Classical Common Law Jurisprudence II
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ARTICLES CLASSICAL COMMON LAW JURISPRUDENCE (PART II) GERALD J POSTEMA*
When it is said that law represents the rule of reason, it is appropriate to ask what kind of reason is meant.1
Custom and reason, we learned in part I of this article, were the organizing concepts of the classical understanding of common law, and because they were central, they were also much contested. We also learned that these notions were regarded as interdependent: custom was always subject to the test of reason, but reason was embodied in the common practices of law. One especially important understanding of the interdependence of these notions emerged at the end of our discussion in part I. The reason of the law, it was said, was the ‘artificial reason’ of the trained common lawyer. Lon Fuller, one of the most important champions of common law jurisprudence in the 20th century, advised us in the epigraph above to take a close look at any claim to associate law with the rule of reason, however ancient or venerable it is. The task of part II of the article is to explore 17th century views of the nature of this ‘artificial reason’ and more generally its account of the normative foundations of common law.
A A RTIFICIAL R EASON [H]is Majesty was not learned in the laws of his realm of England, and causes which concern the life, or inheritance, or goods, or fortunes of his subjects, are not to be decided by natural reason, but by the artificial reason and judgment of law …2
Coke famously wrote, ‘the common law itself is nothing else but reason’, but rushed to add that by this he meant ‘an artificial perfection of reason gotten by long study, observation, and experience, and not of every man’s natural * Cary C Boshamer Professor of Philosophy and Professor of Law, University of North Carolina at Chapel Hill. 1 L Fuller Anatomy of Law (Greenwood Press Westport 1968) 5. 2 Prohibitions del Roy (1607) in E Coke The Reports of Sir Edward Coke, in Thirteen Parts ( J Moore Dublin 1793) 12th Report 63, 65. Note, I have altered the spelling and capitalization in quotations from 17th century works to conform to modern standards. In what follows I will continue to do so silently unless there is risk of altering or obscuring the meaning of the quotation.
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reason…’.3 It is impossible to avoid the thought that this notion of the artificial reason of common law was rooted in a deep scepticism of the practical reasoning powers of ordinary people and the blatant self-aggrandizement of a professional elite. The obvious point of promoting this ‘mysterious science’, it would seem, was to open a chasm between the law and the public, bridgeable only by a feecharging priesthood. One historian of the period put the problem this way: [t]he separation of law from [ordinary, natural] reason provided the greatest assurance of keeping the law out of the hands of the amateur and, therefore, beyond his control. … By making the law a thing apart, the agreeable gulf between lawyer and layman might be preserved. It was enough that every subject know what the law required him to do without understanding the evolution by which that obligation came to be. Distance would encourage respect …4
It would be naïve in the extreme to think that such thoughts were entirely beyond the minds of 17th century common lawyers. However, cynical acid sometimes washes away more than mystification and in this case it removes our ability to appreciate the immediate political target and the deeper jurisprudential potential of this characterization of common law practice. Although the term ‘artificial reason’ soon took on a life of its own, it is important to note at the outset that one of the earliest uses of it came in Coke’s response to a series of attempts by James I to remove from the common law courts certain cases of interest to him and to decide them personally. It was the ‘natural reason’ of the King (or his ministers), attempting to decide such cases extra-judicially, to which Coke contrasted the common law’s ‘artificial reason’. Judgments of law are always given ideo consideratum est per curiam (thus it was considered by the court).5 Only in this way, Coke insisted, could Bracton’s fundamental principle, lex facit regem (law makes the King), be respected properly.6 Against the demands of sovereign will, Coke insisted on the artificial reason of common law, that is, on the rule of law through the exercise of disciplined reason in open courts of law.7 The aim was not to put distance between the law and the practical reason of ordinary people, but to constrain the arbitrary incursion of political will into the orderly 3
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E Coke First Part of the Institutes of the Lawes of England (Garland New York 1979) 97b (originally published in 1628). See also Coke (n 2). H Nenner By Colour of Law: Legal Culture and Constitutional Politics in England, 1660–1689 (University of Chicago Press Chicago 1977) 117. Coke (n 2) 12th Report 64. ibid 65, citing H de Bracton Bracton on the Laws and Customs of England (1250/59) SE Thorne (tr) (Belknap Press Cambridge Mass 1968) vol 2, 33. See G Postema ‘Classical Common Law Jurisprudence (Part I)’ (2002) 2 OUCLJ 155, 159 fn 13. It is precisely at this point that Hobbes and Coke most substantially joined issue. In his Dialogue, Hobbes willingly accepted Coke’s initial premise that reason was the life of law, but insisted that the ‘reason’ in question was the ‘human reason’ of the sovereign. His point, in part, was to deny any special claim to competence of the judiciary or to the discipline of ‘artificial reason’ judges practised in common law courts. See T Hobbes A Dialogue between a Philosopher & a Student of the Common Laws of England J Cropsey (ed) (University of Chicago Press Chicago 1971) 53–57.
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process of adjudication. In his defence of Coke’s notion of the artificial reason of common law against the vigorous attack by Hobbes,8 Hale contrasted the judge’s disciplined reason with the natural reason, not of ordinary persons, but of ‘casuists, schoolmen, moral philosophers’ and political actors trained by them.9 And even when he acknowledged that ‘the unstable reason’ of ordinary sincere and responsible people can lead them to ‘jangling and contradiction’ due to the complexity and difficulty of the particular moral problems they face, he claimed that it is precisely because judges were intimately familiar with the complex ‘texture [of] human affairs’ and ‘conversation between man and man’ that they were best equipped to bring such disagreements to a reasonable resolution and to articulate notions of what is ‘just and fit … common to all men of reason’.10 The artificial reason of the common lawyer was regarded as a disciplined and informed practice of reasoning, and if reason understood in this way was thought to legitimate doctrines, rules or decisions of common law, this was only because they survived critical scrutiny in a process of reasoning and disputation. Artificial reason as understood by common lawyers is a complex and multilayered notion. There is profit in pausing to appreciate the texture of this notion. Six distinctive features call for comment here. First, artificial reason was pragmatic: it focused on practical problem-solving. Law has always been the product of people thinking about practical problems of social life, but classical common lawyers, unlike Bentham’s legislator surveying the problems from Mount Pisgah,11 were always ‘preoccupied with today’s details, and … worked with their eyes down’.12 Common lawyers addressed concrete problems and sought to forge solutions from materials ready to hand. Coke’s King’s Bench colleague, John Dodderidge, wrote that artificial reason is the reason of such, as by their wisdom, learning, and long experience are skilful in the affairs of men, and know what is fit and convenient to be held and observed for the appeasing of controversies and debates among men, still having an eye and due regard of justice, and a consideration of the commonwealth wherein they live.13
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ibid 55–57. M Hale ‘Reflections by the Lord Chief Justice Hale on Mr Hobbes His Dialogue of the Law’ in W Holdsworth A History of English Law (7th edn Methuen London 1956) vol 5, 503. Nenner quotes the following passage from an unpublished manuscript of Hale’s: the ‘experience and observation and reading’ of professional jurists give them ‘a far greater advantage of judgment, than the airy speculations, and notions, and consequences and deductions from certain preconceived systems of politics and laws of some that call themselves philosophers; which, though they may please the authors in the contemplation, yet, when they come to practice and use, vanish into smoke and nothing’: Nenner (n 4) 116 citing BM Hargrave MS 96 folios 46v–47. Nenner draws the mistaken conclusion, however, that Hale ‘feared natural reason because he mistrusted the undisciplined mind’. Hale (n 9) 502–3. J Bentham The Works of Jeremy Bentham J Bowring (ed) (Edinburgh 1838–43) vol 1, 194. See also GJ Postema Bentham and the Common Law Tradition (Clarendon Press Oxford 1989) 421–34. SFC Milsom Historical Foundations of the Common Law (2nd edn Butterworths London 1981) 7. J Dodderidge The English Lawyer (London 1631) 242.
