The period from roughly the mid-sixteenth to the mid-seventeenth century may be regarded as the golden age of the common law. When Elizabeth I ascended the throne in 1558, the common lawyers had few rivals to their supremacy. Having eliminated their chief competitor, the church courts that had for so long encroached on their jurisdiction, and having survived the Henrician terror with its assertion of prerogative justice and monarchical imperium, they stood at a peak of prestige and authority. The Inns of Court, where the arcana of the common law were taught, were a quasi-sovereign enclave in the heart of London, through whose portals passed not only aspiring barristers but country gentlemen who gained both the smattering of law necessary to service as justices of the peace and, perhaps more important, a socialization in the civil religion that the common law had come to represent, at least to its adepts. This paid off, not only in the administration of local justice and in the shared sense of an ancient, immemorial constitution whose proper limits that law defined but in the prestige it enjoyed in the House of Commons, which the common lawyers and their country acolytes had come to dominate by the late sixteenth century. In the great constitutional struggles that lay ahead—over “absolute” prerogative and monarchy, over the revival of ecclesiastical jurisdiction in the Court of High Commission, and, finally, over the threat of arbitrary government that England seemed to face under the Stuarts in the early seventeenth century—it was the common lawyers who stood fast. They found a rod in parliamentary impeachment to chastise those who violated the subject's right; they grandly reaffirmed the principles of Magna Carta in the Petition of Right; and, when the moment of final reckoning came in 1640–42, they swept aside church and prerogative courts forever and forced a series of draconian reforms on King Charles I that, tried in the fire of civil war and revolution, secured the constitution in perpetuity.

This, at any rate, is one way to look at the career of the common law and its practitioners during this period. It is a plausible story, and one that has served Whig and neo-Whig historians, but it leaves some uncomfortable facts out of account. The hegemony of lawyers also meant, on a practical level, the denial or obfuscation of justice. For Shakespeare, the law's delay was not unrelated to the proud man's contumely. Pent-up popular rage was unleashed at the common lawyers during the 1640s and 1650s, and, at the height of the English Revolution, the ancient constitution was denounced as the Norman Yoke, the courts gave way to military administration, and the Inns all but ceased to function. How, the student of history is obliged to ask, did the saviors of the nation become its outcasts and villains?

Paul Raffield essays this field of difficulties but with little sense of the narrative judgments and historical context required to make sense of them. He takes for granted that the common law was the law in early modern England, ignoring the robust civilian tradition the crown drew upon and, when it served its turn, promoted. He assumes the ancient constitution to be a settled rather than a contested concept. He idealizes the culture of the Inns themselves to the point of idolatry, seeing them as the ideal representation of the commonwealth and their rituals as a quasi-religious communion with Justitia itself:

It is difficult to know where to begin with a passage such as this. The Inns are depicted as a monastic order devoted to a Neoplatonic utopia rather than to mastering the rough-and-tumble of meum et tuum. Their presiding deity is Hooker, the spokesman of Anglican conformity, although, as Raffield concedes, most of the members for whom a confessional alignment can be found seem to have been Puritan. They happily conflate “state, church and commonwealth,” as though common lawyers had not cut their eyeteeth for centuries on resisting the claims of canon law and had not fought the Wolseyan church establishment literally to the death. And as for eating “God and the common law” in a single mouthful, one is rather beggared for comment.

The culprit here appears to be critical theory, which, having bestowed its mostly dubious benefits on the historical profession in the form of the new historicism of a generation ago, has now gone on to colonize legal studies. Much of Raffield's rhetoric seems to derive from modish journals such as Law and Critique, where “orality” and “textualization” are the order of the day and eating the law comes as naturally as buttering one's toast. It is a shame, for there seems to be a genuine historian in Raffield wanting to get out, and one can only wish him well. When he comes to deal with such questions as how and why the supposed constitutional consensus broke down and why the common law found itself so suddenly embattled and even reviled, however, his rhetorical commitments leave him without a means of satisfactorily engaging them.

Of course, all discourse is symbolic on a certain level, and it is perfectly proper, not to say essential, to attend to the meaning and significance of the symbols by which an age expresses itself. The slippery slope of critical theory begins where those symbols are extruded from the living speech in which they occur and the specific historical contexts (and constraints) of that speech are suppressed or ignored. Then, indeed, “state, church and commonwealth” are easily conflated, and Platonic conceits, Thomist theology, and Oedipus Lex happily cohabit in an ideological mingle-mangle. The late J. H. Hexter used to divide historians into “lumpers” and “splitters.” Critical theory, when not used judiciously, is lumping with a vengeance.