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21.04.12 Johnson, Law in Common

The Medieval Review

21.04.12 Johnson, Law in Common

With this ambitious book, Tom Johnson cements his status as one of the most innovative scholars of late medieval law and society to have emerged in recent decades. The book's compact title only hints at the range of themes addressed within: from the construction of community to the constraints of vernacularity, and from knowledge practices to resource management. It represents the most imaginative effort to date to consider law as something that was expressed, discussed, performed, and (in Johnson's words) constituted by the "majority of the ordinary population" (10) of late medieval England--the 'commons' to which his title alludes, in a subtle nod to the work of E. P. Thompson. The familiar figures of kings and justices thus cede the stage to eavesdropping neighbours, frustrated fishermen, and trustworthy elders, while flotsam and footpaths take the place of statutes and writs. If Maitland's ghost still hovers in the background, the influence of more recent thinkers--among them Thompson, James Scott, and Bruno Latour--looms even larger. Over the course of the book's eight chapters, Johnson engages with nearly every recent historiographical turn, grappling with questions of labour, materiality, environment, space, and much more. Only the global turn is missing, for this is resolutely a book about England, in which the importance of the "local" is asserted on almost every page.

The book is divided into two parts, both of which rest on a shared source base: a hundred different series of court rolls, act books, visitation records, bills and legal ephemera, much of this the fruit of the author's own research in two dozen English archives. The first four chapters collectively argue that "localized social geographies [had] distinctive senses of law" (6-7). Those who lived in rural communities had different experiences and expectations of law than those who lived in urban contexts, and likewise for those who lived in maritime communities or afforested jurisdictions; each of these "local legal cultures" is the subject of a separate chapter. There were nevertheless certain aspects of legal culture that were broadly shared across the fifteenth-century commons. Such "common legalities" (as Johnson calls them, here drawing inspiration from the work of Christopher Tomlins) manifested themselves in the way in which people conceptualized law through their physical landscape, produced legal knowledge, used English as a legal language, and possessed legal documents. The second part of the book devotes chapters to each of these topics in turn. Beneath these overarching arguments lies a multitude of others, only a sampling of which can be presented here.

Chapter 1 focuses on rural legal culture, with the enforcement of homogeneous community emerging as the central theme. Johnson highlights in particular three intersecting discourses that together reflected idealized modes of community: peace, repair, and ordaining. Unruly behaviour was to be marginalized, the local physical environment was to be maintained, and community was to be fostered through rule-making, all with the aim of sustaining harmonious "associative relations" (to quote Johnson's recurring and rather ungainly phrase). Through the flexibility of rural courts and the rhetoric of corporate unity, he argues, these courts "worked to smooth--though never level--the hierarchical relations of the late-medieval village" (44).

The book's second chapter concentrates largely on the episcopal city of Hereford, chosen for its "mediocre size and importance" (57), with occasional forays to smaller and larger urban centres. In contrast to rural contexts, Johnson sees urban legal culture as defined particularly by its concern with the governance of space. In addition, he argues, the proliferation of legal institutions produced "a more brittle relationship" (76) between the commons and the courts, even as the choices of townspeople over which courts to use "helped to constitute jurisdiction in the city" (56).

Chapter 3 considers maritime legal culture as manifested in the coastal and riparian communities of East Anglia. Johnson is among the few recent scholars to have trawled the late medieval records of the region's port courts, and among his many findings is the fact that the much-discussed Sea Laws (of Oléron and elsewhere) were only marginally relevant to local legal operations. He identifies instead a pervasive "legal cosmopolitanism" (116), whose most salient feature was a concern with expertise and authority--a feature that led this matrix of courts to lend particular credence to shipmasters.

