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Book Review
| Sir John Baker, The Oxford History of the Laws of England, Volume VI: 1483–1558. Oxford: Oxford University Press, 2003. Pp. cl + 964. $200 (ISBN: 0-19-825817-8).
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| This volume of The Oxford History of the Laws of England, the first of twelve volumes to appear in print, is a remarkable achievement. A work of vast erudition, based on exhaustive research in the manuscript as well as printed sources, it provides comprehensive coverage of all aspects of the law during the early Tudor period while also presenting a unifying thesis that is rare in works of this sort. To the extent that the volume incorporates much of Baker's earlier scholarship, it also serves as a monument to his unrivaled contribution to the field of early modern English legal history. |
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The volume illustrates the ways in which the field has developed since the publication of the multi-volume history of English law by Sir William Holdsworth in the early decades of the twentieth century. The most obvious difference is the increased reliance upon manuscript sources, especially the plea rolls, unpublished law reports, and the readings at the inns of court. A second difference is the greater weight Baker gives to developments outside the substantive law. To be sure, there are large sections on the law of property, the law of torts, and the law of contracts, as well as the criminal law and criminal procedure. But even more attention is given to the jurisdiction and business of the vast array of courts in which cases were heard, the constitution, legal education, and pleading. These are the areas in which the field of legal history has achieved its most significant developments during the past three decades, and Baker's work has been central to that scholarly enterprise. One of the great pleasures in reading this book is to witness Baker's deft handling of that literature and his negotiation of the various historiographical controversies to which historical research has given rise. |
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The oldest of those controversies dates from the delivery of Maitland's famous Rede Lecture on English law and the Renaissance at Cambridge in 1901. In the opening chapter of the book, Baker confirms the scholarly consensus that has emerged in recent years that the common law was not directly threatened with a reception of Roman law during the second quarter of the sixteenth century, as Maitland had suggested, to be saved only by the legal education practiced at the inns of court. The business of the common law courts did not decline in the way Maitland had claimed; a reception of classical Roman law studied by legal humanists on the Continent was impracticable; the conciliar courts and Chancery never attempted to apply the rules of the Civil or canon law, and the only substantive law of which Chancery took notice was essentially English law regarding land and commerce. In a later section on changes in the principles governing property in chattels, Baker claims that although common lawyers borrowed Roman terminology of occupation, specification, and accession by way of Bracton, they gave no demonstrable acquaintance with "purely Civilian sources and learning" (728). |
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But if there was no real danger of a reception of either the substance or procedure of Roman law, the Renaissance did nonetheless, so Baker argues, have an effect on the development of English law. The connection lies in a variety of tendencies in English legal thought that reflected the attitudes and ideals that are usually associated with humanism. These include a historical approach to the law, a concern with the structure, form, and language of legal sources, a rational approach to law reform, a new confidence in legislation to advance the interests of the commonwealth; a search for equitable remedies in law, and "a new-found judicial positivism which laid emphasis on the reasoned decisions of courts as a primary source of law" (18). By arguing that these same tendencies can be detected in the legal history of Continental European countries at this time, Baker offers an important corrective to traditional claims that developments in English law were immune to those taking place on the Continent. The only objection one might raise to Baker's argument concerns his identification of the Renaissance with the "rationalist spirit of the age" (17). Historians have long since abandoned the claim that the text-based culture of the Renaissance, even in its neo-Platonic expressions, was in any way rationalistic, especially in light of the humanists' hostility toward the medieval rationalism of the scholastics and the attacks that humanism invited from seventeenth-century Cartesian rationalists. A case can certainly be made for a greater operation of reason in English law at this time, but it is misleading to associate such a development with the "humanist rationalism which pervaded Europe in the wake of the Renaissance" (3). |
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Baker's efforts to change the terms of the reception debate and establish Renaissance humanism as the source of the new legal outlook to some extent detracts from his brilliant exposition and analysis of the transformation of English law during the early Tudor period. One reason why this transformation has proved so elusive until now is that the evidence for its existence remains buried in the manuscript records that Baker has so effectively utilized. Baker skillfully delineates the different dimensions of this transformation. Paramount among them was the increasing willingness of judges to decide points of law in civil cases instead of merely applying rules in order to resolve disputes. In an increasing number of cases, lawyers made their determination of law only after the jury established the facts of the case. Thus the trial of facts by a jury of laymen became a "preliminary step in the process whereby the court reached a reasoned decision" (385). As judges acted in this manner, their decisions became the "prime authorities upon which the common law was based" (51). This change in legal procedure and juridical methodology was related in one way or another to almost all the other aspects of the early modern legal transformation that Baker describes: the pressure for law reform, the freedom from the forms of actions achieved by actions on the case; the statutory regulation of uses, the recognition of non-freehold tenants as landowners with a real interest in their property, and the judicial approval of assumpsit for failing to fulfill promises or to pay debts. |
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While there is no questioning the significance of the changes that Baker describes, his characterization of at least some of them as revolutionary is somewhat problematic. Not only did the changes constitute far less than a paradigmatic shift, but the changes that did occur took place over an extended period of time. Baker's "revolution" in the land law and the law and practice of real actions (719), for example, occurred over the course of the entire fifteenth and sixteenth centuries, while the "procedural revolution" that resulted in the greater determination of legal principle in banc (445) spanned the three quarters of a century. It makes sense that the transformation of a legal system claiming custom as its foundation would proceed gradually and that even fundamental changes would take years to unfold. Sir Edward Coke may have used conservative language to disguise the real changes that took place in English law during the early modern period, but there was plenty of continuity to give substance to his rhetoric of immutability. It is a tribute to the depth and balance of Baker's scholarship that throughout this volume he devotes as much attention to these less dazzling continuities as to the legal transformation that provides the unifying theme of the book. |
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| Brian P. Levack
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| University of Texas at Austin |
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