Spontaneously Evolved Social Order versus Positive Legislation
in English Constitutional History
REVIEW OF AUSTRIAN ECONOMICS (2004) 17(1): 41-65
Robert F. Mulligan, Ph.D.
How slender the basis must be on which the absolute monarch rears his selfish designs; how little the strongest will can direct the future course of events; how intrinsically treacherous is the most perfect system and order that results from external will rather than from permanent organisation under an internal law....
Stubbs (1874), Constitutional History of
Medieval institutions contain an important strain of spontaneous order, especially from the pre-Christian period. A series of irregular successions after the Norman conquest made royal charters increasingly important in establishing the sovereign's legitimacy. Henry I's coronation charter (1100) formed the basis of Henry II's aggressive program of reform legislation, as well as for Magna Carta (1215). Henry II aimed at restoring the legal and political institutions of his grandfather Henry I after a period of civil strife and social degeneration. The fact that almost all later charters grew out of Henry I's charter, combined with the fact that later charters expanded and refined legal and political institutions, establishes the evolution of spontaneous order in the English charters. This evolution continued throughout the middle ages as subsequent kings confirmed Magna Carta. JEL: K11, N43, P16
The doctrine of spontaneous order achieved a central place in economic and legal science when Adam Smith (1776) described the interaction of market forces coordinating processes of production, distribution, and consumption as the working of an invisible hand. Carl Menger (1871) extended the application of spontaneous order to the emergence of commodity money in a primitive barter economy and Ludwig von Mises (1912) contributed a highly sophisticated theory explaining how fiat money can evolve from commodity money. Mises' regression theorem filled an important gap in prevailing macromonetary economics, which was unable to understand how fiat money could circulate at all. Hayek (1960, 1973, 1976, 1979) developed a theory of the evolution of democratic political and legal institutions responding to historical influences without the intelligent design of a authoritative legislator.
More recent scholarship (Berman 1983; Rizzo 1985; Friedman 1989, 2000; Benson 1990, 1998, 2002; Stringham 1999, 2002a, 2002b) analyzes the evolution of laws and other social institutions from a public choice perspective. These researchers find that spontaneously emergent institutions change more slowly over time and have other characteristics that better encourage economic activity. Rizzo (1985:882) showed how spontaneously emergent and value-neutral Anglo-American common law is superior from a welfare perspective to policy-oriented positive legislation or activist jurisprudence based on balancing competing social and economic interests. Entrepreneurial planning is frustrated far less frequently by slowly and predictably evolving, spontaneously emergent laws - such as common law - than by consciously designed administrative institutions subject to abrupt change. Because spontaneous order best supports entrepreneurial innovation, it also promotes social and economic progress.
The distinction between the spontaneous order of common law, and the designed order of positive legislation, can be likened to the distinction between market and centrally planned economies (Sugden 1998:489-490). Positive law contrasts with the restatement of received or accepted customary law, and consists of essentially new and innovative commands issued on the authority of the legislative authority (Hayek 1976:44-48). As the division of labor progresses, the spontaneous order becomes capable of much higher degrees of complexity and sophistication than anything that can be designed by an authoritative legislator. In this sense, spontaneously evolved and designed orders are analogs of market and command economies. More importantly, the spontaneous order of the market and the spontaneous legal and political order both respond to subjective needs of many individual actors, unlike a designed order expressing the weltanschauungen of an elite of charismatic social engineers. Hayek's theory of spontaneous order has been criticized as internally inconsistent, employing flawed classification schemes, and poorly or inconsistently defined concepts (Khalil 1995, 1996, 1997) or as not fitting the facts of an evolutionary process (Steele 1987). Nevertheless, historical experience seems to call for some understanding of the process of social evolution. Like the market order, "law formation is a complex and dynamic process grounded in social realities that are beyond the comprehensive control of any authority. Despite its best efforts, the state has failed to monopolize the enterprise of law" (Ratnapala 2001:52).
This paper interprets English constitutional history, the foundation for the modern democratic order, through Hayek's concept of spontaneously evolving social order. Spontaneous order can come about through positive legislation, when individual components of that legislation are designed to implement or restore accepted custom. Historical evidence suggests less of an underlying tension between spontaneous order and the design order of positive legislation, than one working through the other. If the time under consideration is sufficiently long, the legal and governmental order nearly always evolves spontaneously, even though that evolution may include a succession of intelligently designed acts of positive legislation. This principle does not apply to positive legislation that is adopted and overthrown in rapid succession. In that event, the aberrant legislation would be seen as a departure from both static and evolving custom. Designed orders appear to be ineffective over the long run if they operate at a variance with the evolutionary process of a spontaneous order. Thus a spontaneous order can evolve through acts of positive legislation, though not all acts of positive legislation persist and give expression to the spontaneous order. Evidence for spontaneous order includes the following, which may be considered provisional stylized facts of spontaneous order:
(a) prominent reference to past custom, especially maintenance or restoration of past custom, placing current practice or innovation in an evolutionary context (Hayek 1973:82-84, 98),
(b) accumulation of a large number of small, incremental changes,
(c) value neutrality, allowing individuals free choice of internal subjective value hierarchies, ends, and means for attainment (Hayek 1973:85-86, 103; 1976:5),
(d) focus on intelligent design of process, as opposed to outcome, which remains free to actualize individuals' freely-chosen, subjective preferences (Hayek 1973:116-117; Rizzo 1985:871),
(e) some level of vagueness and indeterminacy in allowing final outcomes to be determined by participants (Hayek 1973:86),
(f) respect for tradition (Hayek 1973:84), and
(g) natural selection among competing institutions (Hayek 1973:99), or a process analogous to natural selection (Steele 1987:188-190).
