Among the classic questions of legal history is why the law changes. While early modern English jurists sometimes liked to pretend that the common law was unvarying, change was a constant. In her new book, Law Reform in Early Modern England: Crown, Parliament and the Press, Barbara Shapiro surveys the period from the reign of Henry VIII to the eighteenth century to understand how change was sometimes the result of explicit attempts at reform. Shapiro defines her subject expansively: law reform is whenever “some person or group criticized some aspect of the legal system and proposed remedies” (3). The purview of Law Reform in Early Modern England is therefore broad, covering demands for change in substantive and procedural law across English courts. There were, according to Shapiro, two broad groups of reformers during the period making these criticisms—moderates and radicals.
It turns out these people had a lot to complain about. Shapiro's long-term perspective reveals the dismal frequency with which the same complaints are repeated. The cost of the law is always too high and the length of litigation too long—sound familiar? But there were also complaints specific to the time, especially concerns over imprisonment for debt. This raises the second question that guides Shapiro: Why does reform fail or take hold only slowly? The answers that she develops are the culmination of Shapiro's decades-long project to understand law reform in early modern England. To that end, the chief contribution of the book is to uncover the terrain in LIDAR-level detail for future scholars.
Shapiro unfolds these details chronologically, beginning in the reign of Henry VIII and then mostly by regnal periods. As her survey progresses, sometimes bigger themes and continuities are underlined. The chapters themselves are subdivided into topical surveys of the many aspects of law reform and varieties of complaint. Though the book is ostensibly focused on England, there are occasional ventures to Wales and Ireland.
Shapiro's analysis rests on two major bodies of sources: parliamentary records, and treatises and pamphlets from what other historians might call the “public sphere.” Shapiro discovers that parliament discussed law reform quite a lot over the centuries while also failing to pass much relevant legislation. This disjunction between the volume of speechmaking and actual reform is a puzzle. Her solution is that parliament lacked the institutional capacity to remedy many of the legal problems of the time. Moreover, the reformers themselves were seldom in agreement. Radicals especially were divided among themselves, appearing suddenly as a group in 1642 with little attachment in the book to the longer history of radicalism (105).
This speaks to a larger characteristic of the study: important historiography is sometimes cited but not tightly woven into the narrative. At points, this detracts from the analysis as when Shapiro discusses the public circulation of information and its reception with only passing reference to the voluminous work on the public sphere. Some recent scholarship on law reform is missing, especially accounts of Edward Coke's activities and discussions of the Reformation's effect on the law. Occasionally these oversights weaken the contextualization of reform, such as in the lengthy sections on criminal law reform with its robust historiography.
There is also one explicit omission. Shapiro intentionally avoids discussion of “judge-made law” because of “judicial reluctance to frame their decisions as reform” (8). Yet the tenures of Sir John Fyneux and Lord Mansfield, both important judicial reformers, bookend the period. These judges, of course, did not need to present themselves as reformers, mobilize public opinion and parliamentary support. They were different sorts of reformers who worked every day within a close, guild-like profession with the power to solve practical problems brought before them. The significance of Shapiro's downplaying of this source of reform is that the larger story of legal change may be missed. There is a nagging possibility that reforming measures in parliament failed because, for most litigants, the law worked most of the time. Judge-led reform may have kept the legal system adapted enough to stave off either fundamental reform or even more modest measures.
Shapiro, however, does an important service by pointing to another story: how does parliament eventually become the central forum for law reform? There must be more to parliament's institutional weakness than “frequent prorogations . . . and factional differences.” (190). What institutional transformations were needed such that by the nineteenth century, Victorian parliaments could drive wholesale change in the legal system? Part of the story, for example, must relate to the coalescence of outside pressure groups. It is hoped that Shapiro's foundational research will inspire others to pursue these investigations.
