Classical Common Law Jurisprudence Part I - Gerald Postema

University of North Carolina – Chapel Hill
School of Law
Public Law and Legal Theory Research Paper No. 03-9
Classical Common Law Jurisprudence (Part 1)

Gerald Postema
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at:
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  Oxford University Commonwealth Law Journal 155
ARTICLES
CLASSICAL COMMON LAW JURISPRUDENCE (PART I)
GERALD J POSTEMA*
A I NTRODUCTION
In 1610, John Selden wrote a remarkable history of the ‘ancient constitution’ of

England, which he entitled Jani Anglorum facies altera. The meaning of this title was
unclear to Selden’s first readers1 and still remains obscure. One translator ren-
dered it ‘The Back Face of the English Janus’, but one might also render it ‘The
Two Faces of the English Janus’. Either way it is clear that the ‘English Janus’
referred to the common law. The common law was often taken to be the consti-
tution of the kingdom and, Selden suggested, it looked both back to its ancient past
and forward to the peaceful and prosperous future of the kingdom. Janus—the
Roman god of gates and doorways, looking within and without, to the past and the
future—is arguably an apt patron for the common law, and perhaps for law in
general, for common law anchors solidly in the past its normative demands on pre-
sent actions and guidance for future actions.
We might equally appoint Janus the patron of jurisprudence. The beginning of
wisdom in jurisprudence, Hart taught us, lies in recognition of the internal point
of view of participants in the legal system. The proper object of philosophical
reflection on law is activity of officials and citizens. Participants have a view about
what they are doing and why and, although these views may not be in themselves
dispositive, they are never entirely irrelevant. Especially important for theoretical
reflection on the nature of law are the broad categories and general frames of ref-
erence of participants. The connection between what self-identified participants
say about their practice and the truth about that practice is complex and con-
tested, but it is clear that the categories in which they think about their practice
shape that practice. Moreover, since the history of a practice is one very important
window on its present nature and meaning, the broad categories and general
frames of reference of past participants in the practice should be of special interest
to legal philosophers. The history of jurisprudence, then, would seem to be as
* Cary C Boshamer Professor of Philosophy and Professor of Law, University of North Carolina at
Chapel Hill.
1 P Christianson ‘Young John Selden and the Ancient Constitution, ca 1610–18’ (1984) 128
Proceedings of the American Philosophical Society 271, 310 fn 19.

156 Classical Common Law Jurisprudence (Part I)     
essential to jurisprudence as the history of philosophy more generally is to philo-

sophy. Thus, Janus might equally serve as image and patron of jurisprudence, for
it too, when practised to greatest advantage, always has a keen eye turned to its
past, a past that informs, enriches, and deepens the issues currently debated.
An apt title for this article might be ‘The Back Face of the Anglo-American
( Jurisprudential) Janus’, for, although it is meant as a contribution to contempo-
rary legal philosophy, it focuses entirely on common law jurisprudence as it devel-
oped in the 17th century, the period in which modern notions of law took shape.
The 17th century in Europe was rich in philosophical reflection on the nature of
law. Scholastic legal philosophy was given new life most notably by the work of
Francisco Suarez, but equally important was a new development in natural law
thought ushered in by Hugo Grotius and carried forward by Hobbes, Pufendorf,
Locke, Stair and others. At the same time, in England common lawyers articulated
a conception of law drawing inspiration from earlier natural law sources, but also
reflecting dominant features of native common law practice and the special polit-
ical pressures to which it was subjected in that turbulent period in its history.
Common law jurisprudence, even in its heyday, did not mature into a full-fledged
philosophical theory; yet, a number of important notions to which common law
jurists gave complex and conflicting expression influenced orthodox understand-
ing of English legal practice at the time and long after, and they retain great, if
under-appreciated, philosophical significance today.
This article offers a partial philosophical reconstruction of classical common
law conception. It does not pretend to make a contribution to legal history, but
seeks only to bring this history to the attention of legal philosophers who wish to
pursue their craft with all the necessary tools at their disposal. The discussion may
give readers a richer understanding of the texture of issues now discussed by legal
philosophers, and perhaps enable them to see issues worth discussing that are cur-
rently being ignored. However, the connections may not be obvious. Much work
remains to be done to connect this philosophical reconstruction of the history of
classical common law jurisprudence with problems currently occupying our
minds. At the same time, I hope that hints of those connections will be evident,
enough at least to repay the effort of this historical excursion.2
This study falls into two nearly equal and thematically integrated parts. It pro-
ceeds in a spiral rather than linear motion, circling several times around a relatively
small number of thoughts and images that were central to classical common law
2 An ancestor of this article was presented to a seminar for the Law Faculty of the University of Padua.
A highly condensed version appears as pts I and II of ‘The Philosophy of the Common Law’ in
J Coleman and S Shapiro (eds) The Oxford Handbook of Jurisprudence and the Philosophy of Law (OUP
Oxford 2002), where I made an attempt to link issues of classical common law jurisprudence to some
issues currently being discussed by legal philosophers. This article was written in substantial part
while I was Keith Massey Fellow of the Institute for the Arts and Humanities, University of North
Carolina at Chapel Hill. I am grateful to the Institute and its donors for support of this work. Also, I
have learned a great deal from the forthcoming work of Michael Lobban on this topic, although he
takes issue with my reading of part of this tradition.
jurists’ understanding of the law they practised, each time uncovering further
dimensions and tensions. The first part opens with a brief sketch of the historical
roots of the common law, tracing its development from the 12th century to its
relative maturity in the 17th century. The next section identifies in broad strokes the
main themes or ideas that attracted the attention and structured the disputes among
common lawyers of the day. All parties shared the general idea that common law
was ‘reasonable usage’. For many jurists this involved both common custom and
common reason, although these were understood in different ways. The two con-
cluding sections of the first part explore these two complementary but also compet-
ing ideas. The concluding section also discusses the relation between the classical
common law idea of common reason and traditional notions of natural law.
We will learn that it was important to common law jurists to distinguish sharply
between traditional natural law and natural reason and the ‘artificial reason’ of the
common law. The second part of this article opens with an extended analysis of
the notion of law’s ‘artificial reason’. This will lead to a consideration of the
role and nature of precedent in classical common law theory, and finally to a
discussion of the normative foundations of law as conceived by common law
jurists. Natural law ideas will appear here again, but this time dressed in distinc-
tive common law robes.
B H ISTORICAL R OOTS OF E NGLISH C OMMON L AW
Classical common law jurisprudence was articulated by reflective but politically

engaged jurists in the 17th century. These common law jurists—it would be mis-
leading to call them ‘common law theorists’—were active participants in the legal
practice of their day. They were lawyers, judges, royal counsellors and parlia-
mentarians, not philosophers or scholars; they were legal practitioners, not
detached observers. Their views, and the manner in which they expressed them,
bear the distinctive marks of this local, concrete and pragmatic point of view. We
can gain some insight into the quasi-theory that emerged in their writings by first
taking a look at the historical roots of the practice they had in view.
Common law was understood throughout its history to be the law and customs
common to the whole kingdom of England, that is, to all free men in the realm,
administered by a centralized court system with nationwide competence.3 The
3
RC van Caenegem The Birth of the Common Law (CUP Cambridge 1973) 88–89, 98; AWB Simpson
‘English Common Law’ in P Newman (ed) The New Palgrave Dictionary of Economics and the Law
(Macmillan London 1998) vol 2, 60. For the origins of the common law, see JH Baker An Introduction
to English Legal History (3rd edn Butterworths London 1990); P Brand ‘ “Multis Vigiliis Excogitatam
et Inventam”: Henry II and the Creation of the English Common Law’ (1990) 2 The Haskins Society
J 197; RC van Caenegem The Birth of the Common Law (CUP Cambridge 1973); SFC Milsom Historical
Foundations of the Common Law (2nd edn Butterworths London 1981); J Hudson The Formation of English
Common Law (Longman London 1996); NF Cantor Imagining the Law: Common Law and the Foundations
of the American Legal System (HarperCollins New York 1997).
