Legal tradition in medieval England?

Journal of Tianjin Normal University: Social Science Edition

Original version number 20030 1

The original page number is 39 ~ 43.

Classification number K5

Classified world history

Copy issue number 200307

Legal tradition and local autonomy in medieval England

British legal tradition and local autonomy in the middle ages.

Chen rihua

School of History and Culture, Tianjin Normal University, Tianjin 300073.

Author Chen rihua

Author's brief introduction: School of History and Culture, Tianjin Normal University, Tianjin 300073.

Chen Rihua (1977—), male, from Taizhou, Jiangsu Province, is a master's student in the School of History and Culture of Tianjin Normal University.

Britain is known as the "home of local autonomy", which dates back to the social life of Britain in the Middle Ages. In Britain, the king uses common law to manage local society, and local governments enjoy a high degree of independence in dealing with local public affairs. The reasons for the formation of local social autonomy in medieval England are closely related to its legal tradition. In essence, British legal tradition embodies the concept of rights and protects the rights of subjects. The system of local social autonomy in medieval England laid the foundation of local autonomy in modern England.

English is often called "the hometown of local autonomy". If we want to fully understand it, we should go back to medieval English society. In medieval England, kings ruled the country through common law, and local governments had great independence in dealing with local public affairs. This is because the local autonomy in medieval England is closely related to the British legal tradition. British legal tradition essentially embodies the concept of rights and protects subjective rights. The local self-government system in medieval England laid the foundation of modern local self-government in Britain.

Keywords: medieval/English legal tradition/local society/autonomy/medieval/English legal tradition/local society/autonomy

Upper guide bearing

Classification number of China Library: K56 1.3 Document ID: A document number:1671-kloc-0/06 (2003) 01-0039-05.

First, the source, formation process and characteristics of British legal tradition

The formation of English legal tradition is a long-term and gradual process, which has experienced the integration of many factors and long-term conflicts. What needs to be pointed out here is that the law and legal tradition mentioned in this paper are understood in a broad sense, including not only specific legal provisions and procedures, but also the standards of legal concept thinking and value judgment. The following analyzes the British legal tradition from the aspects of source, formation process and characteristics.

(1) From the source point of view, the British legal tradition combines Germanic factors, Roman factors and Christian factors. [1] (Volume II, P 1 1) is the Germanic factor first. After the demise of the Germans in the Western Roman Empire, Germanic law occupied a dominant position in Western Europe, which mainly reflected the habits of ancient Germans and the legacy of primitive democracy. In a sense, Germanic factors laid the foundation of British legal tradition. Followed by the Roman factor. It is generally believed that the common law system is different from the civil law system, but this does not mean that the laws of medieval England were not influenced by Roman law. "In Britain, the influence of Roman law is no exception" [2]. Third, the Christian factor. Pahlman believes that the papal revolution, which began in 1 1 century, is the origin of the formation of western legal tradition. The canon law formed in the papal revolution and the later secular legal system laid an important feature of the western legal tradition, that is, "it lies in the existence and mutual checks and balances of various judicial powers and legal systems within the same society." The diversified legal system reflects the political and economic diversified social forces ... It is this diversity of social forces that leads to the diversity of the legal system and jurisdiction, making the supreme authority of the law necessary and possible "[3].

(2) From the formation process, the legal system of medieval England experienced a process from scattered local customary law to common law prevailing in the whole country. With the formation of British legal system, the process of feudalization of British society has also been formed. After the Norman Conquest, William I introduced the feudal system of continental Europe to Britain, thus forming a certain relationship of rights and obligations among the monarch, vassals, lords and tenants in English society, which is the so-called primitive contractual relationship. In feudal law, monarchs and vassals have their own rights and obligations. Like the feudal law, the manor law formed in the feudal process also embodies certain rights and obligations: farmers have the obligation to serve the lords and pay the land rent. At the same time, the law (to a considerable extent, ancient customary law) also protects the interests of farmers in many ways.

(3) In terms of characteristics, the legal structure of Britain is characterized by pluralism. However, structural pluralism is only a form, and the key lies behind the diversified form. What are the characteristics of English legal tradition? Whether reviewing the ancient Germanic customs or penetrating the contents of feudal law, manor law and other legal systems, we can find that the role of law is not only the concept of violence, but also the protection of individuals and the rights of subjects formed on this basis. (Note: See Hou Jianxin's "Western Europe and China in Social Transition", P203~204, Jinan Publishing House, 200 1. ) In the Middle Ages, the so-called court actually referred to the scheduled meeting to hear cases. Freemen participate in local public courts, handle cases according to local customary law, and implement the principle of trial between similar people, which makes the British legal tradition have the characteristics of participating in adjudication. This will undoubtedly greatly improve the individual's legal concept and protect the rights of the subject. As some scholars have pointed out, "the long and diverse customary law and contractual legal tradition based on mutual rights and obligations are important signs of this pluralistic legal structure." [4] Engels also noticed the characteristics of English law and thought that English law had a protective effect on individual freedom. [5] (Volume 3, P 152) At the same time, British law still retains the essence of the ancient Germanic concept of freedom-personal freedom, local autonomy and freedom from any interference except court intervention. [5] (Volume 3, P395)

