Sunday, 27 November 2011

A Law of the Jews Becomes the Law of the Land


The Shetar's Effect on English Law—A Law of
the Jews Becomes the Law of the Land
The rational study of law is still to a large extent the study of history.
Holmes, The Path of the Law1

English law, like the English language, is an amalgam of diverse cultural
influences. The legal system may fairly be seen as a composite of discrete elements
from disparate sources. After the conquest of 1066, the Normans imposed
on the English an efficiently organized social system that crowded out
many Anglo-Saxon traditions.2 The Jews, whom the Normans brought to
England,3 in their turn contributed to the changing English society. The Jews
brought a refined system of commercial law: their own form of commerce and
a system of rules to facilitate and govern it. These rules made their way into
the developing structure of English law.
Several elements of historical Jewish legal practice have been integrated into
the English legal system.4 Notable among these is the written credit agreement—
shetar, or starr, as it appears in English documents. The basis of the
shetar, or "Jewish Gage," was a lien on all property (including realty)5 that has
been traced as a source of the modern mortgage.6 Under Jewish law, the shetar1180 THE GEORGETOWN LAW JOURNAL [Vol. 71:1179
permitted a creditor to proceed against all the goods and land of the defaulting
debtor.7 Both "movable and immovable" property were subject to distraint.8
In contrast, the obligation of klight service under Anglo-Norman law
barred a land transfer that would have imposed a new tenant (and therefore a
different knight owing service) upon the lord.9 The dominance of personal feudal
loyalties equally forbade the attachment of land in satisfaction of a debt;
only the debtor's chattels could be seized.10 These rules kept feudal obligations
intact, assuring that the lord would continue to be served by his own knights.
When incorporated into English practice, the notion from Jewish law that
debts could be recovered against a loan secured by "all property, movable and
immovable" was a weapon of socio-economic change that tore the fabric of
feudal society and established the power of liquid wealth in place of land
The Crusades of the twelfth century opened an era of change in feudal England.
To obtain funds from Jews, nobles offered their land as collateral.12 Although
the Jews, as aliens, could not hold land in fee simple,13 they could take
security interests of substantial money value.14 That Jews were permitted to
hold security interests in land they did not occupy expanded interests in land
beyond the traditional tenancies.15 The separation of possessory interest from
interest in fee contributed to the decline of the rigid feudal land tenure
At the same time, the strength of the feudal system's inherent resistance to
this widespread innovation abated. By 1250, scutage1 7 had completely rements.18 And as the identity of the principals in the landlord-tenant
relationship became less critical, a change in the feudal rules restricting alienability
of interests in land became possible.
One catalyst for this change may have been the litigation surrounding debt
obligations to Jews secured by debtors' property. The Jews in Norman England
had a specified legal status. They alone could lend money at interest.19
They were owned by the King, and their property was his property.20 The
King suffered their presence only so long as they served his interests21—primarily
as a source of liquid capital.22
Because moneylending by Christians was infrequent, English law had not
established its own forms of security.23 The Jews operated within the framework
of their own legal practice,24 which was based on Talmudic law developed
over centuries of study. But the peculiar status of the Jews as the
Crown's de facto investment bankers encouraged the King to direct his courts
to enforce the credit agreements made by Jews under their alien practice. This
nourished the growth of Jewish law in a way that blurred the absolutes of
feudal land tenure.25 Previously inalienable rights in land gave way to economic
necessities, and the English ultimately adopted the Jewish practices.26


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