The Origins of Historical Jurisprudence: Coke, Selden, Hale

89 Pages·10.872 MB·English

by  Berman H.

The Yale Law Journal Company, Inc.
The Origins of Historical Jurisprudence: Coke, Selden, Hale
Author(s): Harold J. Berman
Source: The Yale Law Journal, Vol. 103, No. 7 (May, 1994), pp. 1651-1738
Published by: The Yale Law Journal Company, Inc.
Stable URL: http://www.jstor.org/stable/797013
Accessed: 11/07/2010 02:32
Your use of the JSTOR archive indicates your acceptance of JSTOR's Terms and Conditions of Use, available at
http://www.jstor.org/page/info/about/policies/terms.jsp. JSTOR's Terms and Conditions of Use provides, in part, that unless
you have obtained prior permission, you may not download an entire issue of a journal or multiple copies of articles, and you
may use content in the JSTOR archive only for your personal, non-commercial use.
Please contact the publisher regarding any further use of this work. Publisher contact information may be obtained at
http://www.jstor.org/action/showPublisher?publisherCode=ylj.
Each copy of any part of a JSTOR transmission must contain the same copyright notice that appears on the screen or printed
page of such transmission.
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of
content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms
of scholarship. For more information about JSTOR, please contact [email protected].
The Yale Law Journal Company, Inc. is collaborating with JSTOR to digitize, preserve and extend access to
The Yale Law Journal.
http://www.jstor.org
Articles
The Origins of Historical Jurisprudence:
Coke, Selden, Hale
Harold J. Bermant
CONTENTS
INTRODUCTION ............................................. 1652
I. THE HISTORICALB ACKGROUNDO F ENGLISHL EGAL PHILOSOPHY,
TWELFTHT O SEVENTEENTHC ENTURIES ......... .. .............. 1656
A. Scholastic Jurisprudence and Its Sixteenth-CenturyR ivals .... ..... 1656
B. Richard Hooker's "Comprehensive"L egal Philosophy .... ....... 1664
C. The Legal Theory of Absolute Monarchy: James I and Bodin ...... 1667
II. SIR EDWARD COKE: HIS MAJESTY'S LOYAL OPPONENT .... .......... 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
t Robert W. WoodruffP rofessor of Law, Emory Law School; James Barr Ames Professor of Law,
Emeritus,H arvardL aw School. The valuablec ollaborationo f CharlesJ . Reid, Jr., Research Associate in
Law and History, Emory Law School, is gratefullya cknowledged.
1651
1652 The Yale Law Journal [Vol. 103: 1651
A. Coke to Selden to Hale ........ ......................... 1694
B. Selden 's Historicity Versus Coke's 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 MATrrHEWH ALE'S LIFE AND WORKS ...... .................. 1702
A. Hale's Personal Integrity in a Revolutionary Age .... ........... 1702
B. Hale's Integrative Jurisprudence ...... ..................... 1708
V. THE RELATIONSHIPO F ENGLISHH ISTORICALJ URISPRUDENCET O
SEVENTEENTH-CENTURYR ELIGIOUSA ND SCIENTIFICT HOUGHT .. ...... 1721
A. Jurisprudential Counterparts of Basic Calvinist and
Neo-Calvinist Religious Beliefs ....... ..................... 1722
B. Contrasts and Parallels Between the New Jurisprudence
and the Revolution in the Natural Sciences ..... .............. 1724
VI. EPILOGUE:F ROM HALE TO BLACKSTONE,B URKE, AND SAVIGNY ....... 1731
A. The Embodiment of Historical Jurisprudence in the
Doctrine of Precedent and the Normative Character of Custom ..... 1732
B. Blackstone and Burke: The Defense of Tradition Against
the New Rationalism ................................... 1733
C. Savigny and the Disintegration of Jurisprudence in the
Nineteenth and Twentieth Centuries ...... .................. 1736
In the seventeenth century, leading English jurists introduced into the
Westernl egal traditiona new philosophy of law, which both competed with
and complementedt he two majors chools of legal philosophyt hath ad opposed
each otheri n earlierc enturies,n amely,n aturall aw theorya nd legal positivism.