common law was, according to Milsom, ‘the by-product of an administrative

triumph’.4 Historians credit Henry II, in the last third of the 12th century, with
introducing the institutional innovations that gave birth to the common law.5
Long before Henry II, English monarchs had decided disputes brought to them,
as did magnates around the realm in their seignorial courts. At the beginning of
the 12th century, Henry I occasionally sent itinerant judges to preside over the
hearing of disputes in local courts, but these judges seldom decided cases them-
selves. In three important ways Henry II established the institutional base for the
common law.6 First, he firmly established a permanent court in Westminster that
sat in regular terms.7 Secondly, he organized the itinerant Justices in Eyre. They
made regularly scheduled visits around the country not only presiding over cases
at the local level, but actually deciding them on principles also used in the
Westminster courts. Thirdly, Henry II began a process of integrating the wide
variety of local courts (seignorial courts, county courts, hundreds courts, and the
like) into the nationwide system.8
Common law emerged from this increasingly centralized system of institutions
of justice. It was ‘common’ in two important respects. First, it was national law,
absorbing and replacing the regional law structures of the pre-conquest period
(Danelaw, Mercian law, Wessex law, Kentish law, and the like). In this respect it
differed sharply from European ius commune, which was the body of legal doctrine
common to the learned class across national boundaries.9 Secondly, it claimed and
exercised with increasing effectiveness monopoly jurisdiction over a very wide
range of legal matters at the expense of the many other local and transnational
courts (the latter including, for example, ecclesiastical and merchants’ courts). The
regular schedule of circuit appearances of the judges in Eyre established the King’s
justice as a near continuous presence throughout the land.10 Late in the 13th cen-
tury, however, the Eyres declined and were replaced by the assize circuits in which
judges had narrower jurisdiction.11
4
Milsom (n 3) 11.
5
Brand (n 3) has a short description of Henry II’s centralizing efforts that is extremely clear and useful.
6
For a general discussion see B Kemp ‘Exchequer and Bench in the Later Twelfth Century—
Separate or Identical Tribunals?’ (1973) 88 English Historical Rev 559 and RV Turner Judges,
Administrators and the Common Law in Angevin England (Hambledon Press London 1994) 17–34. I am
grateful to Michael Lobban for these references.
7
The functions of the curia regis (royal court) gradually divided into the more specialized activities of
the Exchequer, taking care of tax and fiscal matters and disputes; the Common Bench, which han-
dled most other matters (except criminal matters); and the King’s Bench (which focused largely on
criminal matters). The Exchequer and Common Bench remained permanently in Westminster,
while the King’s Bench would frequently travel with the King.
8
These devices included a system of royal writs by which litigation could be initiated in the royal courts,
the rule that no free man was required to answer concerning a free tenement of his in the court of his
lord unless by writ of the King, and a number of mechanisms by which litigation could be moved by
plaintiff or defendant out of seignorial or county courts to royal courts (normally in Eyre).
9
van Caenegem (n 3) 88.
10
ibid 19–25.
11
I am indebted to Michael Lobban (correspondence) for this information. See A Harding Law Courts
in Medieval England (Allen & Unwin London 1973).
While the King occasionally sat in his capacity as judge, the task was largely left
to officials whose only job was to hear and decide litigation. Hence, with central-
ization also came an increasingly specialized professional cadre of judges and
lawyers which was able to develop over time its own traditions and independence.
It saw itself not merely as the protector of the King’s peace, but as guardian of
custom and justice against will and violence of all kinds, including the will and vio-
lence of the King.12 Thus, by the middle of the 13th century, the author of Bracton
was able to write boldly ‘law makes the king [lex facit regem] … for there is no rex
where will rules rather than lex’.13
Despite this centralization and specialization, the common law in its infancy
was dependent on local custom. Or, perhaps it would be more accurate to say that
the developing law of the royal courts left the door open for the influence of cus-
tom. Henry II’s innovations created a hierarchy of courts from manor and village
through the hundred to county courts and ultimately to curia regis,14 but the King’s
justice depended heavily on local communities to identify lawbreakers and to
decide property disputes. ‘Ultimately it was jurors of the neighbourhood, and not
royal judges or feudal lords’, Clanchy observes, ‘who decided the fates of men and
property by their verdicts of “Guilty” or “Not guilty” … [Moreover,] because
courts were community meetings and legal experts were educated through them
and not by book learning, knowledge of the law was more widely diffused than in
modern societies’.15
However, we must be careful here. We overstate the case if we say that the com-
mon law was simply a consolidation of popular custom. Kiralfy argues that there
is no evidence for the view that ‘the common law was a collation of the best rules
from the various English counties, based on the work of judges who visited them
to hold trials’. Judges at the birth of the common law ‘were not professional
lawyers … but busy [Norman] men of affairs with day-to-day problems to solve’.
Moreover, ‘the old customs of the shires (counties) would have been Anglo-Saxon,
customs of a repressed race, and not reflecting the new Norman feudalism’.16 On
the other hand, the efforts of Henry II to integrate seignorial and other local courts
into the larger national system had the effect of integrating the customs of those
courts into the common system. Brand describes a procedure, already in place
when Glanvill wrote in 1189, by which the local lord ‘put his court into the king’s
12 van Caenegem (n 3) 25.

13
H de Bracton Bracton on the Laws and Customs of England (1250/59) SE Thorne (tr) (Belknap Press
Cambridge Mass 1968) vol 2, 33.
14
MT Clanchy Early Medieval England (Folio Society London 1997) 101 (reproduction of MT Clanchy
England and Its Rulers 1066–1272 (Fontana London 1983) and portions of MT Clanchy From Memory
to Written Record (2nd edn Basil Blackwell Oxford 1993)).
15
ibid 101, 102.
16
A Kiralfy ‘Custom in Mediaeval English Law’ (1988) 9 J of Legal History 26, 27. For a vigorous, if
ultimately unconvincing, critique of the thesis that common law was founded substantially on
popular custom, see EK Braybrooke ‘Custom as a Source of English Law’ (1951) 50 Michigan
L Rev 71.
court’ in order to secure the King’s assent to what his court wished to do. Glanvill’s
account of this procedure, Brand argues, implied ‘that there is already a “common
custom” of England that is shared by the king’s courts and those of his barons, a
common corpus of customs and rules applied in all courts’.17
The nature of this emerging common custom is a matter of some debate among
legal historians, but there is substantial agreement on two primary characteristics:
a) it began largely as procedural, concerning manner and mode of proof, leaving
substantive standards to the judgment of the community represented by the jury,
and only over a long period did substantive rules and principles work their way
into the body of law; and b) while ‘case law’ was from the beginning the mode of
existence of the common law, this did not rest on a firm doctrine of binding prece-
dent but rather the law was understood as a matter of the ‘common erudition’ of
a unified and learned profession. I will say a few words about each of these features
starting with the second.
Glanvill in the 12th century and Bracton in the 13th acknowledged that com-
mon law was unwritten law approved and authorized by the royal courts in their use
of it to decide particular cases.18 It was, in the beginning, a developing oral tradi-
tion, despite the fact that the common law was born at the time in which European
culture made a decisive shift ‘from memory to record’, that is, from an oral and
memory-based culture to a literate and record-keeping culture.19 By the 13th cen-
tury, two kinds of records of cases were being kept. Plea rolls recorded decisions of
courts, and these ‘precedents’ were sometimes cited by lawyers and judges in their
arguments, but they were of limited use because they did not record the arguments
or reasoning for the decisions; yearbooks, in contrast, were detailed verbatim
records of the pleadings and arguments in court, but they were not regarded as
strictly binding.20 The more important source for the development of the common
law was the yearbooks. The ‘largest and most detailed collection of dialogue made
in the Middle Ages’,21 the yearbooks preserved a record of the pleadings, exten-
sive oral argument carried on by counsel and the bench around the writs, designed
to define sharply the issue before the court. The yearbooks were not intended to
record precedential decisions, but rather to exemplify, and thereby to teach stu-
17
Brand (n 3) 220.
18
W Glanvill The Treatise on the Laws and Customs of the Realm of England, Commonly Called Glanvill GDC
Hall (ed) (Clarendon Press Oxford 1993) 2 (originally published in 1189); Bracton (n 13) 19.
19
The classic discussion of this transition is Clanchy 1993 (n 14). For a brilliant précis of his longer
argument see MT Clanchy ‘Remembering the Past and the Good Old Law’ (1970) 55 History (New
Series) 165.
20
Baker (n 3) 225; for a useful description of the development of the yearbooks see JH Baker The
Common Law Tradition: Lawyers, Books, and the Law (Hambledon Press London 2000) 133–64.
