PANEL: Before and Beside the Common Law
Friday, October 19, 2000, 2-3:30
Chair: Cynthia Neville, Department of History
A Common Law Mentality in Anglo-Saxon England (c. 1000)?
Bruce R. O'Brien
This paper considers recent work that gives to preconquest kings a legislative agenda and expectations normally associated only with the Angevin monarchs, or, at earliest, with Henry 1, and argues that in the ninth and tenth centuries, English kings and "jurists" like Wulfstan recognized the existence of something like a common law in thought and in deed. This common law cannot be measured as Henry 11's or Glanvill's: actions arising from modes of proof and directed toward the concerns of a twelfth-century monarch. Instead of looking for superficial continuity, I intend to look for a shared common law mentality in two areas: study of law and royal expectations. On the first, "study," some historians have marked the common law's twelfth-century birth by noting the beginning of new ways of learning the law; I think these habits are old, even if they have evolved by the age of Glanvill. For the second, "royal expectations," regardless of how the actual judicial manifestation of the king's power had changed over the period, the frame of mind of preconquest English kings concerning their law may have been not all that far in kind from the attitude of Henry 11.
Law as Theatre in Early Medieval Ireland
Robin Chapman Stacey
Historians working in the Germanic legal sources have tong been intrigued by the glimpses they catch of mysterious legal rituals, the contours and meanings of which they no longer have a means to understand. The throwing of a clod of earth, the tying of a withe around the anvil of a smith - once we have pointed to the obvious utility of such actions as mnemonic devices, it is difficult to know what more to say. And even in stressing the mnemonic aspects of such actions, we may risk missing the point. For this is but a way of commenting on their apparent oddness, on the likelihood that such things would be remembered because they were inherently bizarre and set apart from the events of everyday life.
The Germanic sources do not allow us to reconstruct these rituals in any detail, and their true contextual meaning is therefore hidden from us. Irish sources of the seventh through ninth centuries do, however, describe rituals of this sort in full, and what I would like to do in this paper is examine some of these rituals in an effort to show how they functioned. Specifically, I will argue that performative procedures of this sort did not exist outside the social matrix within which they occurred; rather they gained meaning from the manner in which they echoed or alluded to common practices within the culture. The paper will present the following arguments:
1) Law in Ireland was a performance tradition on two levels: juristic (which I will not be talking about here), and ritual (the focus of my presentation).
2) Analyzing rituals through the lens of performance theory helps us to understand the manner in which they worked - specifically, the manner in which the), reproduced common community events within a performative frame that established for audiences a context within which to interpret the social and legal message of the actions being performed. I am not sure yet which rituals I'll have time to cover - distraint is likely and possibly the procedure for claiming land and for providing medical care for a person one has injured.
3) Brian Stock is wrong to see the early middle ages as a relatively simple time when symbols were transparent, and to contrast this period with the high and late middle ages, when symbols functioned within a complex hermaneutic of interpretation. I argue that the Irish example suggests that early medieval symbols functioned in precisely this way.
Was Norman Law Common Law?
It will address two questions: First, was 11th and 12th century Norman law a common law, that is, was it a customary legal system which was applied "commonly" within recognized boundaries? To this I expect to answer "Yes". Second, was it THE Common Law? This in turn raises two questions: Was 11th century Norman law the origin of post-Conquest English common law? And was the post-Conquest law of Normandy substantially the same as the early English common law? To the first of these I currently think that I will answer "Somewhat". To the latter, I am not clear as to my answer - yet. I may not be able to come to a conclusion on this question, at least by October.
sociological jurisprudence had a