The new philosophy eventuallyc ame to be called historicalj urisprudenceo, r
the historical school. It predominatedin some countrieso f Europea s well as
in the United States in the late nineteentha nd early twentiethc enturiesa nd has
played an importantr ole in the thinkingo f Americanj udges and lawyers down
to the present day, especially in constitutionall aw and in those areas of the
1994] Origins of HistoricalJ urisprudence 1653
law in which the common law traditioni s still taken seriously.' Indeed, it is
the foundationo f the English and Americand octrineso f precedent.
Each of these three major theories, or schools, has many variations,b ut
each also has a distinctive core of meaning. Natural law theory treats law
essentially as the embodimenti n rules and concepts of moral principlest hat
are derived ultimately from reason and conscience. Positivism treats law
essentially as a body of rules laid down ("posited")a nd enforced by the
supremel awmakinga uthorityt, he sovereign.T he formert heory views law as
rooted primarilyi n morality( "reasona nd conscience");t he latterv iews law as
rooted primarilyi n politics ("the will of the lawmaker").M ost positivists do
not deny that law ought to serve morale nds, the ends of justice, but arguet hat
what law is is a political instrumenta, body of rules manifestingt he policies
of the legitimatelyc onstitutedp olitical authorities.O nly after it is established
what law is may one ask what it ought to be. Naturalists,i f I may so call
them, believe, on the other hand,t hat one cannotk now what the law is unless
one considers at the same time what it ought to be, since, they argue, it is
implicit in legal normst hat they have moral( includingp olitical) purposesa nd
are to be analyzed, interpreteda, nd appliedi n the light of such purposes.T he
naturalistw ill deny the validity,i ndeed, the legality, of a rule or action of the
political authorityt hat contradictsf undamentapl rincipleso f justice.
1. See Harold J. Berman, Towarda n IntegrativeJ urisprudence:P olitics, Morality,H istory, 76 CAL.
L. REV. 779, 788-97 (1988) [hereinafterB erman, IntegrativeJ urisprudence],r eprinted in HAROLDJ.
BERMAN,F AITHA ND ORDER:T HE RECONCILIATIOONF LAWA ND RELIGION2 89 (1993) [hereinafter FAITH
ANDO RDER]O. n the role of historicalj urisprudencein Americanl egal thoughti n the nineteenthc entury,
see generally ROSCOEP OUND, I JURISPRUDENC6E3 (1959) ("The historical school . . . was dominant in
Continental Europe and in America in the last half of the nineteenth century.");S tephen A. Siegel,
Historismi n Late Nineteenth-CenturyC onstitutionaTl hought,1 990 Wis. L. REV.1 431. A majorA merican
exposition of historical jurisprudence is JAMESC . CARTER,L AW: ITS ORIGIN,G ROWTH,A ND FUNCTION
(1907). In the twentieth century the historical school came to be largely discreditedo r, more frequently,
ignored by American legal philosophers.T hus Alan Watson, in the course of examining positivist and
naturall aw justifications of the validity of customaryl aw, disdains to discuss historicalj urisprudencea t
all, on the groundt hat "Savigny's ... general theoryo f law. ... is today universallyr ejected. ..." ALAN
WATSON,T HE EVOLUTIONO F LAW4 8 (1985). Nevertheless,t he historicityo f law continues to be strongly
reflected in judicial opinions and in the thinkingo f practicingl awyers. A recent example of its vitality in
constitutionall aw is the majorityo pinion of the SupremeC ourto f the United States in Planned Parenthood
v. Casey, which groundst he "very concept of the rule of law" on "continuityo ver time" and "respectf or
precedent."1 12 S. Ct. 2791, 2808 (1992). A famous example in tort law is the majorityo pinion of the New
York Courto f Appeals in 1916 in MacPhersonv . Buick Motor Co., in which Judge Cardozor einterpreted
a centuryo f precedentsc oncerningm anufacturersl'i ability to remoteu sers of their products,s howing that
what was originally thought of as an exception to a rule had graduallys wallowed up the rule. 217 N.Y.