Common law is the archetypal spontaneous order, though it is possible for a legal system or form of government to evolve spontaneously without a common law system. Then it is necessary to be able to trace the evolutionary process to identify spontaneous order. Contrasting with the stylized facts of spontaneous order, evidence against spontaneous order might include:
(a) discontinuity and dramatic changes in social custom, frustrating subjective comparisons among different societies within an evolutionary continuum,
(b) social change which is the accumulation of a small number of drastic, large changes, interspersed between periods of stagnation in social practice,
(c) explicitly designed social institutions which impose external objective value hierarchies on individuals, overriding individual choice of values, ends, and means for attainment,
(d) focus on intelligent design of intended ends of social institutions, as opposed to process, disregarding diversity of individual preferences,
(e) exceedingly detailed specification of regulations, especially when not generally relevant to broadly accepted social imperatives,
(f) general lack of respect for tradition, or contextual basis for positively designed institutions, and
(g) artificial selection or intelligent design.
The rest of this paper is organized as follows. Hayek's concept of spontaneous evolution of social order is further developed in light of several criticisms in section 1, "Hayek and his Critics." Spontaneous order as an organizing principle in historical analysis,discussing its application to English constitutional history, is further developed in section 2, "Spontaneous Order in English Constitutional History." A chronological analysis of various legal enactments and political developments, focusing on the medieval period from 1100-1307, is presented in section 3, "Applying Spontaneous Order to English Constitutional History." Section 4, "Conclusion," provides concluding remarks.
1. Hayek and his Critics
The principle of
accumulation of design in biological evolution helps explain the process of
spontaneously evolved social order.
Accumulation of design, which can be considered an extreme, nearly
irreversible, form of path dependence, also helps explain why custom,
tradition, and social context are so useful for interpreting evolutionary
(2001:55-59) cites Hale (1713), Mandeville (1729), Hume (1739, 1777, 1779),
Smith (1759, 1776), and
Path dependency provides one impetus for positive legislation. Once custom evolves to the point where practice is seen as inefficient, immoral, or merely inconsistent with ends chosen by current legislators, the temptation to legislate often proves irresistible, even to the point of imposing constraints on the future evolution (Hayek 1973:88-89). The state may be inevitable, along with its growth and centralization of its authority.
Several scholars criticize practical aspects of Hayek's scheme of governmental reform or his interpretation of existing institutions (Shenfield 1980:414; Hamowy 1982). Hamowy (1978:296) views the rule of law, the principle that both the government and the citizen are equally subject to legal constraints on their behavior, as at best, a potential necessary condition for human liberty. He criticizes Hayek's view that liberty is dependent on, and inseparable from, the rule of law, rather than being, as Hamowy prefers, definitionally independent. To Hayek, the rule of law is a sufficient condition for human freedom. Hayek accepts the need for the state to enforce negative obligations, but not positive ones (1976:101-103). In Hayek's view, bills of rights enumerate particular applications of, and might be replaced with, a more comprehensive rule that coercion can only be applied to enforce generic, preexisting rules. This is quite different from merely prohibiting the initiation of force.
Hamowy (1978) and Steele (1987) argue with the significance Hayek attaches to the distinction between negative versus positive rules of conduct. In Hamowy's view the distinction is inadequate because negative rules can be coercive. Clearly, positive rules, commands that one must do something, are necessarily coercive. Negative rules, forbidding specified acts, may not be coercive, and some negative rules are necessary to define and protect individual rights. For example, it is necessary to prohibit acts which initiate the use of force. Hayek's proposed prohibition of positive rules is a necessary, though not a sufficient, precondition for the liberal order. Hayek fails to draw this distinction clearly, and it seems possible Hamowy and Steele take issue with it simply because of its flawed expression.
Khalil (2002) criticizes Hayek based on the viability of his classification schema. The market order depends on information, including facts like prices, and is opposed to a planned order. The liberal order, as opposed to a command order, depends on subjective knowledge (Dewey and Bentley 1973) which expresses beliefs. In Khalil's view, Hayek's arguments cannot be conclusively derived from his theories of information and knowledge. The market order requires dispersed information, as opposed to dispersed knowledge. In the Deweyan sense Khalil adopts, knowledge is always subjective but can never be dispersed, because it can only reside in individuals. The uniqueness of each individual's subjective beliefs or knowledge necessitates the liberal order. In contrast, information must be dispersed, necessitating the market order. Khalil reformulates Hayek's theory of objective knowledge, which is philosophically allied to logical positivism in spite of Hayek's many criticisms of that school, as a subjective theory. Khalil is critical of Hayek's fundamental classification, not his model of social order.
Khalil (1997) views natural orders as including designed firms and spontaneously-emergent markets. Socialist states are designed like radios or firms. Thus it becomes difficult to say whether firms or command economies should be regarded as artificial or spontaneously emergent. Khalil (1995) notes that organizations have preferences and objectives, while institutions are constraints on realizing preferences and objectives. Khalil (1996:188) observes that both design and insight play roles in the process of undesigned evolution.
In general, Hayek's critics aim at improving the rigor and consistency of his theory of spontaneous order. Hamowy (1982), in particular, is critical of how Hayek interprets some evidence for the liberal social order and its evolution. None of Hayek's critics seem to take much issue with the desirability of the liberal order.
