03.07.13, Musson, Expectations of the Law in the Middle Ages

Main Article Content

Robert Berkhofer

The Medieval Review baj9928.0307.013

03.07.13

Musson, Anthony, ed.. Expectations of the Law in the Middle Ages. Woodbridge, UK: Boydell Press, 2001. Pp. xii, 206. ISBN: 0-851-15842-0.

Reviewed by:
Robert Berkhofer
Western Michigan University
robert.berkhofer@wmich.edu

"In the history of law, at least as far as the Middle Ages are concerned, no one had focused systematically on what expectations people had of it until March 2000 when Anthony Musson convened a conference which has now produced this book to mark the millennium." (ix) Perhaps it was the millennial sense of expectations that inspired Michael Clanchy to open Anthony Musson's Expectations of the Law in the Middle Ages with these words. Now that we have firmly crossed into the third millenium, perhaps a sober evaluation of this collection of articles can take place. What this volume contains is a fine collection of legal history articles concerning the high and later middle ages first presented at the International Legal History Conference held at Exeter in March 2000. Early medievalists and those interested in dispute resolution in the first millennium will, therefore, not have their expectations met. What this work really investigates is the nascent legal systems of Europe, focusing on England with excursions to other parts of the northwest (Scotland, Brittany, Flanders, France, and Sweden), from 1000 to 1450, with a coda on how Victorian lawyers and modern historians use legal records. Thematically, the volume treats expectations medieval people had of the law, as announced in the title, as well as what Anthony Musson calls "the role played by law (in its different guises) in the development of the medieval state" (1). The second theme is emphasized at least as much as the first. Although chronologically more limited than the title first suggests, the thematic and geographic breadth of the enterprise is refreshing and under this revised description it is easy to say that the volume surpasses expectations.

One of the strengths of this collection is avoiding insularity, going beyond English legal history to embrace other areas. This geographical inclusiveness was clearly a conscious decision, as the articles treating non-English areas are printed first in the volume and thus emphasize the comparative approach. Two articles shine in this part of the collection. In one masterful example, Richard Kaeuper reads the Old French Roman de Renart as evidence for the "social response to royal activism" (9). Although Kaeuper admits that there is "no unidirectional steering towards a clear goal" (11) in the tales, he does find many of those written between 1174 and 1205 to provide a commentary on kingship and law during the rise of Angevin and Capetian royal power. His argument is a sophisticated one, stressing that the newly powerful kings and their nascent legal systems evoked both hope and fear among contemporary audiences and authors of the tales of Reynard the Fox. Expanding the scope of "legal sources" in this way is to be applauded, especially for the high and middle ages when the profusion of legal records has consumed previous legal historians' interest. As far as the relationship of law to the development of the state, the signature article in the collection is Dirk Heirbaut's "Flanders: A Pioneer of State-Oriented Feudalism?" Heirbaut convincingly demonstrates the arrival of "feudalism" (both the fief and personal obligations of vassalage, here clearly distinguished) in Flanders in the eleventh Century. In contradistinction to Susan Reynolds' argument in Fiefs and Vassals that 'feudalism' was a product of increasingly bureaucratized monarchies of the thirteenth century, Heirbaut shows that Flemish feudalism served as an instrument of comital power already in the eleventh and twelfth centuries, before bureaucratization. Although modest in his claims, this article summarizes nearly a decade of Heirbaut's scholarship and shows how carefully crafted legal history can illuminate larger debates within medieval history about feudalism.

The other three non-English pieces are more modest in their achievements but demonstrate technical mastery. Mia Korpiola's "The People of Sweden Shall be Free" argues that the Europe-wide peace movement provided Swedish monarchs the means to assert royal power. The peace legislation of the mid-thirteenth century was Sweden's first truly national law and the first effective extension of royal justice throughout Sweden. By the early modern period, this process allowed Swedish kings to achieve a monopoly on violence and justice similar to that achieved earlier in England and France. If Sweden was behind the curve, Judith Everard's "The 'Assize of Count Geoffrey' (1185): Law and Politics in Angevin Brittany" demonstrates that Brittany was in the thick of Angevin and Capetian politics. Everard's article is essentially an explication de texte about the 1185 assize, demonstrating that the so-called "assize" was actually a pact between Geoffrey and his barons. Everard argues that "it represents a pioneering stage in the phenomenon of reducing custom to writing which occurred in England and France in the late twelfth and early thirteenth centuries" (55). Showing that the "assize" ought to be compared to the coronation charters of Henry I, Henry II, and Magna Carta, this article ably shows the English connection, though it only hints at the French one. Finally, Cynthia Neville explores "Charter Writing and the Exercise of Lordship in Thirteenth-Century Celtic Scotland." In this case, the title is exactly descriptive of content. The underlying argument, however, is to challenge the simple dichotomy of Anglo-Norman/native Scottish lordship and the presumed feudal/non-feudal split so often linked to it. Instead, Neville proposes that Scottish lords, especially those of Strathearn and Lennox used the increasingly common device of written charters to specify and even expand their authority beyond their traditional native lordship and property rights. This is a thought-provoking argument about the uses of the written and one wonders if it might be applied to areas outside of Scotland as well.

