Law, Law-Consciousness and Lawyers as Constitutive of Early Modern England: Christopher W. Brooks's Singular Journey

Abstract

During his lifetime, Christopher W. Brooks (1948–2014) established himself as the foremost historian of law in early modern English society. He was the leading exponent of a history of early modern England that transcended the boundaries of social, political and legal history, and which placed law and lawyers centre stage. This chapter brings a critical, but friendly, eye to Brooks’s work, focusing on how Brooks created a distinctive vision of law in history, and on the strengths and weaknesses of that vision. I examine the influences that shaped his work (including Lawrence Stone, Wilfrid Prest, Sir John Baker, E.P. Thompson, Jürgen Habermas and Robert W. Gordon), locating his scholarship within several contemporary contexts, including social, intellectual and legal history, and socio-legal and critical legal studies. I then critically assess the claims, topics, factors, methods and theories that Brooks emphasised. I argue, for example, that Brooks’s tended to de-emphasise the relationship between law, power, domination, exclusion, structure, totality and society, and the way in which the legal system can be routinely manipulated to serve those privileged by property and position, problematizing the nature and extent of popular belief in the rule of law; and that this reflected and was sustained by his limited engagement with the new histories of crime, punishment and policing. I also argue that Brooks exaggerated the range and depth of law-consciousness and law’s legitimacy, and marginalized ‘alternative’ discourses. I suggest that until we know how individuals such as defendants judged their engagement with the law, claims about law-mindedness and legitimacy are best kept modest and circumspect; and that there is a need for greater discussion of the complex and diverse definitions of law-mindedness, law-consciousness, legitimacy, constitutive ideology, negotiation and other key concepts explicitly and implicitly employed in such research, and the possible locations of their empirical referents. I also problematize Brooks’s thesis that legal culture was less important after c.1700 than in the period c. 1560–1700. I conclude that Brooks’s achievement was to systematically integrate law, politics and society, and legal, social and political history, and to demonstrate the considerable increase in historical knowledge that is likely to ensue from this fusion. He demonstrated that law and lawyers warranted at least the same attention as that traditionally lavished on religion and clerics. This essay builds on and extends my article, “Promoting Dialogue Between History and Socio-legal Studies: The Contribution of Christopher W. Brooks and the ‘Legal Turn’ in Early Modern English History,” (2017) 44 Journal of Law and Society issue S1, pp. S37- S60.

Keywords: legal history, legal profession, law and society, socio-legal studies, social history, early modern history, early modern English history, historiography, critical legal studies, Lawrence Stone, Robert W. Gordon, law and humanities, law and culture, cultural studies