As a social phenomenon, British legal tradition permeates all aspects of British social life. Based on this theory, we studied the local society in medieval England. We found that the local society in Britain is autonomous. Britain is known as the "hometown of local autonomy", and the local government in England is considered to be the most autonomous tradition. Understanding this feature should be related to the British legal tradition. As mentioned above, the concept of rights embodied in the British legal tradition is mainly manifested in the specific subject rights: for individuals, the subject rights are expressed as individual rights; For the rural society, it is manifested as rural rights, that is, it presents the characteristics of rural social autonomy.

Second, the central government's control and management of local society.

We discuss the operation of the rural society, but the rural society does not exist in isolation. It has a king and a country. Studying the way and degree of central government's control over local society can explain the situation of local society from another side. The central government's control over local society will be studied from three angles.

(1) Does the king have a complete set of bureaucracy at the local level? Generally speaking, if the kingship establishes a complete bureaucratic system, then the central government can control the country more effectively and local autonomy will be greatly restricted. What was the situation in medieval England?

The most important royal official sent by the king of England in the Middle Ages was the sheriff, usually appointed by the king or the Ministry of Finance. The duties of the county magistrate include administration, justice, economy and so on. Some people call him "the loyal servant of the king" [6](P28). Inspector (coroner) is another official position of local government, whose duty is to record the activities of county magistrate for future inspection and evaluation; At the same time, cases of unexplained deaths are also recorded for the judge to hear in the future. The king also sent confiscators to the local area, who were responsible for managing the local land and property of the royal family, evaluating, taking over and managing the land that should be returned to the king without inheritance, and safeguarding the king's rights as the ultimate Lord of all land. In addition, in order to deal with some special royal affairs, the king also appointed some special officials, such as the forest keeper led by the royal family, the fort keeper of the royal castle and so on. After studying the relationship between these officials, we found that their organization was very tight, as Brown said, "They didn't form a royal bureaucracy." [7](P 146)

(2) Whether the king controls a powerful military force. As an important symbol of national coercive power, the army plays an obvious role in social and political life. There was no standing army in medieval England, and even few guards protected the king. There are two main ways for the king to organize the army: one is to enfeoffment the land to the nobles in exchange for the obligation of the nobles to provide him with knights. However, the number of knights and the number of days of service provided by nobles to the king are clearly defined. If the service period is exceeded, the expenses shall be borne by the king. Secondly, as a representative of national interests, the king can issue orders to the whole country to recruit soldiers from all over the country in case of war. These measures are only implemented in wartime, and the king has no right to keep a standing army at ordinary times.

(3) The king rules the local society in the name of law. The first identity of the king of England in the Middle Ages was the Supreme Lord. As the supreme Lord, the king managed the place in two ways in the early days: one was to patrol the whole country by himself, and the other was to send a circuit court. By Henry II (1154-1189), Britain had established a relatively complete circuit trial system. In the long-term judicial practice, circuit judges first became familiar with the customary laws of various places, then studied and summarized them, eliminated unreasonable elements, absorbed their usual practices, and gradually formed the common law. Through this legal system, with the help of the sanctity of kingship, the central court can accept all kinds of appeals from local governments, and the king's laws have penetrated into local governments.

To sum up, we can see that in the Middle Ages, British kingship had neither a perfect bureaucratic system nor a strong local military force. It manages local affairs through the gradually formed common law and accepts various local affairs lawsuits. This form provides great space for local independent development and independence, and is the basis and premise for local society in Britain to achieve some degree of autonomy.

Third, the autonomy of local society in medieval England.

The previous article discussed the extent to which the British kings controlled the local society in the Middle Ages, which is only one aspect of the problem. How did the local society in medieval England operate, organize and manage? This is what will be discussed below.

