Stephanie Elsky. Custom, Common Law, and the Constitution of English Renaissance Literature

Abstract

This is a fascinating book on an immensely important topic for our understanding of the relationship of literature and law in early modern England: custom ‘as a source of poetic creativity and political possibility’ (p. 2). Much of the book turns on the question of how early modern literature engages the myth of the ancient constitution, or the fiction of the common law as having existed from ‘time immemorial’. The myth was used to reject any suggestion that the English common law was the product of conquest, and to assert the authority of the English over their law. The ground for this understanding is laid in Chapter 1, in a discussion of John Pocock’s The Ancient Constitution and the Feudal Law. A quite different story might be told about early modern literature in relation to Pocock’s argument that the myth was used to obscure, perhaps even actively suppress, an understanding of the common law’s relation to the feudal. As the legal historian S. F. C. Milsom noted in his Natural History of the Common Law (2003), feudally derived customs generated legal ‘monsters’. But in its consideration of custom as a ‘rich sense of the presence of the past’ (p. 116) informing early modern literary experimentation, Elsky’s book gives us a lot to reckon with.