FORUM: COMMENT

The English Difference: The Application of Bureaucratic Norms within a Legal System

Paul Brand

Susan Reynolds has written a typically wide-ranging, and thought-provoking, article about the process of transition from what she calls "the diffused, undifferentiated, customary law" that was characteristic of Western Europe in the early medieval period to the various different forms of "professional law" that were characteristic of the higher courts of Western Europe in the later middle ages.1 This is a process that she characterizes, surely correctly, as an "important stage of legal history," for it was only as an end result of this process of transformation that there emerged law courts and legal procedures and substantial bodies of legal rules that are recognizably the distant ancestors of their modern European and American counterparts. It was also this process of transformation that changed for ever the relationship between law and the society that this law regulated and in which it was embedded in Western European societies. Her article makes no claim to be a definitive study of this process. It is more a pointer to the work that still needs to be done to enable full transnational comparisons to be made between the different ways the process happened within different legal systems and between the different systems that were created through these changes. She does, nonetheless, state some tentative conclusions and point to what she sees as some of the prime factors in bringing about the transformation.	1
Reynolds is much more dismissive than most past European scholarship about the part played in this process by the intellectual achievements of the groups of university academic lawyers who commented on the Corpus Juris Civilis of Justinian and helped their students to "master" this complex body of classical Roman law and those who helped to collect and arrange a recognizable corpus of canon law that could likewise be understood, memorized, and used by their students. I think she may be a little too dismissive here of the importance of the specific content of these texts. For her, the legal system does seem to be largely a matter of procedures (such as the separate examination of witnesses) and of the formulas used in charters and specific legal rules invoked in legal proceedings. There seems to be comparatively little place for the more abstract legal ideas to which a study of these specific texts would introduce students and which the students, once they had become practitioners, could draw on as a lasting and fertile source of values and inspiration.	2
Reynolds is surely right in seeing a symbiotic relationship between the transformation she is discussing and the contemporaneous emergence of "specialists" in legal practice, with the fledgling professionals playing a significant part in driving the various legal systems toward greater complexity. In the main, however, she considers only two types of professional: the specialists who advised and assisted individual litigants in litigation in court and the rather different group of professionals who gave advice and assistance in noncontentious business out of court, including the drafting of charters and other documents. She mentions judges only in passing. Yet much of the movement toward greater complexity and a more rule-bound system was only made possible in England (and perhaps elsewhere too) by the emergence of a different kind of court, run by small numbers of full-time and increasingly "professional" judges possessing a real legal expertise of their own. There was, after all, little point in litigation professionals constructing careful and sophisticated legal argument if this was to be presented to judges who were incapable of understanding it. Nor was there much point in the careful drafting of documents if the judges who might review them would attribute little significance to their specific wording. Increasingly "professional" judges must also be part of the picture.	3
Reynolds also discusses briefly a number of exogenous factors helping to drive the process of change toward more complex and sophisticated legal systems in the Western Europe of her "long twelfth century." The first is the creation of more bureaucratic governments, producing and preserving more written records and making more systematic demands on their subjects. Her suggestion, if I have understood her correctly, is that the main significance of this for the legal systems of Western Europe was in creating a greater demand on the part of rulers and their subjects for experts: on the part of the rulers for experts to advise them and on the part of their subjects for experts to assist them in resisting their rulers' demands. I know of little or no evidence from England to support this particular suggestion and I do not think that, in England at least, disputes between ruler and ruled over their mutual rights and duties created any significant demand for specifically legal services, though they may well have made both sides much more careful about having things written down and about the terms in which they recorded them. In the English case, the movement toward more bureaucratic and more literate government can be seen as having a rather different significance. It seems to have contributed at least three main elements toward the growth of the new and more professional legal system. It was the tidy-minded habits of literate bureaucracy that created the insistence that all litigation brought in the new royal courts created in the last quarter of the twelfth century should be initiated only through a specific original royal writ obtained from chancery that summoned the defendant to answer in court but was also treated as the royal justices' authority for the hearing of that litigation. It was also the habits of tidy-minded bureaucracy that helped to ensure that such writs were issued initially only in a relatively small number of standard forms (covering a limited range of possible types of legal dispute) and that then apparently insisted that the issue of new types of standard form (as the "register" of chancery writs expanded) should receive some sort of prior consiliar approval. From quite early on litigants probably needed expert assistance in choosing between the various writs on offer; and an important arena for the exercise of legal skills in court was argument about whether the specific writ that had been obtained was suitable for the circumstances of the claim that had been made. It was also the new habits of a more literate bureaucracy that ensured that at least a summary record was kept of all stages of legal proceedings in the new royal courts. This was an important guarantor of formal rationality (the rendering of justice in accordance with neutral rules) in the functioning of the new courts, for the record was accessible to litigants and might be reviewed by superior authority. Any deviations from standard procedure would need to have their special authorization noted in the record and any deviation from the application of standard rules would also be readily apparent to any reader. The third contribution made by more bureaucratic and more literate government was perhaps a greater readiness to legislate, coupled with a much enhanced machinery for the promulgation and publicization of legislation and the creation and use of more effective machinery for the enforcement of legislation. In thirteenth-century England, this became a very important source of the norms and rules that constituted the English variant of "professional law."	4
