The Commoning of the Common Law: The Renaissance Debate Over Printing English Law, 1520-1640

139 Pages Posted: 22 Feb 2006

See all articles by Richard J. Ross

Richard J. Ross

University of Illinois College of Law; University of Illinois at Urbana-Champaign - Department of History

Abstract

Should the laws of England be printed? What were the likely effects of different strategies of dissemination? From the early sixteenth century through the English Revolution, these questions framed a debate among English lawyers over the propriety, advantages and risks of legal publication. Advocates of law printing envisioned national unity, godliness, and social harmony flowing from the legal press as readily as quartos and folios. Opponents, like the barrister William Hudson, warned of releasing the inner reasons and fictions of the law "to the multitude, who are apt to furnish themselves with shifts to cloak their wickedness, rather than to gain understanding to further the government of the Commonwealth." Participating in the expansion of law publishing underway in Elizabethan and early Stuart England, lawyers questioned print's impact on a profession heavily dependent on manuscripts and oral tradition and on a nation reading lawbooks without the interpretive conventions imbued by legal training.

This essay pursues an intellectual history of law publishing. It explores lawyers' uncertain, divisive, and changing opinions about the effects and meanings of the legal press - their attacks, defenses, interpretations, aspirations, and warnings.

The story unfolds in four sections. The first explores the initial justification of law printing offered in Henrician England, an echo of humanist and Protestant advocacy of textual dissemination as an agent of godly order. As it dissolved obscurantism, its friends claimed, the legal press solidified obedience to kingly authority against local, seigneurial, and ecclesiastical rivals.

The second section discusses how an emerging group of latter sixteenth-century skeptics such as Hudson, the "anti-publicists," questioned these irenic predictions about the effects of lawbooks. Disorder, degeneracy, and disunion were their counter-prophesies. Absolutist and high church conformist suspicions of "publicity" inclined anti-publicists to disapprove of revealing the law's inner reasons and fictions. They wanted it to speak in a voice of command, not persuasion.

The third section explores the contexts engendering the debate and making plausible the disputants' contrasting prophesies about the effects of lawbooks. Three interrelated developments stand out: the growing lay audience putting lawbooks to political uses and undermining the tacit identification of the reading public with the profession; increasing episcopal and absolutist suspicion of the unwitting dangers of licit printing; and the gradual realization within the profession of how print reshaped the control of knowledge (and hence of status and power) among themselves and between themselves and the nation.

The fourth and final section reflects on how the controversy over law printing implicated a larger change in English legal culture: the "commoning" of the common law. In reaction to the anti-publicist critique, publicists helped further the gradual redefinition of the law as a national inheritance rather than a guild or royal possession. They defended popular right of access to the inner reasons of the law, valorized lay rather than royal or guild "ownership" of the law, and brought out the latent constitutionalist implications of legal printing. In the realm of perception, they helped transform the laws of the realm of England into the laws of Englishmen.

Keywords: history of the book, english legal history, intellectual history

Suggested Citation

Ross, Richard J., The Commoning of the Common Law: The Renaissance Debate Over Printing English Law, 1520-1640. University of Pennsylvania Law Review, Vol. 146, No. 2, pp. 323-461, January 1998. Available at SSRN: https://ssrn.com/abstract=634823

Richard J. Ross (Contact Author)

University of Illinois College of Law ( email )

504 E. Pennsylvania Avenue
Champaign, IL 61820
United States
217-244-7890 (Phone)

University of Illinois at Urbana-Champaign - Department of History

United States

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