Hostname: page-component-78c5997874-mlc7c Total loading time: 0 Render date: 2024-11-05T08:05:48.721Z Has data issue: false hasContentIssue false
  • English
  • Français

At the margins of the history of English law: the institutional, the socio-political and the ‘blotted-out’

Published online by Cambridge University Press:  02 January 2018

Igor Stramignoni
Igor Stramignoni*
Affiliation:
Department of Law, London School of Economics and Political Science
Get access Rights & Permissions [Opens in a new window]

Abstract

So much of what, so far, has constituted the grammar of mainstream historical discourse on English law can be broadly characterised as being primarily concerned with either formal legal institutions or their socio-political context. While such histories are generally useful, they fail to see what other-histories – what radically different stories – could be told instead. Such a web of other-histories, it is here suggested, require both time and imagination. By temporarily leaving mainstream historical accounts and entering into the time of legal history the centrality of so many institutional and socio-political histories of English law may have to be reconsidered. In particular, what would become clear is that one type of legal history needs urgently to be told – a history of the ‘blotted-out’. Neither included in mainstream legal history, nor excluded from it – neither visible nor memorable – the history of the blotted-out is the history of what can be found, so commonly and ordinarily, in everyday life. Mainstream legal history is either unaware of, or uninterested in, the blotted-out. Yet, it is precisely a history of the blotted-out which, importantly, would guard, in history, the possibility of law's most original imagination.

Type
Research Article
Information
Legal Studies , Volume 22 , Issue 3 , September 2002 , pp. 420 - 447
Copyright
Copyright © Society of Legal Scholars 2002

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1. M Heidegger Der Zeitbegriff in der Geschinchtswissenschaft in Zeitschrift für Philosophie undphilosophische Kntik 161 (1916) pp 173-188; reprinted in Gesarntausgabe I, (V Kloskermann: Frankfurt am Main) pp 415433.

2. Sections 2–7 below.

3. The question on legal history as context reflects the broader debate on the relationship between history and sociology. For the somewhat ‘radical’ view that history and sociology can no longer be usefully kept separate, see eg Giddens, A Central Problems in Social Theory (London: Macmillan, 1979)CrossRefGoogle Scholar. In support of Giddens' position, see P Abrams Sociology (Bath: Open Books, 1980). Against, see J H Goldthorpe ‘The uses of history in sociology: reflections on some recent tendencies’ (1991) 42 Br J Soc 211.

4. Pound, R Interpretations of Legal History (Cambridge: Cambridge University Press, 1923)Google Scholar. Also sections 8–9 below.

5. F W Maitland Why the History of English Law is Not Written (London, 1888), reprinted in Fisher, H A L (ed) Collected Papers of Frederic William Maitland (Cambridge: Cambridge University Press, 1911) I, pp. 480–497 Google Scholar. But on Maitland see, amongst others, Milsom, S F C ‘Maitland’ in Milsom, S F C Studies in the History of the Common Law (London: Hambledon, C 1985)Google Scholar.

6. Hunt, A The Sociological Movement in Law (London: Macmillan, 1978)CrossRefGoogle Scholar; Hirst, P On Law and Ideology (London: Macmillan, 1979)CrossRefGoogle Scholar; Campbell, C M and Wiles, P (eds) Law and Society (Oxford: Martin Robertson, 1979)Google Scholar. For one critique, see M Albrow ‘… law, ideology, law, ideology, law, ideology,… sociology …?’ (1981) 32 Br J Soc 127.

7. Sections 10–12 below.

8. Though neither civilians nor common lawyers constitute uniform communities, here I focus on the opposition between English lawyers and Western European continental lawyers as the traditionally privileged locus of comparison amongst Western legal families.

9. J H Merryman The French Deviation (1996) 44 AJCL 109.

10. Habermas, J Faktizitat und Geltung. Beiträge zur Diskurstheorie des Rechts und des democrarischen Rechtssraats (Frankfurt am Main: Suhrkamp Verlag, 1992).Google Scholar

11. For such trajectories (as opposed to the interpretation of them offered here), I am largely indebted to the work of Milsom, S F C Historical Foundations of the Common Law (1st edn, 1969; London: Butterworths, 2nd edn, 1981)Google Scholar and Baker, J H An Introduction to English Legal History (London: Butterworths, 1990)Google Scholar.