382, 384-91 (1916). Among Americanl egal theoristso f the latterh alf of the twentiethc entury,A lexander
Bickel was one of the raree xponents of the historicals chool of constitutionalp hilosophy that goes back,
through Edmund Burke, to Hale, Selden, and Coke. See ALEXANDERM . BICKEL, THE MORALITYO F
CONSENT(1 975), especially ch. 1, at 11-30 (sections entitled "EdmundB urke and Political Reason" and
"The Supreme Court and Evolving Principle");c f. Anthony T. Kronman,A lexanderB ickel's Philosophy
of Prudence, 94 YALEL .J. 1567, 1600 (1985) ("The . . . 'Whig' tradition,t o which Bickel himself claims
allegiance, is 'usually called conservative' and is associated 'chiefly with EdmundB urke."'). Kronman,
however, identifies Bickel's legal philosophya s one of prudentialismr, athert han historicity.S ee infra note
220.
1654 The Yale Law Journal [Vol. 103: 1651
In the four centuriesp recedingt he ProtestantR eformationv, ariousn atural
law theories predominatedo, f which thato f the thirteenth-centurpyh ilosopher
Thomas Aquinas (1225-1274) eventually became the best known.2 In the
fourteentha nd fifteenthc enturies,T homist naturall aw theory was challenged
by those who, like William of Ockham,b elieved in the priorityo f 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"d octrines, although both Lutheransa nd Calvinists combined
positivist theoriesw ith naturall aw theoriesa nd lived with the tension between
them.4
These philosophicali ssues concerningt he natureo f law had, however, an
historicald imension,w hichr emainedl argelyu narticulatedE. ver since the early
formationo f discrete modernW esternl egal systems in the twelfth century,i t
had been taken for grantedt hat 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,b y development,b y growth.T hust he new professiono f jurists,
coming out of the universitiest hatw ere foundedf rom the late eleventhc entury
on, developed the newly systematized canon law of the Roman Catholic
Churchp rogressively,e ach generationb uildingo n the worko f its predecessors;
likewise, although to a somewhat lesser extent, the various new systems of
royal law, feudal law, urbanl aw, manoriall aw, and mercantilel aw were also
seen as evolving systems. The changes were thoughtt o be parto f a patterno f
changes and, at least in hindsight,t o reflect an inner logic, an inner necessity.
2. Brief analyses and evaluations of Thomist legal theory may be found in Anton-Hermann Chroust
& FrederickA . Collins, Jr., The Basic Ideas in the Philosophyo f Law of St. ThomasA quinas as Found in
the "SummaT heologica," 26 MARQ. L. REV. 11( 1941), and in HEINRICH ROMMEN, THE NATURAL LAW:
A STUDY IN LEGAL AND SOCIAL HISTORY AND PHILOSOPHY 45-57 (Thomas R. Hanley trans., 1947).
Twelfth- and thirteenth-century canon lawyers, such as Gratian, Rufinus, Huguccio, and Raymund of
Pefiafort, also developed distinctive approaches to natural law theory, as did contemporary Romanists such
as Azo and Accursius. See generally GILLES COUVREUR, LES PAUVRES ONT-ILS DES DROITS? 119-55
(1961); RUDOLF WEIGAND, DIE NATURRECHTSLEHRE DER LEGISTEN UND DEKRETISTEN VON IRNERIUS BIS
ACCURSIUS UND VON GRATIAN BIS JOHANNES TEUTONICUS (1967).
3. Ockham (c. 1280-1349), though not himself a positivist, laid the foundation for the development of
positivist theories of law by emphasizing the primacy of the divine will over the divine reason and thus
the potentially irrational power of God. See Francis Oakley, Medieval Theories of Natural Law: William
of Ockhama nd the Significanceo f the VoluntarisTt radition,6 NAT. L.F. 65 (1961). This emphasis on will
and power informed more explicit positivist theories such as those of Marsilius and Machiavelli. See ALAN
GEWIRTH, MARSILIUS OF PADUA (1951); ISAIAH BERLIN, The Originalityo f Machiavelli, in AGAINST THE
CURRENT: ESSAYS IN THE HISTORY OF IDEAS 25 (Henry Hardy ed., 1980); see also J.M. KELLY, A SHORT
HISTORY OF WESTERN LEGAL THEORY 171-72 (1992).