2. Spontaneous Order in English Constitutional History
legal-governmental institutions contain an important and obvious strain of
spontaneous order, especially from the pre-Christian period. Christian missionaries typically produced
written codifications for the Frankish and Germanic kingdoms they converted,
combining local law and custom with Judeo-Christian moral principles and the
Roman civil law contained in Justinian's Corpus
Juris Civilis. Before the Norman conquest,
Henry II aimed at restoring the legal and political institutions of his grandfather Henry I after a period of civil strife and social degeneration. Later, in the reign of John, Archbishop Stephen Langton based Magna Carta on Henry I's charter. The fact that almost all later charters grew out of Henry I's charter, combined with the fact that later charters expanded and refined legal and political institutions, establishes the evolution of spontaneous order in the English charters. This evolution continued throughout the middle ages as subsequent kings confirmed Magna Carta, which evolved as it was reissued and confirmed. This evolutionary process illustrates the emergence of spontaneous social order in medieval legal and political institutions. Because Magna Carta provides a foundation for due process and the rule of law, an examination of its evolution holds special interest. The initial development of parliament as a positive-law-making legislature occurred later during the reigns of Henry III and Edward I, and partly displaced royal charters as legislative instruments.
English charters often acted to correct or restore customary practice. This can be seen, for example, in the preamble to the Constitutions of Clarendon (1164), which asserts "... some part of the customs and liberties and dignities of his [Henry II's] predecessors, viz., of king Henry [I] his grandfather and others, which ought to be observed and kept in the kingdom" (Stephenson and Marcham 1937:73). Stable rules provide one of the necessary conditions for entrepreneurial activity and economic planning. "When some basic principles of the law have been accepted for a long time, they will govern the whole system of law, its general spirit as well as every single rule and application within it. At such times it will possess great inherent stability" (Hayek 1973:66).
A contrasting situation had developed between the reigns of Henry I and Henry II, during the civil disturbances of the reign of Stephen, where the situation maintained which Hayek describes: "... a general philosophy of law which is not in accord with the greater part of the existing law has recently gained ascendancy. The same lawyers…become a revolutionary force, as effective in transforming the law down to every detail as they were before in preserving it" (Hayek 1973:66). Revolutionary change may be necessary for social progress but clearly frustrates entrepreneurs in forming expectations and planning economic activity. Though all change introduces entrepreneurial opportunities, the social order fulfilling the most entrepreneurial expectations promotes the greatest volume and coordination of economic activity (Harper 1998:254-256).
3. Applying Spontaneous Order to English Constitutional History
This section applies the doctrine of spontaneous to the analysis of English constitutional history of the twelfth and thirteenth centuries. Starting with the fourteenth century, Parliament's positive law-making and the judiciary's contributions to the common law largely displaced royal charters as legislative instruments.
Conqueror was succeeded not by his oldest son Robert, but his second-oldest son
William II. Though William I had not
been a particularly popular king, ruling through military conquest, extensive
land confiscation, and an imported
Henry I sought to gain support for his accession by issuing a coronation charter in 1100 granting liberties and renouncing various predatory practices of William II (Freeman 1882 II:349-352). The first three of the charter's fourteen articles deal with wardship, inheritance, and marriages among the aristocracy, disavowing practices which allowed the first two Williams to profit in these cases. The king promised to forego this particular form of innovative rent-extraction because it was contrary to English custom, though it could have been argued that Norman nobility were bound by Norman custom. Certain new taxes, fines, and debts were also discontinued, unpunished murders were pardoned, and forest lands confiscated by William II were relinquished. Some new taxes Henry renounced, monetagium, a levy on monetary transactions in cities and towns, actually were discontinued, but others, amercement, judicial fines, continued in spite of the promise to return to traditional Saxon bot and wite forms (Stubbs 1913:116-119; Stephenson and Marcham 1937:46-48; Mitchell 1951:160, 243). Traditional Saxon justice was largely consensual, based on restitution and social ostracism, but had already been partly displaced by coercive state-administered justice before the Norman conquest, which greatly accelerated the eclipse of consensual Saxon justice. This abandonment of traditional, consensual justice gives a strong illustration of path dependency. Once the state began collecting judicial rents, coercive justice could only grow in extent. There is no mechanism for turning back the clock.
The charter includes a statement restoring the laws of Edward the Confessor, effectively repealing all enactments of the two Williams, but such a vague and general promise was meaningless and unenforceable (Freeman 1882 II:356-357). No mention was made of Harold, who ruled between Edward and William I. His short reign had not contributed much to Saxon jurisprudence, and William I always claimed lawful succession from Edward. The coronation charter was issued and seems designed to address a situation of political expediency. It helped Henry find acceptance and legitimacy from the barons and people through an offer of new or newly restored liberties and the promise of fairer justice. The offer implicit in the charter suggests accepting Henry as king would guarantee better government as well as respect for, and restoration of, distinctively English practices. Robert never attempted a counter offer.
Henry's charter is highly significant in English constitutional history and the theory of spontaneous order for two reasons. First, it revived the Saxon practice of issuing general charters of liberties addressed to the realm as a whole. Saxon kings had issued such charters in the form of dooms deliberated and witnessed by the Saxon great council or witan as early as 601 (Stephenson and Marcham 1937:2; Smith 1955:13-14). Charter issue manifests path dependent development, because by construction, charters express received custom, but generally do not prescribe new custom. Although implementation of Henry I's charter was sketchy at best, it began to restore, extend, and establish the principle of the rule of law, the idea that the government, as well as the citizen, is subject to legal limitations on its behavior (Hogue 1966:53-54, 252-253). The coronation charter was essentially a conservative document, either restoring established customs, or formulating new ones rooted firmly in existing custom. Though the charter grants or restores significant liberties, its imperfect, partial enforcement and implementation further strengthens the interpretation of this document as essentially conservative, particularly since its implementation clearly appears to have been at a sharp variance with its design.