12. Milsom, n 11 above, esp pp 11–36. On this, see also Baker, n 11 above, p 14.

13. Baker, n 11 above, p 19.

14. By contrast, the general eyre (not the assize system, which survived until 1971) was doomed soon to disappear because, among other things, of its increasing inability to administer justice regularly and, as a consequence, ‘the Bench became, by accident rather than design, the principal court of common pleas’: Baker, n 11 above, p 23.

15. G D G Hall and E de Haas Early Registers of Writs (1970) 87 SS.

16. On the eyre system, see Milsom, n 11 above, p 27ff.

17. But see T G Watkin ‘The Significance of “In consimili casu”’ (1979) 23 AJLH 283.

18. Baker, n 11 above, p 85.

19. Reported by Baker, n 11 above, p 89.

20. Baker, n 11 above, p 90.

21. Baker, n 11 above, p 115.

22. See generally F W Maitland Equity - A Course of Lectures ed by A H Chaytor and W J Whittaker; rev by J Brunyate (Cambridge: The University Press, 1949).

23. One commentator explains how, by the time the common law had established itself, it had come to be felt to be the Englishman's birthright to be subject to that jurisdiction rather than another. Indeed, such right was eventually recognised by the Magna Carta itself (as well as by a series of subsequent statutes) which, precisely, ‘were intended as legal restrains on the power of the Crown to erect new jurisdictions’: Baker, n 11 above, p 112). That is to say, the more the king exercised his sovereignty in the way of establishing an independent court system, the more it became essential for him to retain power to override that legal system in exceptional cases.

24. Gee v Pritchard (1676) 2 Swanst 402 at 414.

25. St Germain Doctor and Student ed by T F T Plucknett and J L Barton (1974) 91 SS.

26. J H Baker The Order of Sergeants of Law (SS Supp Ser 5, 1984) and The Legal Profession and the Common Law (1986). See also Brand, P The Origins of the English Legal Profession (London: Blackwell, 1992)Google Scholar.

27. D Ibbetson' Sixteenth Century Contract Law: Slade's Case in Context' (1984) 4 OJLS 295 and A Historical Introduction to the Law of Obligations (Oxford, 1999).

28. Simpson, A W B History of the Common Law of Contract (Oxford Clarendon Press, 1987).CrossRefGoogle Scholar

29. Van Caenegem, R C Judges, Legislators and Professors: Chapters in European Legal History (Cambridge: Cambridge University Press, 1987) p 68.CrossRefGoogle Scholar

30. For a now classic introduction to the sociology of law, see Cotterrell, R The Sociology of Law (London: Butterworths, 1992)Google Scholar. An early important attempt at a social history of English law was Harding, A A Social History of English Law (London: Penguin, 1966)Google Scholar. More recently, see Hunt, n 6 above; Grace, C and Wilkinson, P Sociological Enquiry and Legal Phenomena (London: Macmillan, 1978)Google Scholar; Hirst, P On Law and Ideology (London, Macmillan, 1979)CrossRefGoogle Scholar; Campbell and Wiles, n 6 above; and Cornish, W R and Clark, G de N Law and Society in England 1750–1950 (London: Sweet & Maxwell, 1989)Google Scholar.

31. On the relation of identity between legitimacy and legality, see Cotterrell, R ‘Legality and Political Legitimacy in the Sociology of Max Weber’ in Sugarman, D (ed) Legality, Ideology and the Stare (London and New York Academic Press, 1983) pp 69–93.Google Scholar

32. The existence of such loci was already acknowledged by Coke, who referred to 15 species of English law: Co Lift 1 lb. On the long-belittled role of local courts, see also Milsom, n11 above. Little, however, has been said (until recently) on extra-legal sources of dispute resolution.

