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Response to Review no. 541

This review gives a highly intelligent and fair account of the arguments in my book, which is no more than one would expect of its author. There are a couple of points where I am not sure Dr. Brand quite grasps my intention, but these surely indicate failings in my own exposition of what are after all often technical materials and rather complex deductions or inferences from them. I give one example below.

I should, however, like to take advantage of the IHR’s invitation to respond by setting out very briefly what I think I am doing in writing such a book. Reviews like this one are a proper test. The aim is to present the materials so that readers can make up their own minds on the issues canvassed. I have never had any ambitions to become an authority on this or any other historian’s patch. I did not need the news out of Paris a generation ago as mediated through recent theories of the text etc. in American and other universities to make me aware of the contingency of the text and the consequent inadequacy of all historical argument. Students of human behaviour can aspire to nothing remotely resembling mathematical proofs. My efforts therefore go to taking a slightly different perspective and seeing whether the results justify an alternative to received understandings. Above all, I hope to enrich understanding of our pasts.

So I present in this book something that might be an alternative master narrative to lay alongside the received ones. I cannot, for example, say on the evidence I possess that the Anglo-American Common Law was born out of the drive to control more effectively Law and Order in England rather than lawyers’ law reform of the rules and regulation process of landed property. I can request of my fellow historians that they compare the cases for the two approaches more directly than they have in the past. In the process, they will surely challenge and possibly refute some of my own speculations, for I have certainly stretched the evidence on numerous occasions.

I also touch upon a number of chestnut topics relevant to my main themes but do not try and give a full textbook account. Dr. Brand picked up on one in his remarks about the two assizes of (?)1166. I was charmed to realize in the course of my research that the overall argument had significant consequences, or so it seemed to me, for the context and orientation behind the origins of the key assize of novel disseisin. What previous scholars had written uncomfortably of the criminal or quasi-criminal origins of the assize, I could constructively reformulate in terms of the general shift in treatment of ‘serious wrongs’ for which I was arguing. I still find most of the standard accounts of the assize by Donald Sutherland and S.F.C. Milsom persuasive, will still teach them, and therefore did not feel the need to digress from my path and rehearse them there.

Dr. Brand’s acute formulation of the target acts as ‘serious wrongs’ seems to me right on the mark. It points to work still to be tackled. It also indicates incompletenesses in my own account, which I have perhaps failed to convey adequately. I do not believe that a ‘single undifferentiated action for wrongs…existed prior to 1200’, though others have talked of one. I believe that people sought redress for wrongs c. 1200 in terms of a notion of wrong without differentiation into later legal categories like crime and tort. I am happy to talk of an undifferentiated notion of wrong. I would much prefer not to talk of ‘actions’ at all in lawsuits much earlier than c. 1200, because this term, a clear borrowing from Roman law, suggests a discrete procedural entity which is exactly what I do not think I find in the sources. Nor would I talk of ‘a single form of court procedure for the redress of wrong’.

I suppose my point really is that people had at their disposal before the Common Law a small range of procedures (direct action, complaints of various kinds, ordeals, oaths and, after 1066, stylized battle) to deal with a whole conspectus of perceived wrongs. They could mix and match these with some freedom. Some selected their options after close political calculation performed with the aid of counsel from friends and also from others experienced in matters of disputation. Others followed their gut instincts more closely. And there was every variant alongside these more or less limiting cases.

But to state the matter in this way is to take on the backward-looking perspective from that of the Common Law and its professionals later. It is not at all clear to me that the aggrieved of twelfth-century England, their supporters, their enemies and the community around them would think at all in these terms. All I am really saying is that they did not conceptualize their wrongs in the way their descendants, or their legal advisers, would do a century later, for the very good reason that such thoughts had yet to be invented. If my argument has any merit, it points not just to England in the twelfth century and on back to the tenth, but much more widely in Europe before the twelfth-century legal revolution. Formulations like an ‘undifferentiated notion of wrong’ and my own coinage of ‘proto-trespass’ should not suggest any false uniformity of dispute forms in Early Medieval Europe. They press me and, I hope others too, to think hard about the ways in which earlier men and women had sought their dues, how they might have thought and felt their wrongs, and the vast variety of local, political-cum-‘legal’ cultures discernible across the time and space of what we call Early Medieval Europe.

I shall always be grateful to Dr. Brand for the sympathy and attention that he has paid my work, as also to the IHR for the opportunity to respond, rethink, and restate some of my thoughts.