In a guest post, Professor Russell Sandberg takes something of a sideways look at Christmas and the common law…
Lawyers typically use history to stabilise the present. In my new book, Subversive Legal History: A Manifesto for the Future of Legal Education, I argue that history should be used instead to subvert what we think we know about the law. Recourse to history shows that things that we think of as being fixed and everlasting are nothing of the sort and provide us with different ways of thinking.
In this festive and light-hearted blog post, I further this theme by showing how reference to history can question and subvert much of what we assume about Christmas. This blog will illustrate this by adventuring through the centuries, looking in outline at particular periods.
Indeed, there are many points of similarity between Christmas and the common law. Both are often claimed to be successful English exports and both are assumed to have existed since time immemorial. These assumptions are false – and in both cases, much of what we take for granted is actually a Victorian legacy, a result of a romanticised recapturing of a past that never really quite happened in the way that it is assumed to have done.
The Medieval Period
The precise origin of Christmas, like that of the common law, is difficult to identify. In relation to both, prior practices continued and distinguishing these proves problematic. In relation to Christmas, mid-winter celebrations predated Christianity. Celebrations cheered people up at the halfway point of Winter, marking being halfway out of the dark. Many of the customs of the Pagan Saxon feast of Yule were carried over to the celebrations of Christmas and became indistinguishable from it.
The same was true of what would become known as the common law. It is difficult, if not impossible, to identify when the original kin-based justice provided by the feud stopped. Indeed, the compensatory codes of the late Anglo-Saxon kings built upon rather than replaced the feud: rather than meeting violence with violence, it became met instead by compensation to the victim or to the King. Local customary justice also prevailed while the common law was being developed and cemented.
The conventional histories of both the common law and Christmas were very much shaped by later writers. These writers were often on a quest to assert the immemorial Englishness of institutions and ideas. Such writers often emphasised the Anglo-Saxon legacy and so often stressed, and perhaps over-played, Anglo-Saxon roots of Christmas as an English custom that survived the Norman Conquest. The same applies to the common law and to this day there is a healthy scholarly debate as to the extent to which the common law has its origins in the coming together of England as one kingdom in the last century of the Anglo-Saxon period and, to paraphrase Monty Python, what did the Normans ever do for us.
Reference to Christmas underscores how the medieval period was characterised by the need to maintain order and the dominant social role played by religion. These are also key factors in understanding the development of the common law. The main developments, such as the introduction of the writ system under Henry II, came about mostly as a response to the need to stabilise authority and keep order. Religion also played a central role as shown by the significant areas of jurisdiction enjoyed by the ecclesiastical courts and controversies surrounding this, epitomised by the Beckett murder.
Order and religion also underscored the medieval Christmas but in a rather unexpected way. In the medieval period, the time leading up to Christmas Eve was a time of fasting. And so, Christmas itself was a time of disorder and revelry that contrasted with the rest of the year. Christmas at this time was not limited to Christmas Day itself or a couple of days. The feasting and revelry took place over the full twelve days of Christmas activities climaxing on 6th January, Twelfth Night, which was often the focus. Activities were often boisterous and anarchic with a Lord of Misrule presiding over drunkenness, gambling, often rough party games, carols that could often be quite rude and other antics such as servants-as-masters.
Yet, Christmas was also an important occasion in terms of underlining the King’s authority by ceremonial crown-wearing by kings, for instance. Christmas Day became a popular day for coronations and anointments. William I was crowned on Christmas Day in 1066, an event which it is said increased the importance of Christmas Day itself.
There were attempts to reduce the excess of the season. But they proved ultimately ineffective. Henry I in around 1100 issued a proclamation stating that the end of the year was a period of fasting not feasting. Yet, feasting continued to be common, particularly amongst the King’s court. One royal Christmas feast in 1213 under the reign of King John saw 400 heads of pork, 30,000 fowl, 15,000 herring, and 10,000 eels served up while another in 1377 during the reign of Richard II, saw over 300 sheep eaten.
Gift giving was originally linked to legal relationships with gifts being given by tenants to their feudal lord. As Brian Simpson noted in his A History of the Land Law (2nd ed., Oxford University Press 1986), feudal services ranged ‘from the ludicrous to the obscene and from the onerous to the nominal’. A well-known example cited by Simpson is the feudal service owed by Roland le Fartere who, according to the Book of Fees, was given a manor in Suffolk in exchange for his services as Jester for Henry II which included performing at the Christmas feast. The records show that his feudal service was to perform a leap, a whistle and a fart on Christmas Day.
Medieval Christmas practices, like the medieval common law, constituted a complex and often contradictory mixture that recognised co-existing, if not competing, different levels of social interaction. The past was more complex, nuanced, richer and therefore more interesting than we often give it credit for.
The Tudor era is often seen as the time of renaissance when the common law was transformed. Yet, as ever, accounts run the risk of over-emphasising change at the expense of continuity and promoting a narrative of progress. The common law courts were well established before the Tudors came to the throne and the innovations and developments of this period were, as ever, a mixed bag from the rise of the equitable jurisdiction to the torture-heavy underhand methods of Star Chamber.
