English Legal History and its Materials

Englishery of English Law

-- By MattConroy - 06 Apr 2018

As an analytical framework arguing that the diversity of origins formed the unique character of English Law does not seem very useful. Were the origins diverse? Yes. Was the law distinct? Also yes. But many legal systems have diverse origins and yet do not seem so very distinct. What matters is that the origins were diverse and then the system was allowed to develop without significant outside influence for several hundred years.

What is the Englishry of English Law?

What exactly is it that Maitland calls the Englishry of English Law? It seems to mean that by the end of the 13th century the English recognized their own law as distinct and "were proud of it". (Maitland, 188) The major piece of this Englishry is a refusal to adopt French law if it is clearly French. ("Foreign novelties from Poitou or Savoy."). It is not necessarily clear if this statement is against foreignness or against novelties.

Defined By Origins

What if we tried analyzing the system using linear algebra. Let's represent any given legal system as a n dimensional vector x for some countable n. Each element of this vector would represent some qualitative weighting of how important some fact, or probably more accurately string of words, weighs into a decision. The social and political background as a whole would operate on the vector as a matrix C. Then through repeated application of the social transformation, the legal system develops over time. For a system to be precisely defined by origins, then the origins would need to completely define both C and x0 where x0 is the legal system at origin. For England this would probably be either 1066 when William became King or maybe 1072 when he consolidated power and left for Normandy.

Linear Algebra Informing Societal Change

In the vector model of a legal system, there are two possible ways to effectuate change. The first is to change the matrix on the left hand side by changing the sociopolitcal reality of the realm. The second way to change it is to simply change it, ie add a vector to the legal system arbitrarily to produce a new one. What happened is that the Englishry of the English Law meant that society was fine with changing the matrix, but not okay with direct substitution inside the legal system vector. This formulation seems to imply that it is the opposition to novelty that makes Englishery, not opposition to foreignness. Most of the powerful are cosmopolitan Normans anyway, not Anglo-Saxons.

Quia Emptores

One of the most important statutes of early medieval England is Quia Emptores of1290. (Baker and Milsom, 9). What this statute did was forbid tenants from subinfuedating when selling a portion of their tenement and they could only substitute. This was a massive change to the social, political and economic structure and English society. But this is legislation and not judge made law. It changes both the legal vector and the underlying matrix of politcal and social concern.

On the other hand, at roughly the same time the legal system is against clever lawyers trying too hard to change the law from within the courts. In 1285, Hengham CJ states "Do not gloss the statute, for we understand better than you; we made it." (Baker, 209). This shows a refusal to change just the legal vector on the whim of a lawyer.

Both of these anecdotes come in the light of Magna Carta of 1215. With this the barons have a say in what legislation gets passed, and England is moving towards the supremacy of Parliament (even if it does not really exist yet). Again Englishery is about avoiding novelty and having a say in governance.

Why is this useful analytically?

Analytically this characterization is useful because historically it was relatively easy to determine the components of the vector for any given generation of lawyers, but rather difficult to determine the characteristics of the matrix. Because of the ease of observing the legal vector, the English lords understood the power of perfect information in controlling society and were not willing to cede that power to the king completely.

Law was learned through observation and copying. Legal education consisted of copying verbatim what happened in court during the day into Year Books and then eating dinners in the inns at night in order to learn how to think and act like a lawyer. What this education did not do was explain the broader sociopolitical implications on and by the law. The class of people who had a better understanding of the bigger picture were the Henry II's and Thomas Cromwell's of the realm. Cromwell in particular was special because he rose above being a simple lawyer into being a major adviser to King Henry VIII. As despots these individuals were concerned with projecting power into the future which required a understanding of how things change over time. Even then they did not have a perfect understanding of how everything changed because the nature of the transition matrix is that it is really big. They were not Hari Seldon. 21st and 22nd century despotism will not have this limitation (maybe not entirely but to a disturbingly accurate degree).

The goal of power is to perpetuate itself, and no power system would wittingly adopt a change that reduces its own power. The lords may have understood that Quia Emptores would result in all of their lands reverting to the King through escheat eventually, but the present economic power of preserving the incidents is more important. This shows the fundamental difference between the state and the powerful creatures underneath it. The state wants power forever. With woefully suboptimal information about the matrix all those below it can do is maximize power now. Once information becomes more prevalent, there becomes a race to see who can better understand the matrix and upend this power dynamic.


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r5 - 06 Apr 2018 - 21:29:18 - MattConroy
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