Moot Hill at Scone Palace
In pre literate society, like that of Britain before the Romans arrived in 43AD, law was a matter of custom. No law could be written down. There were no cities or towns, and no central authority which could produce widely applicable laws. There were also no significant individuals, no judges, who were given the responsibility for laying down the law. Society was egalitarian to a degree that would be difficult for us to comprehend today. There was no private property to protect with legal barriers, simply an overriding communal ethic. This kind of society has existed in recorded history, and in some areas continues to exist. When explorers such as Captain Cook or Charles Darwin came into contact with societies in South America or Polynesia, they found people who had little concept of private property. Similarly, modern Kalahari Bushmen have no specific leader, and train their children from an early age to share all they have with each other. In this type of society justice is very much a matter of communal custom. The crucial change came when society started to develop a clearer hierarchy. When the Romans arrived in Britain in 43AD, they brought the revolutionary idea of towns and cities with them. Large towns and cities would dominate wide surrounding areas, and it was from these urban power bases that prominent people in the Roman hierarchy would enforce a widely applicable legal code. When the Romans left Britain around 410 AD, their towns, cities and justice system went with them. The Anglo Saxons who then invaded Britain in successive waves were not an urban people. They lived their lives in scattered rural communities, and continued to do so until the ninth century when terrifying Viking invasions encouraged Wessex king Alfred the Great to centralise fearful scattered communities into fortified towns, or burghs. With larger urban areas developing, there was once again the possibility for important towns to dominate larger surrounding areas. Complex disputes could now be referred to shire meetings, known as a moot. Some of the places where meetings occurred can still be identified today - the moot hill at Scone Palace in Scotland is a famous example. Just as society now increasingly had a hierarchy of places, the same was true of people. The king now became the embodiment of law, and a major part of his job was listening to cases, or getting his feared representatives to hear cases for him. Society was now more hierarchical in its organisation, which would tend to lead on to the sort of law systems we now have.
An important related development was the idea that laws should be written down. The Romans had a written code of law, but this disappeared when the Romans left. In the ensuing chaos there was no secular central administration to control matters of law. The only widely accepted central authority was that of the Roman Catholic Church. And it was the Church that was to become central to the operation of written law. The earliest surviving written English legislation was drafted during the reign of King Aethelbert I of Kent around 600AD. Traditionally it is thought that the influence of Christian missionaries on early Anglo Saxon kings like Aethelbert encouraged literacy and written law. This meant that as law moved away from custom towards a written code, the code that emerged was heavily influenced by the Roman Catholic Church. Most law in Anglo Saxon England involved the avoidance of feuding by payments being made to injured parties - an idea with strong parallels with the Church tradition of paying a penance to offset "sins". If agreement could not be reached using the idea of payments, a trial by ordeal came into play. These were tests, usually involving fire or water, in which God's judgment would apparently be expressed. Trial by fire involved the accused holding an iron taken out of a fire. The resulting burn was then bound, and uncovered after a specified time. If the wound was infected this was a sign that God had found against the person. A clean wound was a sign of God's acquittal. Trial by water involved tying a suspect up and lowering them into a pond. If they sank they were judged to be "received" by God, and were quickly pulled out. Any floating was a sign of guilt.
Disparate law codes still, however, had to be brought together in a common law. The emergence of a written common law has been placed by some legal historians in the reign of Henry II between 1154 - 1198 (see An Introduction to English Legal History by J.H. Baker for example). Henry II, and his successor Richard I were both out of the country for long periods. This encouraged the administrative side of government, the judiciary included, to develop its own independent and settled existence. The Exchequer was the first government department to find a home, the physical weight of treasure, and the elaborate service which controlled it, being too heavy to drag around with the king when he went on his ceaseless travels. The Exchequer was housed in a room off Westminster Hall, the grand building constructed for William Rufus, in 1097. It was at Westminster Hall that England's central law courts also were founded. From 1178 the Court of the King's Bench, the Court of Chancery, and the Court of Common Pleas were all located in Westminster Hall's huge open space. Each court was divided from the other by nothing more than a wooden bar against which the counsel stood. In the centre of each court space stood a massive oak table covered with green cloth, where officials would spread their documents. This noisy open plan arrangement, in which each court had confusing overlapping jurisdiction, endured for six hundred years until a relocation to the Strand in 1882. This was a justice system which had its roots in the Christianity of Anglo Saxon England, and it continued to see law as God given and unchanging. This was the case even though fundamental shifts were taking place. The most important change was the way law left the personal jurisdiction of the king. In 1215 King John was famously forced to sign the Magna Carta which confirmed that the king himself was subject to law. Law gave the impression of being on a higher plane, as seen in its rarified Latin records, with a great reluctance to allow for any kind of change or uncertainty. It was this sense of eternal stability that dominated the way law wanted to see itself.
