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The Common Law Mind: Medieval and Early Modern Conceptions.

By J. W. Tubbs. Baltimore and London: Johns Hopkins University Press, 2000. 253p. $42.50.

Legal scholars of the modern era have attempted vigorously and with varying degrees of success to find in late medieval and early modern jurisprudence a single "common law mind." The characteristics that set English common law apart from continental models ensured that writers on the law from the thirteenth through the seventeenth century did not speak in a cacophony of voices, and there has been some consensus that a strand of legal thinking can indeed be traced from the Year Books through to the writings of Coke and beyond. The chief representative of this school of thought remains J. G. A. Pocock, whose work first stirred up the scholarly community more than a decade ago (The Ancient Constitution and the Feudal Law, 1987). Tubbs sets himself a difficult task, then, in his attempt to challenge currently received historiography about early jurisprudential writing in England. That he fails to identify a single common law mind is perhaps inevitable, given the breadth of his survey of surviving primary sources. Indeed, he admits that it is a near impossible task: "The most that we can say, on the evidence we have, is that if there was a common law mind in the period, it was divided" (p. 195). Tubbs arrives at these concluding remarks with some assurance, and on the way to doing so his examination of legal writing in England offers thoughtful, if sometimes uneven, analysis.

The attempt to prove the existence of a multifaceted common law mind allows Tubbs to develop two separate themes, both of which are explored at length in each chapter of the book. The first concerns the ways in which legal thinkers from the anonymous compiler of the twelfth-century Leges Henrici Primi through to the great authors of the period preceding the English Civil War conceived of the idea of reason and of the relationship between the legal past and constantly evolving notions about reason. The second theme, less extensively emphasized but equally well developed, has as its focus the degree to which Roman law influenced English law and jurisprudence. Tubbs ranges far and wide in his exploration of both themes, touching on such topics as attitudes toward statute law, the definition of the infinitely variable idea of custom, the place of precedent in legal decision making, and the role of equity in the history of English law. Although the arguments he makes in respect of these subjects are variably sust ained, there is much here to provoke both criticism of and praise for the author's use of an extensive range of source materials.

The contention that there never existed a single common law mind is an ambitious claim, and it leads Tubbs of necessity to review and reassess-and often to cast doubt on-the work of scholars who have preceded him. There is hardly a single historian or philosopher, alive or dead, whose arguments are not subjected to careful scrutiny, then rejected. Brian Tierney's treatment of Bracton's use of the terms consuetudo and leges is tenuous because it is based on a misunderstanding of these words (p. 14); T. F. T. Plucknett relies on only "a handful of cases" in what are widely regarded as definitive statements regarding statute law (p. 35). Similarly, Samuel Thorne is mistaken in linking changes in parliamentary procedures with evolving doctrines of statutory interpretation (p. 117) and Charles McIlwain's views of the nature of parliament are based on a "mistaken theory" (p. 157). Pocock himself is wrong in his assertion that lawyers of the early modern period equated common law with custom (p. 129).

Such bold statements are, of course, the stuff of historio-graphical debate, but they sound rather too strident coming from a scholar as new to the profession as is Tubbs. Moreover, the author's tendency to criticize his predecessors' use of source materials by means of frequent reminders that his own research encompassed an exhaustive reading of "all extant works on English law from the twelfth through the seventeenth centuries" (p. xii) is offset by some notable lacunae in the secondary sources he consulted. For some topics Tubbs relies almost exclusively on long outdated works. Notable is the discussion of the uses for which medieval Year Books were intended, where the only secondary works cited are those of William Holdsworth (pp. 42, 63). More recent studies have superceded the limited conclusions offered by Holdsworth some time ago and in some respects have shown them to be fundamentally flawed.

Tubbs is on much surer and less contentious ground in his treatment of the enduring influence of civilian and canon law traditions on English legal thinking and writing. The argument is not novel: Scholars such as Richard Helmholz (see e.g., Canon Law and the Law of England, 1988; Roman Canon Law in Reformation England, 1990) have maintained consistently that Roman law exerted a more profound effect on the common lawyers of the medieval and early modern periods than legal historians generally allow. Tubbs's strength lies in an impressive ability to offer specific examples of the link between Roman and common law thinking in the writings of various authors. Thus, the (few) passages in the treatises known as Glanvill and Bracton relating to the nature of customary law are almost all "borrowed or derived from the writings of civilian jurists" (p.189); later still, Sir John Davies (d. 1626), writing on the subject of royal prerogative, employs arguments that are based, "almost without exception," on Roman law au thorities" (p. 134). In his more specific discussion of late-sixteenth- and early-seventeenth-century views on custom, however, Tubbs uses the term "classical" rather than "Roman" or "civilian." Here, the strength of the argument depends heavily on the inclusion of Aristotelian traditions of logic within the framework of the term "civilian." The change of emphasis is subtle but essential to what the author believes is an accurate understanding of the role of custom in common law.

Tubbs's conclusions about the influence of the civilian tradition are essentially sound; less satisfying are those offered with respect to the variety of "common law minds" in the medieval and early modem periods. Despite a commendable effort to unravel distinct strands of thought in juris-prudential interpretations of the notion of custom, Tubbs is forced to acknowledge in the end that virtually all discussions about the law were in fact linked inextricably to that same notion. His argument regarding the plurality of common law minds is not as far removed from those of other scholars as he might wish. Still, Tubbs's book provides a salutary, if not altogether convincing, reminder that the incontrovertible schools of thought that so often inform scholarly studies of medieval and early modern English law are in constant need of discussion and, sometimes, revision.
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Title Annotation:Review
Author:Neville, Cynthia J.
Publication:American Political Science Review
Article Type:Book Review
Date:Dec 1, 2000
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