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)
