Wednesday, July 21, 2021

4. Medieval law as document

(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.)


Law is to be found in writing: this is a statement of the bloody obvious. But it took me a long time to get there. As I have rehearsed in some of my previous posts, I came to legal history from the outside, from social history. Over the course of my doctoral and postdoctoral work, I was thus principally interested in law’s social qualities – the way it was used to resolve disputes or establish hierarchical relations – and in particular the way it manifested in certain spaces and things. It was only as I began to the extra archival research needed to transform my doctoral thesis into a book that I began to think more about legal texts, and the work that they performed in producing law.

I cannot deny that the ‘allure of the archives’ played a significant role in this thinking. My favourite discovery was when I found a little slip of paper, a citation, enclosed inside the parchment binding of a church court book (which I describe in more detail in this article). I am fairly sure that it had been left there about six hundred years ago, and lain undisturbed since. Such discoveries certainly made me reflect more on texts as artefacts, with material qualities that shape the way we encounter legal history. But the boredom of the archives helped me too: when I got fed up with what I was supposed to be reading, I would ask archivists if they had any little bits and pieces, anything strange or miscellaneous. Very often, they did. And after having visited a few dozen local archives, I found I had compiled a strange archive of oddments.

Slowly, then, I came to realize that these writings were not merely a route into the world of late-medieval law, but had played a crucial role in producing it. For example, one genre of oddment I kept finding in local archives were strings of ‘copyholds’. Copyhold was a form of rural property tenure that emerged in the peculiar socio-economic conditions of the English countryside after the Black Death, when the scarcity of peasant tenants meant that they were more easily able to negotiate the duration and condition of their tenure. Many thus began to demand a copy of the court roll which recorded their entry into the land, as a record of their advantageous terms. Hundreds of thousands of such copies, which were written on small pieces of parchment, must have been produced. But very few have survived – only those which were subsequently archived by landlords who bought back the tenure at a later date.

Seeing these copies, however, set me to look out for mentions of them in the court records. And what I found was that these pieces of writing were extremely important to their owners as written artefacts, standing for possession of the property. Thus the widow who asked for her name to be entered on the very same copy that had previously borne her husband’s name; or the husbandman who kept copies of all his lands in a strongbox in his house; or the man who tried to scratch out the name of the previous owner on his copy, a move which cast doubt on the document’s validity. What I realized, with these examples and others like them, was the way that copies were a crucial part of the enactment of manorial property. This realization opened up further: legal writings in general – from deeds to citations, statutes to court rolls, were a significant part of what constituted law, what made it.

My thinking here was significantly indebted to Cornelia Vismann’s remarkable monograph on files. She traces the ways that the cultural logic of files and filing has shaped the form of law; from the connections between copying and cancelling documents in the emergence of the Chancery (Latin: cancellaria) as an institution in late Antiquity, to the development of public archives in the early nineteenth century in the formation of the nation-state, we can begin to see the multiple ways in which law and legal systems have been materialized through writing. As she suggests, the medieval legal proverb, Quod non est in actis non est in mundo (‘what is not in documents is not in the world’), could be rephrased without the double negative: ‘the real world is found in files’.

I have found this line of thinking enormously helpful in trying to pin down ‘what’ law was in late-medieval England, and how it did its work. As a perspective, it has the rare virtue of being both ‘etic’ and ‘emic’: that is to say, it makes sense as an actors’ category, a way of describing law that would have made sense to contemporaries, but also as a historical category that allows us to describe and analyze its effects in new ways. It also dovetails very nicely with exciting new work in medieval studies on codicology and paleography: on the histories of paper and parchment, scribal work, and annotation, that are helping to reshape our understanding of medieval writing more generally.

Of course, it is difficult for any one perspective on law to capture its entirety, its wealth of meanings and power. While a focus on law’s material texts helps to explain a lot, it does not account so well for the many ways in which late-medieval legality was made through speech: in oaths, verdicts, allegations, and the ‘hue and cry’, for example. It also perhaps risks an overly technical account of law, one that takes at face value its claims to systematicity, to smoothly functioning rules administered by literate bureaucrats. But I am optimistic that these problems can be overcome. There is a great deal of research to be done in this area, and I look forward to seeing what it yields. (I have written more about this here.)

-- Tom Johnson
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