4. See generally HaroldJ . Berman& JohnW itte,J r.,T he Transformatioonf WesternL egal Philosophy
in LutheranG ermany,6 2 S. CAL. L. REV. 1575 (1989), abridged in FAITH AND ORDER, supra note 1, at
141.
1994] Origins of HistoricalJ urisprudence 1655
The law was thoughtt o be not merely ongoing; it had a history;i t constituted
a tradition.5
This historical dimension of Westerns ystems of law, despite its crucial
practical importance,d id not attractt he attention of Western philosophers
sufficiently to affect theirj urisprudenceP. riort o the seventeenthc entury,t hey
remained adherentse ither of naturall aw theory or of positivism or of an
uneasy mixture of the two. There did emerge in the sixteenth century,m ost
prominentlyi n France, an historicists chool of legal thoughtt hat held up the
ancient Frankish customary law as a model to be opposed to "foreign"
Romanist and canonist legal traditions.6T his nationalist historicism was
invoked against royal innovations, although in England sixteenth-century
supporterso f absolute monarchya lso invoked ancient English traditionsa nd
precedentst o supportt heir royalist position.7
Priort o the seventeenthc entury,h owever,i t is hardt o 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 primarys ource of the validity of law-including both its
moral validity and its political validity-is its historicalc haracter,i ts source
in the customs and traditions of the community whose law it is. This
conviction was forcefully expressedb y Sir EdwardC oke (1552-1634) in the
first decades of the century.I t was developedf urtherb y Coke's protege,J ohn
Selden (1584-1654). In the middle and laterd ecades Sir MatthewH ale (1609-
1676), who consciously built on the work both of Coke and of Selden,
presenteda systematict heory of the historicalc haractero f law and integrated
that theory with both naturall aw theory and positivism.8
5. See HAROLD J. BERMAN, LAW AND REVOLUTION: THE FORMATION OF THE WESTERN LEGAL
TRADITION9 , passim (1983).
6. See infra text accompanyingn otes 26-29.
7. Cf Johann P. Sommerville, History and Theory:T he Norman Conquesti n Early Stuart Political
Thought, 34 POL. STUD. 249, 255 (1986).
8. The significance for present-dayA mericanp olitical and legal thoughto f the traditionald ivision of
legal philosophy into the three main schools is discussed in Berman,I ntegrativeJ urisprudence,s upra note
1. See also infra notes 168, 169, 220 and pp. 1736-38. It may be noted here that in recent Americanl egal
scholarshipt his division has largely given way to a multiplicityo f particulara pproachess uch as "law and
economics,"" criticall egal studies,"" righta nswer"t heory," contractariant"h eory," Republican"th eory,a nd
competing schools of feministj urisprudenceS. ee generally Gary Minda,J urisprudencea t Century'sE nd,
43 J. LEGALE DUC.2 7 (1993). Most of these approachesf all unconsciously into the positivist category,
sometimes with an unconscious admixture of natural law theory. Most of them omit-or inveigh
against-historical experience as a source of the legitimacy of existing legal institutionsa nd as a key to
the interpretationa nd applicationo f particularl egal rules and standards.
PerhapsR onaldD workinu nconsciouslya pproachesa n historicalj urisprudencew hen he comparest he
work of judges to the writingo f a "chainn ovel" begun by collaboratorsa t some point in the past. Dworkin
states:
Each judge is . .. like a novelist in the chain. He or she must read throughw hat other judges
in the past have written not simply to discover what these judges have said, or their state of
1656 The Yale Law Journal [Vol. 103: 1651
To elaborate this thesis it is necessary,f irst, to refute the conventional
view that the English common lawyers were committed to historical
jurisprudencef rom the starta nd that nothingf undamentallyn ew happenedi n
English legal philosophy in the seventeenthc enturye xcept that the common
lawyers finally triumphedo ver their opponents,t he Romanistsa nd canonists.
