‘Fluent Gaul has taught the British advocates’

Stephen Sedley

  • Early English Arbitration by Derek Roebuck
    Holo, 312 pp, £40.00, April 2008, ISBN 978 0 9544056 1 8

When the Archbishop of Canterbury suggested in a lecture last February that there was room within national legal systems for some degree of religious law for members of particular faiths, the country shook with indignation – not at what the prelate had actually said, but at the menacing story the broadcast and print media extracted from it. The Sun’s uniquely helpful contribution was a ‘Bash the Bishop’ campaign, corroborating Martin Amis’s suggestion in Yellow Dog about the way the red-tops view their readers.

All Rowan Williams was trying to argue was that a universalist doctrine of human rights does not demand what he called ‘an unqualified secular legal monopoly’ but leaves space for religious inputs. He was clear that these could not include a licence to undercut fundamental rights or general laws. He was not endorsing or advocating the dualist systems of places like Iran, Afghanistan, Pakistan and northern Nigeria, where sharia courts are permitted to administer sometimes appalling forms of sectarian justice within or alongside a formal constitutional system of law. What he was describing was simply our system as it has been for many years.

One of the least remarked ways in which particular communities, not only religious ones, have for centuries been able to apply their own law to their own members is by arbitration. This has not happened by stealth or accident. Legal systems, our own included, positively welcome consensual private forms of dispute settlement, and traders commonly find them cheaper, quicker and more alive to practical realities. The courts in consequence will abdicate in favour of a binding arbitration agreement, and the law will lend the winning party the state’s power to enforce the award. What is more, the parties can choose the law by which the arbitrator is to determine the dispute. In commercial arbitration agreements this usually means stipulating which country’s laws are to apply. But there is nothing to stop the parties to a dispute agreeing that it is to be privately determined by some other code of law, which may be a religious one. A good many religious organisations and sects require this of their members, and a good many more permit or encourage it.

This is not to say that private arbitration within religious communities is without problems, as the archbishop might have recognised. It may be entered into less by free will than by moral coercion. It may well subject some members, often women, to disadvantage or indignity. And disputes not infrequently arise between the priests and scholars of a religious community as to what its law actually is. For these and other reasons the legal system of the host society needs to be ready to step in. But the likelihood is that arbitration and mediation in one form or another are a great deal older than the legal systems of the states in which they now exist.

The reason is simple enough. A court before which the wronged and the indignant can haul their antagonists requires an organised state with ascertainable laws and an adequate apparatus of adjudication and enforcement. Simple societies and small communities, lacking this, need other ways of preventing resort to self-help and violence each time a dispute arises. Communal pressure on the parties to find a compromise is one way, akin to modern methods of mediation. Another is to encourage or permit the parties to find their own judge or judges and to agree to abide by their decision: that is, to go to arbitration. The later Romans recognised both methods: the state’s adjudicative power was exercised by a judex, consensual adjudicative power by an arbiter, though the two were not always clearly distinguished.

It’s easy to overlook the chronological overlap between Roman and early British society. The Anglo-Saxon Chronicle, begun towards the middle of the fifth century, antedates Justinian’s code by about ninety years. Indeed, Justinian’s code, still taught as a primary source of Roman law, is the law of a nascent feudal society which had long since been driven eastwards out of Rome and Italy. But there is very little evidence in Britain of cultural overlap. The institutions and practices exported by the Romans to their colonies were almost certainly confined to imperial enclaves and do not appear to have outlived Roman hegemony. The Latin element of the English language entered with the Normans; but William the Conqueror, far from imposing a new legal order as an aspect of regime change, took pains to assert that the laws of England were to remain those of Edward the Confessor. It is with Henry II and the first foundations of a modern legal system in the mid-12th century, as a regular court begins to sit in London and the king’s justices ride out on circuit, that Derek Roebuck’s study ends.

We possess the texts of a good many Anglo-Saxon laws, translated here by Roebuck into readable modern English; though there are some words that won’t translate – for example, domas, which means both a law and a judgment, becomes doom, leaving him no escape from ‘deeming a doom’. But until Edgar ordered his laws to be copied and distributed in the tenth century, royal dooms were little more than instructions to local arbitrators, telling them such things as how much they should exact for a stabbing (knife crime seems to have been a problem in early English society) depending on the injury. For the rest, customary law prevailed: in cases of adultery, the Domesday Book reveals, in Kent at least, that the king took the fine paid by the man and the archbishop the fine paid by the woman, which seems quite rational at a time when the Treasury wants judges to be paid out of court fees. The typical arbitral proceeding, not only here but throughout early society, seems to have been a communal assembly at which priests or elders would attempt to mediate a settlement or, failing that, make an adjudication. In either case, the characteristic penalty for non-compliance was not enforcement or incarceration but (as in some parts of the world it still is) expulsion or ostracism.

