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Englishery of English Law |
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< | -- By MattConroy - 28 Nov 2017 |
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> | -- By MattConroy - 06 Apr 2018 |
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< | 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. |
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> | 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 so very distinct. 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? |
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< | 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."). |
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> | 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."). It is not necessarily clear if this statement is against foreignness or against novelties. |
| | Defined By Origins |
| | Linear Algebra Informing Societal Change |
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< | 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.
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> | 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. This formulation seems to imply that it is the opposition to novelty that makes Englishery, not opposition to foreignness. Most of the powerful are cosmopolitan Normans anyway, not Anglo-Saxons. |
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Quia Emptores |
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< | 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). |
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> | 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. But this is legislation and not judge made law. It changes both the legal vector and the underlying matrix of politcal and social concern. |
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> | 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). This shows a refusal to change just the legal vector on the whim of a lawyer. |
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< | 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. |
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> | Both of these anecdotes come in the light of Magna Carta of 1215. With this the barons have a say in what legislation gets passed, and England is moving towards the supremacy of Parliament (even if it does not really exist yet). Again Englishery is about avoiding novelty and having a say in governance. |
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Why is this useful analytically? |
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< | 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.
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable.
To restrict access to your paper simply delete the "#" character on the next two lines: |
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> | 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. Because of the ease of observing the legal vector, the English lords understood the power of perfect information in controlling society and were not willing to cede that power to the king completely. |
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> | Law was learned 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. What this education did not do was explain 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 not entirely but to a disturbingly accurate degree). |
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> | The goal of power is to perpetuate itself, and no power system would wittingly adopt a change that reduces its own power. The lords may have understood that Quia Emptores would result in all of their lands reverting to the King through escheat eventually, but the present economic power of preserving the incidents is more important. This shows the fundamental difference between the state and the powerful creatures underneath it. The state wants power forever. With woefully suboptimal information about the matrix all those below it can do is maximize power now. Once information becomes more prevalent, there becomes a race to see who can better understand the matrix and upend this power dynamic. |