21
Clanchy 1993 (n 14) 98; Baker 2000 (n 20) 136 writes: ‘they are one of the very few sources from
anywhere in Europe in which we can hear the cut and thrust of medieval debate between named
people’.
dents and lawyers, the techniques of pleading and argument.22 They captured
law—legal argument—in action.23 No single recorded case was regarded as for-
mally binding, but rather as evidence of the way law worked and how it was prac-
tised. Early common lawyers revised the Roman maxim, non exemplis sed legibus
adjudicandum est (adjudication is to be according to declared law not recorded
precedent), to their own use replacing legibus with rationibus (reason).24 It was the
general practice of the courts, not the specific decisions or reasoning in a given case
or line of cases, that established the propositions of law. The law emerged from the
course of argument exemplified in the cases so reported, but it was not laid down
by the courts. The recorded cases offered authoritative evidence of the forms and
usages of the courts and hence of the law. These records taught students modes
and contexts of argument rather than settled rules and criteria by which to authen-
ticate them. In the earlier oral tradition, all learning of law was by hearing and par-
ticipating in argument, rather than by reading treatises and codes. Even in the
newly emerging written culture this part of the tradition persisted: the yearbooks
put the students into the courtrooms in the middle of the arguments as lawyers
developed them and worked toward resolution of the legal issues they faced. This
is one example among many of the way in which the common law, although
greatly transformed by political, institutional, and technological innovations, still
retained in living form key features of its original, oral nature.
The other key feature of the early common law was its decidedly procedural
cast, built around a complex set of writs which under certain circumstances enti-
tled subjects to a hearing on a specific cause of action or to appeal for redress.25
Legal argument tended to precede the trial and was carried on primarily at the
pleadings stage. Baker describes the practice as follows:
22
Baker 2000 (n 20) 159; Clanchy 1993 (n 14) 98; JW Tubbs The Common Law Mind: Medieval and Early
Modern Conceptions ( Johns Hopkins University Press Baltimore 2000) 42, 180–81; F Pollock and FW
Maitland The History of English Law before the Time of Edward I (CUP Cambridge 1898) vol 1, 183, 184.
23 F Pollock The Genius of the Common Law (Columbia University Press New York 1912) 24 describes the
early yearbooks in the following terms: ‘A dialectic process of some kind was necessary to fix the
point for adjudication, and to guide the future practice of the professional counselors who were now
becoming the servants of the law. This creative dialectic, working on a still fresh and plastic mater-
ial, is what we find in the earlier Year Books; not official or formal records … but notes of young
lawyers keen on learning their business, and eager to make sure how far they could venture to be
ingenious without rashness. They cared very little who the parties were, and less about the end of
the case. Good pleading was their ambition’.
24 Baker 2000 (n 20) 160.
25 This aspect of early English common law is manifest in Glanvill (n 18), the first major treatise of com-
mon law (late 1180s). As Cantor (n 3) 72 put it, ‘In Glanville’s eyes the common law is rooted in
process ... Common law is writs that inaugurate forms of actions and juries that effectively conclude
these judicial cases. That is all you really need to know.’ For a general discussion see van Caenegem
(n 3) ch 2. The predominantly procedural character of common law is still very evident in
Blackstone’s Commentaries five centuries later. In Commentaries vol 3, which deals with ‘private wrongs’,
there are a few thin chapters on rudimentary substantive doctrines of tort and some remedies of
property law, while the bulk of the book is devoted to detailing civil procedure. As he says, ‘our chief
employment in this volume will be to consider the redress of private wrongs, by suit or action in courts’:
W Blackstone Commentaries on the Laws of England (Clarendon Press Oxford 1765–69) vol 3, 3.
The facts were not ascertained until after the legal debate had concluded. Legal discus-
sion in the central courts was therefore of hypothetical facts put forward in pleading, and
the principal object of such discussion was not to determine the law so much as to settle
the most appropriate issue for the jury. An essential feature of this system was that the
pleadings were not fixed in writing before discussion began, but were advanced orally in
court and could be withdrawn or amended if the reaction of the court or the opposing
party made it seem politic to do so.26
Law surely was made in these proceedings, but typically it was made informally,
indirectly, and unintentionally. Law emerged and developed not out of decisions
on proven facts of actual cases, but in discussion of hypothetical facts, to be tried
later, and general argument that tested the legal waters often led to withdrawal of
a disputed plea and replacement with an amended one.27 If a body of substantive
law developed, it was to an extent ‘secreted in the interstices of procedure’,28
because, as Milsom points out, ‘even in those [contexts] in which the historian can
see the judges as most clearly “making law”, the judges themselves were thinking
in procedural rather than in substantive terms.’29 Moreover, the system of writs
and pleading, surely arcane to the ears of a contemporary free Englishman, nev-
ertheless had as its aim to so shape the issue that it could be decided as a matter of
‘fact’, by those legal subjects closest to the parties.30
The records of court proceedings in the yearbook period remained the written
record of an essentially oral tradition—a practice of oral argument carried on
within a procedural framework defined by the writs.31 Rather than appeal to
specific decisional precedents or recorded opinions, such arguments appealed to
collective memory of judges and lawyers, to their ‘common learning’ as they called
it.32 They could count on this common memory because the fraternity of lawyers
and judges was small, specialized, and centralized.33 This, of course, tended to put
distance between the law and the people it claimed to serve. It is reasonable to
believe that this distance was further increased by the fact that most of the court
business was carried on in a mixture of law French and Latin.34 Yet, Clanchy’s
work suggests that in medieval English society there was a remarkably fluid move-
ment from one language to another. By the 14th century a minimal practical lit-
eracy in Latin (ability to read and understand, if not to write, Latin) was common
among the gentry and not rare even among peasants.35 Moreover, it was very
26 Baker 2000 (n 20) 161 (footnote omitted).

27
Baker (n 3) 93–94.
28
HS Maine Dissertations on Early Law and Custom ( John Murray London 1901) 389.
29 SFC Milsom Studies in the History of the Common Law (Hambledon Press London 1985) 212.
30 Milsom (n 3) 42–48; Baker (n 3) 90–94. See also the discussion of the role of the jury below.
31 Simpson (n 3) 59.
32 Baker (n 3) 226.
33 AWB Simpson Legal Theory and Legal History: Essays in the Common Law (Hambledon Press London
1987) 387.
34 Simpson (n 3) 64.
35 Clanchy 1993 (n 14) 236–47.
common for legal proceedings, documents, and orders to move fluidly from
law French to Latin to English and back again.36 This is a striking example of the
interdependency of the vernacular and the formal that characterized the early
common law.
Another example lies in the role of the jury in common law. Early in their devel-
opment, the royal courts found it useful to appeal to the good judgment of peers
of the accused or of the disputing parties. They were asked to judge the appropri-
ateness of the disputed behaviour according to local norms. This practice of
‘recognition’ had its roots in county, hundred and seignorial courts, where, for
example in property disputes, locals were asked to testify regarding who was the
rightful owner.37 From this practice emerged perhaps the most distinctive institu-
tion of the common law system, the jury.38 Since most of the formal law at the time
was procedural, substantive norms of behaviour and liability were brought into
litigation through the jury’s common sense judgments. Juries were not asked pri-
marily to assess the weight of evidence, but rather ‘to speak the truth of their own
knowledge’,39 and to decide the substantive issues shaped by the writs according
to common sense (customary) norms. The trial, van Caenegem writes,
was based on two distinct bodies, the judges who led it and eventually gave judgments,
and the members of the jury who pronounced a verdict on the crucial issue of right and
wrong, guilty or innocent. The voice of the vicinity, the ‘truth of the land’, was heard
under the guidance of the judges, but was binding upon them. It was as binding, in fact,
as the ordeals had been, the vox populi had simply taken the place of the final and
inscrutable vox Dei.40
The emergence of a professional lawyer class gave further definition to this fea-
ture of common law. Early common law required litigants to tell their stories to the
court. But, since the language of the court after the Norman invasion was often
foreign and formal, a professional class of counters, ‘story-tellers’, emerged to trans-
late naïve narratives into the language of the court.41 However, the juries, since
36
See especially Clanchy’s description of the linguistic career of jurors’ in Clanchy 1993 (n 14) 207.
37
van Caenegem (n 3) 72; Cantor (n 3) 7.
38
For a detailed account of the rise of the jury and its central role in common law see van Caenegem
(n 3) ch 3 and M Macnair ‘Vicinage and the Antecedents of the Jury’ (1999) 17 L and History Rev
537.
39
Simpson (n 3) 63.
40
van Caenegem (n 3) 71; Milsom (n 29) 216–17. Similarly, Donald Kelley writes, ‘[f]rom the outset
English law seemed to be the joint creation of the “reasonable men” of the sworn neighborhood
assembly and the professional judges’: DR Kelley The Human Measure (Harvard University Press
Cambridge Mass 1990) 166.
