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< | That England was an amalgam of many proximate cultures cannot be doubted. English history is defined by the diversity of influences upon it, a level of diversity that, while not unique, certainly places it among a select group of civilizations. Assessing the “Englishry of English law” cannot take place in a vacuum that ignores England’s history. Examined over a period of time as broad as the history of England, it would be willful blindness to claim that the many and varied outside influences on England and the distinctly English legal system that simultaneously arose are merely correlated. Clearly over thousands of years, those influences in some sense gave rise to that legal system. | >
> | I) Introduction | | | | |
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< | The facts alone make a strong case for the causal relationship between England’s diverse influences and its distinct legal system. England was invaded countless times by her neighbors. A generously early starting point for English history (early because it predates the Angles and thus arguably predates “England”) begins with the Celtic Britons, who were conquered and subjugated by the Romans between the 1st and 6th centuries CE. Subsequent to the collapse of Roman rule the Scots, Picts, and Anglo-Saxons (themselves truly two groups, the Angles and the Saxons) all established footholds on the island of Great Britain, with the Germanic Anglo-Saxons eventually establishing seven separate kingdoms spanning most of modern-day England. Hardly two hundred years passed before the also Germanic Danes began a generations-long invasion, ultimately claiming almost half of England under the Danelaw. For the next three hundred years, the Anglo-Saxons and the Danes would parry back and forth, neither claiming a truly decisive advantage and eventually their respective royal lines intermarried through Emma of Normandy (whose Norman heritage would prove decisive in the battle for control of England). The last Anglo-Saxon king, Edward the Confessor, died childless in 1066; consequently, the Danish Harald Hardrada, the Anglo-Saxon Harold Godwinson, and the Norman William the Conqueror each asserted a claim to the throne. The Norman William was eventually successful and England remained relatively stable following the Norman Conquest. | >
> | The “Englishry of English law” is a result of its diversity of origin, but the origins don’t tell the complete story. England’s legal history is a melting pot, not a salad bowl. Up to and including the Norman Conquest, English history is a pile-up of diverse influences, but after the Norman Conquest England was relatively isolated. Many important English legal concepts developed from an outside influence being subjected to internal English pressures. The “Englishry of English law” may have had diverse origins as its ingredients, but unique historical developments blended them together into English law. | | | | |
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< | Part of the problem in disentangling the origins of the English legal system from all of these outside influences on England is determining what constitutes an outside influence on a country cobbled together from outside influences. If England is entirely composed of outside influences, then aren’t all outside influences native to some extent? What is the original state of England from which we can distinguish what qualifies as ‘outside’? In truth, all of the outside influences are, to some extent, but-for causes of the identity of England, which only goes to show that the “Englishry of English law” is directly related to the history of cultural amalgamation that created England. | >
> | II) Defining “Englishry” | | | | |
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< | The choice of starting point for the original England, and thus which influences qualify as outside versus native, directly impacts how much outside influences appear to have affected the development of English law. If original England is the Celtic England, then English law is probably entirely built on diverse sources. While the Romans recorded “very little” of the Celtic legal customs, it is safe to say that the one recorded tradition, human sacrifice, was not influential on the development of English law. Besides shire “names such as Norfolk and Suffolk [which] suggest ancient tribal communities,” almost nothing of the Celts imprinted on English law. | >
> | There exist a few characteristics that England uniquely, or almost uniquely, possessed. Then there are other traits which were not unique to England but were equally or more central to the English legal system. So, is “Englishry” the uniquely English traits, or the definingly English traits? Englishry must be the definingly English traits, otherwise if England’s legal system had no unique traits, it could not be called “English”. Thus defined, the Englishry of law was characterized by some unique features such as the circuit system, the sheriffs, the lack of a civil code, and the writ system, and some widely used features such as juries, a monarchy, and a parliament. | | | | |
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< | If original England starts with the Roman occupation of Brittania, then again there is little in English law that is not from an outside influence. Baker equivocally suggests that “[w]hether the[ Roman] colonisation of Britain made any lasting impact on native traditions is open to debate.” | >
> | III) The Ingredients: Diverse Origins | | | | |
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< | If England begins with the Anglo-Saxons (which is, after all, what the name ‘England’ suggests), then we can attribute at least some of English law to “native” influence; for at least some of the persistent structure of English government was in place “[b]y the tenth century”, such as “a single kingdom of England… [an] effective monarchy… a homogeneous scheme of local government… [division of the country into] 'shires' (counties), which have remained substantially the same in name and shape down to the present day [and which]… correspond to old Saxon kingdoms.” | >
> | A) Diverse Groups | | | | |
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< | Once the Anglo-Saxons were ousted from government by the Normans, William preserved many of these structures, “claim[ing] to be king by lawful succession, and [as] one of his first acts [promising] the English that they could keep their old laws.” Even so, the Normans probably have the best claim to have diversified English law to the point of uniqueness, and if one chooses the Norman conquest as the England’s starting point then English law developed almost entirely internally. The coincidence of the Norman conquest and the development of new English legal norms strongly suggests a causal relationship; for instance “at the time of the Norman conquest, England had neither a national judicature nor a legislature in any developed sense,” but had developed both mere centuries after the conquest. The Normans also made other tweaks such as “strengthen[ing] the Anglo-Saxon system of communal responsibility [and] introducing safeguards to counterbalance the growing power of sheriffs.” But even so, Baker finds it “questionable whether as much changed as was once supposed,” for the “warlike, uncultured and illiterate” Norman invaders “found in England a system of law and government as well developed as anything they had left in Normandy [and] had no refined body of jurisprudence to bring with them.” | >