The fourth chapter moves inland to the royal Forests. With the conservation and allocation of woodland resources as their principal aims, Forest courts shared with maritime courts a concern for expertise, while showing little sign of the discursive and institutional features that allowed rural courts to serve as vehicles for the fostering of local community. Rather than a "vision of justice," Johnson argues, Forest legal culture offered a "self-contained ideology of resource management" (149). Johnson also rejects the conventional narrative that sees the fifteenth century as a period of retrenchment and deterioration in Forest governance, highlighting instead the continuing importance of commissions of inquiries and the imitation of Forest institutions in contemporary seigneurial hunting parks. He thus concludes persuasively that "the significance of the late-medieval Forests for legal culture" extended even "beyond their bounds" (119).

With the partial exception of chapter 2 (in which Hereford plays an outsized role), these first four chapters do not rely on the intensive study of any particular locality, institution, or archive. Rather, Johnson embraces what he refers to as a "translocal" approach, dividing up his broad evidentiary base according to the legal culture in which it was produced, whether rural, urban, maritime, or Forest. This approach depends on Johnson's (largely tacit) assumption that any localized differences within each legal culture are outweighed by the similarities in its "material landscape, socio-economic practices, and legal institutions" (7). Some readers--especially adherents of the venerable tradition of English rural sociology that stresses the importance and persistence of regional variation--might raise an eyebrow at Johnson's readiness to lump together evidence from so many disparate places, or at least wish that he were more explicit about the logic underpinning his four-part classification. Conversely, although Johnson productively anchors his investigation in the records of local institutions rather than central ones, his decision necessarily obscures the potentially homogenizing effects of royal courts on the practices and preoccupations of local legal cultures.

Perhaps a more significant challenge to Johnson's analysis of these local legal cultures lies in the incommensurate nature of his source base. The records of ecclesiastical courts, for instance, play an important role in Johnson's analysis of rural legal culture, and the language found therein helps bolster his argument for the discursive importance of peace, repair, and ordaining. Johnson cannot draw on the corresponding court records for the city of Hereford, because they are long since destroyed. Yet this loss raises the question of how sharply urban cultures of ecclesiastical justice differed from rural ones, or whether they might have in fact served to reinforce the same discursive priorities (and by extension, shared legal cultures) in city and countryside alike. A similar point might be made about the third and fourth chapters, which differ from the first two in focusing more on the legal cultures of particular courts than of particular places. While Johnson's analysis of the distinct practices and vocabularies of maritime courts is both convincing and original, it leaves open the question of how far the legal cultures of maritime courts shaped the legal cultures of maritime communities, which were home to a host of other legal institutions as well, among them ecclesiastical and piepowder courts. The same holds true for the Forest, mutatis mutandis.

In the second half of the book, Johnson shifts his focus to those aspects of legal culture that cut across such local divides, considering the ways in which ordinary people throughout fifteenth-century England encountered, experienced and engaged with law. Crucially, he draws on the same sources in this second part as he does in the first, using the evidence of local legal institutions to show that these commonalities "are not reducible to national or central institutional structures," and that fifteenth-century law should instead be seen as "something made in common" (269).

Chapter 5, on "The Legal Landscape," is perhaps the finest in the book, a tour-de-force of close reading and historical imagination. Johnson's talents are on full display as he evokes the ways in which such mundane practices as droving cattle, maintaining waterways, and perambulating boundaries were "imbued...with legal significance," with people making "legal statements through…their everyday movements in and interactions with the physical world" (153-155). Equally compelling is Johnson's attentiveness to the ways in which environmental change "could both disrupt and settle prevailing legal order" (174). While some readers (including this reviewer) might not go quite as far as the author in treating law as a tangible, "physically proximate presence" (181), his general insistence on landscape as a manifestation and vehicle of legal consciousness is timely and persuasive.

In the sixth chapter, Johnson draws attention to the labour involved in the production of legal knowledge. Information, as he points out, did not simply appear in the courts, but was instead manufactured through practices of inquiry, investigation, and solicitation. These practices, Johnson argues, involved various kinds of "knowledge work" on the part of those who were called upon to participate in legal processes, with laboriousness itself serving as a marker of legitimacy. This unconventional framing proves effective, allowing Johnson to raise stimulating questions about who was called upon to perform this work, why and how they did it, what they received in return, and what happened when they opted to withhold their labour.

