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History Notes > Crime and Punishment in England c.1280-c.1450 Notes

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1. Introduction to the historical study of crimeMedieval - negative connotations
~ Liberal ideas of progress - Whig
~ Weber - modernisation and rationalisation
~ Departing from pre-modern past
~ Rehabilitation instead of punishmentLaws seen as rational solutions
~ Legal change can be seen as isolated and not related to anything else New legal history - 1970s onwards
~ Law as integral part of economy and society
~ Legal change as part of social changeCriminal behaviour:
? Tradition of taking biological and psychological approach
? Neuroscience approach - very new
? Genetics
? Social learning theory - learn behaviour from social environment
~ Different environments e.g. soldiers in France in the 100 Years War - pillage the countryside
? Social bonding and control
~ Inherent deviancy - why do people conform?
? Social strain - how much solidarity a person had with the people around them
~ Particularly important in urban history
~ Problems with social solidarity - not always a good thing -> violence
~ Does not always prevent crime?Durkheim - 'anomie' Marx - 'alienation'
~ Both look at change in society - alienation from aims of society due to failures of achievement Merton - looks at broader cultural values
~ Crime in order to achieve goals of society?
~ Overcoming obstacles?

Close relationship between crime and social inequality Closure theory - way in which groups try to protect or change their situation
~ Rigby
~ Exclusionary closure or usurpationary closureCrime as a form of social revolt
~ Law as a tool for the ruling class
~ e.g. Local interest groups v. Growth of the state Thompson - riot and protest?

Need to look at causes of behaviour

Issues with criminal theories:
? Present day discipline - culture specific
? Theory about individuals committing crime depends on the agreement of what crime is
? Many different sorts of crime
~ e.g. Homicide v. Tax evasion
? Mechanistic explanations are not very usefulCriminology
~ Focuses on crime rather than law breaking
~ Crime is culturally relative - historically contingent
~ Always about history of lawLabelling theory
~ Agents of control impose labels on the less powerful -> they fulfil those labels
~ Self-perception is about what we think others think of usConflict theory
~ Why some people are criminals and others are not
~ Power relations - powerful can define crime
~ Property conscious oligarchy can define new thefts and offences
~ At expense of those who have less power

Theories of punishment:
? Most politicised aspect??

Rational choice theory
~ Calculate whether an action is in your interest
~ Basis of deterrence
~ Idea of offenders being irrational means that there is no other explanation - less useful Issues
~ Assumes free and open choices
~ Assumes people will always act in self-interest
~ Assumes people know what is in their self-interest
~ Assumes that we make choices consciously
~ Other factors - ideology, fear, for someone else Violence in family and infanticide
~ Try to understand choices Punishment can be revenge
~ Issue of feud - Hyams


'Reintegrative shaming'
~ Can become citizens again
~ Much in medieval times - rituals e.g. penanceFoucault - modes of punishment and law
~ Bound up with historical change
~ Doesn't see modernity as something to be celebrated - state has an even greater control
~ Extension of law - strategy of power -> creation of abnormality
~ Must look at value systems - control people
~ Cultural

4 Questions:
? Deviance - psychology or sociology?
? Categories of crime - how relativist do we want to be?
? What is the role of punishment?
? How does crime and its prosecution relate to power?

2. The Development of medieval law and society?

Does change in legal history come from above or below?
To what extent does social change lead legal change or vice versa?

? Rise in population until 1348
~ Peaks at ~6 million
? Then continuing plagues ? decline down to ~2 million????Medieval England is a highly governed polity
~ We have lots of records ? extrapolation e.g. family size Pretty sure about range and very sure about trends Generally we use the upper estimate of population 1315-22 Famine
~ Some argue for a fall before this due to overpopulation Population doesn't reach the highest point again until a couple of centuries later Static population and failure to recover Argument as to whether population stagnation is a good thing
~ 'Golden Age of the Peasantry'?
~ Fewer people ? more land
~ Within the peasantry, however, must already have money for the land ? more entrenched elite Widening social divide
~ Before 1348 more people own some land
~ By 1450 far fewer people can just rely on their land ? cottage industry and mixed economy
~ Land more concentrated in some families' hands Good period for those who rely on wages
~ Less labour ? increased wages

Social problems:
? Alcoholism / gluttony
? Domestic violence / domestic governance
? Sloth is seen as a social problem
~ Peasants only ensured a surplus?

Debate on crime statistics and economic data 1315-22 famines
~ Hanawalt compares wheat prices and crime
~ High prices ? increased crime
~ Socially differentiated responses
~ Very poorest resort to theft - yet was not legally justified

~ Was this seen as socially acceptable?
~ Need as a justification for crime??Social roles revolved around the idea of work and labour
~ Spoke in a language of role fulfilment
~ 3 Orders or Estates
~ 11th century - those who work, those who pray and those who fight Ideology supports a stratified society William Langland has a lot to say on different roles in society
~ Sloth is one of the great evils of the late 14th century
~ Idle poor are failing to fulfil their divinely appointed role
~ Context of ideas of sinfulness

? Crime is not a separate category
~ Generally linked to something sinful
~ Yet not a perfect match between the Decalogue and crime
~ Thought v. action
? Medieval law is not a theocracy
~ Close interaction
? Preachers talk of the 7 deadly sins
~ Sloth, greed, wrath, envy, lust, gluttony and, worst of all, prideDivisions of Orders, classes, age, gender, geography etc.

? Many different courts
~ Reflect divisions in society?Royal courts - protect king's rights
~ Good subjects v. unfaithful subjects Church - whether people are good Christian neighbours
~ 7 deadly sins Manorial - good tenants / lords?

? Canon law - who could marry whom
? Common law - transfer of property for husband and wife
? Manorial - fines for marriage and fines for fathers whose daughters had sex before marriage?

Could be competing jurisdictions Slander ? church defamation suit / manorial / even manorial courts by the end of the period

~ Choice dependent upon accessibility and best chance of success Choice of court:
? Never a perfect correlation between manor and parish - affects choice of court
? For economic consequences ? manorial fines
? Physical punishment ? royal courts
~ Needs more resources and a lawyer Royal courts and the common law:
? To protect the rights of the king
? General eyre - tours around the country
? System of complaint and presentment - jury of local people
? Judgement by judge or trial jury
? Combines local knowledge with high external power - very effective
? Sentences and punishments there and then
~ More people want to use it
~ e.g. local landowners use it to report offences against their own rights
~ Peasants against sheriffs
~ Issue of corrupt royal officials
? Justices ask people how the king's rights are infringed and how his officials are behaving
? Leads to a great increase in private litigation
~ Effective solutions in the locality
? By the 1280s the business of the eyre had grown enormously ? collapse in 1300s
? Itinerant court is replaced by static courts
~ King's Bench
~ System of judges and lawyers
? Combined with devolved government in the localities - JPs?Common law is based on precedent and case law Parliament can make statements about law - statutes Case law v. statute law - usually works but they sometimes conflictCrimes in common law are divided into felony and trespass (encroaching on someone else's rights) Felony is more serious - breaches the king's peace
~ Treason, thefts, arson, burglary, rape, homicide, forgery Some crimes are bigger than just affecting the individual - affect the king's peace Prosecution for trespass may be better
~ Felony ? only leads to death
~ Trespass ? could lead to damages Aim of common law to preserve the king's peace
~ Public order makes the land more governable??

Church courts and canon law:
? Integrated system of justice

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