Arbitration and the Law in England in the Late Middle Ages (The Alexander Prize Essay)

Abstract

The central problem facing the student of public order in England in the late middle ages is to reconcile two conflicting lines of research. On one hand the institutional historians, through their studies of the central courts at Westminister, the provincial circuits of assize and gaol delivery and the justices of the peace and coroners in the counties, have proved beyond doubt the sophistication of the late-medieval legal system. On the other hand the historians of crime have shown equally clearly that the courts were often incapable of keeping the peace or of doing justice. Indeed the late-medieval period has long been notorious as one of widespread uncontained disorder. Reviewing the secondary literature on the subject Professor Bellamy concluded: ‘Not one investigator has been able to indicate even a few years of effective policing in the period 1290–1485.’

Rivalry and superior dispatch: an analysis of competing courts in medieval and early modern England

“…58 One fifteenth-century ecclesiastical lawyer advised those who wanted to be able to avail themselves of the ecclesiastical courts in the event of a later dispute to swear an oath to God: "Et si quis vellet deducere placitum in foro ecclesiastico, oportet quod exponere faciat fides cum iuramento solempni interposito" (quoted in Helmholz 2004: 359). 59 For in-depth discussions of how common arbitration was in medieval and early modern England, see Powell (1983) and Horwitz and Oldham (1993). Horwitz and Oldham (1993: 149) explain how arbitrators consisted of different types of people depending on the cases.…”

“…We argue that under proper constraints and incentives-a regime defined by a properly-designed system of competition-judges will be induced to satisfy the parties' interests rather than their self-interest. Moreover, we will argue that in the foundational era of the common law when judges were subject to competition and were paid in part by fees provided by the litigants, they faced constraints and incentives 10 Arbitration was common (Powell 1983;Horwitz and Oldham 1993), although the extent to which contracts involved formal written choice of law or choice of forum clauses is unclear. But even if contracts lacked formal written choice of forum or choice of law provisions, it does not imply that arbitration did not exist or that everyone used the same courts or laws.…”

The earls of Edward III and the polity: the earls of Arundel and Northampton in the localities, 1330–60

“…160 The evidence for lay arbitration likewise increased significantly towards the end of the century. 161 From the thirteen-sixties, the size of the peace commissions grew and increasing numbers of greater gentry and magnate figures served on them. Only then could the peace commissions become locally politicized.…”

Factions, feuds and noble power in the lordship of Ireland,c. 1356–1496

“…Arbitration was popular because it was swifter, less expensive, and usually more likely to provide a satisfactory outcome than adversarial litigation. 158 To facilitate the process of settlement, standing arrangements might be drawn up for the election of panels of negotiators. 159 Venues for mediation seem to have been selected carefully.…”