Samuel's "Principia Iuris"

Geoffrey Samuel, Professor Emeritus, Kent Law School, has published Principia Iuris: A Historical and Comparative Introduction to the English Common Law (Edward Elgar):

This book provides a strong introduction to the principal domains of legal knowledge by examining a structured list of legal maxims, many originating in medieval Roman and canon law. Oriented by historical and methodological approaches, it explores legal thought and reasoning through a comparative lens.

Geoffrey Samuel explains the differences between common law and civil continental traditions, outlining preceding works on regulae iuris across the centuries. With an emphasis on English law, the book analyses basic principles and addresses the law of obligations, the law of actions and the law of property and public law. Delving into fundamental legal remedies, substantive law and legal institutions, Samuel questions whether some maxims are more memorable or indisposable than others and shows the impact they have had on legal theory. Exploring historical developments, the book also maps the original sources of key theories, utilising a civil law taxonomical plan to classify them.

Principia Iuris is an invaluable resource for students and academics in law, legal theory and legal history. Its unique insights into common law mentalities will also greatly benefit legal educators and practising lawyers. 

--Dan Ernst.  H/t: ESCLHblog

Kessler on the Origins of the Rule of Law

Jeremy Kessler, Columbia Law School, has posted The Origins of “The Rule of Law” which is forthcoming in Law and Contemporary Problems:

This Article offers a novel account of the origins of “the rule of law” in the English-speaking world. The phrase itself likely entered the language as a literal translation of the Latin regula juris. Prior to the early seventeenth century, however, the phrase appears to have been used exclusively to refer to the specific legal rule or maxim most relevant to the resolution of a particular kind of dispute. The more general and abstract use of the phrase – to refer to an ideal of political morality or an ideal type of governance – first appeared in the public record around 1610. It did so in the context of English common lawyers’ criticism of royal economic regulation limiting commodity production and circulation. The ideal type of governance that these common lawyers had in mind was the rule of common-law rules. They believed that the “chief subject or object” of these rules was the freedom of Englishmen to dispose of their possessions and professional skills as they wished, and to profit thereby. The earliest advocates of “the rule of law” thus found themselves in the vanguard of a cross-class project that sought to privilege the equal liberty of commodity exchangers over other long-recognized political, religious, and economic entitlements. Consequently, the original rule of law – the rule of common-law rules – came with a set of libertarian and egalitarian expectations, in addition to expectations of publicity, clarity, regularity, and so on.

When A.V. Dicey popularized “the rule of law” in the late nineteenth century, he claimed to

Albert Venn Dicey (wiki)

be restating age-old English common sense. While this claim exaggerated the continuity and coherence of English legal history, Dicey’s conception of the rule of law did indeed track the original, early-seventeenth-century conception in significant respects, including its libertarianism, its market-oriented egalitarianism, and its commitment to the supremacy of the common law. For both Dicey and his early modern precursors, the key to the equal liberty of English subjects was the centrality of common law courts to the settlement of disputes, whether between private parties, or between private parties and public officials. Contemporaneous critics of Dicey’s conception thus rightly understood him to be defending a legal worldview that dated to the early days of competitive capitalism. Yet the appeal of that worldview persists.

In the middle of the twentieth century, Anglophone legal philosophers did craft an alternative: a more austere and generalizable conception of the rule of law, one freed from the libertarian, egalitarian, and common-law sensibilities of Dicey and his precursors. While an intellectual coup, this minimalist conception has proven unsatisfying not only to legal practitioners but also to a growing number of legal theorists, including some of the minimalist conception’s erstwhile defenders. For these critics, Jeremy Waldron foremost among them, the minimalist conception fails to capture common-sense understandings of both law and the rule of law. But why does the contemporary common sense to which Waldron appeals so closely echo the concerns of common lawyers in 1610?

This Article argues that the answer lies in the limited yet significant socio-economic context shared by early modern common lawyers, late nineteenth century jurists, and contemporary legal theorists. That shared context is the dominance of commodity exchange, which has characterized capitalist societies since their emergence in sixteenth and seventeenth century Europe. The common lawyers who first used the phrase “the rule of law” to denote an ideal of political morality were responding to a profound and lasting social and economic transformation. That transformation – the penetration of commodity exchange into ever more domains of social life – gave rise to demands for the rule of law four hundred years ago, and continues to shape discourse about the rule of law today.

