Articles on the Order of the Magi and Its History Book

Albeit a relatively short book -- how could we expect the birth of the common law to fit in only 110 pages -- converted from lectures given by Mr. van Caenegem, it is packed with information and insight into the birth and origins of the common law system in England.

There seems to be, to me at least, some general idea that the civil law tradition is centralized law, law high on rationalism, promulgated by a legislature, written in statute. And civil-law judges act more like administrative overseers and bureaucrats, unbound by precedent (if the last decision was bad, why follow it). The Common law alternatively, is more decentralized, law higher in empiricism, handed down by courts, written in judgments. Common law judges find the law, not make the law, more than any bureaucrat would.

Unfortunately, this contrasting image of the common law is only partially correct, maybe even mistaken, especially for its radical roots. Caenegem shows how what we today call the common law came from the legal reform of English kings, Henry II especially and in particular. Henry tinkered with so much and under his rule centralization (moving jurisdiction from disparate local courts to central royal courts) and specialization (chancery etc) took hold over English law.

Henry was part of the lineage of the Norman conquerors after William in 1066. With them the Normans brought French feudal law, something that England technically did not have up to that point. I'm sure there were similarities, but the rules of feudalism as we know it were a Norman import. Feudal law then became an important root for common law, in a addition to the "advanced" tools of administration of the Norman state. This Norman talent for administration helped them create the procedures that became the common law, the royal writs for example.

It is interesting to see how the new English royal elite and aristocracy were in fact French (Norman French). There appeared to be a split in language, culture, and temperament between the people, who remained English with their English customs and English institutions, and the leaders, who remained French with their French language, customs, and laws. The royal law and royal writs had French as its language. Local courts no doubt kept their old English.

But while the perfect image of the common law as pure bottom-up judge-found law, with the judge probing to discover the norms and customs of the community in the dispute before him, may be flawed, there may be a way to still find truth in it. Caenegem indicates that's there was still some diffusion of judicial power, though this point was not his emphasis. It appears that the royal courts after receiving a writ would send cases (back) to the local courts to "do the king's justice." Even the judges in eyre went into the local communities to settle disputes, though the record indicates that there were starts and stops to their activity. So perhaps instead of a centralization of the the law, we can describe it more as making the law uniform, a systemization or regulation (making regular). There was a dynamic back and forth of cases and orders between local courts, the eyre, and royal courts; that through the dynamic exchange the law evolved. Given the logistical constraints of states at the time, the necessity of using local courts by the king to effectuate "the king's justice" kept door open for influence by local law and custom in the particular cases. This was not Caenegem's point, just an observation of mine.

This book is not an easy read. The author frequently used Latin terms and phrases without and speaks/writes in tough prose. But if you get through it all, you willed be rewarded.