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It measured success in terms of whether the proposed solution worked; however, the resolution not only had to solve the immediate problem at hand, but it also had to set an example that could reasonably be followed in other cases. The measure of a common law decision’s ‘working’ was whether it was taken up (that is, found suitable, followed and elaborated) in further cases, in the courts and in life outside the courts. Thus, this pragmatic bent was not exclusively focused on the particularities of the case before it; it also kept an eye on how decisions in particular cases would function in future as examples and rules. In the passage quoted above, Dodderidge also calls attention to the second important dimension of artificial reason: its public mission. Practitioners sought to solve problems of social life and resolve its controversies always with ‘an eye and due regard for justice and a consideration of the commonwealth wherein they live’.14 The idea of artificial reason drew inspiration from the Ciceronian ideal of rhetoric, which common lawyers understood to be a craft in which judgment, public reasoning, deliberation and oratory were intrinsic parts.15 It involved a practice that was self-consciously public-spirited. Thirdly, artificial reason was a contextual competence. The special capacity of reasoning and judgment of the common law judge was acquired not through study of abstract principles or elements of a systematic body of knowledge, but through long years of immersion in the particularity of law. ‘[M]en are not born common lawyers’, Hale remarked, ‘neither can the bare exercise of the faculty of reason give a man a sufficient knowledge of it, but it must be gained by the habituating and accustoming and exercising that faculty by reading, study, and observation to give a man a complete knowledge thereof’.16 With this study and experience came knowledge of the ‘texture of human affairs’ and ‘conversation between man and man’,17 a texture made complex by ‘the infinite diversity of men’s actions, and of other accidents’.18 In this context, problem-solving typical of the common law judge was seldom merely a matter of looking up a relevant rule and applying it to
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ibid. AD Boyer ‘Sir Edward Coke, Ciceronianus: Classical Rhetoric and the Common Law Tradition’ (1997) 10 Intl J for the Semiotics of L 3. Hale (n 9) 505. See also Dodderidge (n 13) 242; Calvin’s case in Coke (n 2) 7th Report 6. Hale (n 9) 503. Hale’s use of these two terms ‘texture’ and ‘conversation’ is rich and telling. Superficially, ‘conversation’ connotes linguistic interaction, but more fundamentally it connotes all the forms of daily social interaction, commerce, and communication that give shape to human affairs. The complexity of human affairs is nicely captured with the image of texture and especially the analogy Hale invokes to the texture of the human body. This distinctive 17th century use of the term, according to the Oxford English Dictionary (2nd edn OUP Oxford 1989), extends the term from the consistency of woven fabric to any natural structure having such consistency. One example is an early 17th century work which speaks of spirits ‘attenuated in the textures of the small arteries’: H Crooke A Description of the Body of Man (1615) 499 in Oxford English Dictionary (2nd edn OUP Oxford 1989). J Davies ‘Irish Reports’ (originally published in 1628) in A Grosart (ed) The Works in Verse or Prose … of Sir John Davies (Blackburn 1869–76) vol 2, 261. See also Coke (n 2) 1st Report Preface and Hale (n 9) 504.
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the facts of the case before him. And the mode of reasoning typically employed was neither deductive nor inductive, but analogical, arguing a similibus ad similia, from one case to the next on the basis of perceived likenesses and differences, and the location of the instant case in the landscape of common experience painted by a judge or lawyer in command of the full resources of the common law. In an early case, Coke wrote: ‘although the proverb, Exempla illustrant, non docent aut probant [examples illustrate but neither show nor prove], may hold place in some arts and sciences, yet in our law, examples are good arguments’.19 The aim of artificial reason, then, was not to establish general principles by way of abstraction (or ‘induction’) from prior cases, but rather to make concrete judgments from a comprehensive grasp of the concrete relations and arrangements woven into the fabric of common life. Fourthly, artificial reason was non-systematic. This is not to say that it was antitheoretical or hostile to theoretical reflection. It was far too practical for that, since it was always willing to use whatever tools lay ready to hand. But it was decidedly not a theoretical or systematic turn of mind. Common law jurists were not necessarily ‘particularistic’ in the current philosophical sense of that term; that is, they did not believe that adequate solutions to practical problems could only be logically particular. Common lawyers were not opposed to thinking in terms of what we might regard as ‘universalizable’ reasons or to seeking coherence with other solutions and parts of the law. Indeed, analogical thinking rested on the conviction that past decisions set examples, established patterns for future deliberation and action and must cohere with other solutions of the law. This was a major constraint on their pragmatic problem-solving. Still, common lawyers typically sought local coherence. Global theoretical coherence of the law was seldom of concern, unless the case actually demanded it. Artificial reason was simply not much interested in abstract theory, either for its own sake or as a potential fund of resources for solving the practical problems it faced. It was unsystematic in its primary motivations, in the perspective it took on the problems it addressed, and in the solutions that it sought for them. As a result, it was content with what, from a more theoretical perspective, might have appeared to be a lack of systematic coherence. Overall coherence of moral or practical vision was less important to common lawyers than workability on the ground. As conceived by its practitioners, common law resisted reduction to a system of axioms, an economical set of first principles from which its constituent maxims, rules, and decisions could (at least in principle) be inferred. It was a 17th century commonplace, uttered not only by civilian critics, but even by common lawyers themselves, that the common law was an untidy mess, ‘wholly without conformity,
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Ognel v Paston (1587) 2 Leo 84, 86; 74 ER 377, 379; Alan Boyer called this passage to my attention. See AD Boyer ‘ “Understanding, Authority, and Will”: Sir Edward Coke and the Elizabethan Origins of Judicial Review’ (1997) 39 Boston College L Rev 43, 61 fn 57.
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and altogether dismembered’.20 It is perhaps an exaggeration to say that 17th and 18th century common law exhibited ‘a chaos with a full index’,21 but it is not difficult to understand why an observer, especially one with grandly systematic ambitions like Bentham, might have found the charge entirely congenial. Several prominent common lawyers sought to identify especially important general principles running through much of the law and to put the common law into some sort of systematic arrangement.22 Bacon’s ‘maxims’ are perhaps the most influential of such attempts.23 But even these collections are notable for their manifestly unsystematic nature. Bacon’s explanation of this obvious feature of his work, and similar efforts of others, is revealing. He wrote, whereas I could have digested these rules into a certain method or order … yet I have avoided so to do, because this delivering of knowledge in distinct and disjoined aphorisms doth leave the wit of man more free to turn and toss, and to make use of that which is so delivered to more several purposes and applications.24
Bacon clearly meant his collection of maxims to be an aid for the student of the common law, but it was important, he thought, to avoid misleading the student into thinking that the common law was to be found in these general principles or maxims. ‘It is a sound precept’, he wrote in De Augmentis, not to take the law from the rules, but to make the rule from the existing law [evidenced in the body of argued opinions and decisions]. For the proof is not to be sought from the words of the rule, as if it were the text of the law. The rule, like the magnetic needle, points at the law, but does not settle it.25
This is orthodox common law jurisprudence. Bacon and his archrival in politics and love, Edward Coke, saw eye to eye on this score, if on no other. ‘The reporting of particular cases or examples’, Coke wrote in 6th Report, ‘is the most perspicuous course of tracing the right rule and reason of the law’.26 On this view, the law is to be found in the accumulated experience recorded in the books and memories of common law jurists, not in any theory, or articulation of this experience. Law is practice, not a theoretical representation of it. 20
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Dodderidge (n 13) 190. See also H Finch A Summary of the Common Law of England (Garland New York 1979) Preface ‘Advertisement to the Reader’ (originally published in 1654); W Phillipps Principles of Law Reduced to Practice (Garland New York 1979) A2 (originally published in 1660). The phrase is TE Holland’s. It is cited by OW Holmes in his ‘Review of TE Holland “Essays upon the Form of the Law”’ in The Collected Works of Justice Holmes SM Novick (ed) (University of Chicago Press Chicago 1995) vol 1, 223 (originally published (1870) 5 American L Rev 114). eg Phillipps (n 20); Finch (n 20) and H Finch Law, or a Discourse Thereof (AM Kelly Publishers New York 1969) esp book 1 (originally published in 1627). On the efforts of Hale and Wood to this end, see SFC Milsom Studies in the History of the Common Law (Hambledon Press London 1985) 203–4. F Bacon ‘Maxims of the Law’ (originally published in 1630) in J Spedding RL Ellis and DD Heath (eds) Works of Francis Bacon (Brown and Taggard Boston 1860–64) vol 14, 171–276. ibid 182. F Bacon ‘Examples of a Treatise on Universal Justice’ De Augmentis Scientiarum (facsimile edn Garland New York 1978) book 8 aphorism 85. Coke (n 2) 6th Report Preface in Boyer (n 15) 29.