Those authors writing about English legal history can be divided into two groups: those seeking to present new research on neglected or misunderstood areas of the law and those dealing with "expectations of the law" more directly. The first group is by far the larger. This first group (addressing charters, counterfeiting, usury and commercial crimes, and private petitions), are technical pieces displaying great skill, though of interest primarily to specialists. Julia Crick's "Creating and Defending the Liberty of St. Albans" tackles the thorny question of when and how the libertas of the monks arose. Although the traditional claims to Anglo-Saxon origin were largely based on willful misinterpretation of the past and outright forgery, the special exemption from jurisdiction was no less effective in the later Middle Ages. Crick argues that the "expectations of liberty" (102) were sufficiently strong that monks could fill in the rather large gaps in the past to invent a strong tradition with durable legal relevance. Henry Summerson's "Counterfeiters, Forgers, and Felons in English Courts, 1200-1400" examines the forging of coins and seals, arguing that the high conviction rate for counterfeiters demonstrates a concern among both authorities and the public for a stable coinage. Such offenses, of course, often touched the king and were, thus, treason, but they also offended the "common weal" and so were of more general importance. Gwen Seabourne's "Law, Morals, and Money," attempts to rescue the study of usury, forestalling, regrating, and price regulations from the dustbin to which previous economic historians had confined them. Her tack is to consider them as products of "royal expectations of the law" (117). Those expectations seem to have included economic self-interest, the desire to suppress usury/fraud and to prevent unjust enrichment. It is the latter which she believes can be used to illuminate notions of "justice" and "fairness" in late medieval England before the rise of a formal court of equity. Gwilynn Dodd reconsiders the private petitions to Parliament in the later fourteenth century, often dismissed by scholars who have concentrated on the common petition and, thus, have avoided the archival chaos surrounding the surviving private petitions. Dodd skillfully uses early nineteenth-century notebooks and inventories to reconstruct the original archive of private petitions in the Public Record Office before the reorderings of the later nineteenth century destroyed their coherence. Such heroic reconstruction of provenance will be a boon to future scholars. His work shows that private petitions were a constant part of the late medieval parliament, which continued to function as a court of last resort.

As the organizer of the collection and many contributors acknowledge, trying to understand the expectations of medieval people (or medieval historians) about the law is often difficult; however, the broad approach of this volume allows the final contributors to surmount this difficulty. Usually, the documents of legal practice do not directly reveal such attitudes, with the important exception of what those practicing (or administering) the law expect. Treating the development of the Chancery as a court of conscience, Timothy Haskett steps outside of traditional legal history by examining the "mechanics of expectation" (152), namely the chancery bills. Essentially a petition for grace, such bills offered long narratives of alleged grievance and, thus, contain rich evidence for expectations of justice. Perhaps the more useful part of the article is a reorientation of approach: away from the continuing (and he suggests futile) search for learned jurisprudence in Chancery towards a study of how the middling ranks of late medieval society (the most frequent users of Chancery) thought of law and justice. Anthony Musson's own contribution "Appealing to the Past: Perceptions of Law in Late-Medieval England" aims to understand how medieval people used and understood their own legal past. He argues that practical uses of appeals to the legal past, whether as precedent or more informally as public memory, had become commonplace by the fourteenth century. More challenging is his assertion that law/legal policy and mythology/ideology were mutually influential. His best example here is drawn from Wat Tyler's demands during the Peasant Revolt of 1381 that there should be "no law but the law of Winchester." Teasing out multiple interesting possible meanings for this phrase, Musson argues that rallying cries such as "Magna Carta," "Domesday Book," or the "law of Winchester" were less about invoking specific legal principles than creating a linked "ideological identity," which demonstrated broad expectations of such foundational laws, however misunderstood. There is much to commend this argument, though own wonders if Musson's concluding assertion that "through appealing to the past, members of late medieval society sought to justify, legitimate, inform and understand their present" (179), could be equally applied to English lawyers of the Victorian period, examined by Chantal Stebbings. As the modern publication of medieval legal records by such groups as the Selden Socety began (as did the discipline of legal history), Stebbings argues that Victorian lawyers' view of medieval law in the context of contemporary legal practice also shifted. Victorian expectations of medieval law were modest in her view. She contends that rather than having direct practical application, Victorian expectations of medieval jurisprudence were "essentially cultural" (189), reflecting their belief that the Common Law was a dynamic, evolving entity tracing its roots to a medieval past. The very existence of that foundational past was sufficient justification, because "it confirmed their view of case law as the product of human experience and human reason, and as cumulative in its value" (189) and no further specifics were necessary. Penny Tucker, in the last essay, seeks to determine if modern historians' expectations of medieval legal records are likewise modest. On the contrary, she finds that historians often overreach themselves, especially when they use legal records "either in an unsystematic way, or systematically, but selectively" (191). Tucker suggests that the corpus of legal records must be considered in its totality, despite the difficulties this entails, to prevent errors of analysis from impressionistic or narrow statistical studies. She offers two fifteenth-century case studies to illustrate the errors (and how to avoid them) resulting from previous historical practice, which sounds a final cautionary note lest our expectations of legal records had been overly raised by the other articles.

At its best, this collection seeks to discover the mentality of rulers and ruled about the law, rather than the specifics of legal practice or lawyers' and judges' ideas. In consequence, it aims at a broad (and shifting) target but one that has previously been either neglected by traditional legal history or, worse still, assumed to be known. Although some of the articles would only be of interest to English legal historians, others transcend their field and deserve reading by historians and other medievalists because of their refreshing perspective on important problems. One hopes, though perhaps cannot expect, this volume will encourage further comparative work in medieval legal history.

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Robert Berkhofer

Western Michigan University