Fundamental Authority in Late Medieval English Law.

Walker, Sue Sheridan

Doe's able monograph on late medieval jurisprudence has the self-contained serenity of a scholastic treatise in which the theme is clearly delineated and the parameters of inclusion carefully drawn. His subject is an important one because the "fundamental authority" of the title evokes an important stage in the transmutation of medieval ideas of the sources of law and authority in the state into modern ones. He discusses the growth of parliament with its statutory law and the role of judicial shaping of the English common law in the fourteenth and fifteenth centuries. Primarily, the work is based on printed statutes, the law-french dialogues which "report" leading cases with the justices "quoted," and the theoretical treatises. The intermediaries between theory and practice concerning the sources of law are the well-known work of Fortescue and the infrequently discussed jurisprudential ideas of Reynold Pecock.

The idea of "fundamental authority" gave rise, in terms of jurisprudence, to modern positivism. In terms of political theory it contributed to the development of "fundamental law" which set limits on the authority of governors to change customary law and power structures. Such long term political consequences are not within the coverage of the book but they form one of the broader reasons for reading it. Serious students involved in the revival of interest in Hooker and Filmer will find Doe very useful antecedent reading.

Doe begins his account of late medieval jurisprudence by stating that in contrast with the early common law, law today "is treated largely as a system of rules located principally in statute books and in reports of judicial decisions." Though their, were statutes and judicial decisions, "the early common law cannot be understood entirely as an autonomous and identifiable system of substantive rules permitting this or prohibiting that." Doe also contrasts the common law with the canon law "whereas the absence of theory about secular law as an entity in the early medieval period is not surprising, as there was little explicit substantive law, the presence of theory about law towards the end of the period is to be expected." The author does not seem to agree with Maitland's dictum that in the early common law substantive law was embedded in process. Doe is, of course, primarily studying the fifteenth century. In the philosophical writings of Pecock (?1395-1460?), Fortescue (?1394-1467), St. German (?1460-1540) and the more practical Tenures of Littleton (1422-81) he finds "the incipient treatment of law as a recognizable entity." Though there are novel aspects in their work, Doe denies that these theorists invented a concept of law peculiar to the English common law because, in medieval terms, their legal philosophy is thoroughly orthodox and largely European. This point is made by reference to standard secondary authorities. When he contrasts the legal theory with the ideas of the "legal practitioners," the citations are mainly to judges "quoted" in the law reports usually called Year Books. The unprinted plea rolls are outside the scope of his study. He recognizes that there are major dissonances, differences in emphasis, perspective, and conclusion. The theoretical statements are often far more simplistic and exaggerated than the more complicated precise statements of mundane legal practice.

Doe reconstructs the late medieval theorists' and legal practitioners' conception of law in terms of fundamental ideas, antecedent to or causative of the substantive law. This involves an exploration of their conception of the nature and authority of law. More and more historians realize that medieval ideas about many aspects of law and morality contain at least two, often contradictory, strands. Doe juxtaposes two sets of late medieval ideas: one set stresses the autonomy of law while the same literature reflects another set of fundamental ideas about law and its authority. "Law is not given by God, it is of human origin, caused and altered by human usage and enactment, it exits because people consent to it....It is not a divinely created abstraction of right and wrong which shapes the law, but the will of the people..." This he terms the positivist thesis of law. Practitioners and theorists are beginning to employ the idea that humanly created rules are to be treated as law irrespective of their moral quality." On the other hand, another set of ideas stressed the connection between law and morality. Morality is defined as a term of convenience which is employed throughout his work to signify a specific idea of abstract right and wrong: the requirements of divine law, justice and conscience are all treated as indications or aspects of "morality." The Chancery court is an institution where these ideas of law come together but its fifteenth-century history is not explored.

In regard to substantive law, "Pecock actually and frequently employed the expression |positive law' to refer to legislation as made by human acts (though in practice the expression was used to apply to both legislation and the common law)." Thus Doe argues that Pecock's voluntarist outlook is summed up in the ideal that the peoples will and consent to the making of the laws." Despite the upheavals of the fifteenth century, Fundamental Authority usually ignores the political/historical context. However, the author cites as an example of deterrence the famous 1401 statute which condemned Lollards to the stake.

Chapter 3 reminds us that medieval thinkers did not regard human law as wholly autonomous, but relies for its authority on conformity with morality. This produces a wide conception of law: "Law is not merely that set of commands and prohibitions consented to by the community, or the usages of judges, it is also that set of rules which corresponds to the extraneous formulations of divine morality represented in natural law." In their theoretical discussions both Pecock and Fortescue purpose a set of ideas about natural law which conform to the standard pattern of medieval jurisprudence.

Certain words such as consent, natural law, reason, and conscience mere employed extensively in late medieval England, both by practising lawyers, in their disposing of ordinary cases and problems, and by the theorists, in their expositions of law. Doe concedes that all the elements of late medieval idea of law can never be reconstructed with "comprehensive certainty." The usage of such words does reveal however, fundamental ideas and sources of authority. Central to his description of the evidence is that there was not a straightforward and single concept of either law or its authority. There are two sets of fundamental ideas: one of which stressed the connection between law and abstract right and wrong, the other emphasizes the human will. There is both substantial correspondence between theory and practice, as well as considerable dissonance. The "appeal to conscience and ideas of divine law were widespread, and this outside the chancery."

The exploration of these notions is closely connected to constitutional ideas. Pecock in arguing that "legislation originated in the bilateral act of king and community, anticipated Fortescues dominium politicum et regale by about twenty years." I applaud the recognition of Pecock's importance and wish more space might have been devoted to his ideas of law. Doe gracefully acknowledges that "it would be pleasant to think that Fortescue was influenced by Pecock." Because they moved in similar circles it is not unlikely that the English lawyer knew the Welsh ecclesiastic." I wonder if condemnation of Pecock may have altered the accessibi-lity of his work and the prudence of citing him.

Doe's Fundamental Authority is a solid contribution. The price may make it prohibitive for class use but it would be valuable. The prudent limits set by the author could then be expanded to explore the political milieu of this important subject. Certainly every scholar interested in the history of legal and constitutional ideas and their practical consequences in late medieval England will read this book. It also performs an important service for those beginning to pursue the grand theme of the movement from "fundamental authority" to the "fundamental law" of the seventeenth century.