Second, the charter establishes a context for future enactments, particularly Henry II's program of reform legislation, explicitly designed to restore the customs and liberties of the time of Henry I, as well as for Magna Carta and its reissues and confirmations, all of which refer implicitly to Henry I's charter. The Coronation Charter reflects an abandonment of positive law implemented by the first two Williams on their authority as military conquerors. Implicitly, it asserts the king's authority depends on lawful succession from Edward the Confessor, both a Saxon king and a saint of the Church. Thus the practices and principles restored by the coronation charter were drawn from a context of naturally evolving social custom, which had been temporarily and artificially disrupted by the Norman conquest. This evolution would be largely path dependent, building on earlier documents. Subsequent Norman rulers found, through trial and error informed by political expediency, that often the best way to rule was to respect this naturally evolving social context.
The charter incorporates some degree
of value neutrality, particularly in the reforms of wardship
administration and taxation. Wardship reforms are specified in great detail, clearly
promoting attainment of ends chosen by deceased nobles and their families
rather than the king. Transference of
the Norman nobility from
Henry was succeeded by his nephew
Stephen, though there was some support among the barons for Henry's daughter
Matilda, widow of the Holy Roman Emperor Henry V and now wife of the count of
a. Coronation Charter (1135) – In marked contrast to Henry I's charter, Stephen's first charter is entirely vague and general, granting a series of high-sounding but unenforceable liberties to the clergy, barons, and common people (Stubbs 1913:142). Few barons and clergy participated in the election preceding Stephen's coronation, and when a relatively large number of nobles attended his first great council the next year, he issued a more extensive charter. Because Stephen, though brave, was a weak and generous king, he granted additional, more specific liberties in his second charter.
b. Second Charter (1136) – Stephen's second charter is somewhat more specific than the first. Most of its terms implicitly reference the fourteen articles of Henry I's charter, which he is thus indirectly confirming (Stubbs 1913:142-144). The first charter had been relatively ineffective in establishing Stephen's legitimacy, and the second charter received support from a larger number of barons and virtually all the clergy. By issuing two charters in two years, Stephen helped strengthen the precedent of issuing charters of liberties to the whole nation, though their excessive vagueness and his inability to carry them out both contributed to their lack of influence on subsequent history. Apart from providing precedents for future charters, they do not seem to have contributed to path dependency because they were never effectively implemented.
During the unrest of Stephen, the secular authority was disrupted, to the point where historians refer to the nineteen-year period of his reign as the anarchy. The Peterborough Chronicle for 1137 relates how renegade warlords built unlicensed or adulturine castles, where citizens from whom wealth might be extorted were imprisoned and tortured, and from which towns, farms, and churches were plundered and burned (Stubbs 1874 I:328; 1913:137-138). In addition to new unlicensed castles, manor houses were converted to castles through addition of defensive structures. County courts were unable to function continuously, and royal justicars and sheriffs were harassed and deposed. Although the civil administration fell into anarchy, the Church continued to function, and canon-law courts attempted to fill the vacuum as an emergency measure. In response to the immorality of the times, canon-law courts engaged in an "inordinate and irregular prosecution of laity for moral offenses," and collected judicial rents in the form of penances, fees, and penalties (Barlow 1986:91, 94). In 1136 Stephen's weakness and bad faith led to open revolt in favor of Count Geoffrey and the Empress Matilda. The rebels captured Stephen and crowned Matilda in 1141, but the civil war continued until a general settlement was reached in 1153 (Corbett 1926:541-556). The settlement provided Stephen would keep the crown, but be succeeded by Henry, son of Geoffrey and Matilda, and grandson of Henry I (Stubbs 1874 I:332). When Stephen died in 1154 Henry II succeeded him without incident.
Few kings' reigns
have more constitutional significance than Henry II's,
a. Coronation Charter (1154) – Henry II's coronation charter is extremely vague, in many respects similar to Stephen's, but refers explicitly to Henry I's charter (Stubbs 1913:157-158). Restoring the customs of Henry I was shorthand for undoing the damage done under Stephen. Although Stephen's two charters promise exactly the same thing, Henry assumed the more difficult task of restoring the practices of Henry I, not merely maintaining them.
Henry II's Charter of Liberties grants and confirms all the
gifts, liberties, and customs granted by his grandfather Henry I, who granted
fourteen specific articles in his coronation charter. Mention of Stephen or any details of his two
charters is studiously avoided, similar to the avoidance of any mention of
Harold in Henry I's charter. However, except for explicit reference to
Henry I, Henry II's charter is nearly as vague as
either of Stephen's. After his
coronation, Henry embarked on a program of reducing nobles who resisted his
order to knock down unlicensed castles.
Although contemporary historians relate that many of these castles were
havens for mischief-makers, it also seems plausible that a large number were
erected to provide their owners legitimate self-defense during the
anarchy. Henry went after both kinds of
unlicensed castles indiscriminately. He
also deported Stephen's Flemish mercenaries (Stubbs 1874:450; 1887:43). Henry went to
b. The Constitutions of Clarendon (1164) - The Constitutions govern relations between secular and canon-law legal systems. Stubbs notes that while some provisions "only state in legal form the customs which had been adopted by the Conqueror and his sons, others of them seem to be developments or expansions of such customs in forms and with applications that belong to a much more advanced state of the law" (1874:465). According to Stubbs' assessment, some degree of positive legislation must be inferred, "applications that belong to a much more advanced state of the law." Nevertheless, spontaneously evolved law seems to predominate, because some provisions "only state in legal form the customs which had been adopted" previously, and the rest "seem to be developments or expansions of" preexisting custom. Extending established custom in the Constitutions seems informed by both intelligent design and profound respect for social context and tradition, thus the Constitutions extend a path dependent evolutionary process. Positive features of the Constitutions relate to procedural institutions set up to implement accepted practice. Pollock and Maitland (1911:137) describe the Constitutions as "no ordinance," that is, not positive legislation, but a "recognition and record" of ancient custom. Henry "demands a definition of the old law and then tenders this to the prelates as a concordat" (ibid.) Virtually all the bishops opposed acknowledging English custom, and many felt betrayed when Archbishop Thomas Becket finally accepted the Constitutions. The bishops' position was not that the Constitutions misrepresented English custom, but that temporal custom should not bind the Church, whose jurisdiction was universal.