Appoint local officials and be accountable to them. The above-mentioned sheriff is the main official sent by the king to the local area, so it is necessary for us to analyze the identity of the person who holds the post of sheriff. In fact, most people who serve as county guards are local knights and knights. Generally speaking, the county magistrate is appointed by the central government, but in real life, the appointment of the county magistrate is the result of multi-interest struggle and consultation. At the same time, we noticed that from 1246, the inspector was elected by the county court, not appointed by the central government, and all the people who held this position belonged to the gentry class in the county, and most of them held this position in the later period were the lower gentry. Another ordinary official of the local government is the sheriff. A police officer is an important official in a village or parish. His main duty is to maintain public order in the village and deal with some small things. Usually, according to rural customs, villagers or residents in the parish will elect local people with certain social status and property as police officers. Those who are policemen must be responsible to the residents in their own areas and report to them. There are other officials in local society, such as tax collectors and various temporary commissioners, who are also filled by local people.

It can be seen that the vast majority of local government officials are locals with identity, status and property. Many studies show that the gentry class has emerged since14th century. They are proficient in law and have strong economic strength. Gradually, the squire mastered the political power of the local society, making the local political power not a complete ruling tool of the central political power. The rise of squire as a stratum and mastery of local political power is an important feature of British local society in the second half of14th century. This shows that the local society has the ability to manage the political, economic and social life in the region, so in the operation of local governments, more consideration should be given to local customs and interests to serve the people in the community.

(two) the local government's financial sources and government operating expenses. First, we examine the salaries of local officials in medieval England. In real life, only those who own certain land are qualified to be officials. At the same time, they also have the obligation to handle local public affairs, which shows that most local officials do not receive salaries from the central government. For the sheriff, because he is an official sent by the king to the local area, he can deduct part of the tax collected for the king as his salary. As for the magistrates who later replaced the post of county magistrate, they were compulsory local officials and received no official remuneration except an allowance of 4 shillings per day during the quarterly meetings. The situation of the Ombudsman is similar to that of a magistrate, and it is also compulsory and unpaid. Inspectors should not be paid until a decree of 1487. Another example is the police department. The affairs they manage are public affairs based on the community, and their nature is also mandatory. The expenditure of local government also includes the expenditure of local public affairs, such as building or repairing churches, bridges and roads, and paying the expenses for parliamentarians to attend meetings. These funds are proposed by local officials at county courts or district courts or parish meetings, and then distributed to everyone after discussion. Because the central government cannot control local governments financially, local officials are rarely bound and restricted by the central government when dealing with local affairs.

(3) The operation and autonomy of local society. In the Middle Ages, the organization and management of local society in England experienced a formal transformation from the county magistrate-centered in Anglo-Saxon period to the county magistrate-centered in Tudor dynasty, and local social autonomy ran through the main line of this formal transformation. Foreign scholars generally believe that the autonomy form of local society in medieval England was the autonomous government under the command of the king. The earliest discussion may be about white people (Note: See White A.B Self-government under the Order of the King, Minneapolis, 1933. Recently, scholars who hold this view are represented by Lyon. He believes: "Although there are some contradictions in the words of autonomous government under the orders of the king, it is obvious that at the county, 100 households and town levels, local governments are largely managed by residents themselves." [8](P406) When we come into contact with the British legal tradition again, we find that local autonomy embodies a right: on the one hand, local society has the right to manage itself, and the residents of the community can handle the affairs that occur in the community according to local customs; On the other hand, it embodies the restriction of the king and the state power, and the king can't deal with problems at will.

British local government organizations in Anglo-Saxon period were mainly divided into two levels, namely, counties and hundreds of households. Each of them has his own court. This is a public court. The county court usually meets every four weeks. The presiding officer of the county court is the county magistrate, and the participants should include all the free people in the county in principle. Because according to tradition, it is the right and obligation of a free man to participate in the county court. Later, with the establishment of feudal system, such rights and obligations were linked with feudal land ownership, and only free land holders had the right to attend county courts. The function of the county court is mainly to handle the judicial, administrative, public life and other community affairs in the county, such as hearing all kinds of civil and criminal cases in the county, coordinating and handling matters involving public interests, and collecting funds needed by local offices; Responsible for electing members of parliament and local officials, such as inspectors and senior police officers. Baihu District also has its own court, which has the nature of tribal people gathering to adjudicate disputes. This is a meeting to deal with neighborhood relations. The management of public affairs is inseparable from public participation. In terms of public security, people everywhere have the obligation to assist in police affairs. In the process of law enforcement, it is the villagers' obligation to participate in the jury. If the county and the White Lake District can form their own concept of local groups, then people's participation in public affairs is the foundation for centuries, as Brown thinks: "For centuries, people's practical activities in county courts and county public affairs have made the county form its own combination, as have the White Lake District and the parish." [7](P 149) And this form of public participation is based on the relationship between rights and obligations, and participation means a right in essence. Under the legal tradition of emphasizing subject rights, freemen enter public social life and participate in the management of public affairs as individuals with rights. Due to the activities of many rights individuals in local society, the regional identity of local society has emerged; At the same time, compared with the central government, local society is also a subject of rights. While accepting the central jurisdiction, it has the right (and ability) to manage the affairs of its own community.