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Fifthly, the artificial reason of common law was thought of as essentially discoursive,27 that is, as a matter of deliberative reasoning and argument in an interlocutory, indeed forensic, context. From the birth of the common law in the 12th century, legal experts were esteemed as disputatores, masters of oral advocacy.28 In the early 17th century, John Dodderidge wrote that the unwritten common law was deposited in the experience and memory of practitioners ‘thence to be deduced by deceptation and discourse of reason: and that when occasion should be offered, and not before’.29 Common law, in his view, is reason ‘tried and sifted upon disputation and argument’.30 When a doubtful question is proposed, the truth is found out by argument, debate, and discourse of reason on both parts, as in all our law-arguments appeareth; and therefore such debate and conflict of reason is said to be the flail whereby the corn is severed from the stubble.31
Through argument, Coke wrote, the light of reason is shed on the law; thus, ‘to reason’ and ‘to engage in discoursive argument’ are often taken as synonyms.32 Coke also made explicit a point that is only implicit in Dodderidge’s thought: this disputation is forensic. In difficult cases, Coke argued, no individual alone, outside a court of justice, could ever discover the right reason of a rule of common law. For no one man alone with all his true and uttermost labours, nor all the actors in them themselves by themselves out of a court of justice nor in court without solemn argument (where (I am persuaded) Almighty God openeth and enlargeth the understanding of the desirous of justice and right) could ever have [come to the right reason of the rule].33 (emphasis added)
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I use this obsolete term not only because it was current in the 17th century, but also because it captures the interlocutory as well as the reasoning aspect of common law reason. See Oxford English Dictionary (n 17). MT Clanchy From Memory to Written Record (2nd edn Basil Blackwell Oxford 1993) 248–50. Dodderidge (n 13) 241. Note ‘deceptation’ (or ‘disceptation’) is an archaic term meaning ‘disputation, debate, or discussion’. ‘To discept’ is to dispute, debate, express disagreement or difference of opinion. See Oxford English Dictionary (n 17) and T Hedley ‘Speech in Parliament on Royal Impositions’ in ER Foster (ed) Proceedings in Parliament, 1610 (Yale University Press New Haven 1966) 178. Dodderidge (n 13) 242. ibid 63. Later he wrote (at 241): ‘it is more convenient and profitable to the state of the common wealth to frame law upon deliberation and debate of reason, by men skilful and learned in that faculty, when present occasion is offered to use the same, by a case then falling out and requiring judicial determination: for then it is likely, with much more care, industry and diligence to be looked unto; and much more time of deliberation is there taken for the mature decision thereof, then otherwise upon the establishing of any positive law [ie parliamentary legislation]’. He goes on to quote predecessors in his post as Chief Justice of Common Pleas who wrote (in law French), ‘[o]ne shall not know of what metal a bell is made until it is well beaten; nor can the law be well known without disputation’ and ‘I have disputed this matter in order to learn the law’: Coke (n 3) ‘Epilogus’. Coke (n 2) 9th Report Preface xiv.
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Only in the process of argument, regarding concrete cases, in open court subject to reasoned challenge, is law to be found and forged. Cases in common law ‘are never adjudged or resolved in tenebris or sub silentio suppressis rationibus (in darkness or in reason-suppressing silence); but in open court, and there upon solemn and elaborate arguments’.34 Reasonable judgment had the legitimacy of law, Coke argued, only when judges sat judicially, that is, only when reason was exercised with the benefit of and when accountable to the public forum of forensic deliberation and argument.35 The form and structure of legal reasoning are decisively shaped by the fact that it is designed to be presented in a public forum in which the reasoning is open to explicit challenge. Edward Levi’s classic 20th century description of common law reasoning nicely captures this 17th century view: The law forum is the most explicit demonstration of the mechanism required for a moving classification system. … [This forum] requires the presentation of competing examples. The forum protects the parties and the community by making sure that the competing analogies are before the court. The rule which will be created arises out of a process in which if different things are to be treated as similar, at least the differences have been urged.36
The practice of ‘artificial reason’ disciplined individual reason in three important ways. First, it demanded fidelity to the body of recorded experience of argument and decision. This shaped decisively the kinds of arguments that could be put forward for any contested legal claim. As Milsom once put it, ‘the reasoning adopted yesterday may not have caused yesterday’s result; but it governs the terms in which today’s dispute is put to a court, or is not put because the lawyers cannot now make a case of it’.37 Artificial reason disciplined individual reason, secondly, by subjecting every judgment and argument to cross-examination in a public forum according to public standards of success and failure. Thirdly, artificial reason forced the practitioner of this art of reasoning to strive for common judgment in the face of dispute and disagreement. This leads me to the final salient characteristic of the artificial reason of common law. Finally, the reason of common law was regarded as common or shared. It was not ‘natural’ in the sense of being merely a capacity of individuals exercised separately; hence, Coke’s contrast between the artificial reason of the common law and private natural reason. Artificial reason was an intellectual competence, a discoursive faculty, that was learned like all other disciplines through participating in a common practice. In this case, it was the practice of public forensic argument, situated and 34 35
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ibid 9th Report Preface xiv. CM Gray ‘Reason, Authority, and Imagination: The Jurisprudence of Sir Edward Coke’ in P Zagorin (ed) Culture and Politics from Puritanism to the Enlightenment (University of California Press Berkeley 1980) 53 fn 18. E Levi An Introduction to Legal Reasoning (University of Chicago Press Chicago 1949) 4–5. SFC Milsom ‘Reason in the Development of the Common Law’ (1965) 81 LQR 496, 498.
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moving about in a world of recorded experience of ‘human affairs and conversation’.38 Part of the point of insisting on the exercise of ‘discoursive’ reason in court was to reap the benefits of many participants in the deliberative enterprise, but it was also to bring home that the deliberative activity is never solitary, never done for one’s own part only. The artificial reason of the law is common reason. The philosopher and theologian are not suited for this task, we have seen Hale argue, for it is not an enterprise of discovery, through exercise of abstract reason, of general practical principles, but rather an enterprise of judging particular cases through a grasp of concrete relations and arrangements woven into the fabric of common life.39 In his History, Hale traced the process by which a judge seeks the ground for a decision in a particular case. The judge goes first, said Hale, to the settled common law and custom of the realm, then to authorities and decisions in past cases, and finally to ‘the common reason of the thing’.40 This, of course, is not the Hobbesian idea that once the sources of law run out the judge must appeal to his natural reason, or the civilian view (adopted by equity courts) that the judge must appeal to conscience. Rather, Hale’s judge goes back again to the cases and the ‘human conversations’ in which they are rooted and by sensitive judgment aided by analogy to other relevantly similar cases finds a solution. The judge seeks the common reason of the thing. Hale elaborated this thought with an example of making legal sense of a covenant. The judge, unlike the ‘bare grave grammarian or logician, or other prudent men’, sets the words into the context of his understanding of the concrete commerce of the parties, other cases ‘agreeing in reason or analogy with the case in question’, and his understanding of the practice of making sense out of such agreements, and on this basis comes to a reasoned grasp of the covenant. Doubtless, he said, ‘a good common lawyer is the best expositor of such clauses …’.41 Common reason of the judge is juridical common sense. The use and acceptance of the law rested on a shared sense of its reasonableness and historical appropriateness. It was thought insufficient that each member of the law community believes the rules reasonable, or wise; they acted from the conviction that this sense was shared, a sensus communis. This learned capacity for reflective judgment—jurisprudence, we might call it—is a social capacity: the ability to reason from a body of shared experiences with normative significance to solutions for new practical problems. It is to judge what one has good reason to believe others in the community would regard as reasonable and fitting. These judgments can be made with confidence, not because one is a good predictor of others’ behaviour, but because one understands at a concrete level the common life in which we all participate. To become fluent in the language of ‘human affairs
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Hale (n 9) 503. ibid 502–3. M Hale The History of the Common Law of England CM Gray (ed) (University of Chicago Press Chicago 1971) 46 (originally published in 1713). ibid.
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and conversation’42 is to acquire the social capacity to make judgments that even in novel cases one can be confident will elicit recognition and acceptance as appropriate in one’s community. This explains in part the willingness of the common law judge to be satisfied with merely local coherence, rather than broad theoretical coherence of a single moral vision or systematic rationality. Artificial reason seeks to secure effective practical outcomes through convergence of judgment on common solutions. From this perspective, larger theoretical coherence, when it does not serve the end of convergence of judgment, is at best a luxury, and more typically an obstacle to achieving that end. Common lawyers were sceptical of claims of large theoretical coherence because they suspected that they were likely to be made by individuals who fancied themselves to have climbed Mount Pisgah and have seen the Promised Land. But law, common lawyers maintained, is not concerned with the moral vision of any individual, however appealing or compelling it may seem, but rather with the convergence of the views and judgments of the larger community, and forging and maintaining a common sense of reasonableness. Salience, not vision, and pragmatic convergence, not theoretical coherence, are its aims, in their view. In this respect, it appears, common law ‘reason’ challenged both natural law and positivist views of law. It is the source of the unsystematic character of artificial reason that we observed earlier. We can conclude, then, that the reason of common law is ‘artificial’ not because it rests on some special insight or intuition vouchsafed only to those initiated into the professional mysteries, but rather because it is the disciplined practice of argument and disputation in a public forum—an art that had been called ratio artificialis long before Coke gave it currency in common law jurisprudence.43 Common law artificial reason is ‘artificial’ in much the same way that Hume thought of justice, promising, and contract as ‘artificial virtues’.44 It is ‘artificial’ in the sense of being the product of reflective practical experience, as opposed to untutored individual intuition or a natural capacity for deductive reasoning exercised in abstraction from the concrete details of ordinary life. ‘Artificial’ is opposed to ‘natural’ in this
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Hale (n 9) 503. JW Tubbs The Common Law Mind: Medieval and Early Modern Conceptions ( Johns Hopkins University Press Baltimore 2000) 167, relying on A Giuliani ‘The Influence of Rhetoric on the Law of Evidence and Pleading’ (1962) 7 Juridical Rev 216–51. Boyer points out that this idea of ‘artificial reason’ was familiar to Elizabethan ears. In 1588, Abraham Fraunce wrote: ‘Logic is an art, to distinguish artificial logic from natural reason. Artificial Logic is gathered out of diverse examples of natural reason, which is not any art of logic, but that ingraven gift and faculty of wit and reason shining in the particular discourses of several men, whereby they both invent, and orderly dispose … This as it is to no man given in full perfection, so diverse have it in sundry measure … And then is the logic of art more certain than that of nature, because of many particulars in nature, a general and infallible constitution of logic is put down in art’: The Lawiers Logike, Exemplifying the Praecepts of Logike by the Practise of the Common Lawe B.ii in Boyer (n 19) 49. D Hume A Treatise of Human Nature LA Selby-Bigge (ed) rev by PH Nidditch (2nd edn Clarendon Press Oxford 1978) book 3 pt II.
