Wednesday, January 9, 2019

English Legal Exceptionalism Revisited: English vs. Common Law


The wish to tell a history of European law that is coherent yet recognizes the wide variety of systems and solutions across the continent (see previous blog), led me to question English legal exceptionalism. In their mildest form, claims for English legal exceptionalism affirm that English law is different from Continental law. In their most obnoxious form, these claims also assume English superiority. Despite their prevalence, historians making such claims rarely agree on what makes English law different and they point to different periods as essential in this parting of ways. For some, England was different because the Roman conquest was short lived and left no enduring legacies. For others, differences emerged because England was conquered successively by Northern peoples that had distinct legal traditions. Yet other historians point to legal developments after the Norman invaded Britain in the eleventh century, including the institution of royal courts and the elaboration of writs. For some, early common law was profoundly Continental. Distinctions only emerged over time because the English monarchs turned to use juries rather than inquisitorial processes and employed the services of non-university-trained individuals. For another group, English exceptionalism was particularly clear in the seventeenth century, when the English began portraying common law as a system of immemorial customary arrangements which included, inter alia, an ancient constitution. In the nineteenth century, England again took a distinct path when most of its experts rejected Continental-style codifications and turned to modernize their law in a distinct English manner.  
    
Although this telling of the past is based on meticulous research, it is nonetheless problematic. One problem is the insistence on comparing the Continent to common law and common law only. This comparison turns all other jurisdictions present in England, most importantly, the feudal courts that until the seventeenth century handled most of the adjudication, into the exception rather than the rule and it also dismisses the importance of royal legislation. A second problem (which I will tackle in the next blog) is the profound lack of familiarity with the Continent, which often serves as a straw-man, against which England is compared and contrasted.

Common law vs. English law

Asked in the abstract, we would all agree that besides common law courts, England had a variety of other courts: local courts, feudal (manorial) courts, ecclesiastical courts, courts of equity, merchant courts, and so forth. We would therefore concede that common law was not the only legal system operating on the island and we might even concur that until a certain point in time (which we may have difficulties to identify) it was hardly the most important one. As is well known, common law was applied only by royal courts that initially dealt with very few cases and were open only to subjects who could (and wanted) to afford litigating there. Although the jurisdiction of these courts expanded over time, throughout the Middle Ages and the early modern period, the number of judges sitting in common law courts was extremely small and they could not hear appeals from other courts or force these other courts to relinquish their jurisdiction.

While this story is well known, in the history-telling of English particularism, this part tends to be forgotten. This mostly happens because it is generally assumed that Manorial courts, for example, came under the influence of common law if not earlier than at least by the late sixteenth century. As a result, these court can be treated as part of the common law system and, in practice, be forgotten.

Yet, scholars who study manorial courts disagree. They argue that they were mainly geared towards keeping other powers (including royal powers) at bay and therefore had absolutely no incentives to emulate royal jurisdiction or allow royal standards to affect their rulings. If anything, manorial courts placed themselves in opposition to royal jurisdiction, their judges and litigants constantly invoking the power of local rather than royal norms. Scholars of manorial courts also maintain that their judges sought to identify the most convenient and consensual ad hoc solution depending on place, parties, and time. There were hundreds of feudal courts in England and none was like the other. If there was no uniformity within each court and there was none across the different courts, why assume that they were all subservient to common law?

Insisting on the importance of manorial courts (rather than common law courts) to English legal history is essential in evaluating the singularity of the English legal system because courts, similar to manorial courts, also existed on the Continent and, according to scholars, they followed a nearly identical trajectory. In the Continent as in England, these courts strove to solve conflicts by adopting what seemed just and efficient according to parties, subject matter, and place and their lay judges implemented solutions, which were ad hoc rather than scholarly or doctrinal.

If the routine telling of English legal history tends to ignore the contribution of manorial courts, it also tends to undermine the importance of legislation. To fit the narrative of the prominence of common law (that is portrayed as a customary yet judge made law), the contribution of legislation to legal development is often undervalued, even ignored. Yet, here too, historians affirm that legislation was an important legal source from as early as the twelfth century and throughout the Middle Ages and the early modern period. Indeed, it was so important that even common law judges and teaching at the Inns of Court could not afford to ignore it.

During the Middle Ages and the Early Modern period, in short, common law might have been an important, even essential, component of the English legal system, but it was not the only one. Nor did it absorb all other jurisdictions and normative orders present on the island. Giving it retrospectively a special status or making it “the law of the land” because to some degree or the other this was what eventually happened is therefore extremely anachronistic. If anything, this reading, which is not obvious, nor was ever foretold, requires an explanation. We need to ask how common law came to dominate, indeed to symbolize and stand for, the entire English legal system, when and why this happened, and what were the results.

Viewed in its entirety, it is probable that the history of English and Continental law mostly coincided rather than diverged.  But what would happen if we centered our attention on common law? Could we argue the same thing? (to be continued)

3 comments:

Patrick S. O'Donnell said...

Each post leaves me at the edge of my seat, wanting to learn more. The blogging equivalent of a good detective series on PBS or Netflix!

Anonymous said...

Thank you! (I gather this is a compliment??) Tamar Herzog

Patrick S. O'Donnell said...

Yes, the highest compliment (think Inspector Morse, Cracker, Frost, Prime Suspect ... of late, Vera and Shetland).