In Custom, Common Law, and the Constitution of English Renaissance Literature, Stephanie Elsky extends methodologies for the study of English literature rooted in new historicism from the late 1970s to the early 1990s. Elsky theorizes “custom” as a matter of cultural and political discourse relevant for sixteenth-century English literature in relation to proverbial language, common law, constitutionalism, and ideas of temporality. Case studies include Thomas More's Utopia (1516), Isabella Whitney's A Sweet Nosgay (1573), Philip Sidney's Old Arcadia (1578–81), Edmund Spenser's Letters with Gabriel Harvey (1580) and A View of the Present State of Ireland (c. 1595–6), and William Shakespeare's Hamlet with the manuscript play Sir Thomas More (c. 1600). Elsky argues that these literary works contemplate “the relationship between monarchical and common authority” in different ways “during a time when England is both confronting its own past as a conquered nation and fashioning its identity as an incipient imperial power” (9). To connect disparate perspectives on rhetoric, law, community, property, and political theory, Elsky theorizes a “discursive commons” that effectively conflates “custom” with common law, alongside a “temporal commons” conceived to bridge scholarly periodization that would separate the rise of Norman England from that of Tudor England (9). The book thus builds upon Richard Helgerson's Forms of Nationhood: The Elizabethan Writing of England (1992) to claim confluence and tension between classical humanism and English legal nativism.

In chapter 1, Elsky summarizes recent scholarship on oral and written traditions of English common law at the Inns of Court and beyond, providing a nuanced perspective on that matter while reaffirming J. G. A. Pocock's The Ancient Constitution and the Feudal Law ([1957] 1987) for a broad notion of “the common-law mind” claiming legal and political authority rooted in “time immemorial” (35). Having attached to English common law the conceptual labels “custom” and “common learning” (32), Elsky adds a literary premise that “tensions engendered by the growing importance of the written to common law became an opportunity for English writers to conceive of their own authorship” (34). Claiming that “custom requires acts of imagination” in both legal and literary realms, because “communal practices are unchanging yet dynamic, longstanding yet always fresh,” Elsky asserts that the authors addressed in subsequent chapters “experiment with commonweals, even ones with demotic possibilities, while at the same time registering the ancient constitution's origins in a monarchical bid for more power” (42).

In chapter 2 Elsky claims “similarities between Utopia's and England's constitutional dispensations” amid “tensions not only between common law and other jurisdictions, as other critics have argued, but crucially within common law itself” (44). The methodology foregrounds Erasmus's Adages (1508) and printed marginalia in a 1517 edition of More's Utopia to theorize proverbial language as humanist commonplace and thus as custom. According to Elsky, humanist linguistic custom and English legal custom blend within a discursive commons of shared property. On Utopian colonization within More's fiction, Elsky claims, a “tension between consent and coercion in Utopia” is based on “the double nature of its constitutional dispensation, as a form of native law and as a mechanism for territorial expansion” (69). Elsky interprets this conceptual tension as foresight on More's part regarding “the dual nature of England's own constitutional system” as “a means of representing the people's will [protecting private property] and of enforcing the king's singular power over his entire land” (69).

In the ensuing chapter Elsky addresses that legal issue regarding Spenser's views on language and politics in England and Ireland. The Spenser-Harvey Letters advocate a reformation of English verse using quantitative classical meter while addressing histories of political conquest, including the Norman occupation of England. Spenser's later View of the Present State of Ireland supports an English reconquest and colonization of land, law, and language. Both perspectives complement each other, Elsky argues, based on “a paradox at the heart of common-law custom, the consensual conquest” (78), whereby foreign elements and entities blend with the local.

In chapter 3 Elsky argues that, within Sidney's Old Arcadia, the foreign regent Euarchus's attentiveness to Arcadian law and custom both affirms limited monarchy and suggests potential manipulation of commoners by a monarch via custom. Elsky construes certain remarks by Sidney's narrator as rhetorical devices of aporia (doubt) whereby the narrative cedes some of its own hermeneutic authority to its reader. Elsky's reading then stretches that premise to interpret comments on orality and transcription regarding the songs of natural and disguised shepherds as analogues for oral and written dimensions of English common-law custom. She thereby theorizes the narrative structure of Eclogues and primary narrative plane in terms of a conceptual balance between “common authority of the people” and “the authority of a single ruler” (132). Elsky's account does not mention drunken Arcadian commoners’ foolishly loyalist insurrection.

In the final two chapters, Elsky extends her theories of formal and discursive commons to lyric poetry and stage drama. Whitney's Sweet Nosgay makes no references to custom or common law, but Elsky interprets its adaptation of an earlier book's Senecan-style common-placing as a rhetorical gambit about poetic and geographic “cultural property” relevant to “class identity” and “the logic of legal custom” she associated with proverbial language in chapter 2 (138, 141). In chapter 6, she stretches further the conceptual fusion of proverbial language with legal custom in comparing the rebellion scenes and scaffold speech of Sir Thomas More with a messenger's report of the Danish commoners’ almost-rebellion on Laertes's behalf in Act 4 of Hamlet. Elsky argues that Hamlet provides an imaginative “negotiation between custom and innovation” that “renders absence itself a precondition to revolution's (momentary) viability” (160, 185) when viewed through twentieth-century lenses as a matter of political anthropology. There, as elsewhere, Elsky conceptualizes literary “form” via specific instances of rhetoric theorized as discourse in an English literary system with schematic shared concerns imagined in binary terms beyond a traditional historical periodization.