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sense, not (or not so much) as ‘professional’ is opposed to ‘lay’, but as ‘experienced’ is opposed to ‘naïve’, and as ‘social’ is opposed to ‘individual’ or ‘private’.
B P RECEDENT
AND
S TATUTE
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C OMMON L AW J URISPRUDENCE
Precedent, though it be evidence of law, is not law itself, much less the whole of the law.45 It has always been the duty of the common-law court to perceive the impact of major legislative innovations and to interweave the new legislative policies with the inherited body of common-law principles—many of them deriving from earlier legislative exertions.46
Artificial reason was a discipline of reasoning. Its resources, what Hale called the three ‘formal constituents’ of the common law, were usage and custom, Acts of Parliament, and decisions of the courts of justice.47 By the latter part of the 17th century, when the History was written, this trio would have been regarded as orthodoxy. We have already discussed the role of usage or custom in common law jurisprudence; it remains for us to locate statute and precedent in this scheme of ideas. Before we can proceed any farther we must observe one caveat. From our latter day perspective, it appears that Hale identified three canonical sources of law in England; valid common law rules, we might be tempted to say, are rules that can be traced to one of these three sources. But, while it is clear that Hale identified the three as distinct origins (‘originals’) of common law, it is much less clear that he regarded them as sources in the sense used in our contemporary jurisprudence. Although he does here call them ‘formal Constituents’ which ‘gives the authority’,48 just a page earlier he argued that ‘the Strength and Obligation, and the formal Nature of a Law’ depended not on their historical origin, but rather on ‘their being received and approved’ in the kingdom.49 We have already seen that for Hale, and all his contemporaries, while custom was an important source of common law it was not in itself a ground of validity. This suggests strongly that we must proceed with equal circumspection with regard to the other two of the common law’s ‘originals’. 1 Precedent Let us begin with ‘decisions of courts of justice’.50 We noted earlier that, in the early days of the common law, reporting of cases tended to focus on the pleadings 45
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Jones v Randall (1774) Lofft 383, 386; 98 ER 706, 707 (Lord Mansfield) also reported (in a different form) ‘[p]recedents serve to illustrate principles and to give them a fixed certainty’: 1 Cowper 37 (KB) 39; 98 ER 954, 955. Moragne v States Marine Lines 398 US 375, 393; 90 S Ct 1772 (1970) 1784 (Harlan J). Hale (n 40) 44; see also ch 4 esp 44–46. ibid 44. ibid 43. ibid 45.
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and exchange of argument in court with little or no attention to the actual decision. Reporting became more systematic over the centuries, and lawyers and courts increasingly paid attention to the decisions and reasoning of judges in important prior cases.51 Reporting was spotty and often unreliable, but inferior reporting was not the main constraint on the development of a doctrine of stare decisis. More formidable was the common view that ‘precedents and usages do not rule the law, but the law rules them’, and its companion non exemplis sed rationibus adjudicandum est (judging follows reason not examples).52 That is, denial of strict binding force of a given decision had a principled rationale rooted in the common law conception of law from early in its development. Except for the particular parties involved directly in the litigation, for which the decision was res judicata, the legal significance of a case, in the eyes of a common lawyer, lay in the nature and quality of the argument in the precedent case. This was common law orthodoxy. Hedley argued, ‘judges will not think one judgment sufficient to lead them to give the same judgment without informing them the reasons whereupon the former judgment was granted.’53 Of course, this was not meant to deny all force or legal relevance of judicial decisions, but rather to undermine the claim to strict binding authority of a single judicial decision. Stare decisis was not a doctrine of common law before the 18th century.54 The gradual appearance of more sophisticated (albeit, by modern standards, still primitive) recording techniques in the 17th century did not fundamentally alter this underlying doctrine, although its articulation became more sophisticated. Judicial decisions, Hale maintained, although they bind ‘as a law between the parties thereto, as to the particular case in question, until reversed by error or attaint, yet they do not make a law properly so called, (for that only the King and Parliament can do)’.55 I will return presently to the intriguing parenthetical phrase, but for now it is clear that Hale denied that judicial rulings have precedential effect in the common law of his day, although they clearly have the authority of res judicata between litigants. Vaughn CJ, writing about the same time, explained the view: If a Court give judgment judicially, another court is not bound to give like judgment, unless it think that judgment first given was according to law. For my court may err … therefore, if a judge conceives a judgment given in another court to be erroneous, he
51
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53 54
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JH Baker The Common Law Tradition: Lawyers, Books, and the Law (Hambledon Press London 2000) 162–64. YB 5 Edw IV Long Quinto MS folio 110 in Tubbs (n 43) 45. See also Baker (n 51) 160 and fns 133–34. Hedley (n 29) 172. AWB Simpson ‘The Common Law and Legal Theory’ in AWB Simpson (ed) Oxford Essays in Jurisprudence (2nd series Clarendon Press Oxford 1973) 77–99; CM Gray ‘Parliament, Liberty, and the Law’ in JH Hexter (ed) Parliament and Liberty From the Reign of Elizabeth to the English Civil War (Stanford University Press Stanford 1992) 157–58. Hale (n 40) 45.
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being sworn to judge according to law, that is, in his own conscience ought not to give the like judgment, for that were to wrong every man having a like cause.56
Similarly, a century later, Blackstone wrote: ‘the law and the opinion of the judge, are not convertible terms, or one and the same thing; since it may happen that the judge may mistake the law’.57 The ‘error’ Vaughn had in mind is inconsistency with established doctrine of law. Hedley suggested what might first appear at least to be a broader measure of error, namely, ‘the touchstone of reason and the trial of time’.58 But in view of the way in which ‘reason’ was used in 17th century common law jurisprudence, as we explored above, these two views may not be very far apart. (Vaughn is not likely to have understood consistency with law in its narrowest sense and Hedley is not likely to have understood ‘the trial of reason’ to open the door to full-scale appeal to external standards of justice and reasonableness.) The central point both are making is that no single judicial ruling has the authority of law (beyond the parties) just in virtue of the judge’s having so decided, and it is always open to future judges to test any prior court’s formulation of a rule or doctrine of common law in light of the legal community’s shared sense of reasonableness. Only insofar as the decision can be integrated into the body of the law—made consistent and reasonably coherent (at least within its local context)— and is taken up in the deliberation and argument of the legal community, is it to be given legal credit. Hedley argued further that the very authority of common law as a whole (its claim to be ‘tried reason’) depends on the flexibility and opportunity for judicial testing and re-evaluation made possible by this loosened doctrine of precedent. For, he argued, if a judgment once given should be peremptory and trench in succession to bind and conclude all future judges from examining the law in that point or to vary from it, then the common law could never have been said to be tried reason … for it should then be grounded merely upon the reason or opinion of 3 or 4 judges … [Therefore no] judgment should be so sacred or firm that it may not be touched or changed, [for then] the
56
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Bole v Horton in J Vaughn The Reports and Arguments of That Learned Judge, Sir John Vaughn (London 1677) 360, 382 in Tubbs (n 43) 182 fn 11. W Blackstone Commentaries on the Laws of England (Clarendon Press Oxford 1765–69) vol 1, 71. Hedley (n 29) 178. Hedley wrote: ‘[s]o you see that great and general mischiefs to the commonwealth are of sufficient weight to overrule both precedents and judgments, for as no unreasonable usage will ever make a custom (pleadable in law) to bind within any manor or town, so no unreasonable usage (prejudicial to the commonwealth) will ever make a law to bind the whole kingdom. For whatsoever pretended rule or maxim of law, though it be colored or gilt over with precedents and judgments, yet if it will not abide the touchstone of reason and the trial of time, it is by counterfeit stuff and no part of the common law.’ It must be admitted that in this passage Hedley does seem to go a bit further than Vaughn by appealing to ‘great and general mischiefs to the commonwealth’ as a ground for claiming the unreasonableness and hence the legal invalidity of an alleged precedent, but on the whole his views of the criteria of ‘reasonableness’ are strictly orthodox.