--Dan Ernst

Boyer and Nicholls's "Rise and Fall of Treason in English History"

Allen Boyer, formerly senior appellate counsel at the New York Stock Exchange Enforcement Division and the author of Sir Edward Coke and the Elizabethan Age (Stanford University Press) and Mark Nicholls, a Fellow of St. John’s College, Cambridge, have published The Rise and Fall of Treason in English History (Routledge):

This book explores the development and application of the law of treason in England across more than a thousand years, placing this legal history within a broader historical context.

Describing many high-profile prosecutions and trials, the book focuses on the statutes, ordinances and customs that have at various times governed, limited and shaped this worst of crimes. It explores the reasons why treason coalesced around specific offences agreed by both the monarch and the wider political nation, why it became an essential instrument of enforcement in high politics, and why, over the past three hundred years, it has gradually fallen into disuse while remaining on the statute book. This book also considers why treason as both a word and a concept remains so potent in wider modern culture, investigating prevalent current misconceptions about what is and what is not treason. It concludes by suggesting that the abolition or 'death' of treason in the near future, while a logical next step, is by no means a foregone conclusion.

The Rise and Fall of Treason in English History is a thorough academic introduction for scholars and history students, as well as general readers with an interest in British political and legal history.

--Dan Ernst

Landmark Cases on Punitive Damages

Landmark Cases in the Law of Punitive Damages, edited by James Goudkam, University of Oxford, and Eleni Katsampouka, Kings College, London, has been published by Hart/Bloomsbury.

Punitive damages are private law's most controversial remedy. This book traces the development of the jurisdiction from the foundational decisions of Huckle v Money and Wilkes v Wood in England, to leading modern cases such as Harris v Digital Pulse Pty Ltd in Australia, Whiten v Pilot Insurance Co in Canada, Couch v AG (No 2) in New Zealand, PH Hydraulics and Engineering Pte Ltd v Airtrust (Hong Kong) Ltd in Singapore and Mathias v Accor Economy Lodging, Inc and State Farm Mutual Automobile Insurance Co v Campbell in the United States. Many of the decisions addressed are not only landmarks regarding punitive damages but are among the most important judgments delivered in private law more generally.

The essays, which are written by leading scholars from a wide range of jurisdictions, cast new light on the cases covered. They do so by examining their historical antecedents and the impact that they have had on the development of the law. The full spectrum of issues regarding punitive damages is addressed including the insurability of punishment, constitutional constraints on the remedy's availability and whether the award should be confined to particular causes of action. The collection will be of interest to all scholars and students of private law. It concentrates on common law cases although civilian perspectives, drawn from France and Germany, are also offered.

Discount Price: £96.  Order online at www.bloomsbury.com & use the code GLR AQ7 to get 20% off!

--Dan Ernst.  Table of Contents after the jump.

MacQueen's "Law and Legal Consciousness in Medieval Scotland"

Hector L. MacQueen, Emeritus Professor of Private Law at Edinburgh Law School, has published Law and Legal Consciousness in Medieval Scotland in Brill’s series, Medieval Law and Its Practice:

This book explores the rise of a Scottish common law from the twelfth century on despite the absence until around 1500 of a secular legal profession. Key stimuli were the activity of church courts and canon lawyers in Scotland, coupled with the example provided by neighbouring England’s common law. The laity’s legal consciousness arose from exposure to law by way of constant participation in legal processes in court and daily transactions. This experience enabled some to become judges, pleaders in court and transactional lawyers and lay the foundations for an emergent professional group by the end of the medieval period.

–Dan Ernst

Sandberg's "Historical Introduction to English Law"

Russell Sandberg, Cardiff University, has published A Historical Introduction to English Law: Genesis of the Common Law (Vambridge University Press):

There are some stories that need to be told anew to every generation. This book tells one such story. It explores the historical origins of the common law and explains why that story needs to be understood by all who study or come into contact with English law. The book functions as the prequel to what students learn during their law degrees or for the SQE. It can be read in preparation for, or as part of, modules introducing the study of English law or as a starting point for specialist modules on legal history or aspects of legal history. This book will not only help students understand and contextualise their study of the current law but it will also show them that the options they have to change the law are greater than they might assume from just studying the current law.

