Before 1176 English law was merely normative and relied greatly on personal relationships. Law courts managed social relationships by handling disputes, much preferring amicable resolution to judgement. These courts mirrored their society in being dominated by lordship, but with great reliance on consultation. Litigants could not rely on a bureaucratic institutional structure to yield predictable results according to rules. The allocation of functions within the court, the forms of trial, the lack both of specialized justices and of a legal profession all prevented the development of rigid rules. Thus, even though many customs were indeed held in common and the king had responsibility for justice, there was no legal system or common law. A legal system was the precondition of turning discretionary norms into the integrated procedures and rules of the common law.
Except for the church courts, all English courts before 1176 were communal courts in which the presiding officer presided without rendering judgements; judgements, when necessary, came from the relevant attending community. Whether in county, hundred, feudal or manor courts or in the king’s court, the relevant community was obliged to attend to render judgements, an obligation embodied in the duty of suit of court. That duty and function was hardly democratic. Although many knights owed suit to county court, the relations of lordship dominated the county court in fact, with the barons or, more frequently, the barons’ seneschals representing the lordships in the county’s essential functions. The magnates likewise constituted the king’s court. In that structure the presiding officer was still the single most powerful individual: the king in the king’s court; the lord in a feudal court; the sheriff, usually a magnate, in the county court. The allocation of the duty of rendering any necessary judgement to the community, however, mediated the power of the lord, promoted consultation and provided the social cohesion necessary for the effective exercise of power.2
Prior to 1176 English courts did not constitute a legal system, so that there was in fact no common law. The king did not have a body of specialized justices. Without specialized justices, the consistent rules necessary for a legal system could not develop.3 The community’s judgement-giving role likewise prevented the growth of a legal system. Even when the king’s itinerant justices came into a county court and presided, the judgements rested with the community, without professional lawyers. Moreover, when matters went to judgement instead of compromise, the method of trial was battle, group oath-swearing or ordeal: the very method of trial thus presupposed no set rules for application to ascertained fact. The tenurial hierarchy that spread downwards from the king to his tenants-in-chief and then to their men, the king’s leadership and his proclamations or edicts, and the fact that barons or their seneschals attended and were influential in more than one court produced a situation in which legal customs in various counties tended to converge, but did not necessarily do so. The convergence of custom both produced and mirrored the social fact that England was a kingdom already prior to 1176, perhaps short of a ‘community’ but unquestionably a recognized society and political unit.
Certainly, some of the legal conceptions that later became central to the common law originated prior to 1176. The expectation that a fee (what became a heritable estate) was given to a person as something more than merely a life-holding originated early in the twelfth century; the custom of primogeniture came even earlier. Henry I initiated the expectation that, when a military tenant died without male descendants, the daughters would be co-heirs and divide the fee.4 The idea that two opposing parties might each have different and opposing protectable rights to land - seisin (lawful possession) and hereditary right - plausibly came through the broader compromise patterned on the Treaty of Winchester (1153) that resolved the war between King Stephen and the future Henry II.5 Although at least occasionally the king’s proclamations were called edicts, decrees or statutes, the king had no standard mechanism for their enforcement; claimants found a remedy with the king only if they could persuade him or his justiciar to take an interest based on the king’s personal sense of justice, a relationship or financial benefit. The king at times did intervene with a lord on behalf of a tenant. Moreover, Henry II seems to have undertaken some categorical protections for seisin and right resulting from the undertakings accompanying the Treaty of Winchester, available, however, only to certain people in certain situations. Those royal interventions, not sufficient to constitute a reliable institution, certainly accustomed people in ways that made the changes in and after 1176 more acceptable, but such interventions did not simply evolve into the common law. Commonality, custom and expectations there certainly were. Without specialized justices who gave judgements, trial methods that sought to apply known law to ascertained fact or professional lawyers, such social phenomena fell qualitatively well short of a common law or a legal system.
World History
