Historiography

The fundamental differences among English legal historians involve two issues: the relationship between law and society and the process of legal change. F. W. Maitland in the years around 1900 established English legal history as a coherent field of study; he assumed without argument that the intentions behind legal change were largely coincident with what actually happened, that intention and effect were largely congruent. S. F. C. Milsom since 1958 has argued an idea similar to that propounded by Oliver Wendell Holmes, Jr, that much of the law results from well-intended accident and mistake, that intention and result are normally very different. A reader of Maitland could thus easily conclude that Henry II intended, for one reason or another, to establish a legal system; a reader of Milsom never would. Milsom portrays the founding of the legal system as the unintended consequences of regulation, just as he portrays the changes in the later fourteenth century as the unintended consequences of lawyers working for their clients without concern for the damage they did to the legal forms. Both Maitland and Milsom found a necessity to be involved directly in the historical detail of society in order to analyse the law. John Baker more recently, although skilled in the historical context, consistently finds the explanation for legal change not in society but in lawyers thinking about the law. These seemingly abstruse differences among historians result in dramatically different perceptions about central changes in the governance and society of medieval England precisely because law was the primary mechanism for governance. The approach here is eclectic, denying the possibility of one jurisprudential model for all legal change. This approach agrees with Milsom’s insight on the beginnings of the common law, but disagrees with him on the lack of planned legal change in later centuries. It emphasizes throughout not the role of the intellectual life of the law, but rather the dynamic interaction between the legal system and society and adopts more the perspective of the users of the law rather than that of the lawyers. This chapter makes no attempt to give a complete or chronologically continuous account of even all important changes, but focuses simply on core legal issues in the governance of late medieval England.