33. Van Caenegern, R C The Birth of the English Common Law (Cambridge: Cambridge University Press, 1988) pp 56–57.Google Scholar

34. Once again, the author is something of a mystery - possibly, however, Henry de Bracton who held the office of judge coram rege for about twenty years between 1240 and 1260 during the long reign of Henry III the Plantagenet (1216–1272). Neither is it totally clear whether Bracton was written between 1220 and 1240 by editing contemporary pleas rolls - or, else, whether the treatise was written around the 1250s by editing plea rolls of the previous generation. Furthermore, it is worth noting how Bracton, too, is built mostly around the royal writ but, unlike Glanvill, Bracton also brings together bits and pieces of both doctrinal learning and judicial practices.

35. Baker, n 11 above, p 201.

36. Stanton, Doris Mary English Justice between the Norman Conquest and the Great Charters 1066–1215: Jayne Lectures for 1963 (Philadelphia: American Philosophical Society, 1964).Google Scholar

37. Van Caenegem, n 29 above, pp 94–95.

38. Coke was Chief Justice of the Common Pleas from 1606 onwards, and then Chief Justice of the King's Bench from 1613 onwards.

39. Chief Baron at the Exchequer 1660–1671 and then Chief Justice of the King's bench 1671–1676.

40. Vinerian Professor of English Law at Oxford University, but also Lord Justice in the Court of Common Pleas 1770–1780.

41. On Nottingham, see D E C Yale Lord Nottingham's Chancery Cases (1957) 1 SS 73 and (1960) 2 SS 79. Also, by the same author, see Lord Nottingham's ‘Manual of Chancery Practice’ and ‘Prolegomena of Chancery and Equity’ (1965).

42. Master of the Rolls 1962–1982.

43. The Kelsenian historian would praise individual's biographies just as well - though in a different, more ‘static’ sort of way. See eg Fifoot, C Judge and Jurist in the Reign of Victoria (London: Steven & Sons, 1959)Google Scholar. as well as his many other biographical works.

44. Stubbs, W Select Charters and other Illustrations of English Constitutional History 9th edn by H W C Davis (Oxford: Clarendon Press, 1913).Google Scholar

45. As far as the early history of English legislation is concerned, however, a proviso is in order: ‘It is not even to be assumed that contemporaries [during the Norman and the Angevin period] thought of this kind of law-making [legislation] as different in character from the function of the judges. What in later times were seen as two distinct branches of the constitution - the legislature and the judicature - had their origins in a less sophisticated notion of kingship in which legislation and adjudication were not distinguishable. The courts and parliament both had their origins in the same royal council which advised the early kings. Even when the courts began to separate from government, the judges could reserve cases of difficulty for the king to decide in person or in council, and conversely the king in council could issue general or specific directions to the judges. The attendance of common-law judges in the medieval chancery and Tudor Star Chamber, and the presence of today's judges sitting on the woolsacks before the throne at a state opening in parliament, hearken back to a distant age when the king's justices were part of an undivided royal council’: Baker, n 11 above, p 234.

46. Baker, n 11 above, p 245.

47. Not that this was totally unjustified. The High Court of Justice set up during the Interregnum had acted as what some regard as the bloodiest political tribunal ever known in England. Adultery and repeated fornication became punishable by death - though this, in fact, never led too far. And the Blasphemy Act 1648, too, made it punishable by death to deny the Trinity, or the authority of the scriptures, or the resurrection of the dead, or the coming of the last judgment.

48. An early study of this is, of course, Dicey, A V Lectures on the Relationship Between Law and Public Opinion in England during the Nineteenth Century (1905; London and New York: Macmillan, 2nd edn, 1962)Google Scholar. But see also, for another example, Cohen, J, Robson, R A and Bates, A Parental Authority: The Community and the Law (New Brunswick, NJ: Rutgers University, 1958).Google Scholar

49. F Nietzsche Menschliches, Allzumenschliches, aphorism 261. The quotation in the text is taken from Human all too Human transl by R J Hollingdale (Cambridge: Cambridge University Press, 1996).

