Common Law - Henry II and the Birth of a State

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• 1. Law and the State
• 2. Law before Henry II and the Impetus for Reform from 1154
• 3. The Angevin Legal Reforms
• 4. Law, Magna Carta, and the development of the State
• 5. Find out more
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Law and the State

In the mid-1230s, the rulers of England were confronted with a problem concerning bastards. Church law legitimised children born out of wedlock whose parents subsequently married. English lay law did not legitimise such children. This was a major problem, for a bastard would not be the heir to his father's lands. Churchmen sought that English practice be brought in line with ecclesiastical thinking, but the barons resoundingly rejected their advances: 'we do not wish to change the laws of England.' By the 1230s, therefore, law was seen as an important element in national identity, even though English law in reality still had many resemblances to that of France and indeed of other areas.

Such an association of law and national identity may be related to the development of the sovereign state, and certainly in modern thinking law and the state are often closely associated. However, 'state' is a problematic word in writing of the Middle Ages. It was not used in its modern sense in the England of c. 1200. It has implications of impersonality which seem inappropriate to a world where the king's anger could have a major impact upon individuals and upon the affairs of the realm. It is also a word with more than one meaning. It can refer to one state as opposed to another, say England as opposed to France. But it can also mean the state as opposed to society, or the state as opposed to the individual.

'...we do not wish to change the laws of England.'

Nevertheless, it can be argued that law contributed significantly in the development of the English mediaeval realm towards what may be called a 'state'. Firstly, political thinking was greatly stimulated by clashes between kings and Church over their relative authority. These frequently were conducted through polemic resting heavily upon law and legal argument, and were a vital stimulus to the ideological thinking which underlay the development of abstract notions of the state. Secondly, the study of Roman and the church's canon law from the late eleventh century provided much of the language and many of the ideas for thinking about the state. Thirdly, a frequently used test of the existence of the state is that it should have a monopoly of legitimate violence. In the middle ages - as in all societies - law was only one method of resolving disputes. An alternative was the resort to violence. Rulers sought to limit or to prevent such direct action, to channel disputes through royal law. Fourthly, law was important in establishing a relationship between the king and his people as a whole, rather than simply the great men of their realm. Such a direct relationship between king and subject is another important element in many views of the state.

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Published: 2001-05-01