The origins of historical jurisprudence: Coke, Selden, Hale.

• Author: Berman, Harold J.
• Position: Sir Edward Coke, John Selden, Sir Matthew Hale

CONTENTS

Introduction 1652

1. The Historical Background of English Legal Philosophy,

   Twelfth to Seventeenth Centuries 1656 A. Scholastic Jurisprudence and Its Sixteenth-century Rivals 656 B. Richard Hooker's "Comprehensive" Legal Philosophy 1664 C. The Legal Theory of Absolute Monarchy: James I and Bodin 1667 II. Sir Edward Coke: His Majesty's Loyal Opponet 1673 A. Coke's Acceptance of James' Premises and the Sources of

   His Opposition to James' Conclusions 1673 B. Coke's Philosophy of English Law 1678 C. Coke's Historicism 1687 D. Coke's Concept of the English Common Law as Artificial Reason 1689 III. John Selden's Legal Philosophy 1694 A. Coke to Selden to Hale 1694 B. Selden's Historicity Versus Coke k Historicism 1695 C. The Consensual Character of Moral Obligations 1698 D. The Origins of Positive Law in Customary Law 1699 E. Magna Carta and the Five Knights' Case 1700 IV. Sir Matthew Hale's Life and Works 1702 A. Hale's Personal Integrity in a Revolutionary Age 1702 B. Hale's Integrative Jurisprudence 1708 V. The Relationship of English Historical Jurisprudence To

   Seventeenth-Century Religious and Scientific Thought 1721

   1. Jurisprudential Counterparts of Basic Calvinist and

      Neo-Calvinist Religious Beliefs 1722

   2. Contrasts and Parallels Between the New Jurisprudence

      and the Revolution in the Natural Sciences 1724 VI. Epilogue: From Hale to Blackstone, Burke, and Savigny 1731 A. The Embodiment of Historical Jurisprudence in the

      Doctrine of Precedent and the Normative Character of Custom 1732

   2. Blackstone and Burke: The Defense of Tradition Against the New Rationalism

      1733

   3. Savigny and the Disintegration of Jurisprudence in the

      Nineteenth and Twentieth Centuries 1736

      In the seventeenth century, leading English jurists introduced into the Western legal tradition a new philosophy of law, which both competed with and complemented the two major schools of legal philosophy that had opposed each other in earlier centuries, namely, natural law theory and legal positivism. The new philosophy eventually came to be called historical jurisprudence, or the historical school. It predominated in some countries of Europe as well as in the United States in the late nineteenth and early twentieth centuries and has played an important role in the thinking of American judges and lawyers down to the present day, especially in constitutional law and in those areas of the law in which the common law tradition is still taken seriously.(1) Indeed, it is the foundation of the English and American doctrines of precedent.

      Each of these three major theories, or schools, has many variations, but each also has a distinctive core of meaning. Natural law theory treats law essentially as the embodiment in rules and concepts of moral principles that are derived ultimately from reason and conscience. Positivism treats law essentially as a body of rules laid down ("posited") and enforced by the supreme lawmaking authority, the sovereign. The former theory views law as rooted primarily in morality ("reason and conscience"); the latter views law as rooted primarily in politics ("the will of the lawmaker"). Most positivists do not deny that law ought to serve moral ends, the ends of justice, but argue that what law is is a political instrument, a body of rules manifesting the policies of the legitimately constituted political authorities. Only after it is established what law is may one ask what it ought to be. Naturalists, if I may so call them, believe, on the other hand, that one cannot know what the law is unless one considers at the same time what it ought to be, since, they argue, it is implicit in legal norms that they have moral (including political) purposes and are to be analyzed, interpreted, and applied in the light of such purposes. The naturalist will deny the validity, indeed, the legality, of a rule or action of the political authority that contradicts fundamental principles of justice.

