Christopher W. Brooks. Law, Politics and Society in Early Modern England. Cambridge: Cambridge University Press, 2008. 468 pp. $130.00 (cloth), ISBN 978-0-521-32391-8.
Reviewed by Tim Stretton (St. Mary's University)
Published on H-Albion (November, 2009)
Commissioned by Margaret McGlynn
The Long Arms of the Law
For decades now the law has enjoyed a walk-on part in most political, constitutional, social, economic, and gender histories of early modern England. With this stunning new study Christopher Brooks shows what can happen if it is given a leading role. The result is much more than an exercise in compensatory history--say, a beefing up of attention to legal history to match the influence of religious history. It boldly integrates the law in all its forms into the political and social histories of the period from 1485 until 1642, providing fresh insights into topics ranging from the reformation of religion and resistance to the innovations of Charles I to popular protest, poor relief, and relations between husbands and wives and masters and servants. In subtle but fundamental ways its arguments reshape the contours of the early modern landscape and call into question a number of recent theories about the nature of English social relations and accepted chronologies of change.
One of the underlying arguments of this book is that legal culture infused early modern English society to a degree not seen before or since. To establish the extent of this influence Brooks maps out in careful detail the astonishing range of ideas, institutions, jurisdictions, personnel, laws, and regulations that the banner of "the law" encompassed in Tudor and early Stuart England, as well as the relationships it helped to define. The book is divided into two parts, deftly combining a chronological approach with a thematic one. The first eight chapters analyze the law from the center outwards, beginning with the nature of legal thought and practice in the fifteenth century and running through the upheavals of the break from Rome, and the jurisdictional clash produced by the retaining of ecclesiastical justice, the legal issues raised by multiple kingdoms beginning with Wales, the dramatic expansion in litigation and lawyers in the decades after 1570, and the constitutional issues raised during the reigns of James and Charles Stuart that reached their climax in the 1640s. Organizing this familiar history around the law produces unexpected insights and reveals the richness and the fluidity of ideas circulating and evolving in a profession that on its face, and in much of its own rhetoric, can appear conservative and unchanging. Brooks relies heavily on two under-used sources: moots and readings on statutes at the Inns of Court, which illuminate lawyers’ views of law, doctrine, and jurisdiction; and the charges judges and powerful citizens read on circuit to assize and quarter sessions juries and assembled audiences, which provide a sense of how legal values were presented to the community. These speeches, delivered in their thousands all over the country, presented an idealized vision of justice that could border on propaganda, but their ubiquity would have made the ideas they extolled familiar to the majority of ordinary citizens.
Brooks elaborates on this point in the second part of the book, which focuses more broadly on the effect of the law on different groups and classes of people in the wider community. A sustained analysis of local jurisdictions, from manor courts, leet courts, borough courts, church courts, and piepowder courts, to the enforcement of statutes and regulations by magistrates and local constables underlines just how deeply the tentacles of the law penetrated into English communities. Justice touched everyone in this society, making the legal profession’s collective belief in the importance of due process familiar to all but the most marginal members of society. For Brooks the implications of this saturation of society and culture with the different interwoven strands of the law are self-evident. Firstly, there was no obvious divide between elite and popular concepts of order, because everyone was familiar with the justice system and so many made use of it or appealed to it; for example, the litigants who went to law in the hundreds of thousands and the agitators in violent rural protests who overwhelmingly couched their demands in terms of the right application of existing law, rather than in calls for the overthrow or rejection of the legal system. Secondly, the dominant ideology of lawyers and legal officials, which Brooks teases out through what amounts to a collective biography of a profession, was surprisingly benign. The majority of early modern jurists believed that human law derived from the community, following logic familiar from Aristotle and Cicero, and that it should serve the community, without regard for social standing. And in practice the wider community did shape the common law and equity, through their interactions with the system and their demands for justice and an expanding range of legal remedies. Everyone was aware that wealth could influence justice, and Brooks is sensitive to the limited rights and legal relief available to the desperately poor. Nevertheless, on balance the system was sound at its heart and difficult to characterize as an elaborate elite conspiracy to control the masses. Neighbors could be fractious, suing each other in record numbers, lawyers often disagreed and occasionally fell to blows, certain judges succumbed to crown pressure during the personal rule of Charles I, and individual examples of corruption were not unknown. However, the rule of law "provided a playing-field on which the poor and the middling could co-exist with the rich" (p. 428) and the lawyers and judges who implemented the law espoused noble aims and went a considerable way towards meeting them.
The combination of the organic nature of legal knowledge and the innovations spurred by litigants’ demands mark out the law as an important agent of change. Indeed, legal ideas and institutions helped drive even the largest-scale social and political transformations, such as the rise of the state and the eventual triumph of the idea of individual liberty. In a society where successive monarchs distributed lucrative monopolies in acts of patronage, and guilds fiercely asserted their exclusive rights to control production and markets, it was lawyers and judges who expressed unease at restrictions on trade and consistently advocated greater economic freedom for individuals. Legal rhetoric also provided an important alternative to hierarchical depictions of society that emphasized unequal relationships of obligation and deference, through the common law emphasis on personal liberty and equality before the law and the civil lawyers’ championing of equity. In the more private realm of the household, Brooks argues that patriarchalism, such a powerful idea in the political rhetoric of the early seventeenth century, had little purchase with lawyers and judges. Instead they invoked the emerging logic of contract when conceptualizing or intervening in relationships between wives and husbands, parents and children, and masters and servants.
Not every reader will be convinced by all of Brooks’ wider arguments, or share his clear admiration for the intellectual traditions of the common law and his appreciation of the integrity and decency of most of the men who administered it. Such a sustained focus on the law naturally requires a focus on records produced by lawyers and legal institutions, and just as a history of a prison written from prison records might give the private beliefs of inmates short shrift, so too a number of Brooks’ conclusions about ordinary people have to remain largely implicit. Nevertheless, the depth of his erudition and the sophistication and originality of his arguments make this a book that no one seeking to understand English society can afford to ignore.
Throughout his career Brooks has charted a course beyond the traditional limits of legal history, with its tendency to focus on legal technicalities and the genealogy of doctrine, to explore the workings of law in wider society. The prominence of his own works in the footnotes of this one demonstrates how few historians have so far followed his lead, something that is bound to change in the wake of this book. But the dearth of quality scholarship on the role of law in society is largely due to the technical knowledge and skills it requires. Brooks’ ability to penetrate the fog of the law’s technical language and to explain complicated legal instruments, procedures, and fictions in elegant and accessible prose therefore make this an invaluable work of reference as well as a book that deserves, and demands, to be read from cover to cover.
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Tim Stretton. Review of Brooks, Christopher W., Law, Politics and Society in Early Modern England.
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