41 Simpson (n 3) 62; Clanchy 1970 (n 19) 175; Clanchy 1993 (n 14) 273–74. Clanchy writes: ‘The nar-
rator [Latin] or conteur [Anglo-Norman, equivalent to the forespeca in Anglo-Saxon] made the formal
claim or pleading on the litigant’s behalf. The pleading was called a “tale” (narratio in Latin or conte
in French [compare the modern law-English “count”]) just as it had been in Anglo-Saxon. … [An]
early tract (date c. 1285) records that the pleadings “are uttered by narrators in romance words and
not in Latin ones”. The “narrator” was thus a “romancer”, a professional teller of tales in the ver-
nacular, but his “tales” were legal pleadings and not romances in the modern sense. Yet in origin
the deciders of the substantive issue, comprised lay peers of the litigants, the law-
narratives still had to be expressed in terms the jury could understand. Lawyers
became interpreters, bridging court and community.
As the system matured, lawyers took an increasing role in formulating and argu-
ing the substantive issues that eventually were presented to the jury for decision.
As issues became subtler, lawyers sought decision on substantive matters from the
trained judge rather than the lay jury members, and increasingly participated in
the formulation of substantive doctrine. Lawyers took over the power to decide
matters that had been left to common sense and common judgment.42 There
arose the distinction, still in use in common law jurisdictions today, between mat-
ters of law (for the judge) and matters of fact (for the jury). The distinction has
always been misleading, since it was never strictly a matter of distinguishing legal
norms and doctrines, on the one hand, from merely evidential matters, on the
other. Juries were still asked to decide substantive matters (albeit often in the guise
of an evidential question), especially when courts did not wish to decide
definitively. Macnair points out that witnesses to local reputation did more than
vouch for the good faith of accused—they were expected to express the judgment
of the community. In this way, ‘forms of professional law’ were maintained, but
they were ‘married to at least a partial practice of lay judgment.’43 Throughout
their history, it seems, common law courts have regarded openness to the lay sense
of reasonableness and right conduct to be a key feature of the adjudicative
process.44
It is worth noting, of course, that through most of its life, and well into the 18th
century, the common law of England was law of and for the free landed gentry. Its
primary concern and focal point was property. Common law sent its roots deep
into feudal soil and with the demise of feudalism in England new legal protections
for free landholders were devised. Still, common law also recognized, uncomfort-
ably and within certain limits of ‘reasonableness’, common rights of lower classes
to some uses of land regarded by long agrarian custom to be ‘commons’.45
Finally, a word needs to be said about the role of the Parliament as a legislative
body in the early history of the common law system. Common lawyers were often
sceptical of the capabilities and wisdom of Parliament, but legislation issuing from
the King, or the King in Parliament, was far more common than the rhetoric of
17th century common lawyers would suggest. Yet, for a large part of its history,
Parliament produced legislation that was typically remedial or declaratory, cor-
the technique of the legal narrator was probably similar to that of his namesake, the Singer of Tales.
… A narrator, whether of common law pleadings or of epic and romance, had originally recon-
structed his tale in due form on the basis of a few remembered formulas’: Clanchy 1993 (n 14) 274
(footnote omitted).
42
Simpson (n 3) 64.
43
Macnair (n 38) 590.
44
Milsom (n 29) 214–17.
45
For a rich discussion of the conflicted place of such ‘common rights’ in 18th century English law,
see EP Thompson Customs in Common (New Press New York 1991) ch 3.
recting some anomaly in the common law or articulating in general terms doc-
trines already widely recognized by it. It functioned largely, but not exclusively, as
an auxiliary to the courts. Even later, in the 19th and 20th centuries, when leg-
islative bodies in common law systems took a far more active and innovative role
in law-formation, the dominant model of common law integration sustained itself.
From the beginning, common law courts could never easily ignore legislation.
They had to give legislative bodies the respect their political power and constitu-
tional status commanded. Typically, however, courts would concede Parliament
rule-making power, but subject its legislation to standard common law methods of
reasoning. Thus, the meaning of the legal rules and their long-term validity were
ultimately determined by the extent to which they could fit coherently into the
existing body of common law. These developments had reached full maturity in
the early 17th century.
It was this distinctive system to which common law jurists in the 17th century
turned their attention. A rising chorus of criticism of common law practice, the
increasing pretensions of the new monarch to absolute rule based on divine right,
and his attempts to unify the kingdoms of Scotland and England and their legal
systems, may have been among the factors driving a vigorous defence of common
law.46 Since the common law was regarded as the foundation of the political con-
stitution, the intensely political debate that continued through the century stimu-
lated sustained public discussion of the theoretical understanding of the common
law. The major voices were those of Sir Edward Coke, John Selden and Sir
Matthew Hale, but several other voices, now nearly forgotten, added texture,
nuance, and sometimes even fundamental structure to the emerging self-
understanding of common law practice. It would be an overstatement to speak
here of a single coherent theory of common law, or even more loosely of a univocal
‘common law mind’, for one finds a fair amount of disagreement among these
jurists over major themes of the common law conception.47 Yet, despite their
disagreements, or in some cases, perhaps because of them and the complexity of
the view thereby indicated, certain distinctive themes emerge that are worthy of
philosophical reflection and assessment.
46 CW Brooks ‘The Place of Magna Carta and the Ancient Constitution in Sixteenth-Century English
Legal Thought’ in E Sandoz (ed) The Roots of Liberty: Magna Carta, Ancient Constitution, and the Anglo-
American Tradition of Rule of Law (University of Missouri Press Columbia 1993) 83–85;
P Christianson ‘Ancient Constitutions in the Age of Sir Edward Coke and John Selden’ in the same
work.
47 Tubbs (n 22) 195 concludes his book as follows: ‘The most that we can say, on the evidence we have,
is that if there was a common law mind in the period, it was divided’. The most fundamental divi-
sion Tubbs identifies arises over the alleged antiquity of the common law (the ‘immemorial’ status
of common law custom). Another, as we shall see, concerns whether the custom with which com-
mon law was identified was custom of the country or custom of the court and legal elite.
C T HE C OMMON L AW C ONCEPTION OF L AW : A N O VERVIEW
[T]he common law is a reasonable usage throughout the whole realm approved time out
of mind in the King’s courts of record which have jurisdiction over the whole kingdom,
to be good and profitable for the commonwealth.48
Classical common law judges did not regard themselves as ‘making’ law, and, as
we have seen, they did not subscribe to an explicit doctrine of stare decisis. They
treated decisions of past courts with respect, of course, but they would have found
it odd to regard these decisions as discrete instances of law making. Nonsense,
argued Bentham. We can always ask of any law, who made it?: ‘if not [made] by
a Judge, by whom then was it made? for laws do not make themselves …’.49 While
Bentham thought this was a knock-down refutation of the theoretical claims of
common law, classical common lawyers would have thought Bentham’s question
rested on what philosophers would call a category mistake.50 Statute laws are
made or posited in the sense that Bentham’s question assumes, but rules of com-
mon law, they would have argued, are not the kind of things that are made in that
way, any more than rules of English grammar are so made (which is not to deny
that they are social artefacts).
The orthodox lawyer’s view in the 17th century was that the common law of
England was found primarily in three places: judicial decisions, Acts of
Parliament, and local custom.51 While common lawyers recognized statutory law
and other ‘constitutions’ issuing from the monarch or monarch-in-Parliament, still
the law in its fundament was understood to be not so much ‘made’ or ‘posited’—
something ‘laid down’ by will or nature—but rather, something ‘taken up’,52 that
is, used by judges and others in subsequent practical deliberation.53 ‘[T]he only
48
T Hedley ‘Speech in Parliament on Royal Impositions’ in ER Foster (ed) Proceedings in
Parliament, 1610 (Yale University Press New Haven 1966) 175.
49
J Bentham ‘Legislator of the World’: Writings on Codification, Law and Education P Schofield and J Harris
(eds) (Clarendon Press Oxford 1998) 124–26.
50
‘Neither could any one man ever vaunt, that, like Minos, Solon, or Lycurgus, he was the first law-
giver to our nation: for neither did the King make his own prerogative, nor the judges make the
rules and maxims of the law, nor the common subject prescribe and limit the liberties which he
enjoyeth by the law’: J Davies ‘Irish Reports’ in A Grosart (ed) The Works in Verse and Prose … of Sir
John Davies (Blackburn 1869–76) vol 2, 255. I have altered the spelling and capitalization to conform
to modern standards. I will do so silently for all quotation from 17th century sources unless it risks
changing the meaning of the quoted passages.