--Dan Ernst

Weekend Roundup

• Earlier this week, the White House announced appointments to Permanent Committee for the Oliver Wendell Holmes Devise.  The Committee is composed of the Librarian of Congress and four additional members appointed by the President.  The new appointees are Risa Lauren Goluboff, Martha S. Jones, and Trevor Morrison.  UVA's notice on Dean Goluboff's appointment is here; NYU's on Dean Emeritus Morrison's is here.  
  

• Ryan Reft, Library of Congress, has posted Gideon v. Wainwright at 60: Anthony Lewis, Clarence Gideon, and America’s Public Defenders on the blog, Unfolding History: Manuscripts at the Library of Congress.
  

• On March 23, Kevin Butterfield, director of the John W. Kluge Center at the Library of Congress, will discuss his book, The Making of Tocqueville’s America: Law and Association the Early United States, in support of the ongoing exhibit at the Library of Congress, Join In: Voluntary Associations in America.
  

• Nicole Carlson Maffei has posted Lucile Lomen (1920-1996), an essay on the first woman to serve as a clerk to a justice of the U.S. Supreme Court, on the Supreme Court Historical Society website.
• “An archive belonging to attorney Linda Coffee, who filed the initial lawsuit in Rowe v. Wade, will go up for auction" (Dallas Morning News).

• "Stanford University Historian Gregory Ablavsky will lecture on 'The Past, Present, and Future of Native Sovereignty in Federal Law' at 5 p.m. March 15 Shideler Hall room 152," University of Miami (Ohio).
  

• Queen Mary, University of London, announces its new LLM in Common Law Theory and Practice. “Unique in the landscape of legal postgraduate education, this programme combines theoretical and applied study of the common law. Whether you are you are unfamiliar with the common law or have studied in a common law jurisdiction and wish to deepen your knowledge, this programme offers a contextual and critical insight into the common law and its workings.” 
  

• ICYMI: From the Poor Laws to the Social Security Act (History Channel). A library exhibit on the buildings that housed the University of Arkansas School for Law.  A notice of Norman Silber’s oral history of Judge Guido Calabresi. (Law.com).  Diane Minear, an attorney in the Spencer Fane Overland Park, Kansas, on Myra Bradwell.
  

• Updates: A notice of  Laura M. Weinrib’s lecture,“Money, Politics, and the Constitution in the ‘Golden Age’ of Capitalism,” at an event honoring her 2021 appointment as the Fred N. Fishman Professor of Constitutional Law at the Harvard Law School (Harvard Crimson).  Also, we noted with interest that the William Nelson Cromwell Foundation supported this digitization project (NYT).
  

 Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Walker on Del Mar's "Artefacts of Legal Inquiry"

In the Netherlands Journal of Legal Philosophy, Greg Walker, Regius Professor of Rhetoric and English Literature at the University of Edinburgh, has published a very thoughtful assessment, from “a literary perspective,” of Maksymilian Del Mar’s Artefacts of Legal Inquiry: The Value of Imagination in Adjudication (Hart, 2020).  It commences:

Maksymilian Del Mar’s ground-breaking monograph, Artefacts of Legal Inquiry: The Value of Imagination in Adjudication (hereafter Artefacts) offers a rich, multi-faceted account of what happens when judges examine the submissions of advocates and decide how the English common law should be applied in particular cases. Based on voracious reading in, and thinking through, the principles and practises of English common law, European philosophy, and global literary studies, it is a book which only someone trained and acculturated in all three disciplines could produce. It is demonstrably a tour de force of up-to-the-minute interdisciplinary scholarship.