Similarly, the history of Christmas under the Tudors is by no means straightforward. Christmas remained a key event in the Tudor period but it was less boisterous at least in the King’s court. Indeed, certain medieval practices and traditions that had already fallen out of use before this period were revived. In the fifteenth century, the Lord of Misrule custom was rejuvenated. Henry VII had a Lord of Misrule and an Abbot of Unreason. Large households, civic corporations, colleges and even the Inns of Courts had their own Lords of Misrule!
The Reformation and counter-Reformations had an effect upon Christmas activities with practices being either cherished or banned depending on what religion was lawful at the time. The religious upheavals of this time also had a significant impact upon the law not least through the use of Parliamentary statute to declare the religion of the land, questions of sovereignty and to dictate the content of religious worship. However, it was the aftermath of the Civil War that saw the State law being used in the most breathtaking way to regulate Christmas.
Although few Puritans seemed to want to get rid of Christmas, it had become a bone of contention before the Civil War with Parliamentarians keen to chip away at the festivities. While Charles I directed his noblemen to return to their estates to oversee old-fashioned Christmas generosity, the Puritans linked Christmas with drunkenness and bad behaviour but. Following the defeat of Charles I, England became a puritan country and this led to the banning of Christmas.
However, the reality was more complicated than talk of banning Christmas should suggest. This was not an immediate ban but was actually a piecemeal development. This reflects the typical nature of legal change, particularly under the common law. Things that we regard as watershed moments with the benefit of hindsight were usually rather different at the time. Legal change is often the product of accident and happenstance but this should not be used to ignore the power dynamics at play behind such changes.
The Pagan ban on Christmas has its roots in the performance of plays in 1642, which had an impact on the keeping of Christmas because this had previously been the peak of the theatrical season. Christmas celebrations had already been banned in Scotland by the Presbyterians in 1583 and it was they who put pressure on the Parliamentary leaders. The issue came to the fore in 1644 Christmas when fell on the last Wednesday of each month, which was kept as a day of fasting and penance. Parliament decided that 25 December would not be an exception to this rule but, in practice, this decision had little impact and was disregarded by many.
In 1645 the religious celebration of Christmas was no longer legally recognised as the Presbyterian Directory of Public Prayer replaced the Book of Common Prayer. But Christmas only became expressly banned in 1647 by An Ordinance for Abolishing of Festivals under which festivals and holidays ‘heretofore superstitiously used’ were no longer to be kept. As with previous measures, this was ignored by some but this complete ban also led to civil unrest. It led to rioting with people decorating their doorways with Holly in rebellion. Some shops still closed for Christmas amid an increase in popularity for the king. The inadequacy of the ban was underlined by the fact that a further enactment was deemed necessary and was made by Parliament in 1652 stating that December 25th should not be solemnised in churches or observed in any other way and markets and shops should remain open.
The restoration of the monarchy in 1660 also resulted in the restoration of Christmas because all legislation passed in this period was declared void since it had not been given Royal Assent. However, once again, the picture was not as clear-cut as it might first appear. Even when it was restored, Christmas remained disreputable. The Presbyterian Church of Scotland still discouraged the observance of Christmas. Old customs – many of which had gone underground during the interregnum –were revived but often in a subdued way. During the eighteenth and nineteenth centuries, it was Twelfth Night parties that again became popular.
It is often asserted that the works of Charles Dickens had a considerable effect upon both the development of Christmas and the common law. The depiction of the ludicrous delays caused by the complex court structure of the time in Bleak House and other works by Dickens is often used as the short-hand for the need for reform that was finally satisfied by the Judicature Acts of 1873 and 1875. A Christmas Carol is often attributed as inventing the understanding of Christmas we have today, as a family and humanitarian festival.
Both assertions are capable of being over-stated. Bleak House simply pointed to a problem that was well known and had been subject to critique by philosophers and lawyers. And contemporary readers of A Christmas Carol must have recognised most aspects of the Dickensian Christmas in order to relate to it.
Yet, it is commonly asserted that it was during the nineteenth century that Christmas has become the festival that we know today and that prior to this, Christmas had never fully recovered from being banned after the Civil War. Andy Thomas noted that in the period between 1780 and 1835 the Times had failed to mention Christmas at all on its 25th December editions showed how ‘meaningless had the festival become to most of its readers’ (Christmas: A Short History from Solstice to Santa (Ivy Press, 2019) 81)
However, this point requires some caution, as Mark Connelly has explained:
“This approach risks perpetuating two misunderstandings: first, Christmas was either an irrelevant or unobserved event by the late eighteenth century, and second, its “revival” was brought about by a deliberate manipulation of the few surviving customs and types of evidence. Such an interpretation misses many subtle twists and turns in the history of Christmas and its development of its modern form” (Christmas: A History (I B Tauris, 2012) iv).
He asserted that the observation of Christmas in England was not “a seamless historical chain stretching back to the earliest days of Christmas in the British Isles” and that “significant changes in the way Christmas was conceived and celebrated did occur in the early nineteenth century”. Moreover, these were “intimately connected with the conditions of the time” and “gave Christmas a privileged status through which certain visions of English history could be articulated to serve contemporary, largely middle-class concerns”.