The first section of this Article is devoted, therefore, to the historical
backgroundo f English legal philosophya s it developed in the twelfth to the
sixteenth and early seventeenthc enturies.S ucceeding sections are devoted to
the legal philosophies of Coke, Selden, and Hale, respectively.A concluding
section deals briefly with the relationshipb etween the transformationo f
English legal philosophyi n the seventeenthc enturya nd the contemporaneous
revolutions in religion and science.9 An Epilogue notes briefly some of the
connections between the historical jurisprudenceo f Hale and that of his
eighteenth-,n ineteenth-,a nd twentieth-centurysu ccessors.
I. THE HISTORICABLA CKGROUNODF ENGLISHL EGALP HILOSOPHY,
TWELFTHT O SEVENTEENTCHE NTURIES
Scholastic Jurisprudence and its Sixteenth-CenturyR ivals. 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.'0 In fact, however,
mind when they said it, but to reacha n opinion aboutw hat these judges have collectively done,
in the way that each of our novelists formed an opinion about the collective novel so far
written. Any judge forced to decide a law suit will find, if he looks in the appropriateb ooks,
records of many arguablys imilar cases decided over decades or even centuriesp ast by many
other judges of different styles and judicial and political philosophies, in periods of different
orthodoxieso f procedurea nd judicial convention.E achj udge must regardh imself, in deciding
the new case before him, as a partneri n a complex chain enterpriseo f which these innumerable
decisions, structures,c onventions, and practices are the history; it is his job to continue that
history into the future throughw hat he does on the day.
Ronald Dworkin, Law as Interpretation6, 0 TEX.L . REV.5 27, 542-43 (1982). Dworkind oes not, however,
integratet his insight into his general theory of law.
9. Discussion of the political,e conomic, and social revolutiono f 1640-1689, which formedt he context
in which seventeenth-centuryE nglish legal philosophyd eveloped, is omitted here. It is to be discussed at
some length in a forthcomingw ork of the author.I t is discussed briefly in Harold J. Berman, Law and
Belief in Three Revolutions, 18 VAL. U. L. REV. 569, 590-92 (1984), reprinted in FAITHA ND ORDER,s upra
note 1, at 83.
10. This view, which originated in the seventeenth century, acquired even greater support in the
heyday of English insularityi n the nineteentha nd early twentiethc enturies.T hus Bishop William Stubbs,
a leading English constitutionalh istoriano f the Victoriane ra, describedE nglish law as the purests urviving
specimen of Germanicc ustomaryl aw, to which he attributeda strong stress on individualf reedom and on
constitutionall imitationso n the monarch,a s opposed to Romanistt heories of absolutism.F rom the time
of Henry II, he wrote, the English common law reflecteda wholly differentp hilosophy from that of the
canon or civil law, to which "there was in England the greatest antipathy." WILLIAMS TUBBS, LECTURES
ON EARLY ENGLISH HISTORY 257 (1906); see also WILLIAM STUBBS, THE CONSTITUTIONAL HISTORY OF
ENGLAN5D8 4-85 (Oxford,C larendonP ress 1891). The notiono f an age-old conflict between a democratic,
individualist, empirical, Anglo-Saxon or Germanic theory versus an autocratic, collectivist, dogmatic
Romanist theory of law and governmentw as widespreadi n late nineteenth-centuryA merica as well, and
was taught at Harvard University, for example, by Henry Adams. See HENRYA DAMS, ESSAYSI N ANGLO-
1994] Origins of HistoricalJ urisprudence 1657
there is little in the legal literatureo f those centuriest hat distinguishesE nglish
philosophyf rom that of otherp eoples of WesternC hristendomI. t is, of course,
not surprisingt hat before the English Reformationb ooks writtenb y 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-ReformationE nglish theological and philosophical
writings on law were basically similart o those of French,G erman,I talian,o r
other Europeant heologiansa nd philosophers.T he jurists and theologiansa nd
philosopherso f all parts of WesternC hristendomi n those centuriesf ormed a
single community, with a common language and a common religious faith.
