Common Law’s Uneasy Jurisdiction on Modern Societies

In my last post, I raised a question regarding the legitimacy of any legal system, as a reflection of a course I’m taking with London U. Surprisingly, the actual post in the course forum has attracted some lively debates on the conflicts between individual and society. But a comment by the course’s professor, Adam Gearey, points out that we should not approach this question with the presumption of a clash between individual and society, and that perhaps the awareness/concept of individual can be given shape only in a well-formed society that has already agreed upon, explicitly or otherwise, a set of rules. My original thought was historical in nature – I was thinking about Oedipus, Aristotle, Pericles etc. Agamben was an afterthought, but relevant nonetheless.


Thomas Hobbes’s vocabulary penetrates our thinking about justice and society

After reading the course material on the development of common law, I think I can now better articulate this question, which can be formulated as: how do we adapt an ancient system to modern societies – and if I am allowed to be more specific, post-Hobbesian societies? It is especially interesting to observe how some of the respondents elicited the example of a child’s learning curve of self-preservation to compare with learning the law, and (perhaps unwittingly) pointing to the Hobbesian idea of human nature. But this is confusing learning rules for self preservation and learning for keeping order (Interestingly, Hobbes agrees with St Aquinas that there are ‘natural laws’ of self-preservation together with a corresponding duty not to injure others). Confusion or not, it is clear that throughout our discussion we were fully immersed in Hobbes’s vocabulary, and thinking as if ‘individual’ and ‘social contract’ were uncontested concepts.

But we know Hobbes wrote his treatise amidst a general shift of political, religious and ideological frameworks in Europe – the Catholic Church’s central power was challenged, both within and without Europe, social and territorial relations were reconsidered, and most importantly, there was a decisive change in society’s existential perspective on life itself (see course material pp48­­-49). All of a sudden the tension between individual and institutions seemed to be highlighted, and Europe was ushered into its modern phase. Several of Shakespeare’s works serve as testimonies: The Merchant of Venice (c. 1596) takes a moral judgement to court; Romeo and Juliet (1597) exposes the tension between individual and clan (society); and Hamlet (1602) is about the existential awakening of a modern man trapped between the moral duty to his father and the state duty to the new monarch.

Reading it in a historicist way, perhaps law-abiding is a modern concept after all, along with nation states and governments, the rising centrality of which gave rise to the establishment of constitutions and statute laws that codified such concepts as individual rights and freewill (premised on rationality), and in some cases established the separation of the Church from the State. Yet for most of history, at least in the West, the ‘law’ drew its potency from the daily actions of all people involved without so much of a fictional contract. That is to say, we cannot use the same conceptual basis for discussing social contracts to discuss common law.

For a start, I don’t think there is any inherent claim to moral truth in common law, as there are no prescriptive rules on which verdicts are made. The way the common law evolves seems to prefer ‘moral popularism’ (oath helpers, jury), checked by the sound judgements of a wise leader (lord/judge). But such a system is premised on the pre-existence of a moral truth that the populus already shares, and I would argue that in the case of pre-modern England, it was the Church’s teachings that served as the moral background.

This ties in nicely with the ‘mythical origin’ of common law. I gathered from the course materials that common law arose out of the need for procedural verdicts to settle land and property disputes, and in a feudal society, land ownership was arbitrated by the king without having to resort to any moral reference in religion. In fact, the idea that property ownership gives individual inviolable rights and freedom from state interference is a totally modern idea invented by Locke.

In this sense, the common law, and the people who are subject to its power, should not concern themselves with individual-society conflict. For theoretically speaking wherever and whenever the common law is applicable it is to a land and its people’s relation to the sovereign. In other words, the common law derives its power from a land and its binding force with its inhabitants (locality) whose local rules are of no concern to the law itself except when cited as precedent in other cases.

But here is the problem: as common law developed in time, the differences between local customs became smaller; and ‘vernacular excommunication’ of exile was replaced by institutionalised imprisonment, though occasionally reverted in cases of penal colonies. I am tempted to think that before the pronouncement of individual subjectivity in the late 16th /early 17th century, moral disputes like murder were largely settled between the parties concerned, and the morality of property rights was not extended to any legal settlements. Though discouraged since 1066, blood feud was still practised up until the early modern period, and as mentioned before, the ultimate reference of arbitration was in the hands of the Church, or in sovereign-threatening cases, the Court of Star Chamber (which really was an expression of Divine Right before the concept got articulated in the 17th century, when the said Court was abolished).


A panopticon is the ultimate method of punishment by psychological/physical exile

So that leads us to the history of penalty. It is only until relatively recently that imprisonment itself was administered as a form of punishment, and ‘institutional prisons’ appeared as localities outside of mainstream societies. In fact, the idea of panopticon was introduced by Bentham, possibly influenced by Hobbes before him, to exert/proclaim the absolute power of the state over the land within its boundaries. Such idea of creating a ‘heterotopia’, to use the term by Foucault, as a means to penalise rule breakers and moral outcasts was in fact to impose the kind of moral judgement that common law was not originally entitled to, onto its rule over the land that it has always enjoyed. That is to say, to replace the church in excommunicating moral outcasts to the state created institutions of ‘bare lives’ where inmates are stripped of political rights.

My argument is that this phenomenon, or rather new form of penalty, exposes the discontinuity between moral and property aspects of law over its jurisdiction ever since the divine rights to rule effectively took over the Church’s responsibilities in matters of morality; and the subsequent separation of the Church from the state in statute brought such replacement to completion. The more I think about this question, the more it seems that it should be understood within the context of man-land relationship rather than man-society relationship; and that the present ‘conflict’ is really a result of the changes in the Church’s role, the concept of sovereignty, and also the binding force of the land in time (due to globalisation and imperial expansion).

There may be no easy answer to this question, as any attempt to do so must inevitably be drawn back to the uneasy sources of the common law. But any debate of modern issues will risk oversimplification without remembering the common law’s unique developmental trajectory. As for how to fill the gap between modern political sentiments and an ancient system, I hope the course will give me ideas in the coming few weeks.


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