> | There’s no doubt that England had many diverse influences, almost all of them conquering forces. The Celtic Britons were subjugated by the Romans between the 1st and 6th centuries CE. After Roman rule collapsed the Anglo-Saxons eventually established seven separate kingdoms spanning most of England. Two hundred years later the Danes began a generations-long invasion, ultimately claiming almost half of England. Finally, in 1066, the Norman William successfully invaded and conquered England. The composition and homeland security of England was relatively stable after that, bolstered by its isolated status as an island apart from the continent. This combination of successive invasions from different groups, followed by relative stability and isolation is the true “Englishry of English law”. | | | | |
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< | But all of this debate over how to distinguish outside influences from internal ones misses the forest for the trees. The mere inability to pinpoint the ‘original England’ is all the proof necessary that the “Englishry of English law” lies in its diversity of origin. The greatest historical certainty about English law, that it “represented an unbroken development from prehistoric time,” is equally certain about England herself. Development of a legal system cannot help but track historical development. Thus, a corollary to the cobbled-together nature of England as a state is that its legal system is necessarily and distinctly cobbled-together as well. | >
> | B) Diverse Influences | | | | |
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> | Did these diverse groups have long-lasting impacts on English law? The Celts left little behind but Shire “names such as Norfolk and Suffolk [which] suggest ancient tribal communities.” The Romans followed, but according to Baker “[w]hether their colonisation of Britain made any lasting impact on native traditions is open to debate.” That said, the Romans certainly introduced written documents and seals into the legal system, which would eventually form the backbone of the definitively English writ system. The Romans also left behind at least some legal traditions that the Anglo-Saxons picked up, such as the use of Latin and the elements of certain crimes such as treason, based on the Roman law of maiestas. Independently, the Anglo-Saxons developed at least some of the persistent structure of English government, which was in place “[b]y the tenth century”, such as “a single kingdom of England… [an] effective monarchy… [and] a homogeneous scheme of local government… [dividing governance units into] 'shires' (counties), which have remained substantially the same in name and shape down to the present day [and which]… correspond to old Saxon kingdoms.” Judicially, the Anglo-Saxons introduced a court system available to the poor and rich alike which had to meet at specified intervals. The Anglo-Saxons’ co-occupants, the Danes, indirectly helped develop the feudal system by necessitating its use as a military tactic. The Danish names for these feudal titles, notably “eorl”, also remained.
William and the Normans ousted the Anglo-Saxons and Danes were ousted from government. For the last “century and a half” Normandy had been “the best-ruled state in Europe,” and William was paradigmatic of the Normans’ disciplined leadership. The lasting impact left by the Normans on English legal history was bringing “precise and orderly methods into the government and law of England.” This governmental discipline manifested itself as centralization under the king. | | | | |
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> | IV) The Melting Pot- English History | | | | |
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< | Two things could improve this draft, in my view: simpler writing and
more law. Perhaps it would be good to begin with what Maitland
meant, or might have meant: in what consists the "Englishry" of
English law? Then, in what sense is the law made of diversity? To
say of Norman influence on the Anglo-Saxon law they found that their
changes were "tweaks" doesn't seem right to me. You quote Baker's
rhetorical effort to offset the idea of Norman creation of the
English law from their own supposed jurisprudential storehouse, but
to say that all that happened was "safeguards" against the growing
power of sheriffs won't do, either. | >
> | A) Isolation | | | | |
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< | That's the "more law" part. For the simpler language part, look at
the first paragraph. We don't know what the thesis of the
discussion is when we have finished it, and "amalgam of many
proximate cultures," "willful blindness to the claim" and so on do
not help us to hear clearly what you want to say. The best work of
revision is to sound clearly your central idea at the top of the
draft, and to develop it thereafter using both the clearest language
and the most specific legal ideas you can. | >
> | Any stew must simmer for a long time. If the period up to and including the Norman Conquest was the frantic dicing and slicing of ingredients thrown into a bowl, then the period after the Norman Conquest was the simmering, where disparate flavors mixed together to create a unique profile. After the Conquest, England was never successfully invaded again. Consequently, after 1066 most of the ingredients of English legal history were in the pot, and it is accurate to say that they had extraordinarily diverse origins. But the “Englishry of English law” does not lie “precisely” in its origins because English legal history only begins there. What happened next was those diverse ingredients reacting to and combining with each other in unpredictable ways that created unique results.
B) The Pressure Cooker
Once the lid closed English history is what cooked the ingredients and it was the combination of English history with various ingredients that yielded the “Englishry of English law.” Two ingredients stand out in the impact they had. First, English feudalism, which was strengthened by the Anglo-Saxons as a military strategy to help them fend off the Danes. Second, the Norman inclination towards centralized government. The Domesday Book resulted from combining these two concepts then mixing in the historical setting of 1066: that after the centuries of tug-of-war between the Anglo-Saxons and the Danes followed by the tumult of the Norman Conquest, England needed unified record-keeping. Quia Emptores also resulted from combining these two concepts with a distinct moment in English history: the centuries-long abandonment of knights as a military and feudal unit in favor of the yeoman.
V) Conclusion
The diverse origins of English law are but-for causes of its “Englishry”. But to say they are “precisely” its cause ignores that the diverse origins were acted upon, shaped, and molded by the unfolding of English history over a thousand years. This process created the “Englishry of English law” from the raw materials of diverse origins. | | | | |
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