The First Legal System

The First Legal System: 1176 to 1348

Before 1176: Litigation in England prior to 1176 was not centralized; every major form of litigation was primarily in the more local courts of the county, hundred, or the lord. Moreover, in those courts as in the king's court, the function of giving judgment resided not in the person who presided over the court, but in those who attended: they were all communal courts. None of these courts had a system that recorded cases and decisions, and the methods of trial were such as would prevent the resolution of disputes by the application of known law to ascertained fact. Despite elements of continuity from prior to 1176 that continue even to today (we as well as twelfth century people talk about the fee as a descriptor of land tenure), law prior to 1176 was primarily discretionary and not part of a legal system. Until the law became a legal system, one should not refer to "the common law" despite substantial areas of commonality from county to county and indeed across England.

The first legal system had a set of clear characteristics that were of course much weaker at the beginning and somewhat mixed toward the end; nevertheless those characteristics were the dominant characteristics of the law throughout the period:

1. Allocation of Power within the Family. The law allocated power within the family clearly not to the point of equality, but sufficiently to provide the wife with prospective economic security as widow and with reasonably secure economic prospects for the eldest male child or, in default of a male child, the daughters. The central element of female future economic security was dower right, which became the subject of three different standardized writs and was frequently enforced. See the statistical information provided on this website. By the time of Magna Carta female inheritance right was completely clear, and women could even retrieve their inherited lands alienated by the husband after he died. Wives could not effectively deal with their property while the husband was alive, but their position in the family was reinforced by the sure knowledge that they could either retain or regain their property after the husband died: they were secure and in this matter not subject to the husband's discretion.

2. Attitude toward Debts/Commercial Relations. The legal remedies in place aimed to secure restoration of the amount owed to the debtor, not to punish for default of payment. The debtor could simply repay the debt owed at any point during the case and terminate the case without further damages. Penal bonds were disguised and rare in litigation and not rigidly enforced. Nothing in the law encouraged prompt payment of debts; prompt payment was left to morality, social relationships and reputational damage.

3. Equality between damage and remedy. By and large, the law sought, as with debts, equality between damage done and remedy given. There were exceptions, such as the triple damages mandated by statute in waste. Still such coercive approaches were not typical in the first legal system.

4. Hierarchical Structure of Legal Remedies. The legal system was not oriented to providing rapid, final resolution of disputes. The real actions (suits initiated by writs overtly concerned with property rights) and the law of property were at the heart of this legal system, but the remedies were arranged in a hierarchical structure that allowed litigants multiple "bites at the apple." See Palmer, The Whilton Dispute (1984). Losers thus did not soon run out of further opportunities for success using legal process and find their only recourse in violence: this structure was appropriate for a society only coming to be regulated by a legal system.

5. The Way Lawyers Worked. Lawyers learned to use a wide variety of writs that actually began litigation instead of studying the writs to learn rights that were actually enforced in other ways (as later through trespass, debt, or in Chancery).

6. Interface Concerns. The dominant interface concern was that between the king's court and the variety of local courts. Regulation of feudal courts was at the very heart of the beginning of the legal system; regulation of county, hundred, and liberty courts resulted in the dramatic expansion of the king's court into the arena of debt litigation and trespass. The relation between the king's court and the ecclesiastical courts was a major concern that endured into the succeeding legal system.

Proceed to the Second Legal System.

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