From 12 to 13 century, with the emergence and development of common law, most judicial cases were transferred to the central court. However, in local society, the nature of autonomy has not changed, but has changed into a form of local autonomy centered on the sheriff. The position of magistrate sprouted in13rd century. 1360, Edward III issued a decree requiring 3 ~ 4 rich and powerful people in each county to take charge of local judicial affairs, and soon the title of justice of the peace appeared. According to the law of 1362, the sheriff should hold four sessions a year, which is also commonly known as "seasonal court". Since then, the magistrate has been given the right to hear complaints against the county magistrate. The law of 146 1 stipulates that the county magistrate has no right to arrest criminals and collect fines, but should hand over the case to the county magistrate, which shows that the status of the county magistrate has finally declined and the central position of the county magistrate has finally been established. During the Tudor dynasty, the central government gave the sheriff greater and almost all-encompassing powers: executing the orders of the king and the central government, accepting various local cases, maintaining local public order, promulgating local industrial and commercial laws and regulations, adjusting wages, determining poverty alleviation tax rates, approving or canceling pubs, and banning illegal books. It covers almost all local affairs, so some people think: "In the Elizabethan era, the vast majority of people were not completely under the direct jurisdiction of the central government. [9](P50) Magistrates are a small group. At the beginning, each county was composed of 6-8 people, and by the Tudor period, it was increased to 30-40 people, forming a group management model. Magistrates are appointed by the king in the form of power of attorney and supervised by the Privy Council and the Interstellar Court. In this sense, the king strengthened his control over the local society. On the other hand, however, there are strict qualifications for being a sheriff, and only landlords with an annual income of 20 pounds are qualified. So all the local officials are local squires. The above-mentioned magistrates are compulsory local officials, and they receive no formal remuneration except an allowance of 4 shillings per day during the court session. Therefore, magistrates have great independence and can represent the interests of local communities to a great extent.

During the Tudor dynasty, with the continuation of the religious reform and the enclosure movement, many unemployed people appeared, and they wandered around, which became a serious problem in British society in the late Middle Ages. Before the Reformation, the church provided relief to the poor through monasteries and various charitable organizations, or planned or temporarily. After the reformation, with the weakening of the church, this relief was obviously reduced. Although the central government has made some efforts in this regard, it is mainly local governments that have taken various measures to provide relief. In the local society, the parish plays a great role in helping the poor. The parish was originally the smallest unit of the church organization, and later replaced the position of the village and gradually assumed the function of non-church. 1536 requires church deacons to collect relief supplies every week, thus laying the foundation for the establishment of full-time relief officers and initially establishing a relief system based on parishes. [10] (p23)1601The poor law stipulates that the parish is the unit that implements the poor law. The main organization of the parish is the parish Committee, and the main official is the warden, who is appointed by the magistrate every year. The parish can impose fines on vagrants and people who disturb the order of worship. The meetings of the parish Council are all open when dealing with local affairs. So for ordinary people, the parish has a great influence on their daily life. It can be seen that the parish meeting based on the members of the same community has realized the autonomy in the most basic sense of British local society.

The self-government system gradually formed in medieval England laid the foundation of modern British local government. /kloc-a series of local government reforms in the 0 th and 9 th centuries basically laid the framework of modern British local government. In fact, all these changes originated from the social life in the Middle Ages. The local society in medieval England ran through the main line of autonomy, and the form of autonomy changed, but the essence of autonomy did not change.

Date of receipt: September 2002-1 1

refer to

Western Holdsworth. British legal history [M]. Boston, 1923.

[2] Ye Qiuhua. An analysis of the characteristics of the development of legal system in medieval Western Europe [J]. Journal of Nanjing Normal University, 1999, (6).

[3] Hou Jianxin. Western European Legal Tradition and the Rise of Capitalism [J]. Historical Studies, 1999, (2).

[4] Xu Hao. Legal structure and legal tradition in medieval England [J]. Historical research, 1990, (6).

[5] Selected Works of Marx and Engels [M]. Beijing: People's Publishing House, 1972.

[6] Helen M Kamm. Freedom and Community in medieval England [M]. Merlin Publishing House, 1963.

[7] Brown. The governance of England in the late Middle Ages1272-1461[m]. Stanford University Press, 1989.

[8] Bryce Lyon. Constitutional and legal history of medieval England [M]. W W Norton & Company, 1980.

9 Kent Powell and Chris Cook. English historical facts 1485- 1603[M]. TheMacmillan Publishing House Limited, 1977.

[10] Arbel. Poor people in Tudor and early Stuart England [M]. Metthuen, 1983.