But what, it might be asked, does a book that offers a detailed, case-specific account of the linguistic and cognitive dimensions of judicial inquiry in the field of twentieth-century common law practise have to interest a scholar of sixteenth-century literature and politics? The answer, it turns out, is a great deal, not least because many of the roots of both modern legal conventions and early Tudor literature, deep and long-lasting in the first case, relatively newly formed and close to the surface in the second, can be traced to the legal training, the moots and disputations of the early-modern Inns of Court, an institution in which both Del Mar and I have an abiding scholarly interest. But, more generally, what is not to like for a literary scholar in a book that talks about genres, figures, metaphors, audiences and performances, scenarios, figures and tropes, and which discusses the literariness and narrativity of inquiry, and its ‘poetic character’?

More.

---DRE

Barbarians in the Dock: How Vulgar Speech Become a Crime in 18th-Century Massachusetts

     I'd like to thank Dan Ernst and LHB for the opportunity to be a guest blogger this month. I'm excited to participate in this community of scholars. As Dan mentioned in his introduction, I recently published my first book, The Dreadful Word:  Speech Crime and Polite Gentlemen in Massachusetts, 1690-1776, with the Studies in Legal History at CUP.                                   

    For the book, I looked at provincial statutes and General Sessions of the Peace (local courts) records to determine what kinds of verbal offenses were criminalized, prosecuted, and punished in eighteenth-century Massachusetts. I considered how contemporaries described these crimes and the offenders, and tracked who was most likely to be prosecuted and receive the harshest punishments. 
    Unlike the previous century, when colonists criminalized speech they deemed ungodly, now colonists criminalized speech they considered impolite. In many ways, the statutory scheme and enforcement practices of the 1700s regarding criminal speech reflected the ethos of conduct and courtesy literature.
    Surprising patterns emerged. Even as Puritan influence waned, Massachusetts colonists remained deeply interested in criminalizing and punishing speech as part of preserving the King's peace. They enacted and renewed numerous statutes throughout the century outlawing acts such as profane cursing and swearing, defamation, lying, sedition, spreading false news (not yet a political catchphrase), threats, contempt, false swearing and perjury, and mumping (the eighteenth-century version of a confidence man). Additional common law crimes were also avidly prosecuted: noise, abuse, rudeness, and "ill manners."
    Moreover, these crimes were not generally applicable, but were associated in legal records with particular sorts of people--the lower orders. Explicit references to soldiers, sailors, and servants, and language that bent the law's ear toward speech occurring in the work and social spaces of the meaner sort make clear whose speech provincial legislators believed was most threatening to good social order.
    Meanwhile, patterns of prosecution and punishment also reveal strong associations between "vulgar" speech and "the vulgar." Notably, the participatory and highly discretionary nature of the General Sessions Courts meant that the law could not be employed as a blunt cudgel of power by the elite; the system had to look legitimate. Although historians usually stress the shift to property-related offenses in the caseload of eighteenth-century Massachusetts courts, the more than 1600 cases of speech crime that I uncovered suggest a broad community consensus that these crimes, too, posed significant threat to the King's peace.
    In my next post, I'll discuss how the turmoil and chaos of protest and revolution splintered a speech economy premised upon politeness, and created opportunities to recalibrate the relationship between language and power.

--Kristin A. Olbertson

Tate's "Power and Justice in Medieval England"

Joshua C. Tate,  SMU Dedman School of Law, has published Power and Justice in Medieval England: The Law of Patronage and the Royal Courts (Yale University Press) in the Yale Law Library Series in Legal History and Reference:

Appointing a parson to the local church following a vacancy—an “advowson”—was one of the most important rights in medieval England. The king, the monasteries, and local landowners all wanted to control advowsons because they meant political, social, and economic influence. The question of law turned on who had the superior legal claim to the vacancy—which was a type of property—at the time the position needed to be filled.

In tracing how these conflicts were resolved, Joshua C. Tate takes a sharply different view from that of historians who focus only on questions of land ownership, and he shows that the English needed new legal contours to address the questions of ownership and possession that arose from these disputes. Tate argues that the innovations made necessary by advowson law helped give birth to modern common law and common law courts.