The next chapter addresses the issue of vernacularity. Although Latin retained its importance as the dominant language of legal record into the sixteenth century, scholars have long debated the pace and processes by which English established itself as a written legal language. For Johnson, the use of English was another element of the "common legalities" that knit together the fifteenth-century commons, however uneven its reach. (He notes, for instance, that vernacularization was more pronounced in urban contexts than rural ones, though he does not offer much of an explanation as to why.) Among the most striking aspects of the chapter is Johnson's measured resistance to triumphalist narratives: for all that English came to serve as a signal of "orality, authenticity, and publicity," he concludes that the "ways in which it was institutionalized stymied its more radical potential" (239) as a vehicle for giving voice to non-elites.

Chapter 8 argues for a "documentary revolution" in late medieval England, in which nearly everyone (down to the level of "wandering beggars and itinerant labourers") came to possess and use documents to a degree unseen in earlier centuries. Johnson attributes this proliferation of document-holding to three factors: the expansion of copyhold tenure (by which it became almost obligatory for tenants to hold copies of the title entry in the rolls); the emergence of documents used for identification and verification; and the development of the rather amorphous genre of bills as a staple of legal and administrative processes. Here again Johnson draws attention to the darker sides of this transformation, which he sums up in a pithy formulation: "More people may have held more documents, but their documents came to hold them" (242).

Johnson concludes his book with a forceful call for stronger connections between the social and political histories of the period, with law serving as an important link. In his view, the "tectonic socio-economic and cultural shock of the late fourteenth century" (274) has not been given sufficient attention as a driving force in the transformation of political culture that ostensibly occurred in the fifteenth. He therefore urges scholars of English political culture to broaden their purview in order to uncover the "more attenuated networks" (271) within which the late medieval commons was constituted.

It will be clear from the above summaries that many of the book's chapters could be books unto themselves, in terms of the scope and variety of their arguments. That Johnson tackles all of them within a single work is a tribute to his remarkable breadth of vision, even as it also poses certain challenges. Given the book's range and richness, it would be a pity if it were only to be read by specialists in fifteenth-century English history. Yet Johnson is so deeply engaged in the historiography of late medieval England that his writing frequently presumes the same of his readers, gesturing only briefly toward the scholarly and historical context. It therefore bears emphasizing that the book's implications extend far beyond the horizons envisioned by the author; it should (and hopefully will) be read by anyone interested in the entanglement of law and society in the premodern world.

A second challenge lies in the swiftness with which the book moves from argument to argument, which necessarily limits how much supporting evidence can be offered for each. It is therefore less than straightforward to distinguish between the claims that represent a distillation of the author's extensive archival research, and those that are simply intended as provocative possibilities for further inquiry. One might wonder, furthermore, how far one can push arguments about the social weight of legal discourses from an evidentiary base that is largely limited to legal sources. To cite one example, it may well be that "rural legal culture was the vernacular framework through which villagers negotiated the tectonic socio-economic changes of the post-plague world" (53), as Johnson claims, but to demonstrate this convincingly would surely require consideration of the relative importance of non-legal frameworks.

Perhaps the most surprising omission is the absence of any sustained discussion of method. By what metric, for instance, did the author determine the particular prominence of repair, peace, and ordaining as themes of rural legal discourse? In this case, and in many others, the reader can only surmise. This marks a sharp contrast with much of the scholarship on which this book rests, namely, the specialized studies of social and economic history in which considerations of (and conflicts over) methodology loom so large. The comparison might seem unfair; most of these studies make for dull reading, whereas Johnson's offers pithy and provocative insights on nearly every page. This is nevertheless a book that requires its readers to take a great deal on trust (incidentally, a theme that looms large in several of its chapters).

These methodological considerations should not overshadow the importance of Johnson's contribution. In freeing medieval law and legality from the confines of conventional legal history, Law in Common offers an astonishingly inventive and stimulating new perspective on the social, political, and material world of fifteenth-century England. It is a major achievement.