Original authors were the barons and King John of England. Uploaded by Earthsound., Public domain, via Wikimedia Commons.
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There is, or at least has been, a certain degree of pride attached to the tradition of English common law. The liberties and protections it provides to individuals centuries before equivalent types of rights emerged on the continent.
While many begin their foray into the history of English law through Maitland's classic text, I jumped the gun a bit by skipping straight to John Hudson's The Formation of the English Common Law: Law and Society in England from King Alfred to Magna Carta, a more up-to-date survey text designed for the undergraduate.
The conventional narrative Hudson seeks to qualify is the caricature that English Common Law was born in a rather short period through the genius of Henry II Angevin and his wholesale reform of the judicial system.
Hudson does not seek to disqualify the oversized impact Henry II had on the overhaul of the royal judiciary, but he does seek to underscore the extent to which various facets and features of Angevin law can be found in early Anglo-Norman and even Anglo-Saxon antecedents.
Much of this history of early English law is hamstrung by the lack of extant textual evidence which faces rather immense gaps from the book's starting point of King Alfred the Great until the early fourteenth century.
A space of nearly four hundred years illuminated by a chance handful of documents such as the Glanville and the Assize of Clarendon or various anecdotal records from chroniclers.
If we go back to the beginning one might ask, where does one find the law in an early medieval society?
The answer is more places than one might expect.
Long before the classic question of whether church or secular royal courts had higher authority, Anglo-Saxon society featured a variety of court systems for dispute resolution.
Depending on the nature of the disputants, the availability of justice, and their standing, a panoply of court systems lived in the patchwork political structure of pre-Norman England.
Lords and nobility held and maintained their own courts. The shires and hundreds of local communities also enforced their own opinions. And of course there were circumstances where local ecclesiastical authorities could weigh in (or feature in the dispute).
In its earliest stages, law had a relatively narrow scope of interest for dispute resolution, and this co-existed along measures for restitution such as self-help (taking violence into your own hands).
When a court system was convened it was completely legitimate to recognize combat or divine intervention as decisive for a case, and in fact often easier than trying to adjudicate witness hearsay and conflicting oaths.
Violence and property disputes were the two key domains of these earliest legal systems.
Hudson prefers not to call it criminal law because this anachronism indicates that a state authority is pursuing charges against violation of standing laws, whereas in these times matters we would now deem criminal always had to be pursued by a claimant.
The same goes for property dealings which could always be complicated by overlapping or conflicting interests between tenants and lords, church officials and elicited promises of donated land, or the forgery of written contracts.
The early systems were not devoid of measures to mitigate these complications, leveraging cirographs to certify the legitimacy of contract claims, the use of oaths, or even warranties vouchsafed by a guarantor.
However, there are characteristically entertaining medieval anecdotes of how justice could be executed. In one case, a dying man was convinced by his retinue of priests that the safety of his soul could be safeguarded by rewriting his will to donate some of his property to the local church authorities.
A chagrined heir disputed the validity of this deathbed will in court but unfortunately for him, the court deferred to the authority of the church on how to adjudicate the claim. What may not be too surprising is that the church ruled an ordeal (i.e. nothing short of a divine miracle) would need to be produced by the claimant to demonstrate that God truly favored his position.
Despite best efforts, the heir was unable to produce anything that satisfied the court to this effect and so his case was subsequently dropped and the church consolidated its hold on its newly acquired properties.
For as much as one can enjoy the technicalities of obsolete legal questions, Hudson does a solid job providing a topical treatment of both legal procedure and the operational nature of law, to the extent that one can glean so from the evidence, while also acknowledging many cases when certain observations may be purely anecdotal bias from the limited array of historical material to work with.
He also does so by rethinking rote historiographical categories that could easily be superimposed upon the subject such as sublating all the developments of medieval law to "centralization" and "rationalization".