Here are some endorsements:

“A praiseworthy and original investigation of a subject that straddled the line between secular and spiritual: the early history of the English common law of advowsons.”—R.H. Helmholz, University of Chicago Law School
 
"Tate brings to this book just the qualities it needs: he asks the right questions and knows the common law and canon law materials which supply the answers. His study makes a significant contribution to our understanding of an important part of the early English Common Law."—Paul Brand, University of Oxford

“It has been a great pleasure to watch what began as a tentative, but intriguing, doctoral dissertation turn through a series of articles on seemingly small points into the small masterpiece that is this book.”—Charles Donahue Jr., Harvard Law School

–Dan Ernst

Weekend Roundup

• 
  The Centre for English Legal History’s recent talk with former LHB Guest Blogger Thomas McSweeney, William & Mary Law on his book, Priests of the Law: Roman Law and the Making of the Common Law's First Professionals, is available here.
  

• McCulloch Overruled? The Odyssey of a Landmark Case, a lecture by David Schwartz, University of Wisconsin Law School, is now available on the YouTube channel of the Supreme Court Historical Society.

• From the Washington Post's "Made by History" section: Anna K. Danziger Halperin (New York Historical Society), "Biden has chance to reverse 50 years of failure on child-care policy"; Julia Ott (the New School), "While tax breaks favoring the rich may appear race-neutral, they aren’t"; Samantha Barbas (University at Buffalo School of Law), "A major Supreme Court First Amendment decision could be at risk"; and more.
  

• From History News Network: Kara Dixon Vuic (Texas Christian University), "A Faulty Court Precedent on Selective Service Leaves the Last Legal Sex Discrimination in Place." 
  

• Ross Davies speculates on the origins of the Green Bag–the legal periodical, we mean, not the cloth, draw-string sack–in Legal-Bibliographical Roots: Fragments of a Green Bag Origin Story.
  

•  In Custodia Legis reports that Congress.gov has added "30,000 Bills and Resolutions from 1799-1873."

• John O'Dowd's appreciation of Andrew Bremner Lyall, a historian of East African land law eighteenth-century Ireland and the law of slavery, appears in the Irish Times.
  

• Congratulations to former LHB Guest Blogger and current Editor of Law and History Review Gautham Rao upon his election to the Advisory Council of the Society for Historians of the Early American Republic.

• The nicest rejection letter ever turns out to be written by a legal historian.

• From the web-based Journal of the American Revolution: Haimo Li on "The Bolingbrokean Constitutional Argument in John Adams’s 1766 Clarendon Letter."
  

• From the Career Advice section at Insider Higher Ed: "When Should You Submit Your Scholarly Book Proposal?"
  

• ICYMI: Nelson Lichtenstein on the revival of the antimonoply tradition (WaPo).  Stephen Carter remembers Justice Thurgood Marshall (NYT).
  

 Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Schorr on Nature as Norm in and Water Law in the British World

David Schorr, Tel Aviv University Buchmann Faculty of Law, has posted Nature Versus the Common Law: Nature as a Norm in the Water Law of the British World, which is forthcoming in Clio@Thémis 2021:

This article, written for a forthcoming issue of the journal Clio@Thémis on "Nature as a Norm", examines the water law of jurisdictions from across the "common law world" in the nineteenth and early twentieth centuries, a period in which increasingly intensive uses of water and watercourses around the world brought conflicts over water law into court with relative frequency. An issue that arose in a variety of contexts was the degree to which the rules of the common law of England with regard to water could or should be applied in territories characterized by environmental conditions that often differed radically from those found in England. A legal regime that seemed unremarkable in the home country often seemed a poor fit for the conditions of other, far-off lands, leading to friction between the law and the lived life of the colony and its natural environment.

The article explores some of the areas of water law in which courts around the common law world departed from the established rules of the common law in order to make the legal rules more appropriate, as they saw it, to the local environment. They did so consciously, explicitly granting nature normative force. It will also look at other courts and judges, ones that resisted this kind of normative claim, arguing that the law in new environments had to conform to the old common-law rules, regardless of what nature seemed to demand. Perhaps surprisingly, this discourse in far-flung jurisdictions about the potential legal force of local environmental conditions was at the same time a global one: Arguments were made not only about the differences between local and British nature, but also about the similarities between the natures of territories very distant and different from each other. Both types of environmental comparisons were seen to have normative significance.

