” as something above the State and above the individual, something which is cruel and stupid, of course, but at any rate incorruptible’. In a famous passage he wrote: ‘The gentleness of the English civilization is perhaps its most marked characteristic. You notice it the instant you set foot on English soil. It is a land where the bus conductors are good-tempered and the policemen carry no revolvers.'[42. Orwell, Lion, 44, 41]

THAT PEACEABLENESS HAS other expressions and correlates. One was the absence of feuding. The feud – a perpetual oscillating blood competition, usually between kinship groups, but also sometimes village communities or even castes – is almost ubiquitous elsewhere. It is found particularly in pastoral societies such as Scotland, Albania and Montenegro, in the Middle East and North Africa, China, and elsewhere through much of history. Its absence in England is therefore remarkable. There was some element of feuding in late Anglo-Saxon England and the payments were carefully specified. Yet in England, from at least the Norman period, there is no evidence of institutionalized feuding. Feuding in England, we are told, was eradicated ‘with marvellous suddenness’ by the thirteenth century.[43. Wormald, ‘Feud’, 55, citing Maitland.] In England after the Conquest, ‘the disappearance of any legal right to vengeance was one of the aspects of the royal “tyranny”’.[44. Bloch, Feudal, 1 128.]

Royal justice set itself against all private vengeance – anyone who took the law into his or her own hands was fiercely punished by the State. ‘Vengeance is mine, I will repay’ was the view of the State and this remains true until today. There are still laws which prevent a householder from going beyond reasonable self-defence – keeping an unlicensed gun, pursuing and shooting an intruder and lynching are all often severely punished.

The general tranquillity of the countryside can also be seen in the absence of defensive fortifications over the last six hundred years. In most countries it was essential to defend the village and the house. Pastor Moritz contrasted English towns with Prussian: ‘No walls, no gates, no sentries, no garrisons. You pass through town and village as freely and unhindered as through wide-open nature’.[45. Porter, Eighteenth, 254.] Laing wrote of ‘our open unwalled towns’ and Emerson wrote,  ‘They have no revolutions; no horse-guards dictating to the crown; no Parisian poissardes and barricades; no mob; but drowsy habitude, daily dress-dinners, wine, and ale, and beer, and gin, and sleep.'[46. Laing, Observations, 166; Emerson, English, 127.]

All of this, ‘due administration of justice’ and generalized ‘peace’ constituted two out of three of Adam Smith’s desiderata for the ‘natural progress’ of wealth. To be able to assume peace and order, to trust that the general populace will abide by, and even esteem, the law, is an important foundation for modern capitalism – another aspect of trust and the ability to calculate rationally on costs. The absence of the ‘friction of violence’, which normally raises transaction costs (as we can currently see, for example, in piracy off the Somali coast), the assumption of good will and good order, is unusual in history and worked in incalculable ways to improve the positive feedback of wealth into further order and then to further wealth. Just one example, from historian David S. Landes, is worth quoting: ‘

Generally speaking, Britain took social order for granted. The industrialist had no illusions about the hostility of the working class or the possibility of violence; but he never doubted that the law would prevail…His French counterpart…was never sure when labour unrest or unemployment would turn into political revolution.[47. Landes, Prometheus, 191.]

This ‘island of law’ spread from England to North America in the seventeenth century and then, in the eighteenth century, to India. It has now influenced many of the legal systems around the world. Its opposite, which covered all of Continental Europe with the revival of late Roman Law from the fourteenth century, is worth noting. It is the system which, with varieties, is to be found in most agrarian civilizations – centralized, rule generating, attempting to find a solution to every problem before it occurs, giving the State immense powers and the citizen or subject, little protection.


A video of the lecture on which this chapter is based:

2012 Serial Index: Introduction and Contents | Preface | Bibliography.

Chapter 11 of The Invention of the Modern World by Alan Macfarlane.

© 2012 Alan Macfarlane. All rights reserved.

NOTES (please see the bibliography for citation details):

 

One Comment

  1. Robert Griffin wrote:

    I have a question here. You say, “The feud – a perpetual oscillating blood competition, usually between kinship groups, but also sometimes village communities or even castes – is almost ubiquitous elsewhere. It is found particularly in pastoral societies such as Scotland, Albania and Montenegro, in the Middle East and North Africa, China, and elsewhere through much of history. Its absence in England is therefore remarkable.’

    I would dispute this. What about the Percy-Neville feud (early 15c)? And what about how that led to the War of the Roses, surely a classic feud, even if it grew to the proportion of a civil war?

    Sunday, 2 September 2012 at 11:38 | Permalink

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