Thursday, January 03, 2008

Common law

There's a very good piece by Tim Worstall on the importance of property rights to economic development at the Globalisation Institute. In it, Tim refers to the origin of the Common Law:

My myth is that when Henry II was establishing the English legal system, rather than starting from first principles, or from the concepts of Roman Law, he simply sent people around the country asking "Well, what is the law"? What they told him it was (and had been since time immemorial) was then codified into the system. There was no imposition, no fracture in society and no rebellion against it, for the codification was of what all already agreed was just and accorded with the then current economic arrangements.
That's not a myth, but to be a pendant (in joke, not typo) for a moment, Henry II didn't quite send people round the country asking what the law was. There's a context.

He claimed the throne through his maternal descent from Henry I. Between Henry I and him, was Stephen, civil war and great disorder and a predictable legacy of disputed property holdings.

When Henry II came to the throne he decided to use, in the hearing of disputes about land holdings, a baseline of how things had been during the reign of his grandfather. He sent justices on circuits (the origin of the system) to hear claims and the justices would draw up a panel, or jury, of local people who could say what the case had been before Stephen. Actually, this wasn't always clear cut. Land holdings had changed during Henry I's reign, of course, and so two claims could have equal validity according to this baseline. While not excluding the possibility of decisions being made for reasons of post-Stephen politics and alliances, at this stage it would be possible to ask the jury how such a dispute might be settled in their neck of the woods, something you could call 'Law'.

This of course led to decisions being made differently under similar circumstances in different locations. That was fine, except if one of the claimants was unhappy and wanted to appeal (to the King's bench, something else we still have). Appeals to the King's bench created a need for a common basis of judgement, which is what evolved. But all based on tradition, precedent and not statute.

Tim was seconding a report that suggested:
the role of government should be to formalise the informal systems of property rights that develop organically within communities. Developing country governments and Western agencies should not create privatisation “blueprints” that ride roughshod over traditional norms and customs.
And I'll third it. As I have commented before, it is a sobering thought that a medieval King had more concern for the autonomy and integrity of regions, localities and individuals than do contemporary politicians and NGOs, but that's the sorry fact. We'd actually be moving forward, from where we are now, if we emulated this aspect of the stewardship of a twelfth century monarch.


dearieme said...

Since he intended to leave the kingdom to his descendants, he might naturally take a longer-term view than a modern politician or bureaucrat.

Peter Risdon said...

I think it's partly that he felt sufficiently distant from his subjects not to care what basis their disputes were settled on, so long as they were settled.

Reverting to holding patterns that preceded Stephen helped resolve disputes along easily understood lines while underlining the legitimacy of his claim to the throne and erasing Stephen's reign from history.

It's also true that he would not have been able to impose unwanted outcomes across the board on a barony that had become accustomed to great autonomy during the preceding nineteen years. So he had no choice. The difference, as Tim Worstall pointed out, is that going with the grain makes reaction and rebellion less likely. All very pragmatic.

I'm not sure what view he took of the longer term, and I'm not sure there's any way of knowing. Henry was addressing immediate problems. England was a bit of a mess in 1154. As such, there's no need for him to have been acting in this regard with dynastic motivations, though I'm sure he had those too.

Tony Benn seems determined to see his dynasty established too. Dynastic expectations are rarely beneficial, in the end.