One provision of
the Constitutions was that lay juries were given the right to determine the
secular or ecclesiastic character of land tenures. It is noteworthy that these determinations
were given to secular juries, not royal justices or sheriffs. William the Conqueror had introduced sworn
jury inquests from
Two of the sixteen articles deal with excommunication and indirectly provide a level of due process for this awesome penalty, without actually presuming to impose internal procedures on canon-law courts. Where the Constitutions present positive legislation by regularizing procedures, these are always implemented through the civil courts and the secular judicial administration over which the king enjoyed jurisdiction. Eight articles limit the Church's jurisdiction over property rights, and three deal with secular criminal offenses, removing the ecclesiastical privilege of benefit of clergy, and limiting church jurisdiction over these offenses. Pope Alexander III abrogated the Constitutions and Henry renounced them in 1172 before papal legates sent to absolve him after the martyrdom of Archbishop Thomas Becket. Nevertheless, every article was well enforced, except removal of benefit of clergy (Hogue 1966:43; Berman 1983:531; Barlow 1986:273). Henry II's other reform legislation succeeded largely without opposition.
c. The Assize of Clarendon (1166) - The Assize of Clarendon was an act of
positive legislation that made great changes in the administration of criminal
law (Pollock and Maitland 1898:137).
Archbishop Becket was not present at the great council that passed the
Assize (Stubbs 1874:469), which consists of twenty-two articles and was
intended to guide itinerant justices making county visitations. The term assize means a meeting, and can
refer to the great council which approved the charter, the charter itself, or
to courts it authorized. The judicial
visitations may have been intended as a unique and unrepeatable undertaking,
sufficiently unprecedented to call for consent from a great council. The first six articles of the Assize address
how juries of presentment or accusation, similar to modern grand juries, would
be required to approve charges against criminal defendants. The remaining articles describe subjects'
obligation to participate in the jury system.
In this document Henry bypassed the feudal honor courts of his nobles,
co-opting traditional Germanic shire- and hundred-moots and absorbing them into
the royal legal system by inserting royal judicial officers. County sheriffs and reeves were always royal officers,
but now the traditional local legal institutions were subsumed into a royal
legal system which could operate with the king's authority even in the king's
absence. There was probably better
justice in county assizes when Henry was in
It is particularly
noteworthy that although the Assize of Clarendon and the later Assize of
Northampton present significant and unprecedented positive legislation, both
operated by merging local judicial institutions, which were Germanic and very
ancient in origin, with officials of the curia
royal judiciary was also an organically evolved institution, but one imported
(a) the implementation through traditional institutions, and
(b) the positive measure aims at effecting traditional, accepted rules and procedures.
From this time on, visiting royal justices and officers presided at county assizes. The Assizes also specify uniform penalties and schedules of fines for different kinds of felonies, clearly a positive feature, but not dramatically different from accepted practice, though now regularized throughout the kingdom.
Possessory assizes were actions in the county courts authorized under this charter, called courts of assize, which protected lawful possession of land, as opposed to ownership. At this time most land was owned by a small number of nobles, and the common people were their free tenants or serfs. Freemen could possess land, but usually did not own it. This council also seems to have approved the proceeding called assize of novel disseisin, the second possessory assize, after utrum. Novel disseisin ("new dispossession" or "recent eviction") provided a remedy to free tenants wrongly dispossessed from their lands. A jury from the neighborhood was to swear under oath regarding the seisin and disseisin, testifying who had possessed or held the land, for how long, and when and how they were evicted. The land was to be restored to the plaintiff if the jury granted him a verdict, though he would still owe the owner rent. Novel disseisin established two important principles:
(b) possession of a free tenure will be protected by the king, regardless of who owns the land (Pollock and Maitland 1898 I:146).
The principle of novel disseisin is that one man, even though he claims and actually has ownership of the land, may not turn another man out of possession without first obtaining a judgment. The crown collected additional judicial rents by generating new actions for eviction and against wrongful eviction. Thus the king and the royal courts became protectors of the common people against their noble landlords, while enjoying a new source of judicial rents. Novel disseisin gave no protection to serfs or slaves, only benefiting free tenants.
In addition to
operating through the fusion of older, naturally evolved institutions, the
Assize also presents features of spontaneous order in the face of obvious
positive features. The intelligent
design evident in the positive legislation of the Assize specifies procedures
rather than principles or outcomes. The
Assize can be considered largely value neutral for this reason. Procedural rules do not necessarily
predetermine the outcome of an action, thus allowing for the pursuit and
attainment of freely chosen individual goals.
The Assize served to guide entrepreneurial expectations, although it is
not clear it was actually designed for that purpose. If it was intended as a unique enterprise,
never to be repeated, the fact that it came to guide entrepreneurial
expectations can only have come about spontaneously and accidentally, as an
outcome of the success of the document in improving law and order, increasing
tax collection, and generating judicial rents.
Further judicial visitations were performed shortly afterward, and
Stubbs suggests the novelty of these proceedings as well as their frequency and
the amount of taxes levied led subjects to complain. Henry left for
d. The Inquest of the Sheriffs (1170) - Henry removed all the sheriffs of
The king had his
oldest son, also named Henry, crowned his successor shortly afterward. This revived an ancient Anglo-Saxon custom
promoting loyalty to the heir. The crown
prince was referred to afterward as the young king, though he did not outlive
his father. Due to the conflict with
Archbishop Becket, Henry had the prince crowned by the Archbishop of York, whom
Archbishop Becket promptly excommunicated.
