Originally posted by The Leper King
It's not a question of the existence of law, it's a question on the application and origin.
Aren't all laws some form of codified evolution from tribal custom? Are you arguing that Justinian coded his laws from an acid laden dream and they were completely different from anything which had gone before?
The fact that English, as well as Scottish, Commonwealth and US law are based upon the common law system by very definition of common law, means that the modern world is operating with laws originating from dark age Europe. Common Law, is customary law.
As for application, the problem of gaining justice through the application of law continues to this day. Would you argue that the US Constitution was not applied and that the nation used tribal custom until the end of segregation? Try reading the last Constitution of the USSR, there are few differences in the rights awarded under that document to rights in Western democracies, but those rights in the USSR were certainly not universally applied; using your "application and origin" test, then the USSR was a nation based upon tribal custom and still waiting for the Rennaisance.
Yes the principals were in place, but feudal custom was for the feudal period the main measure of application for what laws there were. And these feudal customs didn't even disappear in all their forms until long after the renaissance.
Some are in place today. Being awarded keys to the City of London customarily allows the recipient to herd cattle through the streets. Does the existence of this and other customs void English law today?
Laws were in place, and enforceable during the 12th century. To repeat, a common law was in place, much of which would look very familiar to those looking at modern English law.
Law was tied to the land, owing it's legitimacy to tradition.
Sorry, this is very inaccurate. I would agree that most of the driving factors behind the legal system at the time were to organize the holding of land, but at the same time precedents were being written which would guide commercial, consumer and inheritance law within the cities.
Once again, tradition should not be a barrier to legality, those traditions became the law. Prior to the 20th century's Land Reform Act, Conveyancing in England was little different from the 14th century, even after that legislation, medieval constructs such as Easements and transfer of ownership through unlawful occupation have survived.
Next, the concept of Parliament was in place and being enforced from the 13th century. The restriction of a monarch to rule absolutely, or to collect taxes without consent of Parliament has no firm basis in either Anglo-Saxon, or Norman custom. While one could argue an evolution from the Witan, what is new is the idea of a monarch being subject to law, not advice. Of course the conflict between Monarch and Parliament would continue and be refined until the early 18th century, but it's roots were in Medieval England, not a universal European enlightenment.
In game terms this could best be modeled by most of the western provinces having fixed laws (only slowly changeable with the development of the power of the sovereign), that are not dependent on who owns them. However this would make some regions more desirable then others because of favorable laws.
Interesting idea, but has two problems;
(1) it would ignore the fact that it is not always the monarch who is the driving force behind such laws. The movement from feudal service to land rights was not in the monarch's best interest but happened regardless. The clipping of a monarch's absolute power is another example that no self respecting, annointed-by-God Monarch would agree to either.
(2) While laws within Angevin holdings in France were different to holdings in England, it does not translate to province-level custom. Further, while Durham might have different laws to the City of Liverpool, by and large, land, inheritance and tax laws were almost identical.
There still remain differences between local, and central government, but does that translate well to province level legal custom during the game?
This is what I mean. You are not distinguishing between the medieval customs and the medieval laws, many historians make this very mistake.
The two need to be reconcilled. Habeous Corpus existed side by side with discretionary seizure and imprisonment. Modern rules against hearsay were enforced while torture was still a valid method of extracting confessions. These paradoxes remain today. One could argue that use of Diplock Courts, Internment, and sleep deprivation interrogation during the 1970's, while at the same time having very precise and well developed rights while under arrest are little different. Modern British Constitutional Law has very strong links to custom rather than code, in fact many restrictions to the Monarch's powers remain as footnotes to the actual law, or to non-enforced custom rather than clearly delineated restrictions.
While I'm not arguing that Byzantine society should not be treated differently to western feudalism, I do still object to your analysis of what constitutes enforceable legal structure as your tests would fail to determine 20th century Britain, Soviet Union or the USA as being different to pre-Rennaisance custom.
* edit; numerous spelling and grammar changes