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parts of the common law could never have so good a coherence or harmony as now they have.59
The authority and force of any component of the common law depends on its integration into the framework of the whole and its satisfaction of a shared sense of reasonableness rooted in this framework. If a judicial ruling is entrenched and regarded to be peremptory, thereby blocking all subsequent assessment of its reasonableness and coherence with the whole (in the forensic context of ‘disceptation’), Hedley argued, then the common law in general could no longer claim authority. Thus, reported legal decisions, on this view, are merely the formal record of the use and practice of the courts. According to Hale, although judicial decisions fail to make law properly so-called, ‘they have a great weight and authority in expounding, declaring, and publishing what the law of this kingdom is.’60 They are the best evidence of the law. A century later Mansfield wrote in the same vein: ‘precedent, though it be evidence of law, is not law itself, much less the whole of the law.’61 This view still has currency in some common law jurisdictions. For example, an American appellate court wrote in 1942 that the common law ‘inheres in the life of society, not in the decisions interpreting that life; and, while decisions are looked to as evidence of the rules, they are not to be construed as limitations upon the growth of the law but as landmarks evidencing its development.’62 Common law jurisprudence resolutely resists the theoretical pressure to identify law with canonically formulated, discrete rules of law. Law, on this view, is not a set of rules or laws, but a practised framework of practical reasoning and this practised framework constitutes a form of social ordering. Its rules and norms can be formulated, perhaps, but no such formulation is conclusively authoritative; each is in principle vulnerable to challenge and revision in the course of reasoned argument and dispute in the public forensic context. At this point, a tension in the common law understanding of law emerges concerning the role of principles in common law reasoning. At one end of the spectrum was the view that stressed the role of general justifying principles in legal reasoning. Lord Mansfield, in the 18th century, may have been the most vigorous advocate for this view. Precedents served ‘to fix principles,’ but, as we have seen, he insisted that precedents were not law but evidence of law. The law, he argued, ‘does not consist in particular cases; but in general principles, which run through
59 60
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ibid 178–79. Hale (n 40) 45. Coke also wrote ‘our books cases are the best proofs [of] what the law is’: Coke (n 3) 254a. Jones v Randall (1774) Lofft 383, 385; 98 ER 706, 707 in D Lieberman The Province of Legislation Determined (CUP Cambridge 1989) 126; see also Blackstone (n 57) 69. Barnes Coal Corp v Retail Coal Merchants Association 128 F 2d 645 (4th Cir 1942) 648. See also Story J’s opinion in Swift v Tyson 41 US 1 (1842) 18–19.
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the cases, and govern the decision of them.’63 Common law precedents illustrate the law’s underlying principles. The idea that certain ‘maxims’ or ‘postulates’ of a very general nature run through the common law and give it structural soundness was familiar to readers of Fortescue (15th century) and especially St German (16th century), but Bacon, the contemporary and life-long rival of Coke, seemed to be its most ardent 17th century champion. In his ‘Maxims of Law’ (the largest part of his Elements of the Common Laws of England), Bacon sought to collect and arrange ‘the rules and grounds dispersed throughout the body of the same laws.’64 In settled cases, he maintained, a grasp of such principles would enable one ‘to see more profoundly into the reason of such judgments and ruled cases and thereby to make more use of them for the decision of other cases more doubtful.’65 In cases in which authorities vary or conflict, his maxims would enable one ‘to confirm the law, and to make it received in one way.’66 And in novel cases, they would enable one ‘to sound into the true conceit of law by depth of reason’.67 Bacon regarded the maxims he identified as general dictates of reason that run through the different matters of law providing its rationale, points of leverage from which criticism can be directed against it, and general grounds for decision, especially in novel or contested cases. At the other end of the spectrum was the view that the law was implicit in the practice of court and country as recorded in the body of decided cases. On this view, judicial reasoning involved exercising trained judgment and reflecting upon similarities and dissimilarities among cases (arguing a similibus ad similia, as Bracton recommended). It was seen as a kind of common law phronesis responding to all the particular circumstances of the instant case. Hale’s ‘Reflections’ on Hobbes’s Dialogue suggests this view of common law judging. He rejected as ‘the worst judges that can be’ those moral philosophers and schoolmen who seek out broad principles of justice and right but are entirely out of touch with ‘human affairs and conversations.’68 They are completely unable to measure right and wrong when it comes to particulars. This is due to the fact that ‘[s]carce two moral actions in the world are [in] every way commensurate.’69 The circumstances of moral actions ‘are so various and their influx into moral actions so different and so difficult to be discerned, or adequately estimated, that the making of laws touching them is very difficult.’70
63
64 65 66 67 68 69 70
Rust v Cooper (1777) 2 Cowper 629 (KB) 632; 98 ER 1277, 1279 in Lieberman (n 61) 126. Ch 6 of Lieberman’s book is an excellent discussion of Mansfield’s conception of common law and its common law critics. Bacon (n 23) 179. ibid 180. ibid. ibid. Hale (n 9) 503. ibid 504. ibid.
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However, it would be a mistake to deliver up common law jurisprudence to either of these camps. This is clear from our discussion of the notion of ‘artificial reason’ at the centre of common law jurisprudence. Common law jurists did not treat particular decisions, and the special features of the cases they sought legally to address, as irrelevant. Indeed, Bacon ‘gathered and extracted’ his maxims ‘out of the harmony and congruity of cases.’71 Like St German, Bacon was convinced that his maxims’ claim to authority rested in those cases alone. ‘In all sciences,’ he wrote, ‘they are the soundest that keep close to particulars.’72 The rules or maxims thus extracted were not identified with the law; they ‘point at the law’ rather than ‘settle it’, according to Bacon.73 Similarly, while Hale vigorously argued that judicial reasoning is at its best when it is fully in touch with the complex texture of human affairs and conversations, there is little doubt that he did not embrace particularism. He was very willing to accept and promote the idea that it is useful and important from a moral and practical point of view to reflect on the underlying general reasons and grounds of the particular judgments of common law. Even so, like Bacon on this point, he firmly believed that general principles are uncovered through reflection on particular cases, and not through abstract reasoning alone. In his typical common law manner, he thought that theory, if we may call it that, is always driven by cases, and never decisions and cases by theory. The capacity common law jurists called ‘artificial reason’ was a distinctively deliberative, discoursive capacity, not an ability to have the right hunch, but an ability to articulate and defend judgments publicly. The reasoning of common law jurisprudence may have been predominantly analogical, but that did not make it, in the view of common law jurists, any less a form of public reasoning, of ‘deceptation and discourse of reason,’74 as Dodderidge put it. We come, then, to the critical question: is it possible to say that classical common law jurisprudence recognized binding precedent? The answer is yes, if we do not take as our model the conception of precedent that Anglo-American jurisprudence inherited from Hobbes (through the especially effective work of John Austin). For, it is not possible to fit the view of individual judicial decisions as delegated sovereign commands—practical judgment pre-empting directives—as Hobbes insisted.75 However, if we broaden our view of precedent and its alleged authority somewhat, it is possible to find a place for a notion of binding precedent in common law jurisprudence. It seems to have the following features.
71 72
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Bacon (n 23) 181. F Bacon ‘A Proposition to his Majesty … Touching the Compiling and Amendment of the Laws of England’ in J Spedding (ed) The Letters and the Life of Francis Bacon (Longman London 1861–74) vol 6, 67 in G Burgess The Politics of the Ancient Constitution: An Introduction to English Political Thought, 1603–42 (Pennsylvania State University Press University Park 1993) 55 fns 114–15. Bacon (n 25) 106. Dodderidge (n 13) 241. T Hobbes Leviathan CB Macpherson (ed) (Penguin Books Baltimore 1968) 303 (originally published in 1651).
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First of all, past judicial decisions claim judicial respect and attention not by virtue of merely having been decided—laid down or posited—but by virtue of having been taken up by subsequent courts and thereby having found a place within that body of common experience. They have this place because they were the product of a process of discoursive reasoning and contextually-situated reflective judgment. Secondly, while individual cases are not regarded as establishing authoritative rules, they are taken to illustrate the operation of proper legal reasoning, to exemplify the process of reasoning within the body of experience. Thirdly, past cases do not preclude deliberation and reasoning in subsequent cases, but rather they invite and focus that reasoning. The prior court’s formulation of the issues, and the reasons for resolving them as it did, and the rule on which it rested its decision, are not regarded as final. It is always open to judges in the future to test any precedent court’s formulation of the rule of its decision in light of the legal community’s shared sense of reasonableness. Hence, subsequent courts participate with the precedent court in reasoning about issues raised by the case and extend that reasoning to the case before them. Yet, judicial formulations of the issues and the rules are due considerable respect, because the prior court has claim to expert authority. Judicial decisions, Hale wrote, ‘have a great weight and authority in expounding, declaring, and publishing’ the law.76 There are three respects in which judicial decisions can be regarded as ‘binding’ although they are not sufficient to support a strong principle of stare decisis. First, according to common law, past decisions alone provide the necessary exemplars of proper legal reasoning. Secondly, the accumulated body of cases records the authoritative context of common experience within which alone such practical reasoning must take place and into which any particular decision must be integrated. Finally, as Blackstone observed, it is usually necessary for judicial decisions to follow precedent in order ‘to keep the scale of justice even and steady, and not liable to waver with every new judge’s opinion.’77 Hence, Hedley argued, ‘judgments ought to have their due reverence and not … be departed from but upon weighty occasions.’78 2 Statutes The attitude of common lawyers towards statutes was complex and conflicted, especially in the heyday of classical common law jurisprudence. In the 17th century the common law courts were still struggling to some degree to establish hegemony on two fronts. On the one hand, they sought to exercise control or assert superiority over other adjudicative institutions in the nation, especially Chancery’s equity jurisdiction, but also the multitude of lesser courts including admiralty, 76 77 78
Hale (n 40) 45. Blackstone (n 57) 69. Hedley (n 29) 178.