The sense of law as an expression of an unchanging divine will reached a crisis point in the seventeenth century with the English Civil War. King Charles I considered himself appointed by God, The king thought that Parliament, a human institution shouldn't be trusted with law. Law for Charles ultimately came from God, and it was his job to maintain God's law, free of the vagaries of humanity. Parliament disagreed, and fought a long civil war against the king's supposed despotic power. The war ended with Charles defeated, imprisoned, and finally charged with treason, for which the penalty was death. Parliament argued that Charles had overstepped the law by ignoring the institution which represented the people. Everyone was subject to law, including the king. Charles countered by claiming that Parliament was not a court of law, and was not representative of general opinion, since all MPs with non-revolutionary views had been purged. In all this Charles was correct. Parliament might claim lofty ideals about laws to which everyone is subject, but the body creating those laws was hardly one of dispassionate objectivity. It was this Parliament which sentenced Charles I to death. On a freezing day, 30th January 1649, Charles was led through the Banqueting House and stepped through one of the windows onto a scaffold built against the wall outside. Before his execution he gave a speech in which he appealed for the rule of a higher law. "For the People, and truly I desire their liberty and freedom, as much as anybody whomsoever, but I must tell you, that their liberty and freedom consist in having of government, those laws by which their life and their goods may be most their own. It is not for having a share in government, Sirs: that is nothing pertaining to them. A subject and a sovereign are clean different things."
Parliament executed the king. What they did not do was face the reality of being without the illusion of God given justice. Rather than accepting that law was a human institution, and making the best of it, government and law retreated into the apparent certainties of fundamentalist religion. In 1648, not long before Charles I's execution, Parliament passed the Blasphemy Act, which made it a capital offence to deny the Trinity, or the authority of the scriptures, or that people rose again after death, or that there would be a last judgment. A more pragmatic view of law as a human institution had to wait until the nineteenth century. Interestingly at the same time as the scientific revolution was taking away religious certainty in the nineteenth century, the illusions of legal certainty were also finally passing away. In the first part of the nineteenth century Jeremy Bentham dedicated himself to reconstructing the law on rational principles. His effort did not bear fruit, except as a theoretical starting point for more practical and pragmatic law reformers. And that is the way law began to go. It began to accept itself as a pragmatic human exercise which has to adapt as it goes along. Take for example the famous trial of playwright Oscar Wilde at the Old Bailey in April 1895. Oscar Wilde was charged with the crime of homosexuality. In 1895 Judge Sir John Bright said of Wilde's homosexuality: "No worse crime than this existed." Today that worst crime in existence is not a crime at all. Oscar Wilde served two years hard labour for an offence that no longer exists. Reflecting on the painful ironies of what we think of as right and wrong, Wilde wrote: "Personality is a very mysterious thing. A man cannot always be estimated by what he does. He may keep the law and yet be worthless. He may break the law and yet be fine. He may be bad, without ever doing anything bad. He may commit a sin against society, and yet realise through that sin his own perfection." (Quoted in Oscar Wilde by Richard Ellmann)
Today legal proceedings are no longer written on rolls of high quality vellum designed to last for centuries. In fact there is no longer any requirement to keep permanent records of legal proceedings. There is also no sense that the law is a comprehensive code, a book of laws you can look in to see what is right and wrong. Inspite of still swearing to tell the truth on The Bible, law no longer submits itself to the illusion of being unchanging and God-given. Even Oscar Wilde worried that this might lead to chaos. Walter Pater's Studies in the History of the Renaissance, one of Wilde's favourite books, suggested that morality was something we make up as we go along. Wilde said that Pater's book was wonderful, but that the last trumpet of the Apocalypse should have sounded when it was written. Instead of the last trumpet we get a pragmatic approach, which thankfully has adapted and no longer punishes, for example, the "crime" of homosexuality with two years hard labour.
Finally, thinking about the way law has changed and continues to change, we might conclude that, inspite of literacy we are not so far away from the sense of custom where law began in societies without writing. Law tends to follow custom, not the other way round. We've already had an example in the case of Oscar Wilde, where a change in attitude involving sexual customs was eventually followed by changes in law. There are are also striking examples from the worlds of gambling and retailing. Until 1960 gambling by law could only take place at race meetings, or via postal bookies, who were well known for being unreliable. So punters were likely to go to an illegal street bookie. With most punters using illegal bookies, a vast part of the gambling industry was black market. By 1960 the illegal street betting industry was so huge that government gave in to the inevitable and legalised high street betting shops. One of the main reasons this was done was to stop the law looking ridiculous. Sunday trading is another example of law being increasingly flouted, until law caught up with changing customs. The 1994 Sunday Trading Act, allowed small shops to open all day, and large retailers to open for six hours. Law realigned itself to changing custom. Since the early days of human civilization much seems to have changed in the law. Historians talk of a written common law as if it were a more stable alternative than early custom based justice. But In our own way we are as much attached to custom in ideas of justice as people in pre Roman Britain.