Englishery of English Law

-- By MattConroy - 28 Nov 2017

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 to produce such a distinct legal system. There is no precisely here at all. 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.").

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.

Doesn't follow. You have suggested treating "the Englishry of English Law" as a legal nationalism, a rejection of French or other Continental-ness. That need not be the uniform homogeneous view of the decision-makers: there can be "cosmopolitans" or (in current parlance) "remainers" among the legal elite. The authors of Bracton, who are most definitely insiders, with privileged access to the rolls, fall into this class of not-so-English thinkers, for example.

Nor can we say that all "substitutions inside the legal system vector" are disfavored because they are "foreign." They can and often are not so identified, perhaps because legislation exists.

I think there is value in the conceptual approach, but precisely because it is a simple model seeking its power from the use of non-historical approaches to history, it has to be careful not to claim too much.

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 was completely fine with it because it only changes the matrix and not the legal vector itself.

How does that conclusion follow?

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).

Yes, that's one way of understanding what is happening here. But connecting the terse indication of immediate judicial skepticism to the larger claim that this is a limitation on the power of judges to create legal change requires more than the anecdote.

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. Law was learned was 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. This sort of education would give a mastery over every little piece of what the law did. What it did not do was explain how things change or 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. That depends on more than mastering bigness. The real problem is the ultimate computational tractability of non-linear dynamics. The real butterfly's wing problem lies not in three dimensions, but in four: the Mule is only an individual mutation that cannot be seen amidst the complexity of the larger system of galactic history, but his ultimate consequences are immense.

This limitation on medieval despotism was and is important. It lead directly to the end of feudalism. When Quia Emptores was passed, nobody contemplated that in the long run this statute plus escheat would collapse the feudal hierarchy.

Are you sure? The inference is not self-evident. This is tax law, concerned with preserving the value of the incidents, in which the King is ultimately the winner over generations, but the present circumstances created by the Act are beneficial to the present generation of mesne lords, making it possible for them to ensure their grasp over the value of incidents at a time of economic and population growth lifting the overall value of the factor of production they control. This, like decisions about the value of petroleum reserves, may occur with knowledge of, and in simultaneous deliberate denial of, the long-term consequences.

But this was precisely what it did. The goal of power is to perpetuate itself, and no power system would wittingly adopt a change that reduces its own power. If despotism has the ability to perceive all possible hacks, then the system becomes unhackable and whatever the state of the society is will become rigid. Ostensibly one could determine the inverse of the transformation matrix and then just apply the necessary operations to get there. But maybe this is the other course.

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