- Elgar Law and Entrepreneurship series
Chapter 2: How the law views the creative process
The process of using civil trials as a means of resolving disputes arose as a more egalitarian and rational approach in Anglo-European history than trial by combat, or trial by ordeal. The trials by ordeal were imaginative, albeit unlikely to actually produce an honest or fair result. One such approach was the Ordeal by Cake, in which a special cake was prepared, and an accused had to eat a piece. If the accused choked on the cake, they were guilty, and if not, their life was spared. It is unknown whether milk was offered. And many are familiar with the Ordeal by Cold Water, in which your hands and feet are bound, a rope is tied around your waist, and you are lowered by a pulley into cold water. If you float, you are guilty, and if you sink, you are innocent and no punishment will be imposed – of course there is the problem with this approach – innocent people often drowned. What all three of these approaches share in common is a desire within society to regulate the conduct of its members. While other cultures employed other means of regulating behavior, law and legal process occupied center-stage in Europe, and thereafter in the United States. It is not surprising that Anglo-European law has also, throughout its history, attempted to regulate and shape one of the most elusive qualities of human behavior, the creative process through which art and invention comes into being.
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