Everywhere the same controversies raged concerning the interrelationso f
divine, natural, customary, and positive law, of strict law and equity, of
retributiona nd deterrence,o f rights and responsibilities.
One might, indeed, expect to find some distinctive features of English
legal philosophy reflectedi n early writingsa boutt he law applied in the royal
SAXONL AW( Boston, Little, Brown & Co. 1876) (containingh is Harvardl ectures).
Similar views recure ven in recents cholarship.T hus QuentinS kinners tates that English "nationalist
hostility" to the Roman law and the canon lawyers "can be traced as far back as Bracton's defence of
custom in the thirteenth century .... 2 QUENTINS KINNER,T HE FOUNDATIONOS F MODERNP OLITICAL
THOUGH5T4 (1978). In fact, Bracton, in his great treatiseo n English law, quoted Roman law favorably
in hundreds of places. S.E. THORNE,H enry de Bracton, 1268-1968, in ESSAYSI N ENGLISHL EGALH ISTORY
75, 82-83 (1985) ("[Q]uotationsf rom almost 500 differents ections of the Digest and Code have now been
identifiedi n Bracton'sb ook.") Moreover,B ishop Raleigh, the judge for whom Bractonc lerked and whose
cases he collected in his Notebook, was an ardents upportero f the papacy, who had to flee to France to
escape the king's wrath, and was called at the time a second Thomas Becket. Skinner also wrongly
attributest o the fourteenth-centurEy nglishj urist Sir John Fortescuet he view that" thew hole of the Roman
code is alien to the 'political' nature of the English constitution," and he misreads Fortescue as
"xenophobic"t oward Romanists and canonists. In fact, at the page cited by Skinner to support these
conclusions, Fortescuem erely states that English law is as "adaptedt o the utility of [England]a s the civil
law is to the good of the Empire." See SKINNER,s upra, at 55 (quoting SIR JOHNF ORTESCUED, E LAUDIBUS
LEGUM ANGLIE (IN PRAISEO F THE LAWS OF ENGLAND)2 5, 37 (S.B. Chrimes ed. & trans., Cambridge
Univ. Press 1942) (1471)). On Fortescue'sg eneral legal philosophy,s ee infra pp. 1658-59.
The prominent contemporaryh istorian of medieval English law, R.C. van Caenegem, makes an
arguments imilar to that of Stubbs and Skinner,a nd in additionc ontrastst he empirical,i nductive character
of the "Germanica nd feudal customs and laws of England"i n the twelfth centurya nd thereafterw ith the
dogmatic, deductive charactero f the Roman law of the contemporaryc ontinentalE uropeanu niversities.
R.C. VAN CAENEGEM,T HE BIRTH OF THE ENGLISHC OMMONL AW 88 (2d ed. 1988). But of course the
comparisons hould be between the Germanica nd feudal customs of Englanda nd the Germanica nd feudal
customs of the other countrieso f WesternE urope,a nd between the Romanl aw of the continentalE uropean
universities and the Roman law of the English universities. See DONALD R. KELLEY, THE HUMAN
MEASURE:S OCIALT HOUGHTI N THEW ESTERNL EGALT RADITION1 65-74 (1990). Kelley rightly contrasts
the "style" of the common lawyers and that of the civil and canon lawyers in sixteenth-centuryE ngland,
but greatlye xaggeratest he differencesb etween theiru nderlyingp hilosophies.F or the most part,t hey were,
and were seen to be at the time, complementaryt o each other and sharedc ommon assumptionsc oncerning
the nature,s ources, and purposeso f law. That distinctiveE nglish political and legal institutionsa re rooted
in a continuous English history dating from Magna Carta is also a principalt heme of an importantn ew
book, THE ROOTS OF LIBERTY: MAGNA CARTA, ANCIENT CONSTITUTION, AND THE ANGLO-AMERICAN
TRADITIONO F RULEO F LAW (Ellis Sandoz ed., 1993) [hereinafter THE ROOTSO F LIBERTY]T. his otherwise
valuable and sometimes brilliant collection of essays is marred by the failure to situate English
developments within a larger Europeanf rameworka nd also by a failure to appreciatet he fundamental
transformationo f English legal thoughti n the seventeenthc entury.