Archbishop Becket was martyred later in 1170 and canonized in 1172. Meanwhile Henry conquered
e. The Assize of
The administration of justice had become more complicated since the Assize of Clarendon in 1166, which instructed two justicars who visited the whole kingdom. The Assize of Northampton divided the country into six circuits, each of which was visited by three judges (Stenton 1926:585). The added care and administrative support provided by the Assize of Northampton is due to the large revenue in taxes, escheats, and fines realized through the comparatively cursory earlier Assize of Clarendon. Obviously the more detailed provisions reflect practical experience gained through administering earlier rounds of judicial visitations. The Assize of Northampton established a third possessory assize, mort d'ancestor ("ancestor's death"), protecting possession of land by people who could prove they were descended from someone who had lawfully possessed it. Once again, the Assize is concerned mostly with value-neutral procedural issues, though the new procedures are implemented through positive legislation. The Assize also presents positive legislation in that it specifies detailed and harsher penalties for a battery of crimes.
Comparison of the
Assizes of Clarendon and
The Assize of Northampton illustrates the path dependency of legal evolution; it simply could not have been constructed the way it was without the clear and immediate precedents of the Assize of Clarendon and the Inquest of the Sheriffs. The Assize of Northampton revises the procedures for conducting judicial eyres, building on an evolutionary context established first by the earlier document, and second by practical experience gained through implementing the earlier document. Although both documents include significant positive legislation, the fact that a second document was called for ten years later demonstrates the inability of positive legislation to anticipate societal needs with perfect foresight. If it had been possible to anticipate and legislate future custom through positive legislation, that intelligent design would have been contained in the earlier document, and the later assize would not have been necessary.
Hubert Walter became John's first chancellor, serving until his death in
1205. During John's reign, jury inquests
were increasingly used to facilitate the local administration in the counties
and shires, and in 1213 John summoned four men from each shire to discuss
affairs of the realm (Powicke 1929:229-230). Such involvement of knights and burgesses,
rather than nobles, in government easily paved the way for representation in
parliament. At the death of Archbishop Walter,
the monks of
Sensing the hopelessness
of his position, John sought absolution from Archbishop Langton,
which the archbishop made conditional on John promising to restore the laws of
Edward the Confessor. John then embarked
on a new expedition in
a. Grant of Freedom of Election to the Church (1214) – In this charter, John renounced earlier customs, including those formalized by his father in the Constitutions of Clarendon. Although the established custom of secular supervision of canonical elections was well known, the Church continued to assert its independence from the temporal authority (Stubbs 1913:282-284; Stephenson and Marcham 1937:114-115). Resistance to John's high taxation and misrule forced this concession.
b. Magna Carta (1215) – With sixty three articles, the Great Charter justifies its popular name; in its original form it is nearly twice as long as any other medieval charter. Henry I's charter includes only fourteen articles and the Constitutions of Clarendon, governing relations between church and state, contains only sixteen.
Magna Carta's constitutional significance cannot be
overstated. Stubbs (1913:291) says
"the whole of the constitutional history of
No freeman shall be captured or imprisoned or disseised [evicted] or outlawed or exiled or in any way destroyed, nor will we go against him or send against him, except by the lawful judgment of his peers or by the law of the land. To no one will we sell, to no one will we deny or delay right or justice (Articles 39 and 40, Stephenson and Marcham 1937:115-126).
It is important to realize that however vague and unenforceable such promises were at the time, more specific procedural promises, for example a promise to dismantle inland fish weirs, were perfectly enforceable, because it was very clear to everyone whether the king had kept his word in this regard. Magna Carta was often ignored in the middle ages and later, but remains the original source of due process. Over time, its guarantees were repeated and confirmed, and eventually respected.
Magna Carta purports to be a restoration of the liberties of the
realm in the time of Edward the Confessor.
This had been promised in the coronation charters of Henry I, Stephen,
and Henry II. Archbishop Langton produced Henry I's
charter for assemblies in
The original issue
of Magna Carta signed by John at
V. Henry III (1216-1272): to Set a Form Shapeless
a. First reissue of Magna Carta (1216) – Magna Carta was reissued in the name of nine-year-old Henry III in the face of the rebellion in favor of Prince Louis. Of the original sixty-three articles, twenty-five were removed from the reissues. Some of these authorize the supervisory council of twenty-five barons, which remains an interesting precursor to parliamentary representation, though it was essentially aristocratic and antidemocratic. It would probably have been extremely unwieldy and inefficient in practice, and might therefore have unwittingly improved governmental administration through inertia. If positive legislation can be delayed, some of its deleterious effects can be offset and the extent positive legislation can disrupt entrepreneurial plans is limited.
the king's powers of taxation were conveniently omitted. During Henry's minority, the kingdom was
actually ruled by a council of barons led by the earl of Pembroke William
Marshal and the bishop of Winchester Peter des Roches. These were all loyalists who had nothing to
do with the council of rebelling barons.
Stubbs (1913:335) suggests the barons-regent anticipated a need for
extraordinary levies due to the civil war, and did not want their hands
tied. Some articles were omitted because
they referred to righting wrongs of John's misrule, and once this was actually
accomplished, there was no need to restate them, or remind the young king's
subjects of his father's misdeeds.
