Making or Declaring Law? Legislative Intent and Privileged Speech in Anglo-Saxon England

Celebrated by a generation of literature scholars, lamented by E. D. Hirsch, the disappearance of the author and authorial intentions as means of interpretation has a history with branches in the study of pre-Conquest England. Long before the twentieth century, Anglo-Saxon legislators were disappearing from their laws, as discussion of their intentions in establishing them was viewed by historians with increasing disfavor. Even today, commentary on early English royal legislation seldom acknowledges that these texts enjoyed (or were intended to enjoy) the force of law in any meaningful sense. Only in the past decade have cracks emerged in the consensus that such legislation was meant for anything beyond symbolic purposes, a view backed by a much older consensus that pre-Conquest law could do no more than “declare” what had always been custom, thus revealing little about the purposes of kings and their counselors. This essay traces commentators’ reticence about acknowledging the legislative purposes behind early English legislation to disputes over codification that agitated German-speaking parts of Europe in the early nineteenth century. Yet the earliest editors and commentators prized these materials specifically because they exhibited the lawmaking powers of kings and their councils. The article examines neglected evidence afforded by early English legislation itself, finding that this earlier tradition was by no means exhausted when abandoned.