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Plucknett contrasts the flexibility and adaptability of customary law with the rigidity and remoteness of state legislation (1956)

In his history of the English common law Theodore Plucknett (1897-1965) stresses how flexible and adaptable customary law was in the middle ages. Unlike modern legislation created by the state, medieval communities were constantly changing their “customs” to suit their changing needs:

The middle ages seem to show us bodies of custom of every description, developing and adapting themselves to constantly changing conditions. We can see the first beginnings of a custom and trace its rise and modification; we can even see it deliberately imported from one place to another; it is a common sight to see a group of townspeople examine the customs of more advanced communities, choose the one they like best, and adopt it en bloc as their own. Indeed nothing is more evident than that custom in the middle ages could be made and changed, bought and sold, developing rapidly because it proceeded from the people, expressed their legal thought, and regulated their civil, commercial and family life. The custom of a mediaeval community may well have been much more intimately a product of the work and thought of those who lived by it, than is a modern statute enacted by a legislature whose contact with the public at large is only occasional.

The conditions of society, and men’s attitude towards them, are slowly but constantly changing, and the law must do its best to keep in harmony with contemporary life and thought. The law, too, must therefore change, and one of the most instructive aspects of legal history is the study of the various means which have served to bring about the necessary revision of the legal fabric.

THE FLEXIBILITY OF CUSTOM

The modern age of legislation by means of laws deliberately set up and expressed in certain authoritative texts covers but a very small period of legal history. Preceding it the principal element in most legal systems was custom. There were, of course, other factors as well in many cases. In canon law, for example, there were authoritative texts from the Bible and elsewhere, and most systems had at least a few examples to show of deliberate legislation. But the great mass of the law into which these exceptional elements had to be fitted was custom. Our earliest Anglo-Saxon “laws” are modifications of detail and obviously assume that the legal fabric is essentially customary. The communal courts which survived into historical times, especially the hundred and the county, were customary in their origin, and declared customary law whose sanction was derived from custom. But the remarkable feature of custom was its flexibility and adaptability. In modern times we hear a lot too much of the phrase “immemorial custom”. In so far as this phrase implies that custom is or ought to be immemorially old it is historically inaccurate. In an age when custom was an active living factor in the development of society, there was much less insistence upon actual or fictitious antiquity. If we want the view of a lawyer who knew from experience what custom was, we can turn to Azo (d. 1230), whose works were held in high respect by our own Bracton. “A custom can be called long”, he says, “if it was introduced within ten or twenty years, very long if it dates from thirty years, and ancient if it dates from forty years.”

The middle ages seem to show us bodies of custom of every description, developing and adapting themselves to constantly changing conditions. We can see the first beginnings of a custom and trace its rise and modification; we can even see it deliberately imported from one place to another; it is a common sight to see a group of townspeople examine the customs of more advanced communities, choose the one they like best, and adopt it en bloc as their own. Indeed nothing is more evident than that custom in the middle ages could be made and changed, bought and sold, developing rapidly because it proceeded from the people, expressed their legal thought, and regulated their civil, commercial and family life. The custom of a mediaeval community may well have been much more intimately a product of the work and thought of those who lived by it, than is a modern statute enacted by a legislature whose contact with the public at large is only occasional.

About this Quotation:

The Harvard and LSE legal historian Plucknett delves deep into the English past in order to provide us with a massive survey of the evolution of English common law. What is not well appreciated is how flexible customary law was in the middle ages. The phrase “immemorial custom” suggests that custom, once it was accepted, was fixed for all time. Plucknett argues that this was not the case, that in fact, medieval customary law was flexible and changed quite quickly as it was adapted to the ever changing needs of the communities it served. He quotes the 13th century French maxim that “twice makes a custom.” A point he does not develop at length but which is taken up in detail by E.L. Jones is the idea of “the spread of best practice” as communities borrow legal rules and practices that seem to work well in other communities and adapt them for their own purposes. The chapter ends with a useful discussion of one of the best developed branches of medieval customary law, the law merchant, where the spread of best legal practice turned “what used to be the custom of numerous towns and fairs became the unified custom of a particular class, that of the merchants.” All of this happened without the need for any central control or direction by any state institution.

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