The second of Reynold's exogenous factors is economic and demographic growth and the demand she says this created for the faster and more consistent resolution of disputes. Again, I have some difficulty in seeing this as wholly applicable, certainly in the English case. The centralization of justice in England may have made the resolution of disputes more predictable (though, as before, the most common outcome of most disputes probably remained some sort of compromise); it almost certainly made their resolution slower. But economic growth, in particular, may have been important in one other respect, which she does not mention. Greater prosperity may have helped to create a much wider potential demand for specialist legal services from those now able to afford them. If professional law was crucially dependent on legal professionals, those professionals could only exist and survive if they could find clients willing and able to pay for their services.	5
The third of her exogenous factors is the growth of practical literacy and academic education and study and the stimulus these provided for more rational argument in the court room. This is clearly an important factor but seems to have operated in tandem with the early creation within each of these newly developing "professional" legal systems of an internal "litigation culture" that encouraged, expected, and rewarded rational and logical legal argument from legal specialists in a forensic setting. Courtroom law became increasingly professional in part because the professionals came to develop their own forms of argument and even their own specific language, which was not readily accessible to outsiders.	6
It seems to me that Reynolds is exaggerating when she suggests that the register of writs played the same role as the texts of Roman law, the work of Gratian, or the Bible in providing an authoritative text that stimulated argument within the English legal system. When we first find evidence of the content of English legal education in the last quarter of the thirteenth century, we see that the register forms the basis only for the beginning of legal education. Even then it is not so much the writs themselves that are the subject of discussion and instruction but the "forms of action" to which they give rise, with all their different procedures and rules of proof. More advanced education by the fourteenth century, and perhaps already by 1300, was based on a rather different sort of authoritative text—the main thirteenth-century statutes, which were a much more satisfactory peg for argument and discussion. Teaching in the later thirteenth and early fourteenth century was also based on the unofficial records of courtroom discussion, the law reports that later became the Year Books. Registers of writs were too utilitarian and too restricted in content to provide the basis for satisfactory advanced education. Educational routines, I think, reflect the underlying reality of legal practice. Some legal argument was, indeed, specifically about the use and abuse of specific writs and the understanding of specific terms in writ formulas; but there was also much argument about the ways in which rights were legitimately acquired, inherited, or created by the working of the law and about how obligations were created and transmitted, enforced, and dissolved. The register had little to say on these matters.	7
It is true that the English development, which saw the use of jury trial emerge as the main method of fact finding, differed from the European norm, which used the romano-canonical examination of witnesses. In England this left considerably more power within the litigation process in the hands of laymen than did the European norm. It did, however, resemble the development of the separate examination of party witnesses on predrafted written interrogatories in that it too was a thoughtful and deliberate alternative to the more common methods of proof previously used. The English legal system adopted a rather different technique for ascertaining facts. This allowed royal courts to tap into local knowledge and deliberately removed from the parties the control over the process of uncovering relevant facts that the system of using witnesses nominated by the parties allowed them. It is true that for long the use of jury trial did impede the development of a law of evidence in England. But even in 1300 this was not a foreordained development. The judicial questioning of juries on the basis for their verdicts, which can be seen in some cases from this period, might have developed over time into a mechanism for the proper appraisal of evidence.	8
Reynolds's article, both in its "English" section and elsewhere, reminds us of the importance of the draftsmen of charters and contracts as members of the "lower end" of the profession, who also made an important contribution toward the professionalization of law. In the English context, this is a useful reminder that this area requires much more investigation. There is no satisfactory general modern treatment of the diplomatic of private charters and other documents, whether in the "long twelfth century" or later, and no general study of who wrote and drafted these charters or of their relationship with the other parts of the legal profession. Studies of the legal profession, including my own, have focussed in the main on the part that professional lawyers played in the litigation process. We need also to think about the part these other professionals played in the wider picture of a developing legal profession.	9
Paul Brand is a Senior Research fellow at All Souls College, Oxford University <paul.brand@all-souls.oxford.ac.uk>.   Notes 1. See Susan Reynolds, "The Emergence of Professional Law in the Long Twelfth Century," Law and History Review 21 (2003): 347–66.

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