[Photo credit: Richard J. Malloy, ColourbyRJM, https://www.colourbyrjm.co.uk/%5D
Legal institutions have always been useful to—and therefore used by—political actors, whether to protect, undermine, or effectively reallocate property rights, generate revenue through legal fees and fines, or punish or reputationally damage political opponents. In recent historical work on the emergence of the common law system in England, I argue that the immediate political benefits effective legal systems can provide self-interested politicians may in fact be one reason for their creation.
Much seminal work on legal-institutional development argues that rulers create a functioning, effective legal apparatus capable of protecting property and fostering growth only if they anticipate being around to tax that growth down the road. This suggests that political security is a fundamental prerequisite to the emergence of widely accessible, effective courts. However, I argue that effective legal systems may also be very useful to rulers facing domestic political insecurity. Leaders beset by internal threats may view legal fees and fines as a safer means of revenue generation than taxation, and the ability to extend new legal protections may be valuable as a rapid means of building domestic support. I test this argument by studying the development of the early English common law system, using newly collected 12th-century administrative data, and leveraging the 1192 shipwreck and kidnap of the English King Richard I as an exogenous shock to domestic political security.
Medieval England and the Common Law
The common law system grew out of the English Royal Court over the reigns of King Henry II and his sons, Richard I and John. During this time, the Royal Court transformed from a geographically and jurisdictionally limited group of all-purpose government ministers into a broadly accessible, country-wide legal institution, staffed by increasingly professional judges, and endowed with increasingly broad criminal and civil authority (Baker 2019; Pollock and Maitland 1923). Yet all three kings lived in politically turbulent times, constantly threatened with overthrow by not only foreign powers, but also noble rivals and even their own relatives.
I argue that one explanation for the emergence of the common law system during this tumultuous period is that, to survive, kings needed both a constant supply of money and broad political support (Bartlett, 2000, 58). Investing in an effective, far-reaching legal system could have helped meet these needs: legal fines and fees generate revenue, while protecting the public from expropriation and fraud wins popular support. (There is evidence in contemporary medieval chronicles that the Royal Court was used at various times in each of these ways—some chroniclers decry the Court’s rapacious collection of fees and fines, while others praise its widespread provision of justice.)
An Unusual Natural Experiment
King Richard I was shipwrecked off the Istrian coast on his way home from the crusades in 1192, after a three-year absence. He had ascended the throne in 1189 and departed soon thereafter, after appointing a regency and gifting the administration of several English counties to his younger brother, Prince John. After the shipwreck, he began to make his way overland, only to be kidnapped for an enormous ransom by the Holy Roman Emperor, who needed cash. After hearing the news, John rebelled and demanded the throne, forcing the regency to raise the ransom while simultaneously defending the kingdom. I leverage the kidnap, and resultant political crisis, as a natural experiment that exogenously shocked the crown’s political security.
Luckily for Richard, John’s rebellion was largely unsuccessful: John maintained power primarily in the counties his brother had given him several years before. As a result, while the aftermath of the kidnap affected the whole kingdom, the seriousness of the risk it posed to domestic security varied regionally, with counties near John’s land arguably in the most immediate danger. I capitalize on this variation to investigate whether, after the kidnap, the Royal Court was used to build support in areas where threat was highest, and to generate revenue where the risks attendant on alienating the local population were low. I operationalize the threat posed by Prince John with a simple measure that labels counties as threatened if they shared a border with militarily important territories of John’s, and safe otherwise (although my findings are robust to a more nuanced categorization) (see Figure 2).
The Pipe Roll Data
To investigate the kidnap’s effect on Royal Court activity across threatened and safe counties, I constructed a county-level dataset spanning twenty-one years of annual medieval English government records known as the “Pipe Rolls,” from 1183-1203. The Pipe Rolls recorded all debts paid or owed to the treasury in a given year for feudal taxes, rents and profits on crown property, and, crucially, Royal Court fees and fines. Each debt specified the debtor’s name and county, the reason for the debt, and where relevant, the Court justices who imposed it. Originally recorded in abbreviated Latin script on parchment, in recent centuries many of the Pipe Rolls have been transcribed and printed for preservative purposes, albeit still in (sometimes abbreviated) Latin. After matching Pipe Roll debts spanning multiple years, the dataset boasts over 40,000 new debtor accounts between 1184 and 1203, of which 16,577 are court-related.
Figure 4 shows the number of Royal Court-related debts each year between 1184 and 1203, disaggregated into four (noisy) categories. “Criminal’’ fines encompass both protective fines imposed for the violation of individual property rights (usually through fraud or the wrongful appropriation of land) and communal duties (e.g., failing to maintain communal order) and more exploitative fines imposed primarily on the poor (e.g., for poaching or collecting firewood on state land). “Court’’ fines were imposed for violations of court procedure (failing to appear, perjury). “Court services’’ include court fees (to hear a case) and bail or surety payments made to guarantee continued appearance or compensate for absence or the withdrawal of a suit. Finally, entitlements include payments for privileges (marry an heiress, hold a lucrative administrative post) and licenses to conduct economic activity (e.g., land development).
The Political Value of Justice
An examination of the Pipe Roll data suggests that the Royal Court was generally useful in raising revenue—as Figure 5 shows, throughout this period court fees and fines brought in substantially more income than taxes—but was deployed after the kidnap primarily to build support for the Crown in threatened areas. I argue that these efforts may have contributed to the Royal Court’s transformation into a powerful, country-wide institution.
Immediately after the kidnap, I find that Court activity in threatened counties increased substantially, particularly in the number of services the Court provided and the number of protective criminal fines it imposed. At the same time, the amount charged by the Court for service provision and criminal fines dropped significantly—making court protection more accessible, and court punishment less oppressive. Taken together, these actions suggest a sudden post-kidnap expansion in property rights protections and a decrease in extractive fining practices, both of which likely increased popular support for the government. (In the paper, I discuss, and largely discard, several alternative explanations.)
In the longer term, there is suggestive evidence that this post-kidnap expansion in Court activity actually sparked a sustained increase in Royal Court capacity and accessibility. First, the post-kidnap era saw a sustained increase in Crown investment in the administration of justice, as measured by royal funding for county expenditures on justice (see Figure 7).
Second, the Court appears to have professionalized during this time: after approximately 1195, the total number of cases heard by the court grew substantially, while the number of judges serving on the court decreased. By 1203, per-judge caseloads were 200% higher than in 1193. Finally, the value of property disputed in court appears to have decreased substantially in the post-kidnap period, suggesting that the Court was growing increasingly accessible to a new, poorer class of litigants.
The Consequences of Politicization
In medieval England, the political manipulation of a nascent legal system may have helped to transform it into an effective and powerful institution—one in such high demand that the English citizenry’s right to access it is actually enshrined in Magna Carta. This suggests that, while politicians’ use of legal systems for short-term political gain may be inevitable, the consequences for legal effectiveness, access to justice, and even state legitimacy are not inevitably bad.