51
E Coke First Institute of the Laws of England (Garland New York 1979) 115b (written in 1628); M Hale
The History of the Common Law of England CM Gray (ed) (University of Chicago Press Chicago 1971)
(originally published in 1713 but written in the decade after the Restoration).
52
The phrase is James Murphy’s in ‘Law’s Positivity in Thomas Aquinas’ (unpublished manuscript,
copy with author).
53
Common lawyers fully understood the notion that law is the product of the exercise of sovereign
law-making power. Indeed, this notion played a key role in Selden and Hale’s understanding of the
normative foundations of law in the law of nature. Nevertheless, they resisted extending this proto-
positivist notion to their understanding of English common law—except for the circumscribed role
they accorded to Acts of Parliament. I discuss this complication in pt II.
method of proving, that this or that maxim is a rule of the common law’,
Blackstone wrote in the mid-18th century, ‘is by showing that it hath been always
the custom to observe it’.54 Despite Blackstone’s language, his point is not merely
epistemic. He makes a claim about the mode of existence of common law. Law
exists insofar as it is regularly taken up, used in deliberation and argument, and
followed in practice. The law, as common lawyers conceived of it, was not a struc-
tured set of authoritatively posited, explicit directives, but of rules and ways
implicit in a body of practices and patterns of practical thinking ‘handed down by
tradition, use, [and] experience’.55 Of course, one could describe a given portion
of common law in terms of rules, maxims or principles, but it would be beside the
point to ask, ‘who made them?’. According to common lawyers, law lived in and
evolved from the practical interactions of daily life as they surfaced in the common
law courts. Its existence was evidenced in its use.
Common law rules were the product of a common practice of deliberative
reasoning; hence, the usage in question was never merely predictable patterns of
behaviour in a community, but was always seen as ‘reasonable usage’56—usage
observed and confirmed in a public process of reasoning in which practical prob-
lems of daily social life were addressed. Furthermore, while at least some of the
‘usages’ of common law may have had their origin in local customs of people, they
were integrated into the law common to all the people of the nation through being
‘taken up’ in the process of litigation in the courts at Westminster. Substantive con-
cepts, doctrines and maxims of common law emerged in the course of the attempts
by lawyers and judges, through reasoned discourse and argument, to articulate
and apply reasonable rules to solve concrete disputes. Intricately interwoven into
the activity of adjudicating particular disputes by application of rules of law were
the activities of articulating and justifying those rules. To the common lawyer’s
mind, these three activities—articulating standards, showing them to be reason-
able and sound, and applying them to particular cases—were not three separate
processes, but rather interrelated moments of a single process of discursive rea-
soning. Through disciplined movements in this process, common law rules
emerged and common law doctrine evolved. In their view, the life of the law was
disciplined reason.
The categories of custom and reason gave shape and structure to the common
lawyers’ conception of law. In their eyes, these two notions were complementary,
mutually qualifying and mutually enhancing.57 Thomas Hedley, in a remarkable
speech delivered before Parliament in 1610, highlighted this interdependency. He
wrote:
54 Blackstone (n 25) vol 1, 68.

55 ibid 17.
56 Hedley (n 48) 175.
57 This theme is developed in great detail by G Burgess The Politics of the Ancient Constitution: An
Introduction to English Political Thought 1603–42 (Pennsylvania State University Press University Park
1993) especially ch 2.
the common law is a reasonable usage throughout the whole realm approved time out of
mind in the King’s courts of record which have jurisdiction over the whole kingdom, to
be good and profitable for the commonwealth.58
This is a definition that all 17th century common lawyers accepted, although, as
we shall see, they often developed the component ideas in different ways. Hedley’s
definition offers us a convenient map of the common lawyers’ conception of law.
D C OMMON L AW AS C USTOM OF THE R EALM
For the common law of England is nothing else but the common custom of the realm.59
Sir John Davies in the above passage gave expression to an understanding of com-
mon law that can be traced to Glanvill and Bracton at the dawning of the com-
mon law era, and which was regularly affirmed through the centuries. He echoed
St German who wrote in the 16th century, ‘the law of England standeth upon
diverse general customs of old time used through all the realm: which have been
accepted and approved by our sovereign lord the king and his progenitors and all
their subjects’.60 In the 17th century, all general discussions of the common law
started from this shared assumption.61 Some writers took pains to distinguish cus-
tom from common law without thereby denying the customary character of com-
mon law.62 These writers associated ‘custom’ with local or particular custom
(custom of place, for example of manor or shire; or custom of special groups, for
example merchants), and contrasted it to ‘general custom’—that which is current
‘throughout the realm’.63 Only the latter was properly said to be common law. It
alone enjoyed direct judicial notice, while local custom had to be proven by giving
evidence of the custom, its appropriate application to the case, and its ‘reason-
ableness’. So, although some writers distinguished custom from common law and
others referred to common law as custom, this terminological difference did not
signal any significant difference in view.
However, common lawyers understood this shared assumption in a variety of
different ways over the course of the 17th century. Disagreements tended to arise
around three important matters: a) the alleged immemorial nature of common
law, b) the relation of common law to customs of the people, and c) the normative
58
Hedley (n 48) 175.
59
Davies (n 50) 251–52.
60 C St German St German’s Doctor and Student TFT Plucknett and JL Barton (eds) (Selden Society
London 1974) 45 (originally published in 1523, 1530).
61 Hedley (n 48) 175; Davies (n 50) 251–52; H Finch Law, or a Discourse Thereof (AM Kelly Publishers
New York 1969) 77 (originally published in 1627); E Wingate The Body of the Common Law of England
(Garland New York 1979) 1 (originally published in 1655); Hale (n 51) 17, 30.
62 Hedley (n 48) 175–76; Coke (n 51) 11b; Finch (n 61) 77–78; Hale (n 51) 17–18, 46. The distinction
goes back at least to St German (n 60) 47, 71 and it is still important in Blackstone (n 25) vol 1, 67.
63 Hedley (n 48) 175.
force of common law custom. Common law writers took a variety of positions with
respect to each of these matters, but their views tended to arrange themselves
roughly around one of two different centres. We can associate one with Sir
Edward Coke and Sir John Davies, although important components were com-
pactly articulated in Hedley’s speech. Historians disagree about how widely the
view was shared among 17th century common lawyers.64 The other approach was
inspired by the erudition of Selden and given its most articulate expression in the
work of Hale. I am inclined to believe that the latter was the more widely accepted
understanding, especially as the century progressed, although both attracted
adherents in varying degrees.
1 The Coke–Davies Position

Coke, Davies and others put the notion of immemorial usage at the centre of their
conception of common law. This core notion brought together two key elements.
First, common law was seen to be, fundamentally and throughout its long exis-
tence, ius non scriptum, that is, a matter of rules and ways implicit in use and prac-
tice and recorded in memory. In his ‘Irish Reports’, Davies wrote
[C]ustom which hath obtained the force of a law, is always said to be ius non scriptum; for
it cannot be made or created, either by Charter, or by Parliament, which are acts
reduced to writing, and are always matter of record; but being only matter of fact and
consisting in use and practice, it can be recorded and registered nowhere, but in the
memory of the people.65
Common law was practised and evidenced in the decisions of courts and the
behaviour of people, according to Davies, but never explicitly made. This claim,
of course, had to be qualified, for stated in this bold way it was manifestly false. No
common lawyer could plausibly deny the existence of legislative activity through-
out the history of the common law. However, common lawyers that were inclined
to this view held that such legislation was largely declaratory of existing common
law and that legislation which truly introduced changes in the law was relegated
to an insignificant corner of the space they claimed for common law.
Secondly, Coke, Davies and others insisted that common law was immemorial,
that is to say, ancient and unchanged, usage. In the 15th century, Fortescue66 rather
naïvely claimed ancient vintage for the common law; Coke echoed and amplified
his claim, asserting that most of the key doctrines and rules of common law had
64 Compare J Pocock The Ancient Constitution and Feudal Law (CUP Cambridge 1987) with Burgess (n 57)
ch 2; Tubbs (n 22) ch 7; 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)
164.
