Introduction
• The reign of Henry II has long been regarded, and rightly so as a period of major importance in the history of English law. A set of national legal institutions bringing the law and justice to the whole of England, and a body of legal rules applicable over the whole of England. P.215
Reasons for legal reform
To determine whether Henry II was the ‘founder’ of the English common law or not, we must first decipher his reasons for involvement in the law. The title ‘founder’ suggests that Henry II had a personal, academic interest to revolutionise justice in England. However, when analysing the context of Henry’s reign it becomes apparent that whilst he almost certainly did have an academic interest in the law, his descions to reform …show more content…
This is the view of arguably the greatest legal historian F.W Maitland and a view that has long shaped the general outlook on Henry II and the law. However, Warren has since changed the general consensus having argued that the development of the legal system in the time of Henry II was an evolution of justice that had begun as early as 1066 and that although the practice of English law was transformed in Henry II’s reign, there was no ‘revolution’, there was not even, as far as we can detect a conscious plan of reform. To be considered the ‘founder’ of the English Common Law, Henry II would have had to revolutionise justice to deserve this title rather than merely develop legal institutions that had been created by previous Anglo- Norman Kings. The extent of ‘revolution’ in the legal system lies somewhere in between the two interpretations of the legal developments under Henry II. The most significant legal development and certainly something that was revolutionary in itself was the separation of the criminal and civil law – a distinction that remains to this day. However, civil and criminal developments were extremely different in both approach and nature of reforms. Whilst the civil law is more clearly seen to be revolutionised into a new system that was unrecognisable as its predecessor, reforms to the criminal law were more evolutionary in nature and focused upon building on the …show more content…
Huscroft has remarked that by 1217, English Law was no longer based simply on local custom and tradition but on firmly established principles and concepts and on regular and standard mechanisms for investigation, prosecution and trial. In terms of standardisation, the most prominent example of the creation of common procedures was the introduction of ‘writs’. Like the ‘justice in eyre’ system and many other legal institutions of the 12th century writs themselves were not a new invention immediately bringing in the question of whether Henry II can really be considered the ‘founder’ of a system to which writs are a central method of delivering justice. Writs issued by the Chancery and bearing the King’s seal had been used at least since the time of William the Conqueror to initiate litigation however, these had always been ad hoc or unique. It is in Henry II’s reign that we find the beginning of ‘writs of course’; a limited number of standardised writs available from the Chancery. The most famous examples of these writs were the proprietary or ‘petty’ assizes. These included Novel disseisin 1176 which was a formulaic investigation into the unlawful dispossession of land. All freemen could sue to recover ‘seisin’ (land) that they felt they had been wrongly dispossessed of. In the legal treatise known as ‘Glanville’: “Concerning the Laws and Customs of the Kingdom
• The reign of Henry II has long been regarded, and rightly so as a period of major importance in the history of English law. A set of national legal institutions bringing the law and justice to the whole of England, and a body of legal rules applicable over the whole of England. P.215
Reasons for legal reform
To determine whether Henry II was the ‘founder’ of the English common law or not, we must first decipher his reasons for involvement in the law. The title ‘founder’ suggests that Henry II had a personal, academic interest to revolutionise justice in England. However, when analysing the context of Henry’s reign it becomes apparent that whilst he almost certainly did have an academic interest in the law, his descions to reform …show more content…
This is the view of arguably the greatest legal historian F.W Maitland and a view that has long shaped the general outlook on Henry II and the law. However, Warren has since changed the general consensus having argued that the development of the legal system in the time of Henry II was an evolution of justice that had begun as early as 1066 and that although the practice of English law was transformed in Henry II’s reign, there was no ‘revolution’, there was not even, as far as we can detect a conscious plan of reform. To be considered the ‘founder’ of the English Common Law, Henry II would have had to revolutionise justice to deserve this title rather than merely develop legal institutions that had been created by previous Anglo- Norman Kings. The extent of ‘revolution’ in the legal system lies somewhere in between the two interpretations of the legal developments under Henry II. The most significant legal development and certainly something that was revolutionary in itself was the separation of the criminal and civil law – a distinction that remains to this day. However, civil and criminal developments were extremely different in both approach and nature of reforms. Whilst the civil law is more clearly seen to be revolutionised into a new system that was unrecognisable as its predecessor, reforms to the criminal law were more evolutionary in nature and focused upon building on the …show more content…
Huscroft has remarked that by 1217, English Law was no longer based simply on local custom and tradition but on firmly established principles and concepts and on regular and standard mechanisms for investigation, prosecution and trial. In terms of standardisation, the most prominent example of the creation of common procedures was the introduction of ‘writs’. Like the ‘justice in eyre’ system and many other legal institutions of the 12th century writs themselves were not a new invention immediately bringing in the question of whether Henry II can really be considered the ‘founder’ of a system to which writs are a central method of delivering justice. Writs issued by the Chancery and bearing the King’s seal had been used at least since the time of William the Conqueror to initiate litigation however, these had always been ad hoc or unique. It is in Henry II’s reign that we find the beginning of ‘writs of course’; a limited number of standardised writs available from the Chancery. The most famous examples of these writs were the proprietary or ‘petty’ assizes. These included Novel disseisin 1176 which was a formulaic investigation into the unlawful dispossession of land. All freemen could sue to recover ‘seisin’ (land) that they felt they had been wrongly dispossessed of. In the legal treatise known as ‘Glanville’: “Concerning the Laws and Customs of the Kingdom