English Legal History and its Materials
That England was an amalgam of many proximate cultures cannot be doubted. English history is defined by the diversity of influences upon it, a level of diversity that, while not unique, certainly places it among a select group of civilizations. Assessing the “Englishry of English law” cannot take place in a vacuum that ignores England’s history. Examined over a period of time as broad as the history of England, it would be willful blindness to claim that the many and varied outside influences on England and the distinctly English legal system that simultaneously arose are merely correlated. Clearly over thousands of years, those influences in some sense gave rise to that legal system.

The facts alone make a strong case for the causal relationship between England’s diverse influences and its distinct legal system. England was invaded countless times by her neighbors. A generously early starting point for English history (early because it predates the Angles and thus arguably predates “England”) begins with the Celtic Britons, who were conquered and subjugated by the Romans between the 1st and 6th centuries CE. Subsequent to the collapse of Roman rule the Scots, Picts, and Anglo-Saxons (themselves truly two groups, the Angles and the Saxons) all established footholds on the island of Great Britain, with the Germanic Anglo-Saxons eventually establishing seven separate kingdoms spanning most of modern-day England. Hardly two hundred years passed before the also Germanic Danes began a generations-long invasion, ultimately claiming almost half of England under the Danelaw. For the next three hundred years, the Anglo-Saxons and the Danes would parry back and forth, neither claiming a truly decisive advantage and eventually their respective royal lines intermarried through Emma of Normandy (whose Norman heritage would prove decisive in the battle for control of England). The last Anglo-Saxon king, Edward the Confessor, died childless in 1066; consequently, the Danish Harald Hardrada, the Anglo-Saxon Harold Godwinson, and the Norman William the Conqueror each asserted a claim to the throne. The Norman William was eventually successful and England remained relatively stable following the Norman Conquest.

Part of the problem in disentangling the origins of the English legal system from all of these outside influences on England is determining what constitutes an outside influence on a country cobbled together from outside influences. If England is entirely composed of outside influences, then aren’t all outside influences native to some extent? What is the original state of England from which we can distinguish what qualifies as ‘outside’? In truth, all of the outside influences are, to some extent, but-for causes of the identity of England, which only goes to show that the “Englishry of English law” is directly related to the history of cultural amalgamation that created England.

The choice of starting point for the original England, and thus which influences qualify as outside versus native, directly impacts how much outside influences appear to have affected the development of English law. If original England is the Celtic England, then English law is probably entirely built on diverse sources. While the Romans recorded “very little” of the Celtic legal customs, it is safe to say that the one recorded tradition, human sacrifice, was not influential on the development of English law. Besides shire “names such as Norfolk and Suffolk [which] suggest ancient tribal communities,” almost nothing of the Celts imprinted on English law.

If original England starts with the Roman occupation of Brittania, then again there is little in English law that is not from an outside influence. Baker equivocally suggests that “[w]hether the[ Roman] colonisation of Britain made any lasting impact on native traditions is open to debate.”

If England begins with the Anglo-Saxons (which is, after all, what the name ‘England’ suggests), then we can attribute at least some of English law to “native” influence; for at least some of the persistent structure of English government was in place “[b]y the tenth century”, such as “a single kingdom of England… [an] effective monarchy… a homogeneous scheme of local government… [division of the country into] 'shires' (counties), which have remained substantially the same in name and shape down to the present day [and which]… correspond to old Saxon kingdoms.”

Once the Anglo-Saxons were ousted from government by the Normans, William preserved many of these structures, “claim[ing] to be king by lawful succession, and [as] one of his first acts [promising] the English that they could keep their old laws.” Even so, the Normans probably have the best claim to have diversified English law to the point of uniqueness, and if one chooses the Norman conquest as the England’s starting point then English law developed almost entirely internally. The coincidence of the Norman conquest and the development of new English legal norms strongly suggests a causal relationship; for instance “at the time of the Norman conquest, England had neither a national judicature nor a legislature in any developed sense,” but had developed both mere centuries after the conquest. The Normans also made other tweaks such as “strengthen[ing] the Anglo-Saxon system of communal responsibility [and] introducing safeguards to counterbalance the growing power of sheriffs.” But even so, Baker finds it “questionable whether as much changed as was once supposed,” for the “warlike, uncultured and illiterate” Norman invaders “found in England a system of law and government as well developed as anything they had left in Normandy [and] had no refined body of jurisprudence to bring with them.”

But all of this debate over how to distinguish outside influences from internal ones misses the forest for the trees. The mere inability to pinpoint the ‘original England’ is all the proof necessary that the “Englishry of English law” lies in its diversity of origin. The greatest historical certainty about English law, that it “represented an unbroken development from prehistoric time,” is equally certain about England herself. Development of a legal system cannot help but track historical development. Thus, a corollary to the cobbled-together nature of England as a state is that its legal system is necessarily and distinctly cobbled-together as well.

Two things could improve this draft, in my view: simpler writing and more law. Perhaps it would be good to begin with what Maitland meant, or might have meant: in what consists the "Englishry" of English law? Then, in what sense is the law made of diversity? To say of Norman influence on the Anglo-Saxon law they found that their changes were "tweaks" doesn't seem right to me. You quote Baker's rhetorical effort to offset the idea of Norman creation of the English law from their own supposed jurisprudential storehouse, but to say that all that happened was "safeguards" against the growing power of sheriffs won't do, either.

That's the "more law" part. For the simpler language part, look at the first paragraph. We don't know what the thesis of the discussion is when we have finished it, and "amalgam of many proximate cultures," "willful blindness to the claim" and so on do not help us to hear clearly what you want to say. The best work of revision is to sound clearly your central idea at the top of the draft, and to develop it thereafter using both the clearest language and the most specific legal ideas you can.

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r2 - 06 Dec 2017 - 21:06:34 - EbenMoglen
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