65 Davies (n 50) 252 (see also 255).
66 J Fortescue ‘De laudibus legum Anglie’ (1468–71) in S Lockwood (ed) SB Chrimes (tr) On the Laws
and Governance of England (CUP Cambridge 1997) 26–27.
their origins in Saxon, Roman, or even pre-Roman Britain times, and had
endured nearly unchanged to the time at which he wrote. The laws of England of
all laws, he averred, are
of greatest antiquity … If the ancient laws of this noble island had not excelled all others,
it could not be but some of the several conquerors and governors thereof, that is to say,
the Romans, Saxons, Danes, or Normans, and especially the Romans, who (as they justly
may) do boast of their civil laws, would (as every of them might) have altered to changed
the same.67
Moreover, for those who followed Fortescue’s lead, the common law’s ancient
vintage underwrote its claim to authority. Good and beneficial acts become cus-
tom, Davies argued, ‘by often iteration and multiplication’; custom acquires ‘the
force of a law’ by ‘being continued without interruption time out of mind’.68 From
this it follows, he argued, that ‘a custom doth never become a law to bind the
people, until it hath been tried and approved time out of mind; during all which
time there did thereby arise no inconvenience’.69 Time provides the opportunity
for continuous testing, adjusting and refining of the law through deliberation and
argument.70 Time, Hedley argued, ‘is trier of truth, author of all human wisdom,
learning and knowledge, and from which all human laws receive their chiefest
strength, honor, and estimation. Time is wiser than the judges, wiser than the par-
liament, nay wiser than the wit of man’.71 Similarly, a few years earlier, in Calvin’s
case, Coke wrote
[W]e are but of yesterday (and therefore had need of the wisdom of those that were
before us) and had been ignorant (if we had not received light and knowledge from our
forefathers) and our days upon the earth are but as a shadow, in respect of the old ancient
days and times past, wherein the laws have been by the wisdom of the most excellent
men, in many successions of ages, by long and continual experience (the trial of light and
truth) fined and refined, which no one man (being of so short a time) albeit he had in his
head the wisdom of all the men in the world, in any one age could ever have effected or
attained unto.72
Most common lawyers were inclined to accept some version of the idea that the
long experience exemplified in the continuous tradition of common law was on the
whole one of the common law’s greatest assets. Even Hale, who took a far more
modest view, gave time its due. ‘[L]ong and iterated experience’, he allowed, is
‘the wisest expedient among mankind, and discovers those defects … which no
67
E Coke The Reports of Sir Edward Coke, in Thirteen Parts ( J Moore Dublin 1793) 2nd Report Preface.
This proposition is fulsomely and at length asserted by Sir Edward Coke in the 3rd Report Preface.
68
Davies (n 50) 252.
69
ibid.
70
Hedley (n 48) 178, 182; Finch (n 61) 75.
71
Hedley (n 48) 175.
72
Coke (n 67) 7th Report.
wit of man could either at once foresee or aptly remedy’.73 But the less modest
common law contingent went further, arguing that through the trial of time com-
mon law approximated natural law,74 and, indeed it was, in Coke’s phrase, ‘the
perfection of reason’.75 While not rejecting Coke’s immodest claim, Davies argued
that time’s testing and trying had a different, but equally important, consequence:
time made common law ‘fit and agreeable to the nature and disposition of the
people’.76 Indeed, ‘it is so framed and fitted to the nature and disposition of this
people, as we may properly say it is connatural to the nation’.77
But this forces to the foreground the question that has to this point lurked only
at the margins of the Coke–Davies position: whose custom is this common law?
Already in the 14th century and increasingly thereafter, it was immediately appar-
ent to the casual observer that much of common law was a specialized, increas-
ingly technical body of doctrine, rules and customs. Most English people were
wholly ignorant of many of the rules of their law.78 The official definition of
common law as ‘usage throughout the whole realm’ could be taken to mean either
usage of the whole realm or usage governing the whole realm and administered by
its courts.79
Coke was willing to exploit this ambiguity when it suited his purpose, but, as
Boyer observed, ‘Coke’s belief in custom was essentially skin-deep’.80 His attention
was trained primarily on the common learning of the profession, ‘the customs and
courses of every of the King’s courts’.81 But others in the Coke–Davies camp, most
notably Hedley, still sought to root the increasingly technical law of the courts in
the soil of the custom of the country (at this point, they drew close to the centre of
concerns of the Hale–Selden camp). St German, in the 16th century, provided a
promising point of departure for Hedley’s argument. He distinguished between
general customs of the law, which were diffused throughout the realm and as known
to the unlearned as to the learned who were long immersed in it, and its maxims,
73
M Hale ‘Reflections by the Lord Chiefe Justice Hale on Mr Hobbes His Dialogue of the Lawe’ in
W Holdsworth A History of English Law (7th edn Methuen London 1956) vol 5, 505.
74
Davies (n 50) 253; T Wilson The Art of Rhetoric PE Medine (ed) (Pennsylvania State University Press
University Park 1994) 74–75 (originally published in 1553) wrote ‘that is right by custom which long
time hath confirmed, being partly grounded upon nature and partly upon reason …’: in AD Boyer
‘ “Understanding, Authority, and Will”: Sir Edward Coke and the Elizabethan Origins of Judicial
Review’ (1997) 39 Boston College L Rev 43, 46.
75
‘[B]y many successions of ages it [the law of England] hath been fined and refined by an infinite
number of grave and learned men and by long experience grown to such a perfection, for the gov-
ernment of this realm, as the old rule may be justly verified of it, Neminem oportet esse sapientiorem leg-
ibus: no man out of his own private reason ought to be wiser than the law, which is the perfection of
reason’: Coke (n 51) 97b.
76 Davies (n 50) 252.
77 ibid 255.
78 AWB Simpson ‘The Common Law and Legal Theory’ in AWB Simpson (ed) Oxford Essays in
Jurisprudence (2nd series Clarendon Press Oxford) 91–95.
79 Tubbs (n 22) 113–15.
80 Boyer (n 74) 47.
81 Lane’s case in Coke (n 67) 2nd Report 16b.
which were known only in the King’s courts and by those undertaking intensive
study of the law of the realm.82 Maxims were the more specialized rules and prin-
ciples of the law, which provided the basis for further extensions to novel, analo-
gous cases.83 However, these maxims, St German argued, rested on two equally
important grounds. They had their ‘strength and warrant’ in, and ‘take their effect
by’, the general customs of the realm,84 but at the same time were rooted in a sense
of their coherence with the rest of the common law.85 Since the general customs
were already regarded as integral to the common law, these two grounds were, in
fact, interdependent. The test of the validity of the ‘maxims’ of law was their
coherence with the body of the law, and in particular its general customs, those
components which maintained a substantial congruence with the daily lives and
practices of the people, the custom of the country. Thus, although lawyer’s law
might seem arcane to the ordinary Englishman, it could claim validity, in St
German’s view, only if it were substantially congruent with the ordinary customs
of the people.
Thomas Hedley embraced St German’s solution. Common law, he insisted, is
not custom, just as the artificial reason of common law is never to be identified with
‘bare precedents’. For ‘common law is extended by equity [that is, by analogy]
that whatsoever falleth under the same reason will be found the same law’.86 And
rules derived by analogy do not have custom as their ‘next or immediate cause, but
many other secondary reasons which be necessary consequence upon other rules
and cases in law’.87 Nevertheless, they may be traced ‘by degrees till it come to
some primitive maxim, depending immediately on some prescription or cus-
tom’,88 just as in the Hebrew language, words ‘so infinite in number’ are derived
from a small number of primitive or radical words.89 Thus, although common law
was not to be identified with custom of the country, the latter is the radical source
of its validity, not literally by derivation, perhaps, but by source and congruence.
2 The Hale–Selden Position

Selden and Hale set Hedley’s solution to the problem of the scope of common
law’s customary foundations in a theoretical context at once more sophisticated,
more sceptical and more moderate. First, although they were sympathetic to the
82
St German (n 60) 59.
83
‘And such maxims be not only holden for law but also other cases like unto them and all things that
necessarily followeth upon the same …’: ibid.
84 ibid.
85 ‘And therefore most commonly there be assigned some reasons or consideration why such maxims
be reasonable and ought reasonably to be observed as maxims to the intent that other cases like may
the more conveniently be applied to them and judged by the same law’: ibid.
86 Hedley (n 48) 176.
87 ibid.
88 ibid.
