Friday, July 9, 2021

2. Medieval law as local

(In keeping with an approach that I am trialling at the moment, and the looser format provided by a blog, I have decided to include some pictures; these are intended to complement the text, rather than to illustrate it, and as such, they are left uncaptioned. All of the images are either in the public domain, or have been permitted for non-commercial reproduction.)


In one of his characteristically well-turned phrases, Clifford Geertz remarks that ‘like sailing, gardening, politics, and poetry, law and ethnography are crafts of place: they work by the light of local knowledge.’ I love reading Geertz because his microcosmic studies produced the perspective I myself try to garner, a view of law not just ‘from below’, but from in and among – a sense of the way that law in fourteenth- and fifteenth-century England was interposed in daily life. And his emphasis on locality, the importance of place in the operation of law, chimes with what I have found in my research.

Late-medieval England was a world of a thousand law-courts. In almost every village there was at least one court, for the tenants of the local lord, and in many places there was also a royal jurisdiction, the leet, which met twice a year. In towns and cities, there were even more: tribunals for business and trade (‘piepowder’ courts, a name supposedly derived from the dusty feet, or pieds poudreux of the travelling merchants), for craft guilds, and for borough custom, as well as acting as hubs for church courts. In certain places, there were yet more specialist courts: the royal forests, port towns, mining communities all held courts to deal with the particular kinds of legal business that arose in such places. This was a society of dense legal pluralism, with thousands of overlapping and occasionally conflicting institutions.

Such a picture, however, stands in stark contrast to the standard accounts of the development of the common law and the ‘precocious’ development of royal government in England. From the late twelfth century and through the thirteenth, kings and their justiciars presided over the creation of one of the most ambitious and elaborate legal systems in medieval Europe. Many great legal historians, from F. W. Maitland onwards, have attempted to explain the origins of this system, how and why it came about. And in doing so, they have looked to the records of the central courts held in the National Archives at Kew: the King’s Bench and the Common Pleas, the eyre rolls and the assizes, the Chancery and the Exchequer. Something of the scale of this system, and its archive, can be discerned from the more than 9 million photos garnered by Professor Robert Palmer’s incredible digitization project, the Anglo-American Legal Tradition.

Yet for all the impressive bureaucratic machinery of the royal justice system, and the legal learning developed in the common law, I do not get the sense that this law was the one that concerned most people, most of the time. The common law courts were expensive for litigants, precisely because they had to hire legal experts to navigate their ever-increasingly complex forms and procedures; and while the criminal justice system was ambitious in its attempts to control disorder, it was – in the fourteenth and fifteenth centuries – increasingly devolved. Turning away from the impressive archives of the central courts, another picture emerges. In the disaggregated archives of county record offices, there are the disjointed, partial, and often fragmentary records of local institutions. Piecing them together, we can see a different constellation of legal culture.

My book thus attempted to provide a corrective to the centralized legal history of this period, both by evidencing the huge array of local law-courts, and also by arguing for their importance in the formation of late-medieval legal culture. These courts were closely attuned to local environments and patterns of socio-economic life: coastal courts drew on maritime expertise, while forest courts sought to carefully manage woodland resources. There were many such ‘local legal cultures,’ I suggest, which were constituted in the distinctive ways that non-elites used law-courts in particular localities. This concept, I hope, helps to explain the peculiar form of legal pluralism we find in the later Middle Ages, and what it meant for how ordinary people experienced and engaged with law.

What I was unable to do in my book, however, was provide a systematic answer to the question of how these local courts operated alongside the central system. In some places, there were clear connections: for example, I was able to trace one case of robbery from its first report in the court of a tiny Berkshire village all the way to the King’s Bench, and to show how a case heard by the royal admiralty court relied upon local networks of churchmen for their expertise in Roman law. My sense is that such connections between the local and central were patchy, partial, and temporary, dependent on personal contacts rather than bureaucratic structures. But I hope that future empirical research will help to further elucidate such problems.

That still leaves us, however, with a deeper question about what law was in this period. How far was it ‘local’, as Geertz hinted? And how far was it ‘central’ – or for late-medieval villagers, in whose perspective I am most interested, how far was it something that happened ‘elsewhere’, in London, for other, richer, more privileged people? The answer must be that it was both, of course, but finding a balance between these two positions is a difficult task; a conceptual framework that runs deeper than either of them, harder still. My suspicion is that it will require thinking beyond the binary categories of ‘local’ and ‘central’, and towards a conceptual vocabulary that has not yet been developed; but doing so will have hugely significant implications both for how we understand late-medieval law and its development.

-- Tom Johnson
Twitter / @tomlukejohnson
Email /