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ecclesiastical, merchants’ courts, and a variety of local manorial courts. At the same time, they sought to define and control the legislative efforts of the monarch (exercising its royal ‘prerogative’ powers) and of Parliament. It is a disputed question, both among 17th century constitutionalists and among modern historians of the 17th century, whether Parliament was properly conceived of as a legislative body. Some argued at the time that Parliament sat as the ultimate court of common law, whose task was merely to declare, and in some cases to clarify, the existing law. Others argued, and modern historians now tend to agree, that Parliament had and exercised full law-making power, although it did so rarely. However that debate may have stood in England in the early years of the 17th century, by the last third of the century it was no longer possible to deny the legislative power of Parliament. This forced common law jurisprudence to address directly the role of the products of parliamentary legislation in the common law of England. Typically, common lawyers in this era contrasted the reasoned and considered judgments of the courts with the arbitrary and heedless legislation of Parliament. The latter they regarded as the product of a temporary aggregate of wills rather than the product of publicly deliberated common judgment.79 Because legislators were not constrained by any rational discipline beyond the political pressures of the moment, even the most reasonable of them could not be expected to create laws that fitted coherently into the common law or the common life of the people. Moreover, legislation, commands of a sovereign law-maker, represented an inherently troubling exercise of power in the eyes of common lawyers. For, as Blackstone put it, making law and imposing it on subjects, ‘is the greatest act of superiority that can be exercised by one being over another.’80 Legislation, it was assumed, is a matter of the exercise of will of one party over another; hence, the unique appropriateness of the model of a command for law so conceived. Yet, these largely political objections could not drive out the increasingly obvious political fact that Parliament was making law and its efforts needed to be reconciled with common law jurisprudential doctrine. Already in 1610, Hedley asserted boldly, ‘the parliament hath his power and authority from the common law, and not the common law from the parliament.’81 From this premise, which clearly echoed Bracton’s influential lex facit regem doctrine, Hedley concluded: the common law is of more force and strength than the parliament … The parliament may find some defects in the common law and amend them … But that the parliament may abrogate the whole law, I deny, for that were includedly to take away the power of the parliament itself, which power it hath by the common law.82
79
80 81 82
Such criticism can be found for example in Hedley at the beginning of the 17th century: ibid 175, and in Blackstone a century and a half later: Blackstone (n 57) 10–11. Blackstone (n 57) 46. Hedley (n 29) 174. ibid.
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Emboldened by this sentiment Coke, in Dr Bonham’s case, was willing to assert the power of common law courts to invalidate parliamentary legislation on the grounds of its unreasonableness.83 Even in this period before the vigorous articulation of a doctrine of parliamentary sovereignty, few common law judges would have regarded such a position as credible. It was much more common for the courts merely to interpret and stretch statutory language wherever possible to make it consistent with basic common law doctrine and integrate it into the body of the common law. This was not much different from the way the common law courts dealt with their own past decisions. In the 1670s, Hale articulated a subtle account of the relationship between enacted law and common law that remained influential until Blackstone and beyond.84 Recall, first, that Hale argued in his History that debates over the antiquity of common law were wrongheaded. It was impossible to deny that the common law over its long history had been subject to a great deal of change (some of the most dramatic changes being the result of royal legislation). No part of the law, including laws authorizing law-making, had been immune to change. Yet, the common law, like the Argonauts’ ship, maintained its identity and integrity. Continuity, he insisted, not antiquity, was the key. The ‘formal and obliging force’ of common law lay not in its origin but in ‘long custom and use.’85 It was the present reasonable conviction that the laws fit well together and over time come to fit the common life of the English people—‘incorporated into their very temperament, and … constitution of the English commonwealth’86—on which its authority rested proximately, if not ultimately. Recall also, that Hale distinguished between written and unwritten law. As Hale understood them, these terms did not refer to two kinds of laws, but rather to two modes of existence of law, or forms of legal validity. Some laws were valid by virtue of having been explicitly made by an authorized law-maker; other laws were valid by virtue of custom and usage, that is, by virtue of incorporation into the common law. The class to which a given rule or doctrine was assigned was not determined by the way it came into being, but by its present mode of validity. The validity of written law was a function of its having been enacted according to established constitutional rules. Unwritten law, regardless of its origin, drew its authority from its incorporation into the use and practice of common law.
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Dr Bonham’s case (1610) in Coke (n 2) 8th Report 117a–21a. The extent to which Coke claimed for common law courts the right of judicial review of parliamentary legislation in Dr Bonham’s case has been hotly debated by legal historians. See eg A Cromartie Sir Matthew Hale, 1609–1676: Law, Religion and Natural History (CUP Cambridge 1995) 27–29 and JR Stoner Common Law and Liberal Theory: Coke, Hobbes, and the Origins of American Constitutionalism (University Press of Kansas Lawrence Kansas 1992) ch 3 and references cited there. I have explored Hale’s account at greater length in Postema (n 11) 19–27. I summarize that treatment here. Hale (n 40) 17, 43. ibid 30.
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The process of incorporation or integration worked on precedent and statute alike. Only through continual use, exposition, interpretation, and extension— through being taken up and appropriated by practitioners of the common law— was a novel rule or doctrine made part of the common law. Likewise, through ‘contrary usage’ the opposite effect was also possible: the doctrine could be narrowly limited. Precedents, for example, might be ‘distinguished’ to the point of limitation to their particular facts. The same might happen also to laws initially introduced by legislative act. The statute might not be taken up and incorporated into common law practice, but rather it might be narrowly interpreted, limiting its scope and legal significance. While the laws authorizing its creation exist, the statute remains valid law, but it would lack any significant impact on the law. Moreover, statutes that are not eventually incorporated are vulnerable to changes of constitutional or law-making authority. This, Hale speculated, is probably what happened to many ancient statutes that did not survive in memory. The continuity of law, on this view, is guaranteed not by some Ur-norm according to which a validly enacted rule remains valid until repealed,87 but rather by the more strenuous test of incorporation into the use and practice of common law judges and lawyers, and more fundamentally (and more indirectly) into the use and practice of the people. The common law and its custom, Hale insisted, was ‘the great substratum’ of the law.88 Thus, Hale claimed that the status of statutory law, which initially has greater claim than precedent to treatment as valid law, can change; indeed, he suggested that if it is ultimately to survive, it must change from resting on formal rules of authorized law-making to proper membership in the normative family of common law, membership that depends on integration that can be secured only in substantive terms. This represents a shift from formal to substantive validity, from dependence on so-called ‘content independent’ criteria of validity to substantive integration into the life of the law (and, perhaps, the community to which it gives structure). The normative foundations of this substantive integration, I shall argue presently, lie proximately in covenant-modelled consent and ultimately in divine command arising again out of a covenant-like relationship. But, if this is a natural law foundation, it operates at a considerable distance from the ordinary workings of adjudication and legal reasoning as conceived by Hale and his colleagues. The substantive integration depended on a sense of reasonableness informed by the 87
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Hart endorses this explanation of the continuity of law in HLA Hart Essays in Jurisprudence and Philosophy (Clarendon Press Oxford 1983) 16, relying on analysis and argument in J Finnis ‘Revolutions and the Continuity of Law’ in Simpson (n 54) 61–65. Note that for both Hart and Finnis this norm is an explanatory postulate. They attribute it to courts ( judges ‘must tacitly accept’ it, says Hart) in order to explain why courts freely accord validity to statutes even after the ‘parent laws’ authorizing their enactment go out of existence. If the above interpretation is correct, Hale offers an alternative explanation, which has the virtue of being falsifiable. (To test his hypothesis, one would merely have to determine whether courts tend to endorse as valid orphaned statutes even though the courts regard the statute as failing the ‘incorporation’ standard.) Hale (n 40) 46.
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practice. Let us now turn to explore the view of common law jurists regarding the normative foundations of the practice. In what, we may ask, rests the binding authority of the law construed in the distinctive common law way?