89 ibid.
claim that English law in some sense existed ‘time out of mind’, they rejected the
view that it had survived unchanged from ancient times.90 The Society of
Antiquaries challenged the view as soon as Coke’s Third Report was published,91
and Selden blasted this myth in the notes to his 1616 edition of Fortescue’s De
laudibus.92 In his early studies of the ancient constitution, Selden showed through
painstaking historical research that English law had gone through vast changes,
each invasion mixing its own new laws with those existing, constantly changing
that law through interpretation and sometimes outright legislation. This historical
process had given the common law its distinctive native character. Common law,
he argued, was not an unchanging, ancient deposit, but constantly evolving. In the
place of an image of ancient immutability, Selden and Hale argued for the histor-
ical continuity of law in general, and English common law in particular. All law,
according to Selden,93 had its historical origin in fundamental features of human
nature and circumstances and human responses to certain natural, albeit abstract,
imperatives. Each community, forced by its circumstances to give these impera-
tives concrete content, increased and altered its law through interpretation and
addition. Over a long period of such creative adjustments to changing circum-
stances, each community tailored the original natural imperatives of human social
existence to its own needs and conditions. Although now little if anything of its
original material survived these constant efforts of interpretation and adjustment,
such changes do not threaten law’s deeper integrity. Despite the variations over
the centuries, it is the same law, just as the Argonauts’ ship was the same when it
returned home as when it departed, even though during its long voyage it had
been repaired so often that was made up of scarcely any of its original materials.
Hale’s use of Plutarch’s image of the ship of Theseus is instructive here. The
image, for millennia a staple of philosophical literature, apparently entered the
legal lexicon in the Digest’s defence of the antiquity of the Roman people and was
revived by the glossator, Accursius, in the 13th century.94 Sir Roger Owen, argu-
ing a Cokean line, insisted that compared with the civilians’ claim, the common
90
Hale, in particular, was keen to emphasize the point that one of the two fundamental sources of
English law was ‘immemorial usage’: ‘Reflections by the Lord Chief Justice Hale on Mr Hobbes
his Dialogue of the Law’ British Library Add MSS 18,235 folio 154. But it is clear that his
understanding of this idea was very different from Coke’s.
91
R Tuck Natural Rights Theories: Their Origin and Development (CUP Cambridge 1979) 83.
92 J Selden ‘Notes on Sir John Fortescue, De laudibus legum Anglie’ in J Selden Works (T Wood London
1726) vol 3 cols 1891–92. His attack was backed by a sophisticated historical analysis of England’s
ancient constitution in J Selden Jani Anglorum facies altera: The Reverse or Back Face of the English Janus
R Westcot (tr) (London 1683). For a useful discussion of these nearly inaccessible works see
Christianson (n 1) 273–83. In much of his History of the Common Law, Hale drew heavily on Coke, but
on this and related points Hale clearly followed Selden: Hale (n 51) 39–46. Francis Bacon and many
other 17th century jurists were also highly critical of the immemorialist thesis: Tubbs (n 22) 144–47,
228 fns 13–14.
93
Selden (n 92) cols 1891–92.
94
W Klein ‘The Ancient Constitution Revisited’ in N Phillipson and Q Skinner (eds) Political
Discourse in Early Modern Britain (CUP Cambridge 1993) 23, 30.
law had even better claim to antiquity because its laws, ‘not only the species but
the individual almost of each part of the Saxon or English laws … continue at this
day in force’.95 Selden argued to the contrary that English law, like all law, was
characterized by great change rather than identity, using the ship of Theseus to
make the point.96 Hale used the same image again, but this time both to illustrate
the changes and to emphasize the underlying continuity of the common law, adding
another image to make his distinctive meaning clear: common law retains its fun-
damental integrity and nature through radical change just as ‘Titius is the same
man he was 40 years since, tho’ physicians tell us, that in a tract of seven years, the
body has scarce any of the same material substance it had before’.97
Secondly, Selden and Hale rejected the idea that all common law was, through-
out its existence, strictly a matter of rules implicit in the usage of the people. At the
opening of his History,98 Hale argued that although common law is properly
regarded as ius non scriptum, this implies nothing about the origin of any of its
specific rules or doctrines, nor about whether they are or are not formally recorded
in writing. It has to do, rather, with the current and persisting mode of existence
or validity of the legal norm. Much of the common law came into existence
through legislative Acts of various kinds, some affirming already existing doctrines
of law, others introducing important changes into it. These Acts, despite their leg-
islative origin, are now no less leges non scriptae. Whatever their origin, they remain
a living part of the common law, ‘being as it were incorporated thereinto, and
become a part of the common law’.99 Even relatively recent Acts of Parliament
‘pass for Parts of the Common Law’, he argued, ‘and indeed, by long Usage and
the many Resolutions grounded upon them … seem even already to be incorpo-
rated with the very Common Law’.100 Origin is unimportant; incorporation is the
key.101
For Hale, this incorporation had two related dimensions. First, rules and norms
are integrated into the working body of the common law, systematically connected
to other norms and doctrines in multiple layers of dependency, modifying some,
qualified by others. They provide bases for resolutions, arguments and extensions
in the regular mode of common law reasoning. Integration of this sort is a practi-
cal and historical matter, not merely a logical matter. It is practical, because it is a
matter of whether the rule is ‘taken up’, practised, and used (by its subjects and by
95
British Library MS Harley 1572 folio 250b in Klein (n 94).
96
Selden (n 92) col 1892.
97
Hale (n 51) 40.
98
Hale (n 51) 3–4, 7–8.
99
ibid 3, 6, 8.
100
ibid 45.
101
Selden made the same point some 50 years earlier in his History of Tithes concerning the influence
of the newly discovered Justinian Code in 12th century legal systems on the European continent.
The Code acquired its legal force not by virtue of its venerable antiquity, he argued, but rather ‘by
gaining acceptance and incorporation into an existing system of customary or common law’:
Christianson (n 1) 306.
officials who must assess their actions in light of the law); and hence, it is historical,
because only time can tell whether a rule, however it was introduced, will be inte-
grated into the common law.
The second dimension of incorporation was equally important for Hale.
Echoing Davies, Hale argued that the rules and maxims of the common law are
accommodated to the ‘frame’ and ‘disposition’ of the people subject to the law,
‘such as by a long experience and use is as it were incorporated into their very
temperament, and, in a manner, become the complection and constitution of the
English commonwealth’.102 This process of accommodation was thought to be
historical and two-sided. The rules, at first rough and clumsy, are refined over
time, softened to fit the contours of the community’s daily life. Simultaneously, fol-
lowing the rules and practices shapes the dispositions, beliefs and expectations of
the people. Thus, what they take to be reasonable and practicable solutions to the
problems of social interaction depends on a certain sense of continuity of present
practice with the past; but also, what counts as continuous with the past depends
heavily on what are regarded by participants as reasonable projections from the
arrangements and practices of the past to present conditions and problems.
This idea of incorporation recalls Hedley’s account of the relationship between
custom of the court and custom of the country. Hale did not deny the special, often
technical, nature of common law, but he recognized that his view of its nature
required that there be a substantial congruence of formal common law rules and
doctrines with the ways of the people. The assumption of congruence is most evi-
dent in the passage quoted immediately above. For, the common law can only be
the ‘constitution’ of the nation if there is a substantial degree of congruence. The
common law is at once the foundation of the government of the kingdom and the
constitution of the body politic, the very temperament, ‘complection’ and consti-
tution of the Commonwealth.
Yet, as a good common lawyer, Hale held that the process of incorporation and
accommodation—incorporation of individual rules and doctrines into the body of
the law, and accommodation of the law into the lives of the people subject to it—
was first of all not the work of an invisible hand, but the unique responsibility and
product of a disciplined judiciary, one intimately familiar through long experience
with ‘the texture of human affairs’, trained to exercise the special kind of prudence
and deliberative judgment Coke liked to call the ‘artificial reason’ of the law.103 To
appreciate the special role played by the appeal to ‘artificial reason’ in the com-
mon lawyer’s account of the normative foundations of common law, we must first
consider the relationship between common law and reason, and especially the
notion of the ‘artificial reason’ of common law. Once we have done that we
can return in part II of this article to the question of the normative foundations of
102
Hale (n 51) 30.
103
Hale (n 73) 502–3.
common law and to a substantial qualification, if not outright rejection, of the ‘wis-
dom of the ages’ ideology championed by Coke and Davies.