1658 The Yale Law Journal [Vol. 103: 1651
courts of Common Pleas, King's Bench, and Exchequer,i nasmucha s that law
differed in many respects from the law applied in the secular courts of other
Europeanc ountries. No doubt the pride that was taken by various English
writers in the law applied in the English royal courts-from Glanvill and
Bractoni n the twelfth and thirteentht o Sir JohnF ortescuea nd ChristopherS t.
German in the late fifteenth and early sixteenth centuries-has some
philosophical implications.Y et even books written "in praise of the laws of
England"h ardlyd ifferedi n theiru nderlyingp hilosophyf romb ooks on German
or Frencho r Italians ecularl aw writtenb y German,F rench,a nd Italianj urists
during those centuries.
Fortescue, to be sure, has been hailed as an importantp recursoro f the
distinctive historicism that came to dominate English legal thought in the
seventeenthc entury."F ortescued id, indeed, traceE nglish law to immemorial
custom, datingb ack to pre-Romant imes. Nevertheless,t he "lawso f England,"
which he "praised"i n a fictitious dialogue between a young exiled English
prince and his lord chancellor,w ere not conceived by him to be essentially
different in their fundamentaln ature and sources and purposes from the
customary laws of other countries,e xcept that they were more ancient and
hence superior.M oreover,t he English laws which Fortescuel auded included
not only specific English customs but also, in his words, "universalsw hich
those learned in the laws of England . . . call maxims, just as . .. civilians
[speak] of rules of law."'2 Indeed, Fortescue's principal work on legal
philosophy did not reflect a theoryt hat it is the historicalc haractero f law, its
source in the customs and traditionso f a people, that gives it its ultimate
validity; on the contrary,F ortescuei n that work remaineds trictly within the
school of naturall aw representedb y ThomasA quinas,w hich emphasizedt he
ultimates ource of law in divine reason and its ultimatep urposea s promotion
of the common good.'3 Other English jurists of the fifteenth and early
11. Cf. Ellis Sandoz, Editor's Introduction: Fortescue, Coke, and Anglo-American Constitutionalism,
in THE ROOTS OF LIBERTY, supra note 10, at 1, 5-14.
12. FORTESCUEs, upra note 10, at 21. This statement forms part of a larger debate between the
chancellor and prince over whether the prince can acquirea knowledge of the laws. The prince has just
said to the chancellor:" [W]henI recollect how many years studentsi n the curriculao f the law devote to
their study before they attain to an adequatee xpertnesst herein,I fear lest I myself spend the years of my
youth in the same way." Id. at 19-21. The chancellor's response is that knowledge of the law can be
acquiredi n a short time throughk nowledge of the universalp rincipleso f law. Id. at 21.
