Category:Law and the Commons: Premodern Sources
The need for law to protect commons is mostly a modern phenomenon because commoners have historically relied upon social norms and traditions to maintain their systems of cooperative stewardship. That said, there are a number of significant premodern landmarks in law that take account of shared wealth and the means to protect it. These include Emperor Justinian’s Institutes (535 C.E.), Magna Carta and the Charter of the Forest (1215 and 1217 respectively), and the public trust doctrine assuring access to water and other natural resources.
Premodern sources for Law and the Commons
Institutes of Justinian
The Magna Carta
The Magna Carta, or “Great Charter,” is often cited as one of the foundations of Western civilization because it enshrined the rule of law as a cornerstone of governance, limited the power of the sovereign and recognized specific rights and liberties of citizens. The “Great Charter,” which King John agreed to in 1215 after years of brutal armed conflict with feudal barons and commoners, is widely regarded as a source for legal principles such as habeas corpus, trial by jury, and the prohibition of torture.
The document is less widely known as guaranteeing a right of access to commons, as set forth in a companion document, The Charter of the Forest.
The Charter of the Forest
The Charter of the Forest was adopted in 1217, two years after Magna Carta, by King Henry III, the son and successor of King John (1166-1216). The Charter of the Forest formally recognized the vernacular traditions and practices (“laws”) of English commoners – that is, their traditional rights of access to and use of royal lands and forests. The document enumerates specific subsistence rights to the forest such as pannage (pasture for pigs), agistment (grazing of cattle), estover (collecting of firewood), and turbary (cutting of turf), all of which were considered elemental, traditional entitlements of commoners. The Charter of the Forest was later incorporated into Magna Carta and considered an integral part of it.
The Enclosures of the England Commons
Source: Raymond Williams, “Enclosures, Commons and Communities,” in The Country and the City (Oxford University Press, 1973), pp. 96-107. Google version
From 1776 to 1825, the English Parliament passed more than 4,000 Acts that served to appropriate common lands from commoners, chiefly to the benefit of politically connected landowners. These enclosures of the commons seized about 25 percent of all cultivated acreage in England, according to historian Raymond Williams, and concentrated ownership of it in a small minority of the population. These “lawful” enclosures also dispossessed millions of citizens, swept away traditional ways of life, and forcibly introduced the new economy of industrialization, occupational specialties and large-scale production. “The many miles of new fences and walls, the new paper rights” – and the many “great houses” that came to dominate the rural landscape – “were the formal declaration of where the power now lay,” writes Williams.
Gerrard Winstanley and the Levellers