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‘gross indecency’ between men in public and in private.10 However, it is clear that all male homosexual acts, whether committed in public or private, were already liable to prosecution under the medieval law against sodomy, which was defined as anal penetration or bestiality. By the eighteenth century, the common law principle that any attempt to commit a crime was in itself a crime had begun to be applied to the crime of sodomy. Most eighteenthand nineteenth-century trials, therefore, proceeded under the formal legal assumption that any homosexual act was an attempt
(see cection I above): the internal law of multinational corporations, employment law, environmental law, human rights law, the law of professional organisations. For these new areas of global law without the state, lex mercatoria represents a paradigmatic case. In its long history, stretching back to the old medieval law merchant, it has accumulated a rich experience as an autonomous non
instances.4 Instead, trained lawyers applied ‘artificial reason’ to the imperfectly recorded written records of the common law, and drew upon the ‘common erudition’ of their profession. The notion of what constituted a precedent also evolved among common lawyers: the records of the medieval law courts were supplemented by pleadings preserved from the late thirteenth century in the Year Books. Under the Tudors, these were augmented and then replaced by unofficial law reports; written chiefly by trainee and practising barristers, these increasingly found their way into
. McKitterick, ‘Some Carolingian law-books and their function’, in B. Tierney and P. Linehan (eds), Authority and Power: Studies on Medieval Law and Government presented to Walter Ullmann on his Seventieth Birthday (Cambridge, 1980), pp. 13–28. On legal practice in Carolingian Francia, see also J. L. Nelson, ‘On the limits of the Carolingian renaissance
case law on medical competence and care, and the difficulties in dealing with medieval law reports, US judge B Abbott Goldberg commented that ‘in these dusty, fusty antiques are the first glimmers of modern law of the quality of medical care’. 13 Glimmers of modern medical law can be found in nearly all the areas where law and healing engaged. Attention to medico-legal history casts light on persistent questions which still
Gillingham, The Angevin Empire (2nd edn London 2001), pp. 6–21; idem., Richard I, Yale English Monarch Series, 1999, pp. 24–75. 11 R. Van Caenegem, ‘Methods of proof in western medieval law’, in his Legal History, A European Perspective (London 1991), p. 73; below, nn. 13–16. 12 Cf. also Janet L. Nelson this volume, pp. 41–5. 13 R. Colman, ‘Reason and unreason in early medieval law’, Journal of Interdisciplinary History , iv (1974), esp. 587–91 (quotation at p. 583); ‘magico-priestly proceedings’ were contrasted with ‘secular trial’ by Van Caenegem
intellectual and political development of the medieval Far West. It must discuss at least three things: law, theology and the public sphere. First, it must include a discussion of medieval law. This must include both canon law (as expressed in the early attempts to limit warfare such as the ‘Peace of God’ and the ‘Truce of God’) and the customary law which dovetailed with it. It must include Church doctrines (most notably the lex mercatoria ) as well as the emerging codes of conduct among chieftains and kings. Second, it must include a discussion
potential for rape existed in medieval law as well as in literature. As Barbara Hanawalt has observed in her study of crime in early fourteenth-century England, a woman's social condition could affect the probability of her attacker's indictment for rape: ‘If the woman involved was a young girl, a virgin, or a noble or very high status woman, indictment was likely. But if she was of low status or some slur could be put upon her, the jury would not indict or the case would end in acquittal.’ 26 (A similar link may still be
, Llywelyn ap Gruffudd , pp. 5 – 6. 92 R. R. Davies, ‘The peoples of Britain and Ireland, 1100 –1400, III: Laws and customs’, TRHS ,6th ser., 6 (1996), 1– 23, at p. 6; Alan Harding, ‘ Regiam Majestatem amongst medieval law books’, The Juridical Review , 29 (1984), 97 –111; Robin C. Stacey, ‘Law and order in the very old West: England and Ireland in the early middle ages’, in Benjamin Hudson and Vickie Ziegler (eds), Crossed Paths: Methodological Approaches to the Celtic Aspect of the European Middle Ages (Lanham: University Press of America
with injuries to the face: what injury was sufficient to cause ‘incapacity’? Could this be merely æsthetic, or did it require impaired sensory function? If only parts of the body that held substantial function were actionable as ‘members’, which did this include? These were far from new concerns, and Patricia Skinner demonstrates the wide-reaching and detailed frameworks of assessment employed in medieval law codes across Britain. 44 Scottish judge Sir Alexander Seton drew directly on Tagliacozzi for his legal discussion of nasal injury in the late seventeenth