The Englishry of English law in the age of trumpism (1)

-- By MalcolmEvans - 28 Nov 2017

Introduction

"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 two purposes. First, it discusses the diverse origins of English law. Second, it explores whether by analyzing the origins of English law, can we better understand the trump administration’s legal tactics and develop strategies to combat their actions? (3)

The Englishry of English law

Establishing custom

English 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.

Lords were free to apply their own “law,” to settle disputes, however 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.

Centralization

After 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, would flow to the King.

The Justices in Eyre (Eyre) created a pipeline between the hundreds and the king to ensure the proper flow of profits. The Eyre consisted of judges who traveled to different “circuits” to make sure the custom of the king’s court were applied consistently throughout England. (6)

As part of this process, the Eyre recorded the decisions of the cases adjudicated in the courts, though they did not record the accompanying reasoning. The entire process of settling disputes, and recording decisions, created uniformity and precedent within the realm – precedent which became the basis of “common law.”

When the judges traveled to different circuits, they encountered many local customs being used to adjudicate disputes. And while these customs clearly were not established by the king, the king’s justices expressed general respect for the local customs. “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.” (7)

Putting it all together

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 students

English 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.(8) 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 administration

The current administration speaks tirelessly about “law and order,” and restoring American values. 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, American Law is based on English common law, which we’ve demonstrated, is not only diverse in its origins, but is not uniquely “English.” Similarly, American law is not uniquely American, but a combination of concepts from diverse origins.

So what exactly is the current administration seeking to achieve with their emphasis on “law and order”? We’ll have to go back to the foundation and why law was developed. It wasn’t a means of ensuring fairness, but the exact opposite – a means of systematizing inequality. As law students we need to fight more “law and order.”

Our call to action

So what to do? We know, making phone calls doesn’t work. (9) So, we show up. And we make sure we inform people about the foundations of our legal system. But beyond that, I admittedly struggle with how to fight back against Trumpism, so this section is short and any and all suggestions are welcome.

I think the primary route to improvement here is in changing the relationship between the past and your presentist second part. It might be that the present is too present here, and that more attention should be paid to the past, but I'm willing to grant the ratio. What is needed, then, is a close and more analytical connection. To say that law structures power on behalf of those who own enough to make law is pretty easy, but precisely for that reason not very informative. To say that diversity in the society---of "ethnicity," language, and culture---was made more harmonious and less oppressive over time because the common law was a system for architecting localism into a centralizing political arrangement is not so easy, but you can show it. That may have direct relevance to the state of our large, diverse, and very strained common law empire in North America.

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Notes

1 : Word count: 931, including title, not including footnotes.

2 : F. Pollock & F.W. Maitland, History of English Law Before the Time of Edward I (2nd ed. 1899), 188

3 : Given this broader purpose, I’m writing this paper for an uniformed audience. Certain concepts will be explained in the footnotes, so read them, please!

4 : Feudalism in short is the idea of a lord’s granting of a fief, or property right, to a vassal (person) in exchange for the vassal’s labor and military support / protection.

5 : A “Hundred” is simply an area, similar to the concept of a zip code.

6 : As to not interrupt the King’s money machine, of course.

7 : Maitland, 184

8 : In England this was done by requiring labor be exchanged for the right to live on land. In the US this is done through excessive criminalization by which bodies become chained and prisons become labor factories.

9 : Because congresspersons don't pick up the phone

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