English Legal History: Course Objectives
The sole objective of this course is the analysis of the ways in which law changes, examined through the historical base of English legal history from the twelfth to the eighteenth century. It is crucially important at the very beginning of the course to recognize that analyzing the ways in which law changes is different from merely recounting the actual changes. Analysis requires moving the consideration up at least one level from an understanding and accurate retailing of the changes themselves into a consideration of the precise kind of process taking place.
The substantive issues in regard to legal change
1. The Milsom models. S.F.C. Milsom is a senior British legal historian at Cambridge University. He has been writing English legal history since 1958. He is the person who made the processes of change the central issue in the development of English legal history; he also upgraded the standards used in legal historical research. In most ways, his thought has dominated English legal history since 1958. His research was initially centered in the fourteenth century, and he has progressively worked backward into the twelfth century. He has been unconcerned with statutory change, not because he denies that law changes by statutes, but because he regards that as a relatively uninteresting form of legal change. In all his work he cautions against positing a legislator; for the larger issues of legal change, his fundamental postulate is that there was no legislator. "Legislator" for Milsom must be taken in the broad sense, that is, a person or several persons who shaped the law purposefully. The real initiators of legal change are not legislators (whether members of Parliament, Chancellors, or justices of the king's court), but everyday lawyers. Such lawyers are unconcerned with the ideal structure of the law and conceptual problems; their concerns are rather the success of their client. They are thus willing to circumvent obstacles erected by formal law. If they are successful in such a circumvention and others follow, the law has in fact been changed, but not from abstract concerns and not with any attention paid to the larger issues. Legal change issuing from lawyers' attempts to succeed for their clients is myopic and will distort legal conceptual structures without concern for those concepts or for the overall effect on society.
He has also proposed a somewhat different, but no more purposive model based on the nature of regulation. Regulation even along the lines of enforcing already accepted norms can convert those norms into rules. Rules by their nature are not as flexible as norms and thus determinations will be different in a small number of marginal cases from what would have been expected societally. That rigidity introduces into society distortions of social patterns that can have relatively large effects. While the regulation may be purposive, those societal results probably are not. The actual results of regulation in such ways are obviously larger than the intended results. In a broader way, however, regulation can never maintain continuity in social situation. The introduction of a possible resort to a determinative third party into a relationship transforms the power distribution between the parties. Even enforcement of accepted norms, stated as precisely and as flexibly as possible, would produce such unintended results for people who were not acting outside those norms, but completely within the societally accepted limits.
For Milsom, then, large-scale and interesting legal change occurs in a non-purposive manner. The individual act, of course, has a purpose, but the results of the act exceed by far the intended result. The law thus develops without "legislative" shaping. This can be the case even when a justice acts purposely to change the existing law, because the usage of the law will have changed to the point at which such a change becomes necessary, the intent the justice will have will probably be very narrow, and the consequences of the change will far exceed what he could imagine.
2. The Arnold model
Morris Arnold is currently a federal district judge at Fort Smith. Prior to that he was a senior academic at the University of Pennsylvania law school and President of the American Society for Legal History. He has now stopped writing legal history, but during his career as a legal academic he was heavily involved in fourteenth century legal history and investigated issues of legal change. While heavily influenced by Milsom, his approach stresses different influences and thus constitute a different model, one that resembles part of the approach to legal change described by Oliver Wendell Holmes, Jr. Arnold posits local custom as relatively defined and knowable by the judiciary. In presiding over the taking of jury verdicts on circuit through the counties, the justices could take account of numerous different local customs. Much of what actually happened in the interaction between justices and jurors was hidden in fact underneath general verdicts (as in "guilty" or "not guilty"). Those matters that were gradually taken away from the jury and made a part of formal law were products of general agreement, so that formal law can be used as accurate indicators of social values. Law, in this model, is firmly rooted in social values and accepted standards.
3. Maitland model
F.W. Maitland was the Cambridge University academic who first pulled English legal history together as a discipline during the last two decades of the nineteenth century and the first decade of the twentieth century. An extraordinarily good historian (although a lawyer without a history degree);, Maitland's work is still a starting point for many questions. Milsom, Arnold, and Palmer consider his overall approach to change outdated. Sutherland (now deceased) and Paul Brand, both very substantial legal historians, found Maitland's approach still viable and productive even after Milsom's attack. Maitland's approach (here retailed unfairly) assumes a fairly close relationship between intention and actual result. Maitland assumed a legislator, a superior guiding hand in every effort, making Henry II, for instance, a far-sighted English king who took successive, modest individual actions that together were intended to and in fact did accomplish the erection of a national legal system as the heart of a (comparatively) centralized state dominated by the monarch by undermining the judicial authority of magnates. Maitland never wrote explicitly about the nature of legal change, but his writings encourage thinking about legal change as purposive and shaped by the superior guiding hand of a legislator.
4. Palmer additions
Palmer is eclectic; you will find different changes described in terms of each of the three models. A particular addition to the models already suggested, however, is that of manipulation of the law. Legal manipulation is different from fictions. Fictions are acknowledged by the court, and the court is complicit in allowing the fiction: it is completely formalized within the court. Legal manipulation is the making use of set legal structures in ways completely tangential to the direct purpose of the actions, but not in ways that do not necessarily subvert those direct purposes. Thus, the action of detinue of charters was designed to recover physical possession of a written instrument that would give particular advantage to a plaintiff in another suit for land or to enforce a debt. By manipulation, it was made the lynch-pin in a mechanism for enforcing agreements to submit to arbitration or to abide by leasehold covenants: a charter recognizing an indebtedness was given to a trusted third party to be delivered to the non-defaulting party on default that would serve as a penalty for non-performance. The non-defaulting party gained possession of the instrument on default by use of detinue of charters. The interaction between the actions of detinue of charters and debt thus allowed the establishment in society of an effective method for securing leasehold covenants and for a reliable arbitration system. Neither of those results were contemplated as the goal of detinue of charters or of debt. Such legal manipulation constitute a vital part of the law, even though they are not part of the formal law. They also change social expectations and produce changes in the formal law.
A different model, more specific than some of Milsom's but not entirely different, is the way in which large-scale political decisions introduce legal change, that then produces, through successive modifications based on a variety of impulses (fairness, excessive caseload, inability to change writ forms or lower court practices), a variety of effects in both formal law and legal institutions.
A third addition, not completely unlike Maitland's, is a rehabilitation of the action of the legislator, a superior guiding hand in the major changes of English law. While the justices would probably not act without having a case before them, the initiation of new remedies was often directly mandated and controlled by Chancery, the governmental office that issued the writs that began cases, and initiated in ways that reinforced Parliamentary statutes. Very purposive legal change, although without complete knowledge of the consequences, can be ascribed in areas hitherto thought initiated very myopically by present-minded client-oriented lawyers.