Lorren Eldridge’s Law and the Medieval Village Community is a call to historians of English law to return to the study of local, community-generated customary law, a type of law that governed the lives of many of England’s people, but that has been pushed to the periphery in favor of the study of the common law. Eldridge presents the medieval village as a space where customary law was generated, a customary law that, while it was informed by the common law made in the king’s courts, differed from it in important respects.
Law and the Medieval Village Community is as much about the historiography of the village community as it is about its history, and Eldridge has a knack for making historical debate exciting and relevant. She tells the story of how scholars of English law, who once saw the village community as central to the history of English law (and indeed to contemporary legal theory), turned away from the village in the early twentieth century in favor of the records of the central royal courts. This shift proved enduring and has yielded a distorted picture of English law, generating a historiography that focuses on elite spaces and elite litigation to the exclusion of the law that was used and created in local communities.
Frederic William Maitland, as one of the few nineteenth-century scholars whose work is still read by graduate students, has shaped the contours of scholarship in English legal history to an extent that is difficult to overstate. In the case of scholarship on the village community, however, Eldridge argues that Maitland’s influence has had something of a malign effect. Although Maitland was critical of the legal philosopher John Austin’s positivist view of the law, he inadvertently reproduced it in his work, treating the law created in the king’s courts as the “real” law of the realm and the custom that governed life in medieval villages as something that only became law if and when it was recognized by the king’s courts.
Why was Maitland so insistent that medieval village communities were not sites where “real” law was generated? The answer has to do with the context in which he was writing. Eldridge carefully situates Maitland’s work within contemporary debates over the village community. The medieval village community and its law had been central to a number of debates of the late nineteenth century, some of which were highly politicized. Maitland was responding specifically to scholars of the “Germanist” school, who thought that they could see the origins of modern democracy in autochthonous village communities. Maitland had legitimate reasons to be skeptical of this scholarship, but he overcorrected.
The story of the marginalization of village custom, as Eldridge tells it, was one of those contingencies of history: just as the history of English law was beginning to professionalize, Maitland, one of the main drivers of its professionalization, became involved in a political debate that caused him to elevate the common law and push local custom to the side. That choice has set the agenda for historians of English law ever since. As a result, the study of the village community would be taken up instead by social historians, who have over the past century done a brilliant job of describing the world of the English village. That world that was much more complex than the records of the king’s courts, which focus largely on the relationship between tenant and lord, would have us believe.
The social historians have not been as interested in the law these communities created, however, and this is where Eldridge calls legal historians to action. She looks at some ways in which the study of village custom might enrich our view of English law in the Middle Ages. The common law treated the unfree tenant as wholly subject to his lord’s whim, and beyond the protection of the king’s court. But a “general commitment to a legality principle” that “is evidenced throughout medieval English society, at all levels of hierarchy” meant that lords often abided by the decisions of their own manorial courts, applying village custom, even when those decisions went against their own interests (P. 170).
Eldridge also presents us with some examples of ways in which the custom applied in local courts could differ from the common law of the realm. To give just one example, Eldridge cites cases in which a condition that would have been void at common law was placed upon a conveyance and was considered perfectly valid in the context of a villein tenure transferred according to local custom (P. 304). When we tell the story of English land law in American property courses, we tend to draw the line back to the strict and technical rules of the royal courts, which applied to free tenements. Eldridge demonstrates that there was an alternate tradition of local custom that applied to a large percentage of the land in England and that was potentially more flexible in its application.
Eldridge’s book is at least in part a call to decenter the common law of the king’s courts in the story of English law, to view it as one part of a broader legal landscape that includes the customary law of the local village community. But Eldridge calls on us to do more than that. In the late nineteenth and early twentieth centuries, the study of the medieval village community was considered important to the construction of legal theory. Scholars believed that legal history could help us to answer big, theoretical questions such as whether property rights are “inherently individualistic” or whether law is “fundamentally a tool which facilitates co-operation, or perpetuates oppression” (P. 15). Eldridge encourages the reader to return to thinking about what legal history can offer to contemporary legal theory, to consider whether “the practice of law across time and space fit[s] with the theoretical or doctrinal models we use to describe ‘law’” (P. 17). As the second half of the title puts it, she calls on us to reinvigorate historical jurisprudence.