--Dan Ernst

Jahner, "Literature and Law in the Era of Magna Carta "

New from Oxford University Press: Literature and Law in the Era of Magna Carta (Dec. 2019), by Jennifer Jahner (California Institute of Technology). A description from the Press:

The monograph series Oxford Studies in Medieval Literature and Culture showcases the plurilingual and multicultural quality of medieval literature and actively seeks to promote research that not only focuses on the array of subjects medievalists now pursue -- in literature, theology, and philosophy, in social, political, jurisprudential, and intellectual history, the history of art, and the history of science -- but also that combines these subjects productively. It offers innovative studies on topics that may include, but are not limited to, manuscript and book history; languages and literatures of the global Middle Ages; race and the post-colonial; the digital humanities, media and performance; music; medicine; the history of affect and the emotions; the literature and practices of devotion; the theory and history of gender and sexuality, ecocriticism and the environment; theories of aesthetics; medievalism.

Literature and Law in the Era of Magna Carta traces processes of literary training and experimentation across the early history of the English common law, from its beginnings in the reign of Henry II to its tumultuous consolidations under the reigns of John and Henry III. The period from the mid-twelfth through the thirteenth centuries witnessed an outpouring of innovative legal writing in England, from Magna Carta to the scores of statute books that preserved its provisions. An era of civil war and imperial fracture, it also proved a time of intensive self-definition, as communities both lay and ecclesiastic used law to articulate collective identities. Literature and Law in the Era of Magna Carta uncovers the role that grammatical and rhetorical training played in shaping these arguments for legal self-definition. Beginning with the life of Archbishop Thomas Becket, the book interweaves the histories of literary pedagogy and English law, showing how foundational lessons in poetics helped generate both a language and theory of corporate autonomy. In this book, Geoffrey of Vinsauf's phenomenally popular Latin compositional handbook, the Poetria nova, finds its place against the diplomatic backdrop of the English Interdict, while Robert Grosseteste's Anglo-French devotional poem, the Chateau d'Amour, is situated within the landscape of property law and Jewish-Christian interactions. Exploring a shared vocabulary across legal and grammatical fields, this book argues that poetic habits of thought proved central to constructing the narratives that medieval law tells about itself and that later scholars tell about the origins of English constitutionalism.

More information is available here.

-- Karen Tani

Legal Transfer in the Common Law World at Max Planck

We have word of the latest in the Common Law Research Seminar Series of the Max Planck Institute for European Legal History, entitled Legal Transfer in the Common Law World.  The seminar usually meets from 2:15-3:15 on selected Tuesdays save for November 28, a Thursday.

As the British Empire expanded, English law was being introduced in very different parts of the world. Rules, principles and institutions from England were brought into force in regions and societies as diverse as Australia, Ghana, India, Jamaica and Singapore. In this Special Research Field, we enquire how this process unfolded in various places.

In many cases English law encountered local or regional traditions, both legal and non-legal. To what extent did these encounters differ from each other? Was there ever anything resembling the frequently invoked ‘unity of the common law’? Or did the law of England acquire a distinctive flavour in each territory, depending on the geography, the climate and the prevailing religious, moral and economic views of the inhabitants? And, finally, can we learn anything from the experience of English law for the broader debate on legal ‘transplants’ and, even more generally, legal development as such?

Initially, this research field focuses primarily on the following regions: India, South East Asia and the Caribbean. Specific case studies turn on different areas of law, including constitutional law, the law of contract, land law and intellectual property. Equally important are the modes of conflict management in state courts and beyond.

Here is the schedule:

October 14      Yair Sagy (University of Haifa), Law Reporting in Mandatory Palestine and the British Empire: Methodology, Perspective, and Narrative

November 4    Zeynep Yazici-Caglar (Max Planck Institute for European Legal History), Legal Education as a Tool of Professionalization in England (1850-1900)

November 11  Delores Freda (University of Naples), Across Boundaries: the English Justices of the Peace on the Continent

November 28 (Thursday)  Hunter Harris (University of Michigan), The Use of Bills of Exchange in 18th Century Glasgow

December 2     Henry Jones (Durham University), The Meaning of Territory in British Empire Border Disputes