The Victorians leant on the past – often an imagined or at least slightly fictionalised past – in order to develop a particular way of marking Christmas. The family-focused festival of Christmas owes its roots to Victorian times. Writers such as Dickens helped to re-imagine Tudor Christmas as a heartfelt humanitarian festival. Christmas cards, crackers, pudding and turkey are said to date back to this period. Other traditions were popularised and revived during this period. The medieval Christmas feast developed into the Christmas dinner and the practice of singing carols were revived. The words of many of the carols still sung today are Victorian in origin.
However, it is important not to overplay the importance of the Victorian age. Prince Albert is usually credited for introducing the Christmas tree to England but in fact, he simply popularised it. The German custom was actually introduced into England during the Georgian period. Queen Charlotte, the German wife of George II, had a decorated tree as early as the 1790s.
As ever with the history of Christmas (and, indeed, the history of the common law) things are not as straightforward, as linear or as progressive as they may first appear. Hindsight simplifies the past and removes the edges and the nuances. For instance, it was the Victorians who concentrated the festival into two days: Christmas Day and Boxing Day. However, even this development was not legally straightforward. It is often said that the Christmas Bank Holiday formally dates back to 1834, but this is not quite correct. Before 1834, around 33 saints’ days and religious festivals were observed by the Bank of England. This was reduced to four days in 1834 (which included Christmas Day).
Bank holidays were only first introduced by the Bank Holidays Act 1871. It was this Act that included Boxing Day. The law is now to be found in the Banking and Financial Dealings Act 1971 – but neither Christmas Day nor Good Friday is included as bank holidays. The Act lists 26 December if it is not on a Sunday and 27 December in a year on which 25 or 26 December is a Sunday as Bank Holidays in England and Wales. The Act states that no one “shall be compellable to make any payment or do any act on a bank holiday under this Act which he would not be compellable to make or do on Christmas Day or Good Friday”. This means that Bank Holidays are treated like Christmas Day but this does not mean that technically Christmas is a Bank Holiday under the Act.
Laws during the ages have protected Christmas Day as if it were a Sunday or a Bank Holiday. The Bills of Exchange etc Act 1827 stated that Good Friday, Christmas Day and every Day of Fast or Thanksgiving appointed by the monarch are to be treated as a Sunday for purposes regarding Bills of Exchange and Promissory Notes. The Factory and Workshop Act 1878 stated that the whole of Christmas Day and either the whole of Good Friday or the next public holiday specified by the occupier was to be a holiday for children, young persons and women employed in any factory or workshop. The Christmas Day (Trading) Act 2004 now stops large shops from opening on Christmas Day.
Christmas is often defined as “not a working day”. For instance, under the Data Protection Act 2018 a working day is any day other than Saturday, Sunday, Christmas Day, Good Friday, or any bank holiday under the 1971 Act. This all underlines how complex and Christian the law still is.
It therefore appears – somewhat surprisingly – that there are many similarities between Christmas and the common law. In relation to both, a historical lens subverts what we think we know about them. It shows that different options are possible today and in the future because different practices have operated in the past. History underscores that things that we consider to be universal and natural are actually the result of human activity and that each generation shapes their practices in response to their own challenges. These are the key messages of Subversive Legal History: A Manifesto for the Future of Legal Education – which have been underscored by this look back at aspects of the history of Christmas.
Stereotypes of both Christmas and the common law are found in the work of Dickens, but while successive generations have lent into his depiction of Christmas, we have tried to move away from his representation of the common law. Discussion of both Christmas and the common law, and in particular their origins, is often shaped by a quest to assert their Englishness and their longevity. And developments are often more complicated and piecemeal than common understandings seduced by the benefit of hindsight often suggest.
One major difference between Christmas and the common law, however, is that the practices of Christmas are widely taught to children. By contrast, we rarely learn about the common law outside of formal legal education. This is regrettable, given that laws impact most aspects of our lives and there is a need to understand the scope and limits of our legal rights.
Note: This blog post has its roots in an invitation to contribute to the Kids Law podcast, which aims to educate, inform and inspire children about legal issues that affect them. This is an important initiative and I was delighted to be the guest on their podcast on Christmas and the Law.
I’m grateful to Lucinda Acland for the initial invitation to contribute to the Kids Law podcast and for her help in terms of the research for the podcast appearance that has also informed this blog post. The following books were also incredibly useful: Mark Connelly, Christmas: A History (I B Tauris, 2012); Judith Flanders, Christmas: A History (Picador, 2017); Martin Johnes, Christmas and the British: A Modern History (Bloomsbury, 2016); Andy Thomas, Christmas: A Short History from Solstice to Santa (Ivy Press, 2019; and Gavin Weightman and Steve Humphries, Christmas Past (Sidgwick & Jackson, 1987). I am also grateful to Dr Sharon Thompson for her comments on a draft version.
Cite this article as: Russell Sandberg, “Christmas: a subversive legal history” in Law & Religion UK, 18 December 2021,