13. See SIR JOHN FORTESCUED, e Natura Legis Naturae, in I SIR JOHN FORTESCUEK, NIGHT:H is
LIFE,W ORKSA, NDF AMILYH ISTORY(G arlandP ublishing reprinte d. 1980) (Lord Clermont ed., 1869)
[hereinafter THE WORKSO F FORTESCUE]F. ortescues ubmittedt his book, written( as was his IN PRAISEO F
THE LAWS OF ENGLAND,s upra note 10) while he was in exile between 1461 and 1471, to the examination
of the Pope, asking him, if he found it right and just, to impart it to all the sons of the Church, or otherwise
"to annul it." Id. at 332; see also George L. Mosse, Sir John Fortescue and the Problem of Papal Power,
7 MEDIEVALIAE T HUMANISTICA8 9, 90 (1952). Fortescue presented the orthodox view, then more or less
universally shared in the West, that human law, including the statutes of Parliament, was derived from
natural law, which was a reflection of divine law, and that statutes contrary to natural law were void; and
further, that the Church was the final custodian of divine and human law and the Pope the final authority
in its interpretation. Indeed, Fortescue goes so far as to say that the secular judge, in interpreting divine
law, should "in doubtful matters . .. follow the decree of the supreme Pontiff," that is, the Pope. See JOAN
1994] Origins of HistoricalJ urisprudence 1659
sixteenth centuries were strongly influenced by the "voluntarist"s chool of
naturall aw, of which the fourteenth-centurpyh ilosopherW illiam of Ockham
was the leading exponent;y et Ockhamistp hilosophy,w hich emphasizedt he
ultimate source of law in divine will, rathert han divine reason, was no more
"English"t han that of Aquinas, which it opposed, was "Italian.4" '
After the break with Rome and the accompanying intensification of
English nationalc onsciousness, one might have expected the emergence of a
distinctive English legal philosophy.Y et this did not occur during the Tudor
period.'5 In legal philosophy, as in other branches of thought, England
retaineds trong intellectuall inks with the rest of Christendomt hroughoutt he
sixteenth century.T he name of St. Germani s often invoked-together with
Fortescue's-as one of the founderso f modernE nglishj urisprudenceI. ndeed,
his Doctor and Student, written in 1531, on the eve of the English
Reformation,i n which the "student"d efends the English common law against
a "doctoro f divinity,"s howing its correspondencew ith fundamentapl rinciples
of justice, does contain some seeds of later developments in English legal
theory. Basically, however, St. German remained within the tradition of
sixteenth-centuryE uropeanl egal philosophya s it began to separatei tself from
earlierR oman Catholic theology and from the scholastic method.R eiterating
theories similar to those of Aquinas but also drawing specifically on the
writings of the fifteenth-centuryO ckhamist philosopher-theologianJ ean
Gerson, St. German stressed that all law, including English law, has its
ultimate sources in the naturall aw of reason, the eternall aw of God, general
customs, and general legal principles ("maxims").A t the same time, he
explained peculiaritieso f English law by distinguishingb etween "the law of
primary reason" and the "law of secondary reason." "The law of primary
reason"c onsisted of generalp rinciplesa pplicablea t all times and places such
as the elements that constitutem urdero r perjuryo r breakingt he peace. "The
law of secondary reason,"o n the other hand, consisted of uniquely English
laws that were the productb oth of reason and of particularE nglish customs.
St. Germand ivided the latterl aws into those that are "the laws of secondary
reason general,"c onsisting of legal customs that are common to the whole
world, and "thel aws of secondaryr easonp articular,"co nsisting of the unique
legal customs of a given polity such as England.'6T hus, like Fortescue,a nd,
L. O'DONOVAN, THEOLOGY OF LAW AND AUTHORITY IN THE ENGLISH REFORMATION 49 (1991) (quoting
THE WORKS OF FORTESCUE, supra, at 11).
14. For example, Reginald Pecock (c. 1395 - c. 1460), who was Bishop successively of St. Asaph and
Chichester, traces the ultimate source of positive law to human will and the consent of the community,
arguing that humanly created laws should be revised when they cease to be profitable to the people. See
NORMAN DOE, FUNDAMENTAL AUTHORITY IN LATE MEDIEVAL ENGLISH LAW 12-19 (1990); Norman Doe,
Fifteenth-Century Concepts of Law: Fortescue and Pecock, 1O HIST. POL. THOUGHT2 57 (1989).
15. See Christopher W. Brooks, The Place of Magna Carta and the Ancient Constitution in Sixteenth-
Century English Legal Thought, in THE ROOTSO F LIBERTYs, upra note 10, at 57, 59.
16. See CHRISTOPHER ST. GERMAN, DOCTOR AND STUDENT 8-33 (T.F.T. Plucknett & J.L. Barton eds.,
1974) (1523); see also J.A. GUY, CHRISTOPHER ST. GERMAN ON CHANCERY AND STATUTE 19 (1985)