December 16   Victoria Barnes and Niels Pepels (Max Planck Institute for European Legal History), Transferring offer, acceptance and revocation to British Guiana

January 13       Matilde Cazzola (University of Bologna), Master and Servant Regulations and Labour Laws in the Post-Emancipation British West Indies

January 27       Mark Comos (Max Planck Institute for Comparative Public and International Law), American States of Nature: The Origins of Independence, 1761-1775

February 10     Matthew Waites (University of Glasgow), Same-Sex Discrimination in the Commonwealth

--Dan Ernst

English Exceptionalism Revisited II – The Continental Strawman

In English Exceptionalism Revisited, published previously on this blog, I argued for the need to reexamine the convention that English law was different from Continental law. I suggested that claims for English exceptionalism are often based on privileging the history of common law over the history of other jurisdictions and legal systems that co-existed in England. In this second part, I would like to examine yet another issue: how narratives of English exceptionalism use Continental law as a strawman. Because of considerations of space, I focus my attention on the claim that common law was different because (contrary to Continental law) it included an immemorial customary law. This claim became central to English legal thinking in the late sixteenth and the seventeenth centuries, but it also persists to-date. It is based, inter alia, on the (silent) assumption that Continental law was not an immemorial customary law, but instead a system based on scholarly debates, legislation, and Roman law.

Historians of Continental law would disagree. In their telling, customs were a central element also in the continent. From as early as classical Roman law and into the nineteenth century, Continental jurists habitually identified local law as customary. They suggested that it was a legitimate expression of a legal diversity that allowed for different local solutions despite the existence of an overreaching common core uniting all Romans (first), Christians (second) and Europeans (third). Jurists’ main role was to explain how this was possible, that is, how thousands of local legal arrangements (“customs”) could nevertheless form part of a single global system. This was what Roman jurists did, but it was also what medieval jurists accomplished as they slowly elaborated a system that, while validating local laws, also created a ius commune (a common law, a system that scholars of England identify as “Roman” or “Civil” precisely in order not to call it common law as Continental jurists would).

The effort to harmonize local and global were criticized by some sixteenth-century jurists. These jurists, known as legal Humanists, insisted on identifying an authentic local customary law that would stand in opposition to (rather than in harmony with) the common framework.  Because they believed that customary law could counter monarchical pretensions at absolutism, these jurists turned to identify what this law included. Thereafter, the main question they asked was not if customs existed and were important (of course they were) but who would be charged with identifying them. In France, where this struggle was particularly strong, the kings succeeded to have the upper hand. They gained control over the identification of customs by instituting committees that purportedly “wrote down” the customary laws of France but that, in reality, greatly modified them according to royal desire as well as tied them to royal validation.   

Because it was difficult to prove that certain practices were customary, late medieval and early modern Continental jurists adopted the convention that customs were, by definition, immemorial. In their telling, immemoriality was a category of proof, not a historical fact. It embodied a presumption identified as juris et de jure that, contrary to all other presumptions, admitted no proof to the contrary. As far as these jurists were concerned, at stake was not the distinction between what could be remembered and what had been forgotten, but a policy decision regarding what should be proved and what could be assumed without proper proof. This decision hinged on evaluating what society wished to protect (local law) and how much (as strongly as possible). It represented, perhaps better than anything else, the important place of customs in Continental juridical elaboration.

English sixteenth- and seventeenth-century descriptions of common law as immemorial customary law were thus part of a much larger European conversation. This conversation initiated in the Roman empire but continued throughout the Middle Ages and into modernity. Nonetheless, in the late sixteenth and in the seventeenth century, English lawyers insisted that their system was radically different, and they expressed fear of “foreign” influence. They suggested that Europe followed Roman law, while England had a genuine customary law of its own, which reflected the spirit of its people.  This portrait omitted the important contribution of ius commune jurists to the formation and institutionalization of common law, including ideas regarding customs and immemoriality. It assumed English lawyers were ignorant of developments in Europe (all evidence to the contrary) and it constructed a Continental strawman, against which England was compared. The result was often, to paraphrase the words of Chris Wickham, a “cultural solipsism” that led scholars to believe in exceptionality where not much of it existed.

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)