The Commonwealth of Custom in Thomas More’s Utopia

2020 ◽  
pp. 43-75
Author(s):  
Stephanie Elsky
Keyword(s):  
Early Modern ◽  
Classical Tradition ◽  
Common Law ◽  
Political Institution ◽  
Thomas More ◽  
Remarkable Similarity ◽  
English Law

Thomas More sets the stage for fiction as a sphere in which to explore the constitutional promise of custom. This chapter argues that Utopia (1516) shares the same constitutional dispensation as England, since it is predominantly governed by custom rather than law. The chapter uncovers a remarkable similarity between the concept of legal custom in common law and of linguistic and cultural custom in the Renaissance humanist use of proverbs and commonplaces, which are ubiquitous in Utopia. I interpret this intersection of political and literary-linguistic custom as a means by which More ensures the commensurability of his native political institution with the classical tradition he sought to revive. The chapter reveals More’s awareness of the unstable boundaries of the concept of “common” in English law and continental humanism, a conundrum to which early modern writers would return over and again.

Time, Equity, and the Artifice of English Law: Reflections on The King’s Two Bodies

2016 ◽  
Vol 13 (1) ◽  
pp. 36-45 ◽  
Author(s):  
Paul Raffield
Keyword(s):  
Decision Making ◽  
Early Modern ◽  
Political Theology ◽  
Common Law ◽  
Legal Institution ◽  
Persuasive Power ◽  
Magnum Opus ◽  
English Law ◽  
Two Bodies

The aim of this article is to analyze the contribution of the early modern English legal institution to the formulation of the theory of the king’s two bodies. I explore three principal themes in the course of this article, all of which relate directly to central tenets of the thesis proposed by Kantorowicz in The King’s Two Bodies. First, is the centrality of time and continuity to theories of kingship and to the ideology of common law. Secondly, I consider the importance of equity to the formulation of decision-making in English law, and in pursuit of this end, the manipulation by the judiciary of political theology concerning the king’s two bodies. Lastly, I analyze the persuasive power of the trope, and especially the capacity of metaphor and metonym to embody such invisible and intangible juristic concepts as justice, equity, and law itself. Whilst recognizing the magisterial quality of Kantorowicz’s magnum opus, I take issue with some of the more extravagant of the author’s claims for the pervasive power of mystical kingship and its influence over English jurists and the English legal profession.

A British ius commune? A Debate on the Union of the Laws of Scotland and England during the First Years of James VI/I's English Reign

2002 ◽  
Vol 6 (3) ◽  
pp. 315-355
Author(s):  
Alain Wijffels
Keyword(s):  
Early Modern ◽  
Common Law ◽  
Modern Concept ◽  
European Continent ◽  
Legal Rules ◽  
Legal Traditions ◽  
Ius Commune ◽  
English Law ◽  
Fundamental Tension ◽  
Established Order

This article considers the debate about the union of Scots and English law which followed the Union of the Crowns in 1603. The catch-phrase “union of law” was itself ambivalent, referring as it did to a range of different forms ofharmonisation of Scots and English law. Moreover, the British debate is not altogether alien, whatever the special status and weight the English Common Law had already acquired, from that which went on at the same time on the European continent. The same fundamental tension can be perceived between an established order and a new, emerging constitution of the commonwealth. On one side, a traditional attachment to ancient freedoms inherited from medieval times and struggles was perceived by many as the very foundation of partiadar laws expressed through a variety of authorities, the extension of which could be anything from a local custom or statute to a body of legal rules prevailing throughout the realm. On the other side, the growing concept of sovereignty based on fresh premises, sometimes connected to the first signs heralding some national identity, paved the way for a transformation of the established legal traditions (such as customs, statutes, and the learned law), which lost henceforth some of their autonomy in order to accommodate the new dynamics of early-modern sovereignty. The most successful legal developments of that period were indeed those which combined that medieval legal heritage of “ancient liberties” and the early-modern concept of sovereignty. It is easy to see several parallels between the present-day discussion on the making of a European “common law” and the debate on the union of laws which was meant to “perfect” the union of the Crowns in 1603.

Modernité de Thomas More

Moreana ◽  
2003 ◽  
Vol 40 (Number 153- (1-2) ◽  
pp. 193-217
Author(s):  
Jean-Pierre Moreau
Keyword(s):  
Common Law ◽  
Thomas More ◽  
Jean Paul ◽  
Défense Des Droits

Rien ne saurait mieux illustrer la modernité de Thomas More que la décision de Jean-Paul II, en novembre 2000, d’en faire le Patron des responsables de gouvernement et des hommes politiques. Pour évoquer cette modernité, quatre thèmes ont été retenus, sans souci d’exhaustivité: sa stature morale et l’écho particulier qu’éveille aujourd’hui son héroïsme, l’Utopie, non point comme programme politique mais comme champ d’expérimentation intellectuelle et littéraire, les droits de la conscience individuelle et leur transformation en défense des droits de l’homme, l’Europe en construction actuellement n’est pas totalement étrangère à l’édifice (chrétienté) que More voulait maintenir : principe de subsidiarité, rapports entre droit communautaire/droit canon et droit des Etats membres/Common law etc.