Several omitted articles relate to
The principal motivation for reissuing Magna Carta was to mollify the nation so additional tax revenues could be raised. Though the principles of the charter became ingrained through repetition, at this early stage a certain amount of hypocrisy remains apparent. Article forty-two of the reissued charter, an elastic clause, states omitted articles remain in force, but this was clearly not the case. The civil war ended in a treaty by which Henry paid Louis a secret indemnity of 10,000 marks to compensate him for expenses of the invasion, and all rebels were pardoned conditional on swearing allegiance to Henry. This treaty required many loyalists to relinquish estates captured from the rebels, disaffecting those nobles who had just proved the most loyal (Jacob 1929:254-255).
b. Second reissue of Magna Carta (1217?) – Magna Carta was reissued after Louis abandoned his claim to the English throne and the warring parties signed a peace treaty. Articles relating to county court sessions and gifts of land to the Church were modified (Stubbs 1913:340-344; Stephenson and Marcham 1937:117-123 notes 11, 12, 17, 19, 26, 29, 34, 39, 41, 42, 45). Article forty-two from the first reissue was replaced with a briefer blanket statement that older terms remain in force. The second reissue includes a directive that adulturine castles be knocked down, similar to the provision in Henry II's coronation charter. The brief civil war was compared to the much longer unrest of Stephen.
c. Third reissue of Magna Carta
(1225) – Magna Carta was reissued again when
Henry III came of age. This became the
official Magna Carta confirmed in subsequent
reigns. The only substantive difference
between this reissue and the second was a minor clarification of the privilege
to avoid trial by combat (Stubbs 1913:349-351; Stephenson and Marcham 1937:121 n.32).
Two other changes had far-reaching political and constitutional
significance: Henry's third reissue was made "freely and with good
will" instead of on the advice of his council, as with the first and
second, and, most significantly, a tax was exacted as the price of granting the
charter. The revenue financed an
Henry III was
remarkable for extravagant spending to support his political aspirations in
d. The Provisions of
The pope granted
Henry absolution from his oath to observe the Provisions in 1261, but the
document was reissued in 1263. Louis IX
e. The Dictum of
VI. Edward I (1272-1307) Pragmatic Warrior
One of Edward's first official acts was to send out commissioners to every county with a list of forty questions to make jury inquests regarding royal privileges, revenues, and possessions, the value, product, and extent of private landholdings, the quality of judicial administration, and carelessness or cheating by public officials, "even servants of the king himself" (Johnstone 1932:394). These inquests resulted in the First Statute of Westminster (1275), which included a restatement of Magna Carta's prohibition against excessive fines, and the Statute of Winchester (1285). Confirming, extending, and possibly to some extent modernizing these venerable documents, contributed to the process of developing a spontaneously evolving social and legal order.
In 1279, the new archbishop of Canturbury, John Pecham, a Franciscan nominated by the pope, convened a provincial council in Reading, which published eleven articles or constitutions, including a process to publicly announce sentences of excommunication against anyone using a royal writ of prohibition to remove a lawsuit or criminal case from a canon law court into a secular court, and against anyone who violated Magna Carta. Magna Carta was to be prominently displayed in every cathedral and collegiate church, and the copy was to be replaced with a freshly drawn one every year. It becomes obvious Magna Carta had captured the imagination of the clergy by this time, and was accepted as an ancient and venerable statute. The resolution to suppress writs of prohibition with excommunication is clearly motivated by rent-seeking in canon-law courts. The king made the archbishop renounce the measure against writs of prohibition and remove the copies of Magna Carta from the churches.
a. The Statute of Mortmain (1279) – This statute was an added part of the king's counteroffensive (Johnstone 1932:398-399), prohibiting a fraudulent practice where a property owner would give land to the Church, but then hold it as a vassal of the Church, thus avoiding taxes and feudal service (Stubbs 1913:450-452; Stephenson and Marcham 1937:169-170). A second ecclesiastic council held at Lambeth in 1281 renewed the eleven articles from the earlier council. The king had anticipated trouble, and issued writs ordering each participant not to hold counsel regarding the rights of the king or the kingdom. The only concession to the king was that copies of Magna Carta were not to be posted, but the clergy were to impress on their flocks the importance of the eleven articles, reminding them that violators of the Charter would be excommunicated and should not be followed by obedient Christians. The archbishop wrote the king a letter which can be interpreted equally well as apology or defiance. Unlike Henry II, Edward responded largely by ignoring the council. Writs of prohibition continued to be issued.
b. The Second Statute of Westminster (1285) - Chapter 24 of the Second Statute of Westminster, also known as De donis conditionalibus ("of conditional gifts"), instructs royal chancery clerks to use their own initiative in preparing judicial writs in new and unforeseen cases. They can do this on their own authority when the clerks are substantially in agreement about how to proceed, but even when no consensus is apparent, they are to refer the case to the next parliament, which is to produce a new form of writ to provide a remedy (Record Commission 1810 I:71; Stubbs 1913:462-469; Adams and Stephens 1921:76; Stephenson and Marcham 1937:173-174; Hogue 1966:21). To some extent, the regularization of writs under Henry II had held back legal evolution. Glanville (1187-89?) gave thirty-nine forms of writ, but new forms had proliferated throughout the reign of Henry III. There were fifty-eight early in Henry's reign, and this had grown to one hundred and twenty-one before the Provisions of Oxford (Jacob 1929:272).
