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Authors: Susan Ford Wiltshire
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of oaths and loyalties exercised in both directions between lords and vassals. The emphasis was on mutual obligations, and the vassal had a means of resisting a lord who behaved as a tyrant. This was called the diffidatio , a withdrawal of fides or loyalty from the lord. This practice was personal, however, not institutional. The intense personalism of these arrangements contradicted the descending form of government and in some ways diametrically opposed it. 3 As theocratic kings the medieval lords had absolute power. As feudal lords, however, they were one among others. 4 Within this bargaining context, laws were arrived at by counsel and consent, often by cooperation and teamwork framed by the personal relationships between the king as feudal lord and his chief tenants. 5
English common law is therefore "common" in more than one sense. It helped produce a common culture within feudal society, but it was also common as opposed to fancy. Because it was earthbound and daily instead of speculative and abstract, it tended to pay greater respect to the rights of individuals. These conditions made possible the resurrection of Aristotle's "natural man" and the emergence of individuals as citizens.
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English contributions of learned tracts to political theory were few in comparison with the French and Italian. One reason for this was the relative insignificance in England of Roman law, which served as the focus and incentive for a great deal of legal theorizing. The tension between government and the governed across the Channel also took different and less intense forms in England, at least after the time of King John and Magna Carta in the thirteenth century.
6
Natural law doctrine was later evoked in England to provide justification for practices historically established within feudalism. This could occur only because the underlying conditions were already in place. ''No natural law theory," insists Ullmann, "no considerations of doctrinal character, could have exercised influence if the historic presuppositions had not been favorable." 7 The differing historical conditions help explain why individual rights evolved as they did in England in contrast to the Continent. The outcomes of the later French and Russian revolutions would be very different because they grew out of ideological abstractions rather than a long history of practical accommodations concerning the limits of power.
Roman Law in England
In the early twelfth century, King Henry II (reigning 11541189) established royal courts to consolidate his power, thus beginning the unification of national law. Henry was the first of a series of kings under whom constitutional governance in England began to take shape. Upon accession to the throne he crushed a group of rebellious barons, but almost immediately his authority was challenged again, this time by the Church at Rome represented by Thomas à Becket. This challenge resulted from Henry's determination to limit the privileged position of the clergy. After arranging for Becket's murder, Henry continued to strengthen his secular control by setting up a rudimentary civil service. 8
This process was aided by the fact that judicial decisions began to be recorded, creating an accruing body of law.
page_54
Page 54
Lawyers in the king's courts came to depend not only on the scribbled notes of their colleagues but also on two learned law books, one written by Glanvil during the reign of Henry II and another by Bracton in the reign of Henry III in the thirteenth century. The result of these changes was that Anglo-Saxon common law, rather than the revised Roman law, became the supreme law of the land.
This does not mean, however, that there was an absence of Roman legal ideology. Hans Julius Wolff points out that Roman concepts were by no means completely barred and that Bracton dealt with some of them without even considering that they were something foreign. The Roman importations, however, did not
English common law is therefore "common" in more than one sense. It helped produce a common culture within feudal society, but it was also common as opposed to fancy. Because it was earthbound and daily instead of speculative and abstract, it tended to pay greater respect to the rights of individuals. These conditions made possible the resurrection of Aristotle's "natural man" and the emergence of individuals as citizens.
page_53
Page 53
English contributions of learned tracts to political theory were few in comparison with the French and Italian. One reason for this was the relative insignificance in England of Roman law, which served as the focus and incentive for a great deal of legal theorizing. The tension between government and the governed across the Channel also took different and less intense forms in England, at least after the time of King John and Magna Carta in the thirteenth century.
6
Natural law doctrine was later evoked in England to provide justification for practices historically established within feudalism. This could occur only because the underlying conditions were already in place. ''No natural law theory," insists Ullmann, "no considerations of doctrinal character, could have exercised influence if the historic presuppositions had not been favorable." 7 The differing historical conditions help explain why individual rights evolved as they did in England in contrast to the Continent. The outcomes of the later French and Russian revolutions would be very different because they grew out of ideological abstractions rather than a long history of practical accommodations concerning the limits of power.
Roman Law in England
In the early twelfth century, King Henry II (reigning 11541189) established royal courts to consolidate his power, thus beginning the unification of national law. Henry was the first of a series of kings under whom constitutional governance in England began to take shape. Upon accession to the throne he crushed a group of rebellious barons, but almost immediately his authority was challenged again, this time by the Church at Rome represented by Thomas à Becket. This challenge resulted from Henry's determination to limit the privileged position of the clergy. After arranging for Becket's murder, Henry continued to strengthen his secular control by setting up a rudimentary civil service. 8
This process was aided by the fact that judicial decisions began to be recorded, creating an accruing body of law.
page_54
Page 54
Lawyers in the king's courts came to depend not only on the scribbled notes of their colleagues but also on two learned law books, one written by Glanvil during the reign of Henry II and another by Bracton in the reign of Henry III in the thirteenth century. The result of these changes was that Anglo-Saxon common law, rather than the revised Roman law, became the supreme law of the land.
This does not mean, however, that there was an absence of Roman legal ideology. Hans Julius Wolff points out that Roman concepts were by no means completely barred and that Bracton dealt with some of them without even considering that they were something foreign. The Roman importations, however, did not
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