Summary of "The Common Law Character of English Charters: Spontaneous Order in the Constitutions of Clarendon" by ROBERT F. MULLIGAN

Introduction

In his 2005 article published in Constitutional Political Economy, Robert F. Mulligan provides a revisionist analysis of the Constitutions of Clarendon (1164). Rather than viewing the document as a mere instrument of royal power or a failed attempt at positive legislation, Mulligan argues that it represents a critical instantiation of "spontaneous order" within the English legal tradition. By applying the economic and social theories of Friedrich Hayek and the Austrian School of Economics, Mulligan demonstrates how the Constitutions sought to formalise and protect evolved customary law against the perceived distortions of canon law. His central thesis posits that English charters, while appearing to be top-down legislative acts, possess an underlying "common-law character" that facilitates economic efficiency and entrepreneurial stability.

Theoretical Framework: Spontaneous Order vs. Positive Law

The cornerstone of Mulligan’s analysis is the Hayekian distinction between nomos (spontaneous order or law) and thesis (enacted or positive law).

Spontaneous Order: This refers to rules that emerge from the bottom up through social interaction and trial-and-error over centuries. These rules are discovered rather than invented, providing a predictable framework that allows individuals to pursue their own ends.

Positive Law: This involves the deliberate creation of rules by a sovereign authority to achieve specific social outcomes.

Mulligan argues that the English Common Law is the quintessential example of spontaneous order. It is an "abstract order" where the law exists independently of any single legislator’s will. Within this context, Mulligan reframes royal charters. Traditionally, historians viewed charters as precursors to modern statutes—deliberate acts of statecraft. Mulligan, however, suggests they are better understood as "ad hoc grand jury" findings. In this view, the king and his assembly were not making new law but were declaring what the ancient, customary law already was.

Historical Context: The Jurisdictional Conflict

The 12th century was defined by a profound jurisdictional struggle between the secular authority (the Crown) and the ecclesiastical authority (the Church). Following the Gregorian Reforms, the Church sought "libertas ecclesiae"—independence from secular control. This resulted in the expansion of canon law courts, which claimed jurisdiction over any case involving a "clerk" (cleric) or spiritual matters.

From an economic perspective, Mulligan identifies this as a state of "regulatory disequilibrium." The existence of two competing legal systems created immense uncertainty regarding property rights and judicial outcomes. Crucially, the Church often acted as both plaintiff and judge, creating a conflict of interest that Mulligan describes as a "perverse incentive." This institutional overlap hindered economic growth because "entrepreneurial planners" could not reliably predict the legal consequences of their actions.

The Constitutions of Clarendon (1164)

The Constitutions were a set of sixteen articles issued by Henry II to define the relationship between Church and State. While Thomas Becket, the Archbishop of Canterbury, famously resisted them, Mulligan argues that the articles themselves were remarkably conservative. They were framed not as new innovations, but as a "recognition" (recognitio) of the "customs, liberties, and dignities" of Henry’s ancestors (specifically Henry I).

Mulligan highlights several key articles to support his "common-law character" argument:

Article 3 (Criminous Clerks): This stipulated that clerics accused of crimes should first appear in a secular court, then be tried in an ecclesiastical court, and finally, if convicted, be returned to the secular court for punishment. Mulligan views this as an attempt to restore a unified jurisdiction, ensuring that the law applied equally and predictably to all subjects.

Article 9 (Assize of Utrum): This established a procedure to determine whether a piece of land was held under "alms" (ecclesiastical tenure) or "lay fee" (secular tenure). This was to be decided by a jury of twelve lawful men. Mulligan emphasizes that this use of the jury system is a hallmark of spontaneous order, as it relies on the local knowledge of the community rather than the arbitrary decree of a judge.

Article 15 (Debt): This asserted that pleas regarding debts belonged to the King’s jurisdiction, even if the debt involved a broken oath (which the Church claimed as a "sin"). By securing debt enforcement in secular courts, Henry II was directly protecting the reliability of contracts.

Economic Analysis and Entrepreneurship

Mulligan’s most significant contribution is the economic justification for the Constitutions. He argues that by reducing jurisdictional "noise," the Constitutions lowered transaction costs and increased the security of property rights.

In a Hayekian sense, the common law provides a "value-free framework." It does not tell people what to do; it provides the rules within which they can do what they want. When the law is evolved and customary, it is slow to change, which allows economic agents to form long-term expectations. Mulligan posits that the Constitutions of Clarendon were an attempt to protect this "abstract order" from the "designed order" of the Roman-influenced canon law, which was seen as an external, positive legal system being imposed upon English custom.

By formalising the "ancient customs," Henry II was effectively providing a public good: legal certainty. This certainty is essential for entrepreneurship. If a merchant or landowner knows that their property rights will be adjudicated based on established local custom rather than the shifting interpretations of a distant ecclesiastical court, they are more likely to engage in productive investment.

The Aftermath and Legacy

The Constitutions were ultimately renounced by Henry II following the martyrdom of Thomas Becket in 1170. However, Mulligan argues that their formal abrogation is secondary to their long-term impact. The principles contained within them—particularly the assertion of secular supremacy in matters of property and the use of the jury—remained embedded in the English legal consciousness.

The document served as a "template" for the separation of Church and State. It established the precedent that the "liberties of the realm" were a matter of customary law that even the Church was bound to respect. This evolution continued through the Magna Carta (1215), which Mulligan also views as a document aimed at restoring the spontaneous order of common law against the "predatory" positive legislation of King John.

Critical Synthesis

Mulligan concludes that the Constitutions of Clarendon should be viewed as a vital link in the chain of English constitutionalism. They represent a moment where the "spontaneous order" of the common law was explicitly defended against the "rationalist design" of an external legal system.

The paper challenges the traditional "Great Man" theory of history, suggesting that Henry II was less an innovative legislator and more a "custodian" of an existing social order. The "character" of the charter was not to create law, but to provide a clear, written record of the evolved rules that had already proven their utility in coordinating human interaction. This, in turn, facilitated the transition of England from a feudal society toward a more complex, market-oriented economy by stabilising the institutional environment.

Conclusion

Robert F. Mulligan’s analysis provides a robust defense of the common law as a mechanism for economic efficiency. By examining the Constitutions of Clarendon through the lens of spontaneous order, he reveals that the strength of the English constitutional tradition lies in its ability to resist arbitrary "designed" law in favour of rules that reflect the "wisdom of ages." The Constitutions were not a failure; they were a successful articulation of the principle that law is something to be discovered within the customs of the people, serving as a foundational pillar for the rule of law and the protection of individual expectations.

Sources

Berman, H. J. (1983). Law and Revolution: The Formation of the Western Legal Tradition. Harvard University Press.

Hayek, F. A. (1973). Law, Legislation and Liberty, Volume 1: Rules and Order. University of Chicago Press.

Mulligan, R. F. (2005). "The Common Law Character of English Charters: Spontaneous Order in the Constitutions of Clarendon (1164)". Constitutional Political Economy, 16(3), pp. 285–311.

Mulligan, R. F. (2004). "Property Rights and Time Preference". The Quarterly Journal of Austrian Economics, 10(1), pp. 23–49.

Warren, W. L. (1973). Henry II. University of California Press.