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English Legal History and its Materials
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The Englishry of English law in the age of trumpism (1)-- By MalcolmEvans - 27 Dec 2024Introduction"The Englishry of English law" lies precisely in its diversity of origin. While Maitland’s phrase highlights the fact Englishmen came to “recognize [their law] as distinctively English,” (2) this notion belies the reality that English law is highly influenced by diverse, non-English, traditions and customs. This paper has three purposes. First, it discusses the diverse origins of English law. Second, it examines how these origins were harmonized to create local, yet central political arrangements. Lastly, it explores how such arrangements have strained US common law and why as such we should be wary of the trump administration's increasing insistence of defining situations as “local matter(s).”(3)The Englishry of English lawArchitecting localismEnglish law developed to enforce societal hierarchy. Historically, England was “organized” around a system of tribes, chiefdoms, and proto-states. Undergirding this decentralized system was feudalism. (4) Feudal lords required disputes be submitted to local “courts” for settlement. This early system was a financial strategy as lords required damages be paid to the lord presiding over the hundred (5) where the dispute took place. In addition to the proceedings happening at the hundred level, lords of the counties could compel the lords of the hundreds to come to their courts for proceedings. While this dual-level system helped bring some sense of uniformity to the hundreds within a particular county, understandably customs between hundreds and counties varied widely. While lords were free to apply their own “law,” to settle disputes, they were influenced by custom, which, in turn, was influenced by several non-English regions. Anglo-saxon legal customs originated from ancient Germanic customs and legal principles; Roman influence was seen through the church; and Scandanavian influence was seen due to the Viking invasions. These various influences – and the different weights assigned to them by lords - lead to different bodies of law, which exhibited “Englishry” to varying degrees.CentralizationAfter the Norman conquest, the King - William the First – wanted to centralize England. Unsurprisingly, he proclaimed that all land-based rights were vested in the King. This included the right of holding court, which ensured the profits previously flowing to the feudal lords, flowed to the King. The Justices in Eyre (Eyre)solidified this process by traveling to different “circuits” to communicate the custom of the king’s court and adjudicate disputes accordingly. The process of applying the custom of the king's court was intended to create a sense of relative uniformity, whereby the king could solidify his political arrangement; this uniformity in turn became the basis of the common law system. And yet, despite these intent of “centralizing” the law, when the Eyre traveled to different circuits, they encountered many local customs being used to adjudicate disputes, which while clearly not established by the king, were nonetheless respected by the Eyre. “We see no signs of any consciously conceived desire to root them out.” However, it was clear that they were not allowed to grow any further, “especially in all matters of procedure.” (6).A strained systemThe result of the process used by the Eyre, whereby they “applied” the king's custom, and yet accepted the use of local custom, created a strained common law system. However, in many ways, the codification of local custom was a necessary prerequisite to implementing the broader centralized structure. Given the range of diversity in the society – of "ethnicity," language, and culture – the integration of localism made the acceptance of the political arrangement more appetizing and harmonious. But the result of this system isn't always beneficial. While it may ease the tensions that arise from creating a hierarchical political structure, and a sense of relative uniformity which comes with such a central structure, the reality is that localism is still enshrined within the larger structure, and such localism often has the potential for perverse outcomes. The current US common law system presents a strong illustration of this concept at work. The laws of the state of Louisiana reflect a common law localism (7) that leads them to have distinct nature from those of, say, New York, both of which may be materially different from federal law which governs the entirety of the US. Let's take this illustration further by discussing the recent death of Alton Sterling. The police officers involved were recently acquitted and will not face criminal charges. In Louisiana, were the events took place, a police officer is allowed to use “reasonable force to effect the arrest and detention, and also to overcome any resistance or threatened resistance of the person being arrested or detained.” (8) As one can see, in the case of Alton Sterling, the governing law reads differently depending upon the local jurisdiction, even if the underlying outcomes in police shootings are mostly the same. By now we’ve established that the king centralized the law by applying his own customs brought from Normandy. As such, it is clear that the establishment of English law owes its roots to several places: Germany, Rome, Scandinavia, and Normandy to name a few. Although after the conquest Englishmen consciously sought to make their law distinctly English, – often by objecting to following foreign principles simply because they were not English – the diverse origins of the law are impossible to wash away. But how can we apply this discussion to our current lives?A billboard for law studentsEnglish common law developed to institutionalize profit streams and reinforce existing hierarchies. In using the English common law as the foundation of its legal system, the US adopted this relationship between money, law, and power. Specifically, there are noticeable aspects of US law that have direct ties to English law. First, the law is used for reinforcing and creating social order. Second, it’s a tool for maximizing profits. Third, the law is used to ensure an adequate supply of cheap labor.(9) Fourth, the law labels people, particularly as criminals, which releases those in power of responsibility for improving the lives of common persons because, well, they are “criminals.”The trump administrationThe current administration speaks tirelessly about “law and order,” and giving power back to the states Trump: We will give power back to the states. This is a large billboard addressed to us knowledgeable about the roots of our law. Law and order were used as means of consolidating power at the top. This administration is seeking to do the same. Moreover, the localism that was architected into US common law has created strained relationships through the North American empire and many possibilities for perverse outcomes due to different approaches to local matters. Moreover, the administration and republican leadership conveniently wields it's desire for localism, pushing back on the notion that States can't have “sanctuary cities” Trump criticizes 'sanctuary' cities in weekly address yet saying in other matters, like determining who should get a gun, are best left to the states, and that once that decision has been made, other states must accept it (10). The inconsistency between localism and our centralized political arrangement has lead to a reality and one where our president endorses states’ rights — but only when he agrees with the state. This strained reality should scare all of us.Our call to actionSo how do we prevent the current administration from leveraging our strained common law empire to it's advantage? I admittedly struggle with solutions. Perhaps first is bringing awareness to our strained common law empire, and second how this is strategically leveraged. 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