      In the four centuries preceding the Protestant Reformation, various natural law theories predominated, of which that of the thirteenth-century philosopher Thomas Aquinas (1225-1274) eventually became the best known.(2) In the fourteenth and fifteenth centuries, Thomist natural law theory was challenged by those who, like William of Ockham, believed in the priority of will over reason, both at the divine and human levels, as well as those who, like Marsilius of Padua, and later Machiavelli, believed in the quintessentially coercive character of all government and law.(3) In the sixteenth century, Lutheran and Calvinist political and legal theory found support in such "voluntarist" doctrines, although both Lutherans and Calvinists combined positivist theories with natural law theories and lived with the tension between them.(4)

      These philosophical issues concerning the nature of law had, however, an historical dimension, which remained largely unarticulated. Ever since the early formation of discrete modern Western legal systems in the twelfth century, it had been taken for granted that a legal system has an ongoing character, a capacity for growth over generations and centuries. This was a uniquely Western belief: that a body of law, a system of law, contains, and should contain, a built-in mechanism for organic change and that it survives, and should survive, by development, by growth. Thus the new profession of jurists, coming out of the universities that were founded from the late eleventh century on, developed the newly systematized canon law of the Roman Catholic Church progressively, each generation building on the work of its predecessors; likewise, although to a somewhat lesser extent, the various new systems of royal law, feudal law, urban law, manorial law, and mercantile law were also seen as evolving systems. The changes were thought to be part of a pattern of changes and, at least in hindsight, to reflect an inner logic, an inner necessity. The law was thought to be not merely ongoing; it had a history; it constituted a tradition.(5)

      This historical dimension of Western systems of law, despite its crucial practical importance, did not attract the attention of Western philosophers sufficiently to affect their jurisprudence. Prior to the seventeenth century, they remained adherents either of natural law theory or of positivism or of an uneasy mixture of the two. There did emerge in the sixteenth century, most prominently in France, an historicist school of legal thought that held up the ancient Frankish customary law as a model to be opposed to "foreign" Romanist and canonist legal traditions.(6) This nationalist historicism was invoked against royal innovations, although in England sixteenth-century supporters of absolute monarchy also invoked ancient English traditions and precedents to support their royalist position.(7)

      Prior to the seventeenth century, however, it is hard to discover in Europe a legal philosopher who argued that the past history of a legal system embodies basic norms which not only do govern but also, because of their historicity, should govern subsequent developments and which bind the sovereign political authority itself. Only in the course of the seventeenth century did there emerge among the English common lawyers the strong conviction that the primary source of the validity of law--including both its moral validity and its political validity--is its historical character, its source in the customs and traditions of the community whose law it is. This conviction was forcefully expressed by Sir Edward Coke (1552-1634) in the first decades of the century. It was developed further by Coke's protege, John Selden (1584-1654). In the middle and later decades Sir Matthew Hale (1609-1676), who consciously built on the work both of Coke and of Selden, presented a systematic theory of the historical character of law and integrated that theory with both natural law theory and positivism.(8)

      To elaborate this thesis it is necessary, first, to refute the conventional view that the English common lawyers were committed to historical jurisprudence from the start and that nothing fundamentally new happened in English legal philosophy in the seventeenth century except that the common lawyers finally triumphed over their opponents, the Romanists and canonists. The first section of this Article is devoted, therefore, to the historical background of English legal philosophy as it developed in the twelfth to the sixteenth and early seventeenth centuries. Succeeding sections are devoted to the legal philosophies of Coke, Selden, and Hale, respectively. A concluding section deals briefly with the relationship between the transformation of English legal philosophy in the seventeenth century and the contemporaneous revolutions in religion and science.9 An Epilogue notes briefly some of the connections between the historical jurisprudence of Hale and that of his eighteenth-, nineteenth-, and twentieth-century successors.

1. THE HISTORICAL BACKGROUND OF ENGLISH LEGAL PHILOSOPHY, TWELFTH TO SEVENTEENTH CENTURIES

   Scholastic Jurisprudence and its Sixteenth-Century Rivals. It is conventional wisdom that distinctively English conceptions of the nature, sources, and purposes of law can be traced back to the early history of the English common law in the twelfth to fifteenth centuries.(10) In fact, however, there is little in the legal literature of those centuries that distinguishes English philosophy from that of other peoples of Western Christendom. It is, of course, not surprising that before the English Reformation books written by English canonists and English Romanists, or courses in canon law and Roman law taught in the English universities, reflected a legal philosophy hardly distinguishable from that of canonists and Romanists of other European countries; or that pre-reformation English theological and philosophical writings on law were basically similar to those of French, German, Italian, or other European theologians...