John Hudson. The Formation of the English Common Law: Law and Society in England from the Norman Conquest to Magna Carta. (The Medieval World.) New York: Longman Press. 1996. Pp. xvi, 271. £42.00. ISBN 0-582-07027-9

R. H. Helmholz
1997 Albion  
This is a thoughtful and attractive telling of a story that may seem familiar to most students of English history: the establishment of the basic institutions of the common law. F. W. Maitland's has long been the classic account, augmented by the more recent works of Lady Stenton and Raoul Van Caenegem. This account holds that formation of the basic patterns of English law occurred during the reign of Henry 11 (1 154-89). Regularization of the grant of royal writs, expansion of the jurisdiction
more » ... of royal courts, invention of the possessory assizes, and creation of the system of criminal presentment were the principal events in what has been called an "Angevin Leap Forward." The treatise commonly called Glanvill, written probably between 1187 and 1189, made the "leap" evident. When compared with the Leges Henrici Primi, the vastly more sophisticated approach of Glanvill also shows how great a change had taken place. John Hudson's book does not wholly overturn this account. However, he adds materially to it by incorporating new research, both his own and that of other scholars. It allows him to see several aspects of the common law's foundation in a different light. His account also stresses different sources and different areas of the law than did Maitland and his successors. Again, that shift of viewpoint changes the overall picture. What are the differences? There are two principal and related themes. The first consists of laying greater stress on the existence of antecedents to the legal reforms of Henry II's reign. In Hudson's depiction, royal power was regularly asserted even in trivial disputes well before the late twelfth century. Presentment of crimes to royal officials was also a normal procedure. And the variety of courts inherited from Anglo-Saxon times continued pretty much untouched by the coming of the Normans. Continuity extended even to the land law: "by 1135 much of the vocabulary and conceptualization...was in place" (p. 94). In this respect, contrasting the Leges Henrici Primi with Glanvill turns out to be misleading. The former was deliberately archaic. It stressed the old, giving a false picture of the actual state of the law during Henry I's reign. Its regular presentation of compounding for criminal offenses on the basis of a fixed table of wergelds, for instance, masks that the system "was disappearing during Henry I's reign at the latest" (p. 81). Despite this emphasis on continuity, the picture that emerges from the book does not eliminate the central place normally ascribed to Henry II's reign. The creation of returnable writs still plays a significant part in the formation of the common law (p. 143). Whatever the antecedents, their "routinization" in the service of creation of a legal system was a vital step, and it occurred during the late twelfth century. The possessory assizes created under Henry II also still figure largely in the story of the common law's formation. Second, Hudson lays more stress on "non-judicial" sources than have most legal historians. Concentration upon courts and litigation provides "too narrow a focus" (p. 15) to penetrate the realities of legal life. This shift in focus is not only a question of substituting charters and saints' lives for the plea rolls and Glanvill. It demands that historians pay greater attention to the law as part of the lives of individual men and women. It takes a person-centered view of legal history. Doing this demonstrates, for example, that Anglo-Norman society was more "sensitive to the vocabulary of 'law"' than has often been thought, and it allows readers to see the central role that "matters of honour and vengeance" (pp. 4, 186)
doi:10.2307/4051674 fatcat:2k3zicuy4jbghavct234dq32uu