Brabantia: decoding the main characters of Utopia

Moreana ◽  
2012 ◽  
Vol 49 (Number 187- (1-2) ◽  
pp. 151-182
Author(s):  
Maarten M.K. Vermeir
Keyword(s):  
Political Culture ◽  
Early Modern ◽  
Political System ◽  
Desiderius Erasmus ◽  
Parliamentary Democracy ◽  
Early Modern Europe ◽  
Thomas More ◽  
Home Town ◽  
Christian Humanism ◽  
Political Thinker

In this study, we propose a new understanding, according to the principles of ‘humanistic interpretation’, of a fundamental layer of meaning in Utopia. In the work of Thomas More, major references can be found to the particular genesis and a crucial purpose of Utopia. Desiderius Erasmus arranged the acquaintance of Thomas More with Peter Giles, a key figure in the development of Erasmus as political thinker. More and Giles together in Antwerp (Giles’s home town), both jurists and humanists, would lay the foundation of Utopia. With this arranged contact, Erasmus handed over to More the knowledge of a particular political system - the earliest form of ‘parliamentary democracy’ in Early modern Europe - embedded in the political culture of the Duchy of Brabant and its constitution, named the ‘Joyous Entry’. We argue that Erasmus, through the indispensable politicalliterary skills of More in Utopia, intended to promote this political system as a new, political philosophy: applicable to all nations in the Respublica Christiana of Christian humanism. With reference to this genesis of Utopia in the text itself and its prefatory letters, we come to a clear recognition of Desiderius Erasmus in the figure of Raphael Hythlodaeus, the sailor who had discovered the ‘isle of Utopia’ and discoursed, as reported by More, about its ‘exemplary’ institutions.

Lying in Early Modern English Culture

2017 ◽  
Author(s):  
Andrew Hadfield
Keyword(s):  
Early Modern ◽  
Cultural History ◽  
Identity Politics ◽  
Social Life ◽  
Thomas More ◽  
Early Modern English ◽  
Wide Range ◽  
Constant Feature ◽  
The Right ◽  
English Culture

Lying in Early Modern English Culture is a major study of ideas of truth and falsehood from the advent of the Reformation to the aftermath of the Gunpowder Plot. The period is characterized by panic and chaos when few had any idea how religious, cultural, and social life would develop after the traumatic division of Christendom. Many saw the need for a secular power to define the truth; others declared that their allegiances belonged elsewhere. Accordingly there was a constant battle between competing authorities for the right to declare what was the truth and so label opponents as liars. Issues of truth and lying were, therefore, a constant feature of everyday life, determining ideas of identity, politics, speech, sex, marriage, and social behaviour, as well as philosophy and religion. This book is a cultural history of truth and lying from the 1530s to the 1610s, showing how lying needs to be understood in practice and theory, concentrating on a series of particular events, which are read in terms of academic debates and more popular notions of lying. The book covers a wide range of material such as the trials of Anne Boleyn and Thomas More, the divorce of Frances Howard, and the murder of Anthony James by Annis and George Dell; works of literature such as Othello, The Faerie Queene, A Mirror for Magistrates, and The Unfortunate Traveller; works of popular culture such as the herring pamphlet of 1597; and major writings by Castiglione, Montaigne, Erasmus, Luther, and Tyndale.

Common Lawà l'americaine

1966 ◽  
Vol 1 (4) ◽  
pp. 562-579 ◽  
Author(s):  
A. M. Apelbom
Keyword(s):  
Common Law ◽  
The Other ◽  
British Occupation ◽  
Other Hand ◽  
Two Generations ◽  
The Common ◽  
English Law ◽  
Considerable Body ◽  
Clear Line

Eighteen years after attaining independence Israel remains essentially a common law country. Introduced by the British Mandatory administration to supplement the Ottoman legislation in force at the time of the British occupation of Palestine, the common law has been retained by the Israeli legislator, so far as not modified or replaced by local legislation. But this common law, far from being residual only, also embraces a considerable body of interstitial law developed by two generations of judges, British, Palestinian and Israeli, in the process of applying and interpreting statute law—whether Ottoman, Mandatory or Israeli—according to common law methods. On the other hand the importation of common law institutions was neither wholesale nor systematic and in a number of fields no clear line of demarcation can be drawn between domestic and English law.

Nature Versus the Common Law

2021 ◽  
Author(s):  
David B. Schorr
Keyword(s):  
Common Law ◽  
Local Environment ◽  
Water Law ◽  
Public Ownership ◽  
Normative Force ◽  
The Common ◽  
English Law

This article recovers a debate, played out over the course of a century, in courts across the « common law world », over whether nature had normative force in water law. It explores areas of water law, such as the extent of public ownership in rivers and the effects of shifting watercourses on ownership, in which some courts, not without controversy, departed from the established rules of English law in order to make rules more appropriate, as they saw it, to the local environment.

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