From The Law and Politics Book Review

Vol. 9 No. 4 (April 1999) pp. 166-167.

 

The Evolution of English Justice: Law, Politics and Society in the Fourteenth Century by Anthony Musson and W.M. Ormrod. New York: St. Martin’s Press, 1999. 248pp. Cloth $59.95. ISBN 0-333-71691-4.

 

Reviewed by Susan Sterett, Department of Political Science, University of Denver. Email:

 

Pity those living in fourteenth century England. The Black Death of 1348 and 1349 and repeated military adventuring on the part of the crown made life dangerous and expensive. Famine marked the early part of the century, with 10-15% of the population dying between 1315 and 1322 (90). The Peasants’ Revolt of 1381 followed the imposition of new taxes and the extension of a judicial commission inquiring into the tax (97). Efforts to address these problems brought strains on the medieval legal system.

Imagining ourselves into the legal system of the fourteenth century requires quite an effort. While substantial effort in normative theory today goes into trying to distinguish legislation from what judges do, that distinction made little sense in a feudal legal system. The legal system, like the political system, had the obligation to make decisions in accordance with right principles of governance, divinely made. Distinguishing judgment from orders from local nobility simply made little sense.

However distant feudalism and monarchical governance might seem to us, the historical explanations usually offered for changes in justice in this period according to Musson and Ormrod are familiar. The authors set the problem as one of connections between the ongoing internal dynamics of law and the effect of external shocks. Most historians, they argue, see the period as one of a revolution in legal structuring, based in particular in the effort it took to conduct wars in Scotland and France. Relying upon Stephen Jay Gould’s concept of punctuated equilibrium, the authors instead want to call it a century of evolution. They argue that by using the term evolution they mean to emphasize that the legal system changed, but that change does not imply improvement (4-5). Second, they argue that to understand the period it is essential to attend not only to such large scale shocks as war and plague, but to attend to the ongoing practice of the law and the concerns of those who work in the courts daily. To use terms social scientists use but that these historians do not, they take a perspective in line with that of the new institutionalism. Institutions have something of a life of their own, somewhat insulated from the social world. To understand changes in the legal system even in the midst of the substantial transformations of the fourteenth century, it is important to understand the practical concerns and commitments of those working in law.

In the early part of the century parliament acted as a court of appeal; it also heard common petitions from groups of the king’s subjects. Both yielded decisions that attempted to state principles according to the common law. It was not until later in the century that legislation became something distinctive, and indeed legislation attempted to prohibit the rising wages that were to be expected after the Black Death (93-94). Legislation responded to external shocks such as the Black Death (158-159), but doing so required a newly emergent conceptualization of what legislation could do.

Lawyers who worked in the London courts were often elected to represent their counties in Parliament, though the crown tried to prevent that in 1372 (152). The concern was that lawyers’ clients in court would become their favorites in parliament Justices sat in parliament. The information they gathered from hearing cases contributed to positions they took on legislation (153). The line between legislation and judgment hadn’t existed, but the new legislation contributed to making a distinction. Lawyers and judges, however, contributed to both. The expansion of legislation made for new business for lawyers, particularly because the king’s courts took over more business from the more local, customary courts (157).

This period also saw the emergence of some formal education for lawyering. The Inns of Court in London were just beginning to be established, largely as homes rather than schools (30). Largely people had learned the trade of lawyering by spending time in the central courts. Without a more formal system, law could not be the intellectual endeavor it later became in the universities. Nor with practice so locally and practically based could legal decisionmaking develop the predictability now seen as crucial to the justification of judicial decisions. Reliance on precedent required judges with good memories (145), and a belief that precedent was important was only just emerging. Even so, no one argued that past decisions should stop a judge from making the right decision.

Most scholars of law and politics do not address questions before the eighteenth century. The emergent comparative scholarship tends to focus on post-Second World War Europe. It can be worthwhile to visit the very distant past to realize how different our conceptions are, and how much our questions emerge out of particular kinds of divisions of labor among officials assigned to different tasks, a division of labor that emerged relatively late. This book is useful in making that distant world more familiar.


Copyright 1995