The Making of English Law: King Alfred to the Twelfth Century

It is enough for most of us who are interested in the history of English law to start in the 12th century, with Henry II’s fashioning of the common law. Wormald shows that that is a mistake. English law begins three centuries earlier with Alfred. His conclusions are based on the most thorough presentation of the laws of the Anglo-Saxon kings that has ever been made and on arguments which are most persuasive when they have to be, when they contradict—perhaps ‘replace’would be an altogether more appropriate word—those of the giants, Maitland and Liebermann.

English law was new in Alfred’s time, in the sense that for the fi rst time it applied to a kingdom which claimed to govern all England, but it was long-standing customary law. It has often been assumed that Alfred’s legislation was the proof of that law’s existence. But the law in the written documents could not have been more than a small part of that which governed the life of the English. Legislation is not the whole of the law even today. Nowadays legislation almost always seeks to control future conduct. Rarely does it deal with an existing dispute. But that is a comparatively modern development. For centuries royal decrees might just as well have determined a particular con ict as laid down general principles. In either case they would be relied on as statements of the law, by parties who knew of their existence and thought they favoured their causes and in those tribunals which considered themselves bound, or assisted, by them. Wormald shows that there is no evidence of legislation being cited in the courts, though he does not suggest that this proves that it was not. Indeed, his general conclusion is that (p477)‘the texts are anything but straightforward vehicles of historical evidence’and the codes ‘rarely behaved and were seldom treated like the programme for the day-to-day conduct of society and the remedy of its mundane disorders that they purported to be’. Their purposes were literary, ideological, exhortatory to the Christian life and political, trying to show the king in a central role, governing the whole of his kingdom. As the in uential bishop Wulfstan wrote in a prologue to a collection of laws in the 11th century (p337),‘divine teachings and wise secular laws further Christianity and enhance kingship, profi t the people and command respect, bring about peace and settlements, terminate disputes and improve all public behaviour’. What has all this to do with the practice of arbitration and other forms of dispute management, which are not mentioned in the extensive index or referred to in the admirable bibliography? The first lesson to be learned is that England was at no time cut off from continental scholarship. Wormald is a master of those sources, too. He tells of a dispute in the 820s or 830s between the abbeys of St Denis and Fleury over some serfs (pp30–2). A court was assembled of legal experts and judges (legum magistri et iudices) but they could come to no conclusion ‘because judges of Salic law could not properly assess ecclesiastical property subject to Roman law’. So the king’s men who were in attendance then adjourned the matter to Orleans, where the ‘legal experts and judges... vigorously disputed for each party... The judges indeed spun out the case for some time because one side would not yield to the other’. The judges declared that the issue should be decided by battle between the witnesses for each side. But then the writer of The Miracles of Saint Benedict shows his partiality. Into the dispute there intervened ‘a certain legal specialist’with ‘a bestial rather than a human name’, presumably Lupus the Wolf, who spoiled everything by suggesting a compromise: the serfs