An essay in nine easy tablets
Some years ago, I wrote a book called ‘The Common Law, A History’. I wrote it mainly for lawyers, in part because too many were admitted to practice without having been taught the history of the law. That in my view is worse than sad. This essay is not a précis of that book. It is an introduction written for the general reader. People at large should have an interest in the history that underlies and underwrites our way of life. It also represents the bare minimum of what law students should be taught. The alternative may resemble giving a ticket to a doctor who has not opened Gray’s Anatomy. I will publish the essay by nine consecutive posts on this website. I hope you get some of the enjoyment in reading it that I got in writing it.
The German Conquest
The world is very old, but most of its peoples are now governed by legal systems that have come down from either Rome or England. Ours (Australia’s) comes from the English, and its story is our present subject.
What we call Europe was dominated in the ancient world first by Greece and then by Rome. The Greeks laid the foundations of logic and the arts, but they were hopeless at politics (a word we got from them), and their laws have had little impact on us. The Romans were not so concerned with the intellect or the arts, but they created political systems in ruling the West and they developed a very sophisticated body of laws.
The religion of each now looks both primitive and banal – about level, say, with voodoo. Except for Rome near the end, neither people grasped the notion of the dignity that each of us has because we are human. Each was based on slavery and a protection racket called empire, and the notion that either could be said to be civilized was one of the more curious conceits of the old Oxbridge.
The Romans ruled the land known now as Britain for four centuries from about the start of the Common Era to the start of the fifth century – nearly twice the time that the white people have been running Australia. Very little effect of their rule is now left – and even less of that of the indigenous people (who don’t get a good press in Cymbeline).
Instead, the character of the English nation began to take shape as Angles and Saxons settled there – although the natives would have looked on their incursions as invasions (as our First Nations look on the English who came here – ‘waterborne parasites’ according to one Cambridge lecturer). They were followed by Scandinavian raiders and settlers. The word ‘English’ comes from the first part of the term Anglo-Saxon.
The Greeks were fearful snobs and the Romans ran them a close second. They turned up their noses at the Germans – in much the same way that Churchill would do with the Huns. But the great historian Tacitus gave the Germans a tick in his Germania, and those Germans would be at the head of the new breeds bringing down old Rome. There is a pleasing irony in their English descendants’ blocking their reception of Roman law in England – and then, much later, repudiating everything that Rome stood for as the head of one universal church. But for the pesky independence of Germans turned English, the world would now look very different.
The fall of Rome led to a period of fear and uncertainty that we know as the Dark Age. You can read about it in Beowulf. It was as if the lights of Europe had all been turned out. To whom would people look for their protection? From where would they go for their laws?
Well, whatever else they did, they did not do what most of Europe would wind up doing and import Roman law. They would go it alone.
People would later seek protection under what we now call the feudal system. (The phrase had not yet been invented – nor had the word ‘Europe’.) ‘I will be your man if you will look after me’. The scheme is accurately pictured in the beginning of The Godfather. The Mafia thrives on government failure.
We now think that the first laws dealt with the conflicts that inevitably arise when people cross paths and then seek to work the land in a common area. They need laws to control the vendetta – the issue identified in the Oresteia – and the protection of interests in land. The feudal system became very intricate and this called for refinement by law-makers.
The great jurist Oliver Wendell Holmes said: ‘It is commonly known that the early forms of legal procedure were grounded in vengeance. Modern writers have thought that the Roman law started from the blood feud, and all the authorities agree that the German law began in that way. …. Vengeance imports a feeling of blame, and an opinion, however distorted by passion, that a wrong has been done.’
If those were the ends of the laws, what were the means? You don’t have to have studied Pavlov’s dog to know that when people are asked what they should do next, they ask what others did before then. Is there a precedent? People get into a way of doing things so that it becomes a custom – that may in time harden into law.
Take the word decree. When pronounced by a judge, it determines the rights of the parties. It looks backward – although it may be treated as a precedent in the future. But if pronounced by an emperor or dictator, it applies to everyone in what they do in the future. It is delivered as a law.
The Anglo-Saxons ruled through their kings. The king held all the powers of making, executing and adjudicating on the laws. His household became known as his court, and he would seek advice from his trusted advisers. This we are told was the custom of Germanic chiefs from time immemorial.
Over time, those closest to the king achieved a separate standing and office over others. They would defend his realm, advise him on laws, and adjudicate disputes in his name. The rot set in when these preferred people became an aristocracy as hereditary as the crown. A large part of our story will deal with how the aristocrats served to pull the teeth of the crown – before it became their turn to have their own teeth pulled.
The Anglo-Saxon kings made written laws called dooms but the crown would not flower until a new royal line took over the throne.
Dispute resolution was brutal and supernatural. The issue was determined not by judges, but by God. His word was revealed by a gruesome ordeal or trial by battle, or a process called ‘wager of law’ – signing up people to vouch for your credibility. All those terms would sound alarmingly modern to litigants now.
Christianity would soften the system a little, and add teeth to the oath when people believed in the fires of hell, but it all looks very primitive to us. And Christianity brought with it interference by the Church in government at all levels – with consequences that would take far more than a millennium to sort out.
The key to this phase of six centuries from the departure of the Romans to the invasion by the Normans is that the people coming to be called the English were determined not just to go along with the others. We saw this insularity rise up again just recently. The English were always going to make tricky bed partners with the people in Europe. They are separated by so much more than the Channel.
And although he may have stretched the point, a distinguished American jurist commented that the English law is more German than the law of Germany itself.
Law – history – Anglo-Saxons