Conceptualization
by Robert C. Palmer, Cullen Professor of History and Law, the University of Houston
The treatment of the history of English law has not been handled by distinguishing between the legal tradition and successive legal systems, but rather refers vaguely to a continuing legal system that changed incrementally over time. That approach does not treat the law as part of a social governance structure that government/society adjusts periodically in radically different ways, although with real continuity. Accommodating continuity with radical change requires a distinction. The legal tradition is the continuing element that recognizes that certain ideas, doctrines, and institutions endure, so that modern Anglo-American law, not unlike society, bears certain similarities to English law in the thirteenth century. Defining successive legal systems within that tradition allows for the degree of change at particular times that restructured major portions of society and styles of governance.
A legal system, for this analysis, must actually be a system. The legal tradition clearly goes back further than 1176, but English law prior to 1176 cannot be said to have been a legal system. Indeed, some analysts will deny that there was any legal system until relatively modern times, and future commentators will probably focus on various incoherencies in our current law and maintain that law even in the twentieth century was not part of a legal system. For purposes here, however, in 1176 mechanisms (legal records, standardized forms of litigation, specialized justices who gave judgments) were implemented such that sufficient care was being taken, with enough in the way of feedback loops, that one can speak properly of a legal system, even if that legal system would appear extremely rudimentary compared to modern systems. Successive legal systems should be defined not by the elements of the legal tradition (which would be continuing from one legal system to the next anyway), but by a series of relatively external factors: the way in which the law allocates power within the family, the attitudes of the law toward debt relations/commercial activity, the structuring of litigation, the dominant interface concerns among the various courts that produce tensions, and the way in which lawyers work. These factors seem to be adequate to distinguish at least some of the legal systems from each other, although the factors were not of equal significance and not each of them changes from system to system. If there are other relatively external factors that help to distinguish legal systems, it would be helpful for those to be communicated. Suggestions will be posted, linked to this website at this point.
Elaboration of the characteristics of the successive legal systems is far from complete, but it may be helpful to the profession to set out as much as I have been able to lay out. Commentary from others can help flesh out the analysis or change it completely. I am very uncertain about the fourth legal system, since I have done no research in the period. I likewise am not willing to make any assessment at all about successive legal systems in the Britain after the fourth legal system. Any assistance in these areas would be massively appreciated and would, of course, be acknowledged on the website.
The first legal system: 1176 to 1348.
The second legal system: 1348 to 1529.
The third legal system: 1529 to 1649 (?) or 1689 (?)
The fourth legal system: 1649 (?) to [America:] 1776
The fifth legal system [in the U.S.]: 1776 to 1934
The sixth legal system [in the U.S.]: since 1934
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