C N ORMATIVE F OUNDATIONS
OF
C OMMON L AW
1 Wisdom of the Ages We have seen in part I that, when early 17th century common law jurists (or at least those sympathetic to the Davies–Coke approach) tried to defend the common law’s claim to legitimacy, they appealed to one of two different ideas: the refining effects of time (the ‘wisdom of the ages’ argument) or the artificial reason of law. Especially in Coke’s view these two notions were not clearly separated, but Coke left it unclear what the relation between them was and, more importantly, how they grounded the common law’s claim to authority. Common law’s claim on subjects and sovereign alike was said to rest on the fact that it was refined over time to the point of near perfection, a rich and ready repository of the experience of many wise generations of those who had gone before. It also claimed authority by virtue of the fact that common law was ‘nothing else but reason’. Sometimes it appears that the artificial reason of law was thought to be the most reliable means by which the law was refined, and its refinement achieved in this way brought it closer to some independent standard of reason or social wisdom. On this way of thinking, the fundamental normative idea was some sort of unarticulated and historicized natural law notion, and the idea of artificial reason was seen largely as the most reliable procedure for approximating this ideal condition. Paradoxically, on this view, although it seems to place the antiquity of the law at the centre of the account of its claim to legitimacy, history is far less important than it was made to seem, and in fact the history to which Coke and others like him appealed bordered on the mythological. At other times, however, it appears that the key idea was that of disciplined, artificial reason of law. Common law was said to be summa ratio (highest reason), the reason in question being the artificial reason of law, but this reason was in some sense internal to the law, not an external standard by which law was to be judged. But if this internal rationality of the law was not related further to some other standard, like wisdom of the ages, then we seem to be left again without any clear understanding of what this claim to rationality comes to, and more importantly, what normative force it thereby acquires. Moreover, Coke, Davies and their colleagues never made clear whether their appeal to the ancient wisdom of the common law, or its distinctive form of reason, was meant to establish common law custom’s validity as law, its status as normatively binding, and so good as law, or rather meant to convince us of the merits of the common law, that is, show us it is good (wise and venerable) law.
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For politically engaged and pragmatic jurists like Coke, these were not serious issues. The recognized rhetorical force of appeals to the reason of the law was sufficient for their purposes. Yet, some common law jurists, Selden and Hale most prominent among them, were motivated to explore these deeper theoretical issues. Although the distinction between the normative force of law and the goodness, wisdom or other merits of the law (or, in more familiar terms, the distinction between the validity of a law and its justice) was not always drawn clearly in the 17th century, Hale was aware of it. He endorsed something like Hedley’s view about the value of time and experience, but he also clearly maintained that the ‘strength and obligation and the formal nature of a law’ does not rest in any way on its antiquity.89 Similarly, while Hale gave a compelling defence of Coke’s notion of the artificial reason of the common law against Hobbes’s scathing criticism,90 he did not seem to think that Coke’s notion gave a complete account of the normative foundations of law. He maintained that the notion of artificial reason captured the law’s distinctive discipline of practical reasoning, and articulated a compelling notion of the rule of law, but he claimed no more for it than that. From other work written at about the same time,91 Hale made clear that we need to look beyond the idea of artificial reason for a satisfactory account of the normative foundations of law. The artificial reason of law, with all the features we outlined in the previous section, articulates a notion of reason entirely internal to the law. It does not give a full account of why anyone must take its claims to legitimacy and normative force seriously. For that purpose, Hale, like Selden, relied on the notion of consent and ultimately on an appeal to the law of nature. Hale wrote, ‘the strength and obligation, and the formal nature of a law, is not upon account that the Danes, or the Saxons, or the Normans, brought it in with them, but [rather that] they became laws, and binding in this kingdom, by virtue only of their being received and approved here’.92 Common law, on this view, is rooted in consent and consent was thought to be binding on sovereign and subject alike because it was rooted in the fundamental natural law injunction: fides est servanda.93 In one respect, the appeal to consent is orthodox common law doctrine, which can be traced back as far as
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Time, Hale wrote, is ‘the wisest thing in the inferior world; to wit time which as it discovers day after day new inconveniences, so it doth successively apply new remedies …’: M Hale ‘Considerations Touching the Amendment or Alteration of Lawes’ in E Heward Matthew Hale (Robert Hale London 1972) 156 (originally published in 1665); see also Hale (n 9) 504–5. Hale (n 9) 500–13 (Hale criticizing the first two chapters of Hobbes (n 7)). M Hale ‘Treatise on the Nature of Law in General and Touching on the Law of Nature’ British Library MS Hargrave 485, 485 (unpublished, undated, possibly written in the late 1660s). This Treatise is discussed briefly by Cromartie (n 83) ch 6. Hale (n 40) 43. That is, ‘faithfulness consists in keeping (agreements)’ or perhaps, inelegantly, ‘faith must be kept’. Another standard version of the natural law injunction reads ‘pacta sunt servanda’. This is clearly a narrower version, since pacta (contract or pacts) is narrower than fides (faith or faithfulness).
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Glanvill94 and Bracton95 and even behind that to the Justinianic code.96 However, in Hale’s hands this common law doctrine takes on a depth and complexity that are not immediately apparent in the terms ‘approval’ and ‘consent’. This is due, I shall argue, partly to the role of the notion of incorporation in Hale’s jurisprudential theory, and partly to his ‘covenantal’ understanding of consent. His account of the theoretical foundations of consent tends to reinforce this understanding. 2 Consent and the Common Law To begin, Hale and Selden held that the political constitution—the forms and structure of government and the various powers exercised by its constituent parts—owed its origins and continued validity to the consent of all parties concerned, and never solely to the will of the sovereign alone.97 This consent, they held, takes different forms: sometimes it is expressed in explicit acts of submission by the people or explicit grants of power by the monarch in charters or Acts of Parliament, and ‘sometimes by long custom and usage, which binds both prince and people, as well upon the presumption of such an agreement as by introducing a law, by long uninterrupted tacit submission and consent of both’.98 There are two noteworthy features of this view. First, it casts the relationship between monarch and the people in quasi-contractual terms. ‘To know what obedience is due to the prince’, Selden wrote in his Table Talk, ‘you must look into the contract betwixt him and his people; as if you would know what rent is due from the tenant to the landlord, you must look into the lease’.99 Hale viewed English laws in a very similar way.100 Secondly, Hale and Selden held that, although this relationship can arise from explicit agreements and even conquest, typically it is sustained by long custom and usage.101 From such constant usage of a kingdom or commonwealth we can determine the terms of the compact even if the original is lost in the mists of the past. But custom is not merely evidence of consent, it has
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100 101
R de Glanville The Treatise on the Laws and Customs of the Realm of England, Commonly Called Glanvill GDG Hall (ed) (Clarendon Press Oxford 1993) 2 (written in 1187–89). Bracton (n 6) vol 2, 19. ‘Law comes into being without writing when a rule is approved by use. Long-standing custom founded on the consent of those who follow it is just like legislation’: P Birks and G McLeod (tr) Justinian’s Institutes (Duckworth London 1987) 1.2.9, 38–39. For Selden’s views, see P Christianson ‘Young John Selden and the Ancient Constitution, ca 1610–18’ (1984) 128 Proceedings of the American Philosophical Society 271, 275–76; for Hale’s views see Hale (n 91) folio 10; Hale (n 9) 507; Cromartie (n 83) 46–49, 67 citing 1650 debate. M Hale Prerogatives of the King DEC Yale (ed) (Selden Society London 1976) 5 fn 1. I am indebted to Michael Lobban for calling my attention to this passage. See also Hale (n 9) 507. J Selden The Table Talk of John Selden SH Reynolds (ed) (Clarendon Press Oxford 1892) 100 in Nenner (n 4) 4–5. Cromartie (n 83) 46. In an unpublished manuscript Hale wrote ‘the original of government is either ab interno, by consent, or simple agreement, or ab externo by force and power, though that have something of consent too’: Lincoln’s Inn Misc MS 48, 1 in ibid 48 fn 43; see also Hale (n 9) 507.
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within it the normative power to make the quasi-contractual constitution: ‘[f ]or custom and usage hath not only a kind of declarative evidence what the original pact was in case there were any [or ‘of what the pact shall be presumed to have been’], but if it be constant and immemorial, it hath a kind of introductive or institutive power’—‘a power introductive of a right’.102 That is to say, the political constitution—regardless of the nature of its origin—is custom-made. The record of this consent is the common law, and custodians of this custom are the common law courts. This reminds one immediately of Hale’s characterization of common law itself, which, we have seen, was said to rest on reception and approval of the people and their sovereign. Indeed, this calls to mind Hale’s striking claim that the common law is the constitution of the English people—‘their very temperament ... the complection and constitution of the English commonwealth’.103 This encourages us to take a closer look at the notion of ‘consent’ at work here. Hale does not have in mind merely an attitude of passive acquiescence, nor is it a full fledged exercise of will on the part of each member of the commonwealth as represented by Hobbes and Locke. Consent is evidenced in, indeed constituted by, long usage, and long usage becomes part of the constitution of the people, a constitution defining the reciprocal relation between people and government. Two key ideas give distinctive structure to Hale’s notion of consent. One is the idea of integration we encountered earlier. The laws are approved or accepted by the whole people in virtue of and manifested in that law’s integration into the body of the law and, even more fundamentally, into their daily lives, an integration aided by distinctive deliberative activities of the common law courts. The second idea is that this approval is the manifestation of an on-going multilateral relationship with strong normative dimensions. Hale’s view of the normative foundations of common law is rooted in his understanding of this relationship. It is tempting (especially for philosophers) to read Hale in familiar Hobbesian terms, and to take the paradigm of the relationship in question to be that of two strangers exchanging promises, understood as exercises of individual arbitrary will on the part of each party. In such a case, voluntary exchange constitutes the relationship. We might then regard long usage and custom as a tacit version of this kind of event—‘tacit consent’ as a poor cousin of paradigmatic voluntary exchange. However, there is reason to think that Hale’s notion of consent draws on a different, older model. Hale’s moral views, like Selden’s, were greatly influenced by Puritan Calvinism.104 The dominant model shaping his understanding of the normative foundations of common law was not the contract of private law, but the covenant of Calvinist theology. The special relationship between 102
103 104
The main passage is taken from Hale (n 98) 7. The interpolated phrase and concluding phrase appear in Lincoln’s Inn Misc MS 48, 3. All are in Cromartie (n 83) 49. Hale (n 40) 30. The complex nature of Hale’s religious views is discussed by Cromartie (n 83) chs 9–11.