50. Lawson, F H. ‘Time as a Legal Element’ in Lawson, F H Selected Essays (Amsterdam; Oxford: North Holland Publishing Co, 1977).Google Scholar

51. An unrivalled, classic study on memory is Yates, F A The Art of Memory (Pimlico, 1992; 1st edn, Routledge and Kegan Paul, 1966)Google Scholar.

52. G Didi-Huberman ’Pour une anthropologie des singularités formelles. Remurque sur l'invention warburgienne in (1996) 24 Genkses at 145–163.

53. For the most radical challenge to date of the possibility of recovering textual meaning, see J Derrida Of Grammatology (Baltimore: Johns Hopkins University Press, 1976). But see eg W Fisher ‘Texts and Contexts: the Application to American Legal History of the Methodologies of Intellectual History’ (1997) 49 Stan LR 1065.

54. Baker, J H Why the History of English Law Has Not Been Finished’ (Cambridge: Cambridge University Press, 1998).Google ScholarPubMed

55. Althusser, L Ideology and Ideological State Apparatuses' in L Althusser Lenin and Philosophy and Other Essays (London: New Left Books, 1977); Foucault, M The History of Sexuality Vol 1 Google Scholar (London: Allen Lane, 1979) and Power/Knowledge (Brighton: Harvester, 1980).

56. A recent example of which is K J M Smith and J P S McLaren ‘History's Living Legacy: An Outline of “modern” Historiography of the Common Law’ (2001) 21 LS 251.

57. Like eg Postema, G Bentham and the Common Law Tradition (Oxford: Clarendon Press, 1986)Google Scholar or Lobban, M The Common Law and English Jurisprudence 1760–1850 (Oxford: Clarendon Press, 1991)Google Scholar.

58. A splendid attempt concerning the juridification of the early period is, of course, Milsom's Historical Foundations of the Common Law, n 11 above. However, Milsom himself admits how his ‘starting point is in customs, not the customs of individuals but the customs of courts governing communities’ (p1)- thus crucially blotting-out of his account much of what happened upon the transformation of the ordinary into local and customary laws (on which, see pp 11–13).

59. See, on this, Perrot, M Roles and Characters’ in Ariés, P and Duby, G A History of Private Life - Riddles of Identity in Modem Times (Harvard: Harvard University Press, 1991) vol III, p 167ff Google Scholar.

60. On the ‘uncivilized’, see eg G Sauser-Hall Fonction et méthode de droit comparé (1913).

61. Foucault, M Les mots et le choses (Paris: Gallimard, 1966)Google Scholar.

62. Foucault, M ‘Préface’ in Foucault, M Folie et Déraison à l’age classique (Paris: Plon, 1961) pp i–xi Google Scholar.

63. For one general overview of some of the issues left out by mainstream legal history, see D Sugarman ‘Law, Economy and The State in England, 1750–1914’ in Sugarman, n 31 above, pp 213–266. Ground-breaking work has already been carried out by Horwitz, M J in The Transformation of American Law 1780–1860 (Cambridge, Mass; London: Harvard University Press, 1977)Google Scholar, The Transformation of American Law 1870–1960: The Crisis of Legal Orthodoxy (New York: Oxford University Press, 1992) and ‘Why is Anglo-American Jurisprudence Unhistorical?’ (1997) OJLS 551; Atiyah, P S The Rise and Fall of Freedom of Contract (Oxford: Clarendon Press, 1979)Google Scholar; Goodrich, P., Languages of Law - From Logics of Memory to Nomadic Masks (London: Weidenfeld and Nicolson, 1990)Google Scholar and Law in the Courts of Love (London: Routledge, 1996); Douzinas, C, Wanington, R and McVeigh, S Postmodern Jurisprudence (London: Routledge, 1991)Google Scholar; Lacey, N Unspeakable Subjects - Feminist Essays in Legal and Social Theory (London: Hart, 1998)Google Scholar.