Until Roebuck set about it, nobody had attempted a panoptic history of arbitration. Since his retirement from a succession of chairs of law – in Australia (which was where I first met him), Papua New Guinea and Hong Kong – he has produced volumes on arbitration in ancient Greece and in the Roman Empire. Both of these societies are far better documented than early and medieval England (the only evidence we have that the Romans invaded Britain in 55 BC, for example, is that Caesar says they did),to the extent that much of Roebuck’s material about Britannia comes from Roman sources. Thus the evidence for an early legal profession in these islands comes from Juvenal in the second century ad: ‘Gallia causidicos docuit facunda Britannos,’ rendered here as ‘Fluent Gaul has taught the British advocates,’ though it could also be ‘France has taught British advocates eloquence.’ Neither translation means much until one adds to it the fact, noted by Roebuck, that there were Roman schools of rhetoric in Marseille, Toulouse, Bordeaux and Trèves, and the further fact, noted by Juvenal, that these schools had Athenian origins.

But there is no evidence that the Greco-Roman tradition of advocacy, or indeed any recognisable legal system at all, survived the departure of the Romans. There is only one hard piece of evidence of the way law might have worked in practice, and that is the much studied Fonthill Letter. It was written in about 920 ad by an arbitrator, Ordlaf, who was not chosen by the parties but appointed by the king and so was more nearly an ad hoc judge than a consensual arbitrator (Roebuck characterises this method as public, as opposed to private, arbitration). The letter reports to the king that Ordlaf, in return for a piece of the action, secured settlement of a long-running land dispute by establishing which of the hard-swearing parties was ‘nearer the oath’ – that is to say, which of them held a document of title to corroborate his oath. While Roebuck reserves the possibility that this was an atypical procedure, it is likelier that the Fonthill dispute is an example of a monarch lending his authority to a respected individual to procure or impose a resolution of a potentially explosive quarrel – a precursor, arguably, not of arbitration but of litigation.

In the unsurprising absence of much other hard evidence of earlier dispute resolution, at least before the 11th century, Roebuck’s method is an engaging series of polymathic raids into the territory of geographers, ethnographers, linguists, lawyers, historians and archaeologists, fetching back the kind of data that reminds you there is no such thing as useless information, and assembling them into tentative shapes. But he has to accept the fuzzy character of the shapes:

First, the definition [of arbitration] by distinction from litigation is irrelevant when there is no litigation, properly defined, with which to contrast it. Secondly, the requirement that arbitration be consensual . . . is anachronistic when applied to societies where such emphasis on individuality was unknown.

There is no evidence of professional arbitration in England as there is in contemporary Ireland, where the brithem was a legal expert who regularly heard disputes. Nor is there any sign of the bonus homo, the single private arbitrator of Roman law, even in Roman Britannia . . . . When the Anglo-Saxon for boni homines, god man, is found, they are acting as ‘witnesses’, a role which there included representing the whole assembly.

Some scholars might have been daunted by such incertitudes. But if the book is consequently a history less of arbitration than of dispute resolution, and one mapped less by landmarks than by intersecting lines, it is an engaging rattlebag of facts and notions. Of course, speculation, as Roebuck reminds himself, has its limits, though they do not stop him having a shot – not necessarily any wilder than the standard druidic and human sacrifice explanations – at appropriating the standing stones of Avebury as a site of early dispute resolution.

More relevantly, he is fascinated by a polished flint object, a stylised human head with open mouth, found not in England but in Ireland and dating from the fourth millennium BC, which archaeologists have decided was the head of a warrior’s mace. But it is too small and light to have been the business end of a weapon, and Roebuck suggests that it was more probably the head of a speaking-staff, an analogue of the mace of the Speaker of the House of Commons, an object described in the Iliad (‘one after another took the skeptron . . . in their hand and adjudicated’) and still used today by, among others, some Australian aboriginal communities. It may not add much to the history of arbitration, but it is reassuring to reflect that preventing everyone talking at once has been an art form for as long as there have been arguments, and that human communities have recognised for a long time that facilitating argument is a better use for a mace than breaking heads.