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God and His people served both as model for, and ultimate source of, the morally binding civic relationship. God is, of course, law-giver to the people of Israel and God’s commands included not only the Decalogue but also the detailed code of Leviticus. But God’s standing as law-giver, in Calvinist theology, is not sui generis, nor is it constituted by God’s sheer arbitrary and overwhelming power; rather, it is grounded in, and is an expression of, a deeper moral relationship between God and Israel. ‘I will be your God and you will be my people’ is the indispensable presupposition of God’s commandments. This relationship is not contractual but covenantal, characterized by mutual dependency, identity-shaping commitments, and resulting reciprocal obligations. On this model, consent, custom, and nature are very closely linked; consent does not generate a morally significant relationship through the exercise of will, but rather morally significant consent is manifest in this relationship. Something like this may also be at work in Hale’s account of the foundations of consent in the law of nature. 3 The Law of Nature: Fides est Servanda Hale’s understanding of the law of nature was greatly influenced by Selden’s De Jure Naturali,105 but he did not embrace radical voluntarism, as Selden at times did. In fact, Hale’s natural law theory had much in common with Suarez’s reconciliation of voluntarism and intellectualism at the beginning of the 17th century.106 According to Hale, law is an intelligible rule of moral action addressed to a being capable of understanding and will by someone with the authority to give such rules and the power to enforce them.107 Law, on this view, is a binding rational guide to action. Rational guidance is not sufficient—there are rules of art and grammar and physicians’ directives, but these are not laws, because they are not binding, they do not obligate.108 Obligation, on this view, is not only a special kind of normativity, but it is necessarily owed to someone. Thus, for there to be a law there must be a nomothetes, a law-giver but not necessarily a law-maker.109 The rational guidance offered by law is supplied by the rule that is given, its vis indicativa (directing power); the special obligating force, its vis imperativa, is supplied necessarily and in the first instance by the authority of the law-giver, and secondarily and contingently by the law-giver’s sanctioning power.110 Natural law, on this view, while it is given by the Divine Governor, directs us to that which is rational and morally good antecedent to their status as law, ‘for 105
106
107 108 109 110
J Selden De Jure Naturali & Gentium, Iuxta Disciplinam Ebraeorum, Libri Septem (R Bishopius London 1640). F Suarez Selection from Three Works JB Scott (ed) GL Williams A Brown and J Waldron (tr) (Clarendon Press Oxford 1944) I.4.8, 55; see also GJ Postema ‘Law as Command: The Model of Command in Modern Jurisprudence’ (2001) 11 Philosophical Issues 470, 481–82. Hale (n 91) folio 3. ibid folio 4. ibid folio 7. ibid folios 12–13, 46–47.
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antecedent to this [law giving] … the things commanded or prohibited were determined in their natural or moral good or evil’.111 Law-giving provides the formal reason or nature of the law, its obligatory force.112 Natural law is the rational or moral law given to us mortals by Almighty God. The special normative force of natural law, its obligatory force, rests on neither its substantive justice or rationality, nor on God’s irresistible power, as Hobbes argued,113 but on God’s moral authority. In Hale’s view, this moral authority is a function of two interrelated factors: our absolute ontological dependence on the Creator and on God’s utter goodness and beneficence to us.114 Fear gives us a sense of obligation in respect of divine justice and power, wrote Hale, but the antecedent, primary and nobler sense of obligation rests on ‘hope and love and gratitude’ to our divine benefactor.115 Hale did not pursue any further the obvious philosophical question of the nature of this moral relationship, except to make two points. First, he regarded it as an entirely natural relation, arising from the fundamental, relations between Creator and creature,116 and secondly, he believed that our conviction of its soundness is rooted in the most direct and immediate grasp of this relationship as witnessed in our consciences.117 It is now only a very small step, as Hale reckoned such distance, from here to the foundations of civil law. For in civil matters, he regarded the law of nature to be widely permissive, allowing nations and peoples to develop arrangements historically over time to meet their special needs, climates and cultures.118 Ultimately, the binding authority of such law rests on a single principle: fides est servanda, since all such civil laws, whether enacted by a sovereign law-maker or evolved through long usage, are ‘given’ or evidenced in ‘consent’. [A]s a man is bound in conscience to the law of God in his promises and contracts as between man and man, so he is bound in conscience to the same law of God to observe the laws of his governor ... and this is the true foundation and establishment of all justice commutative and distributative, of all government, of laws.119
As we saw above, in Hale’s view, the law and the constitution are manifestations of a deeper, morally constituted relationship. It is a moral relationship, because it is underwritten by the most fundamental norm of civic obligation: fides est servanda. But this did not by itself provide a complete answer to the question of the normative foundations of law, in the view of Hale and Selden. It just pushed the question 111 112 113 114 115 116 117 118
119
ibid folio 47. ibid folios 4, 13. T Hobbes De Cive H Warrender (ed) (Clarendon Press Oxford 1983) ch 15 s 5. Hale (n 91) folios 9, 13. ibid folio 13. ibid folio 9. ibid folio 13. ibid folios 35, 41–44; J Selden ‘Notes on Sir John Fortescue, De laudibus legum Anglie’ in J Selden Works (T Wood London 1726) vol 3 cols 1891–92. Hale (n 91) folio 14.
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back one level. Fides est servanda is a fundamental law of nature, but what, they asked, accounts for its existence, binding strength, and ‘formal nature as a law’? Their answer was God’s law-giving, and, as we have seen, God’s ‘nomothetic authority’ over us rests in the special relationship that obtains between us. It is not from God’s overwhelming power, but rather God’s beneficent providence, and our absolute dependence on God, that our obligation ultimately springs. Hale does not explicitly appeal to the model of the covenant here, but there are hints of such a view even if they are not fully developed or articulated. According to Hale and Selden, the law of nature, understood as God’s commands, was contained in the seven prescriptions of the Noachite covenant—the commands God gave to Noah and his descendents, including all Gentiles, as the flood waters abated. Fides est servanda was the most important of the Noachite prescription for civic life, in their view. These commands, like those of the Decalogue and the code of Leviticus to follow, presupposed something akin to a covenantal relationship. In the view of Selden and Hale, and many 17th century philosophers and jurists, for law to bind normatively in the way distinctive of law it must be rooted ultimately in something like authoritative law-giving. However, such commands depend for their normative effect not on any threat of sanction (‘vindictive power’, Hale called it), but rather they are addressed to the conscience of subjects and indicate in that interior medium two key facts: that God wills that His creatures be obliged to behave as He prescribes, and that God is the person to whom the obligation is owed.120 Moreover, the authority to command rests on the morally charged covenantal relationship of reciprocal obligation. Thus, we can conclude that on Hale’s version of common law theory, the normative force of common law rests immediately on the special, artificial reason of common law, proximately on covenant-modelled ‘consent’, and ultimately on natural law understood as God’s command issuing from the special relationship that obtains between God and God’s people.
D C ONCLUSION I have offered a reconstruction of classical common law jurists’ conception of law. Despite its many variations, it has a consistent theme: the common law is rooted in a disciplined practice of public practical reasoning, maintaining a substantial congruence (but not identity) with the texture of daily life and affairs of members of the political community. If we are willing to stretch the term somewhat, we might even call this a theory of law, although it was a relatively modest one. It sought to capture general and fundamental structural features of law, but its focus was largely local, applying, in the first instance at least, only to the common law as it was practised. It did not strive to contribute to universal jurisprudence—the 120
ibid folio 48.
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enterprise that seeks to articulate conceptually necessary features of law wherever it is found. This is not to say that the conception, if coherent and plausible as an account of the defining features of common law, would have no implications for universal jurisprudence, but only that those implications would be largely limiting and negative—in the way that a counter-example forces revision of a universal thesis. The task of tracing those implications for universal jurisprudence remains. What Coke, Hale, and their jurisprudential colleagues have offered is a perspective on law which combines elements from natural law, positivist and historical theories of law into a unique account of the law they upheld and practised, an account that in various ways influences the practice of common law jurisdictions, if not the theory of that practice, to this day.121
121
Research for this essay was conducted while I was a Massey Fellow of the Institute for Arts and Humanities at the University of North Carolina at Chapel Hill. I am very grateful for the generous support of the Institute and its benefactors.
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