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WORLD CITIZEN LETTER: 485
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WCL 485 October 2004
Conflicts of law
While feudal lords dominated Europe, law was administered in a variety of ways. In England, for example, although the kings gained control of the judicial system it took centuries for this control to become fully established and during that time law-courts were in the hands of many different men, most of them without any legal training. The monarchs dispensed justice which concerned the great land-holders, the county freeholders held courts largely concerned with order throughout the counties and the feudal lords or their stewards sat in manorial courts dealing with everyday matters and the inheritance of farm-holdings; while church courts had jurisdiction over spiritual
matters and the inheritance of money and goods.
Feudalism was a system based essentially upon the power of the lords to rule by virtue of their possession of land, the key to livelihood and wealth. But its ideals, which were not unimportant, included an emphasis upon rights and privileges based strictly on law, which, however, unjust in its deference to hierarchy, was a powerful and mitigating feature in the unequal distribution of land. As a result, Europeans regularly used law to combat the tyrannies of power, sometime successfully, often less so. But that ultimately was the basis of the creation of a wider system of law and order. Democracy could not arrive until the political skills to handle government without using only force were widely distributed among the population: that could only come from the experience of the rule of law.
During the Middle Ages it was not always clear who had rights to hold courts in particular cases, because the fall of the Roman Empire had left the continent of Europe and beyond without any overarching government and at the mercy of warring feudal lords. However, these were gradually reduced from independence and brought within new kingdoms and when law and order was re-established it was within states which transposed the anarchy upwards from the country-wide to the continental level. Inevitably, every country possessed its own laws and the various conventions and practices that came to govern relations between them were encompassed by mercantile, admiralty and finally international, law.
But magna est emolumenta de justitia and as a result it was usual to meet disputes about the rights to jurisdiction.Thus the various courts were always liable to come into conflict: the rights to some of them continued to be contested until the time of the Reformation, when in England the king, Henry VIII effectively downgraded ecclesiastical courts. But that proved to be prelude to an even greater conflict when the Common Law, championed by Parliament, worsted Civil Law, the bulwark of the monarchy. This was greatly influenced by the legal profession, where the vested interests of those who worked in the judicial system pushed to raise law above individual whims, even those of the monarchs.
Nowadays we again see a conflict emerging between competing systems. The laws of nation-states, supreme for 350 years, which have lived reasonably comfortably with very weak international law, are effectively being challenged. This is by an international law that has slowly changed during the past century and is now beginning to change into world law. Which means that the law that formerly applied only to sovereign states (a contradiction in terms to apply law to sovereigns!) has begun intermittently to be applied to other bodies and then to individuals. First somewhat modified and then codified, it began to assume a markedly more powerful look after the First and Second World War had shown up its terrifying weaknesses.
The trials of Axis war-criminals, although not without complaints of "Victors' Justice" was a turning-point. The promulgation of the Nuremberg Judgements, followed by the similar but less outright Tokyo Judgements, were signals of the new status that international law was on course to acquire. Within a decade the new institutions of western Europe had begun to show how to build peace through international structures that no longer relied solely upon the ineffective sanctions then available to international law. Instead, European courts could be expected and seen to enforce decisions legally arrived at.
The overthrow of apartheid in South Africa, after a campaign which impugned and fatally weakened the cardinal tenet of international law - non-interference in domestic affairs of sovereign states - was a shift towards that new status. The treaty setting up an International Criminal Court was a landmark that showed how world law was arriving. Its principal feature, essential to the proper functioning of a legal system, was that it was to apply to individuals, not to states, unlike traditional international law. Despite the clinging to the old principles of international law, it can be seen that this is the road that law will have to travel in order to make progress to a peaceful world.
John Roberts
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