In historical legal systems, an outlaw is declared as outside the protection of the law. In pre-modern societies, this takes the burden of active prosecution of a criminal from the authorities. Instead, the person is withdrawn all legal protection, so that anyone is legally empowered to persecute or kill them. Outlawry was thus one of the harshest penalties in the legal system. In early Germanic law, the death penalty is conspicuously absent, and outlawing is the most extreme punishment, presumably amounting to a death sentence in practice. When a woman was proscription and subjected to penalties of outlaw, she was said to be “waived” and called a "waif". This waiving of the law was tantamount to outlaw since it removed all protection of the law[1]. Women in this status were outside of the "law", and others could kill them on sight as if he were a wolf or other wild animal.
Hostis humani generis (Latin for "enemy of mankind") is a legal term of art that originates from admiralty law. Before the adoption of public international law, maritime pirates and slavers were held to be beyond legal protection, and could be dealt with as seen fit by any nation, even if that nation had not been directly attacked. The term is also used in the present to describe the status of torturers. A comparison can be made between this concept and the common law "writ of outlawry", which declared a person outside of the King's law, a literal out-law, and subject to the violence of anyone. The ancient Roman civil law concept of proscription, and the status of homo sacer conveyed by proscription may also be similar.
Proscription (Latin: proscriptio) is the public identification and official condemnation of enemies of the state. Proscription implies the elimination en masse of political rivals or personal enemies, and frequently occurs during violent revolutions, most especially with the Reign of Terror in the French Revolution. Proscription was involved in the political violence in Argentina against Peronists after Perón fled into exile.
Proscription is defined by the Oxford English Dictionary as a "decree of condemnation to death or banishment" and is a heavily politically charged word, frequently used to refer to state-approved murder or persecution.
In historical Germanic society, nīþ (Old Norse: níð; [nīþ, nīð] Error: {{Lang-xx}}: text has italic markup (help)); was a term for a social stigma implying the loss of honour and the status of a villain. A person affected with the stigma is a nīðing (Old Norse: níðingr, [nīðing, nīðgæst] Error: {{Lang-xx}}: text has italic markup (help), or Old High German: nidding), one lower (cf. modern English beneath and modern German nieder) than those around him. The immediate consequence of being proven a níðing was outlawing the exile . (see for example [2])
The outlawed nithing did not have any rights, he was exlex (Latin for "outside of the legal system"), in Anglo-Saxon utlah, Middle Low German uutlagh, Old Norse utlagr. Just as feud yielded enmity among kinships, outlawry yielded enmity of all humanity.[3] "Nobody is allowed to protect, house, or feed the outlaw. He must seek shelter alone in the woods just like a wolf ."[4] "Yet that is but one aspect of outlawry. The outlaw is not only expelled from the kinship, he is also regarded henceforth as an enemy to mankind (hostis humani generis)."
Ancient dehumanizing terms meaning both "wolf" and "strangler" were common as synonyms for nithing outlaws: OHG warc, Salian wargus, Anglo-Saxon wearg, Old Norse vargr.[5] Outlaws were regarded as physically and legally dead,[6] their spouse was seen as widow or widower and their children as orphans, their fortune and belongings were either seized by the kinship or destroyed.[7][8] "It was every man's duty to capture the outlaw and [...] kill him."[9]
Homo sacer (Latin for "the sacred man" or "the accursed man") is a figure of Roman law: a person who is banned, may be killed by anybody, but may not be sacrificed in a religious ritual.[10] The meaning of the term sacer in Ancient Roman religion is not fully congruent with the meaning it took after Christianization, and which was adopted into English as sacred. In early Roman religion sacer, much like Hebrew קֹדֶשׁ qōdeš, means anything "set apart" from common society, which equally covers the meanings of "hallowed" and "cursed". The homo sacer could thus also simply mean a person expunged from society and deprived of all rights and all functions in civil religion. Homo sacer is defined in legal terms as someone who can be killed without the killer being regarded as a murderer; and a person who cannot be sacrificed[11]. The sacred human may thus be understood as someone outside the law, or beyond it. In the case of certain monarchs in western legal traditions, the sovereign and the Homo Sacer have conflated[12].
A nonperson is a citizen or a member of a group who lacks, loses, or is forcibly denied social or legal status, especially basic human rights, or who effectively ceases to have a record of their existence within a society (damnatio memoriae), from a point of view of traceability, documentation, or existence. The term also refers to people whose death is unverifiable and about which inquiries result in a "blank wall" of "nobody knows". The phrase was coined by George Orwell in his dystopian novel, Nineteen Eighty-four.
In Medieval England, justice systems were harsh, reflecting a belief that only fear would invoke respect for the law. Punishments for minor infractions were severe. Under the reign of Henry II, the legal system was improved, as Henry sent out judges to review cases in the English counties. These judges enforced justice by trial by ordeals, such a s ordeal by fire, ordeal by water and ordeal by combat. Trial by ordeal was abolished in 1215 when trials by jury were instituted.
References
edit- ^ The Subordinated Sex: A History of Attitudes Toward Women (2003) By Vern L. Bullough, Brenda K Shelton
- ^ His, Rudolf (1901). Das Strafrecht der Friesen im Mittelalter (in German). Leipzig. p. 166.
{{cite book}}: CS1 maint: location missing publisher (link) - ^ Brunner, Heinrich (1961). Deutsche Rechtsgeschichte (Band 1) (in German). Berlin. p. 166.
{{cite book}}: CS1 maint: location missing publisher (link) - ^ His, Rudolf (1901). Das Strafrecht der Friesen im Mittelalter (in German). Leipzig. p. 176.
{{cite book}}: CS1 maint: location missing publisher (link) - ^ Brunner, Heinrich (1961). Deutsche Rechtsgeschichte (Band 1) (in German). Berlin. p. 167.
{{cite book}}: CS1 maint: location missing publisher (link) - ^ Weiser-Aall, Lily (1933). "Zur Geschichte der Altgermanischen Todesstrafe und Friedlosigkeit". Archiv für Religionswissenschaft. 33: 225.
- ^ Brunner, Heinrich (1921). Grundzüge der deutschen Rechtsgeschichte (in German) (7 ed.). Munich/Leipzig. p. 192.
{{cite book}}: CS1 maint: location missing publisher (link) - ^ Rickenbacher, Franz (1902). Das Strafrecht des alten Landes Schwyz (in German). Leipzig. p. 31.
{{cite book}}: CS1 maint: location missing publisher (link) - ^ Fehr, Hans (1948). Deutsche Rechtsgeschichte (in German). Berlin. p. 16.
{{cite book}}: CS1 maint: location missing publisher (link) - ^ Agamben, Giorgio. Heller-Roazen, trans. Homo Sacer: Sovereign Power and Bare Life Stanford, CA: Stanford University Press, 1998. 72.
- ^ Giorgio Agamben - Homo Sacer, 1995 (Valdisholm publishing company, Norwegian translation), 2. part (Homo Sacer) 1.1. referring Sextus Pompeius Festus.
- ^ § 5 Constitution of Norway - http://www.lovdata.no/all/tl-18140517-000-003.html#5
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