64. On the excluded, see in general ‘L'exclusion - Constructions, usages, épreuves’ (1996) 34 Politix, special issue. One early, classic study is E Goffman Stigma - Notes on the Management of a Spoiled Identity (first published in 1963). Recent contributions include S Sassen Migranten, Siedler, Fliichtlinge. Von der Massenauswanderung zurfestung Europa (Fisher Taschenbuch Verlag GmbH Frankfurt am Main, 1996); R E Goodin ‘Inclusion and Exclusion’ (1996) 37 Archives Européennes de Sociologie 343; Agamben, G Homo Sacer - Sovereign Power and Bare Life (Stanford, California: Stanford University Press, 1998)Google Scholar; Dal Lago, A Non-Persone (Milano: Feltrinelli, 1999).Google Scholar

65. On this, see eg P Gabel ‘Reification and Legal Reasoning’ in Spitzer, S (ed) Research in Law and Sociology (1980) vol III Google Scholar.

66. Cf eg D Kennedy ‘Toward an Historical Understanding of Legal Consciousness: the Case of Classical Legal Thought in America, 1850–1940’ in Spitzer, S (ed) Research in Law and Sociology, (1980) vol 111 Google Scholar.

67. Cf Goodrich, P Oedipus Lex: Psychoanalysis, History, Law (Los Angeles: University of California Press, 1995).Google Scholar

68. On this see eg Nussbaum, M Women and Human Development: The Capabilities Approach (Oxford; New York: Cambridge University Press, 2000)CrossRefGoogle Scholar.

69. Genet, J, Journal du Voleur (Paris: Gallimard, 1948).Google Scholar

70. For one important explanation of this, see Luhmann, N Social Systems (Stamford, California: Stamford University Press, 1995)Google Scholar esp ch 5 and The Differentiation of Society (New York: Columbia University Press, 1982) ch 12.

71. A full case-study on law's workings along the lines suggested in the text can be found, eg, in I Stramignoni ‘When Law Stands Still: Land Contracts in English Law and Law's “Abandonment” of Everyday Life’ (2001) 12 Law & Critique 105.

72. With some notable exceptions - eg Moran, L Hornosexual(ity) of Law (London: Routledge, 1996).Google Scholar

73. For a recent study on the importance of this, see Murphy, W T The Oldest Social Science? (Oxford, Clarendon Press, 1999).Google Scholar

74. Foucault, n 61 above.

75. Goodrich, P Legal Discourse - Studies in Linguistics, Rethoric and Legal Analysis (London: Macmillan, 1987).Google Scholar

76. Nietzsche, n 49 above.

77. For a ground-breaking work of this sort, see Atiyah, n 63 above.

78. But see eg Friedman, L M Contract Law in America: A Social and Economic Case Study (Madison: University of Wisconsin Press, 1965)Google Scholar for a classic example of social research on contracts. Also, Atiyah, n 63 above.

79. The bibliography on assumpsit is vast. See eg Milsom, n 11 above, esp pp 314–360; Simpson, n 28 above; Ibbetson (1999), n 27 above.

80. Stramignoni, n 71 above.

81. There were (1) contracts by executor or administrator to answer damages out of his own estate; (2) contracts to answer for the debt, default or miscarriages of another person; (3) contracts made upon consideration of marriage; (4) contracts for the sale of land or any interest in land; (5) contracts not to be performed within one year from stipulation; and (6) contracts for the sale of goods if priced & 10 sterling or more.

82. Stramignoni, n 71 above.

83. Stramignoni, n 71 above.

84. Weber, M Law and Economy in Sociery Rheinstein, M (ed) (Cambridge, Mass: Harvard University Press, 1954)Google Scholar, The Protestant Ethic and the Spirit of Capitalism (London: Allen and Unwin, 1930) and Economy pd Society Roth, G and Wittich, C (eds) (New York: Bedminster Press, 1968).Google Scholar

85. Powell, J Essays Upon the Law of Contracts and Agreements (London, 1790)Google Scholar.

86. Corbett v Corbett [1971] P 83, [1070] 2 All ER 33.

87. [1932] AC 562.