War broke out
In 1296 Pope Boniface VIII, in the bull Clericis laicos, forbade rulers to demand, or clergy to pay, extraordinary taxes not sanctioned by long-standing custom, without papal permission, precisely the principle of Magna Carta. When the clergy balked at contributing their promised second tenth, Edward confiscated their secular fiefs. The clergy threatened excommunication. This conflict was not resolved until the pope rescinded the requirement with the bull Etsi de statu in 1297.
c. De Tallagio non Concedendo (1297) –
This document, "of not allowing tallage,"
was long considered to be a statute, and is referred to that way in the
preamble to the Petition of Right (1628), where it is cited alongside Magna Carta. It requires
the king to convene a common council to consent to any but traditionally
sanctioned taxation. Together with
article twelve of Magna Carta, it is one of the
sources of the House of Commons' and the House of Representatives' privilege of
originating revenue bills. The barons
acknowledged they owed the king military service, even overseas in
d. The Confirmation of the Charters (1297) –
Edward confirmed Magna Carta to justify an
extraordinary tax levy necessitated by a revolt of some of the barons. The barons revolted because they objected to
the expenses of a war in
The Confirmation finally established the principles of Magna Carta (Stubbs 1887:251). It implies judicial review, promising judgments contrary to the charters would be overturned. Magna Carta was described as common law, unlike the forest charter, which applied only to royal forests, not the whole kingdom. Magna Carta was to be widely disseminated and kept in every county, like Henry I's coronation charter. As Archbishop Pecham wanted back in 1279, all cathedrals were to be provided copies for the bishops to proclaim publicly twice each year, and violators of the charters were to be excommunicated. Edward renounced extraordinary tax levies and promised they would never form a general precedent. It is somewhat ironic that the king basically acknowledged as unconstitutional the taxes he recently levied and promised never to collect them again. He further promised to obtain assent of the whole kingdom for any except ancient customary taxes. Some specific taxes on wool were discontinued (Stubbs 1913:482-493, Stephenson and Marcham 1937:164-165). The Confirmation was reissued in 1301 with some qualifying language removed (Johnstone 1932:408). The king may have attempted to moderate some of the guarantees of the Confirmation in his French document.
Parliament met fairly regularly starting in the reign of Edward I. Most legislation was not really approved by parliament but merely recorded accepted custom, which the nation was deemed to have approved already. Parliament evolved from primitive folk assemblies predating Christianity. The greatest impetus for the growth of parliamentary influence was the government's need for tax revenue. Participation of the nobles and clergy was generally required to collect a special tax, if not their approval. Kings sometimes levied taxes or seized property in emergencies like invasions or revolts, but generally the need to convene a great council to approve new taxes was as much a practical issue as a legal one.
English constitutional history offers a succession of illustrations of Hayek's theory of spontaneously evolved social order. After introducing Hayek's concept of spontaneous evolution of social order and discussing its application to English constitutional history, this paper presented a chronological analysis of various legal enactments and political developments, focusing on the medieval period from 1100-1307. The evolution of spontaneous order has been traced from Saxon custom and Henry I's Charter of Liberties, through Henry II's reform legislation aimed at restoring those customs after the anarchy of Stephen, through Magna Carta, which also aimed at restoration of the customs of Henry I's charter, and subsequent reissues of Magna Carta, culminating with the Confirmation of the Charters by Edward I in 1297. In addition to illustrating Hayek through English constitutional history, this paper offers insight into Hayek by examining actual evolutionary processes through their most tangible assets, written charters and associated documents, which dominate English constitutional history before the emergence of Parliament as a positive law-making body.
Hayek's account of the evolution of democratic political and legal institutions responding to historical influences without the intelligent design of a authoritative legislator, built on and was anticipated by such eighteenth-century legal and political philosophers as Adam Ferguson, who rejected contemporary authoritarian and contractarian theories of government that "ascribe to a previous design, what came to be known only by experience, what no human wisdom could forsee, and what, without the concurring humor and disposition of his age, no authority could enable an individual to execute" (Ferguson 1767:122).
Because spontaneously emergent institutions change more slowly over time, they better facilitate the formation of entrepreneurial plans, while minimizing the disappointment of entrepreneurial expectations. Entrepreneurial activity is frustrated far less frequently by slowly and predictably evolving, spontaneously emergent institutions like Anglo-American common law, than by consciously designed institutions subject to change at the whim of the legislative authority. More importantly, the spontaneous order of the market and the spontaneous legal and political order both respond to the needs of many individual actors, unlike a designed order serving the wants of a social elite.
Because the process of spontaneous evolution calls for the participation of many individuals, often widely separated in time, the evolutionary process must have some coordination mechanism permitting a particular, path-dependent outcome, to facilitate the satisfaction of many unique and diverse individual preferences. Like the market order, which requires the voluntary participation of many individuals, each of whom competes to best satisfy the wants of others, spontaneously evolved social order also coordinates the actions of individuals in society. It does this by providing a basis for forming expectations, and if the institutions of social order are primarily procedural and value-neutral, the spontaneous order allows individuals freedom to pursue their chosen ends, rather than ends chosen for them, and imposed on individuals by the social order.
English constitutional history provides some examples of spontaneous order arising through positive legislation, when individual components of that legislation were designed to implement or restore established custom. Several constitutional developments were interpreted as emerging spontaneously over very long time periods, even though the short-term presented a succession of intelligently designed acts of positive legislation.
A set of proposed stylized facts of spontaneous social evolution were presented and used to interpret various written enactments and constitutional developments. Contrasting stylized facts of non-spontaneous order were also proposed. English common law presents the archetypal example spontaneously evolved social order, though it is possible for a legal system or form of government, to evolve spontaneously without a common law system. Such evolution seems to have been present in early customary law predating common law. In other kinds of legal systems, especially those with legislative, quasi-legislative, or authoritarian character, it is necessary to be able to trace the evolutionary process to identify spontaneous order.
Support from the
American Institute for Economic Research in the form of a Visiting Research
Fellowship is gratefully acknowledged.
Thanks are also due to Scott Beaulier, Bruce
L. Benson, Bridget Butkevich, John V. Duca, Horst Feldmann, Stephen B.
Jarrell, Elias L. Khalil, C. Edgar Murray, Ben Powell, Ed Stringham,
Walker F. Todd, John Wood, and an anonymous referee of the Review of
Austrian Economics, who commented on earlier versions of this paper. I remain responsible for errors.
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