Tuesday, 25 June 2013


Solomon in old age, c. 1866

In an attempt to obscure the basic financial motivation, Ken Clarke has justified the changes to the legal aid system by condemning what he sees as extreme litigiousness and claiming that ‘people will instead use alternative, less adversarial means of resolving their problems.’  As Joanna Biggs puts it, 'perhaps they imagine that if we all sit in a circle and share our grievances, without lawyers ruining it all, everything will be fine'.  There are many alternatives to litigation - sitting and resolving grievances over a cup of coffee is one of them.  Violent self-help is another.  The latter was, of course, particularly prevalent in the Middle Ages: even in the later period, when 'state' law was apparently more effectively promoted, we still find a bewildering variety of types of law to which people could appeal, and a range of extra-legal 'negotiation', often of a violent type, throughout Europe.

I don't honestly think that violent self-help will rise dramatically because people can't afford recourse to the law - though you never know.  But I do think that the kinds of clearly unacceptable power dynamics which emerge in violent self-help also characterise coffee-table discussions to resolve grievances.  One of the main points of law (and I'm well aware that it doesn't always work like this - but surely it's part of the theory of the way we now think about law - Magna Carta and all that) is to ensure that hierarchies which have nothing to do with the case don't shape the outcome.  In other words, the legal process is supposed to view all participants equally.  Resolving disputes in other ways doesn't necessarily provide this assurance, and all kinds of other factors come into play to ensure that those with power, be it of an economic or a socio-cultural kind (education, cultural capital, powerful friends etc), are in a stronger position.  

A case from Arras in the 1290s makes just this point.  A woman reached a financial settlement with the family of her son's victim, though the amount of the settlement makes it clear that the family must have been pressurised into accepting.  But there is an added twist when it emerges that the mother herself did not want to enter into these negotiations, but was blackmailed into doing so by the local legal official who took a chunk of the financial payment.

There are no obvious parallels here, and I'm suggesting neither that murder cases will be financially 'resolved', or that legal officials will be so blatantly corrupt - but I do think that these types of cases in the Middle Ages remind us of what we hope our legal system should achieve, and to problematise any easy notions that extra-legal solutions do not carry considerable inequities.

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