Whose Law Is It Anyway? Two Differing Approaches to Medieval Local Custom

Activity: Talk or presentation typesOral presentation

Description

Medieval local custom is considered by some to represent a legal system, and by others as mere ‘positive morality’. The evidence for the procedures and substantive rules within manors is now more available than ever before with the completion of the Manorial Documents Register, as well as ever-growing supply of printed court rolls and custumals available from local history societies and larger publishers. But when manorial records are used for legal history, it tends to be as evidence for jurisdictional and structural questions rather than in relation to the substance of the legal rules – the ‘customary law’ - which developed in the manorial courts. Much of the reluctance or lack of interest in medieval local custom as ‘law’ can be traced back to the sceptical attitude of F W Maitland, and to the prevailing legal positivist view that ‘law’ entails certain criteria, including the authority of a sovereign underpinning it. This paper will describe two different approaches to medieval law: one the prevailing positivistic definition, and the other more realist and flexible, in order to argue that we can (and should) take the latter approach to describing the law of local medieval communities. When we do so, we are able to engage with a richer and ‘thicker’ concept of law in that society.
Period26 Feb 2021
Event titleRules and Regulations: Centre for Medieval Studies 2021 Conference
Event typeConference
LocationBristol, United Kingdom