E C OMMON L AW AS C OMMON R EASON
[C]ommon law [is] nothing else but common reason.104
Common law jurisprudence was built on two complementary and interdependent

notions: custom and reason. They were so closely connected in the minds of com-
mon law jurists that it is not surprising, if still a little puzzling, that these jurists
would use the same words to express the importance of each notion to their under-
standing of common law. Hence, the refrain sounded by Finch, echoing rather
than challenging Davies’ claim about custom, is as often heard as its complement,
especially in the 17th century.105 English common law jurists may not be unique
in their fondness for this motto, since its provenance is clear. It merely puts into
the vernacular the Ciceronian thesis, as influential in Roman law as in common
law circles: lex est suprema ratio … in homines mente confirmata et confecta.106 With char-
acteristic bravado, Coke brought Cicero’s slogan home to the common law.
‘[R]atio est anima leges’, he wrote: ‘the reason of the law is the life of the law, for
though a man can tell the law, yet if he knows not the reason thereof, he shall soon
forget his superficial knowledge’,107 adding elsewhere, for ‘non in legendo sed intelli-
gendo leges consistunt’ (law consists not in writing but in understanding).108 This close
association of law with reason strongly suggests that classical common law
jurisprudence sought to wrap itself in the mantle of classical natural law theory.
However, the relationship between common law and natural law jurisprudence is
a complex matter. The relationship was articulated most fully by Hale in the
1660s, drawing heavily on the work of his friend and mentor Selden, but the view
he detailed and defended was widely held among common lawyers in the 17th
104
Finch (n 61) 75.
105
Early examples can be found in Fortescue: ‘common reason is the common law’: Yearbook Hil 35
Hen 6 folio 52 pl 17, 53 (1457) in BA Singer ‘The Reason of the Common Law’ (1983) 37 U of
Miami L Rev 797, 798; Plowden: ‘the common law … is no other than common reason’: Platt v
Sheriffs of London in Plowden’s Commentaries vol 1, 36 in Tubbs (n 22) 111. It is liberally used by Coke,
eg ‘reason is the life of the law, nay the common law itself is nothing else but reason …’ (n 51) 97b,
183b; and by his common law colleagues, eg Hedley (n 48) 175; J Dodderidge The English Lawyer
(London 1631) 242; Finch (n 61) 75.
106 ‘[L]aw is the highest reason … when firmly established and completed in the human mind’: Cicero
De Legibus CW Keyes (tr) (GP Putnam’s Sons New York 1928) I.6.18. For discussion of the impor-
tance of Cicero for common law thinking, see Cantor (n 3) ch 2 and AD Boyer ‘Sir Edward Coke,
Ciceronianus: Classical Rhetoric and the Common Law Tradition’ (1997) 10 Intl J for the
Semiotics of L 3.
107 Coke (n 51) 183b.
108 Coke (n 67) 8th Report 167a in A Cromartie Sir Matthew Hale, 1609–1676 (CUP Cambridge 1995)
15 fn 18.
century. I will sketch the main elements of this view at this point, leaving to part II
further discussion of the Selden–Hale theory.
Prior to the 17th century, orthodox natural law theory (drawing on scholastic
sources) was the staple of English jurisprudence. This is obvious in the classic writ-
ings of Fortescue109 in the 15th century and St German110 in the 16th century. In
the 17th century, it was very common to acknowledge God as the fountain and
source of all law, including the law of England.111 In the same vein, Dodderidge
wrote that natural law ‘is the ground of all law …’.112 In spite of such fulsome writ-
ing, common law jurists rarely accorded natural law a substantial role in their
jurisprudence. In their view, the natural law fountain was deeply subterranean,
submerged far beneath thick strata of ordinary practice and custom. Rarely did
common law judges or lawyers seek to make that ground explicit by tracing some
substantive common law doctrine to a recognized principle of natural law; indeed,
typically they believed that it could not be done.113 Natural law principles were far
too abstract—such ‘generalities never bring anything to a conclusion’, Coke
wrote.114 In the ordinary business of law—the ‘ordering of civil societies … [and]
measuring of right and wrong, when it comes to particulars’115—natural law was
notoriously silent, or contested, or simply out of touch with concrete human
affairs, Hale argued. Hence, if law was to do its necessary work, it required judges
who could draw on the fund of accumulated collective experience recorded in the
common law.
109
J Fortescue ‘De Natura Legis Naturae (1461)’ in Lord Clermont (ed) The Works of Sir John Fortescue
(London 1869) and Fortescue (n 66).
110
St German (n 60) 9–45.
111
In 1602, Coke wrote: ‘For as in nature we see the infinite distinction of things proceed from some
unity, as many flowers from one root, many rivers from one fountain … So without question, lex
orta est cum mente divina, and this admirable unity and consent in such diversity of things proceed
from God the fountain and founder of all good laws and constitutions’: Coke (n 67) 3rd Report.
Similarly, Ellesmere wrote in 1608: ‘The common law of England is grounded upon the law of
God, and extends itself to the original law of nature and the universal law of nations’: Lord
Chancellor Ellesmere ‘The Speech of the Lord Chancellor of England, in the Eschequer Chamber,
Touching the Post-Nati’ in LA Knafla Law and Politics in Jacobean England: The Tracts of Lord Chancellor
Ellesmere (CUP Cambridge 1977) 216.
112
Finch maintained that common law was formed in the light shed by the sun of natural law: Finch
(n 61) 2–6, 74–76. He may have been echoing Fortescue, who wrote in De natura legis naturae that
human laws are to divine laws as the moon is to the sun: it gets all its light from the sun. But he
added that when the sun is gone we can still gain much illumination from the moon: in Clermont
(n 109) vol 1, xxxi, xliii. I am grateful to Michael Lobban for bringing the Fortescue passage to my
attention.
113
St German (n 60) 31–33.
114
Coke (n 67) 6th Report Preface. As we have seen, Selden argued in his notes on Fortescue that law
had its historical origins in fundamental features of the nature of human beings and their material
and social environment, but the natural law imperatives operative there had been subjected to mil-
lennia of interpretation, extension, addition and change by human beings seeking to adjust their
governing norms to changing natural and social circumstances: Selden Works (n 90) vol 3 cols
1891–92.
115 Hale (n 73) 502.
Thus, although natural law may have been regarded as the foundation of com-
mon law, it played little or no role in the ordinary work of lawyers and judges. St
German’s student shrewdly observed already in the 16th century that common
lawyers in their workaday world strictly preferred speaking in terms of ‘reason’
rather than natural law.116 Moreover, ‘reason’ was understood in a special way.
This was not ‘natural’ reason, as it was often called—the reason of broad, univer-
sal principles external to ordinary sources of law, accessible to individual rational
minds, by which that law is measured—but reason in the law. Law, it was thought,
contained within itself principles of reason. The ‘reason’ of common law typically
was not thought of in terms of rules or principles, and by itself provided no specific
tests by which to assess the legitimacy of a given legal rule or doctrine. In 17th cen-
tury common law parlance, for a custom, practice, rule or judgment to be ‘against
reason’ (or often ‘inconvenient’) was for it to be inconsistent with the law as a
whole, to fail to fit coherently into the common law.117 To understand law as ratio-
nal (summa ratio, as Coke liked to say) was not to regard it as derivable from
universal first principles, but rather to approach it on the assumption that it exists
as a coherent whole. ‘Rational’ meant ‘rationally coherent’. The ‘reason’ and
‘certainty’ of law, Hale argued, depended on judges ‘keep[ing] a constancy and
consistency of the law to itself’.118
This deeply rooted common law attitude determined how lawyers and judges
worked when the clear and uncontested materials of common law (what lawyers
now call ‘black letter law’) yielded no unambiguous solution to a legal problem. In
such cases, the tendency of the common lawyer was not to consult universal moral
sources,119 as a natural lawyer might do, but rather to look longer, harder and
116
‘It is not used among them that be learned in the laws of England to reason what thing is com-
manded or prohibited by the law of nature and what not. But all the reasoning in that behalf is
under this manner: as when anything is grounded upon the law of nature, they say that reason will
that such a thing be done; and if it be prohibited by the law of nature, they say that it is against rea-
son or that reason will not suffer that it be done’: St German (n 60) 31–33.
117
This usage is especially characteristic of Coke, see Coke (n 51) s 138, 97b; JR Stoner Common Law
and Liberal Theory: Coke, Hobbes and the Origins of American Constitutionalism (University Press of Kansas
Kansas 1992) 24–25; Boyer (n 74) 72.
118
Hale (n 73) 506. Hale held that common law rested ultimately on divinely given natural law. It did
so, he thought, not by supplying contentful principles or rules that could be used in common law
adjudication, but rather by underwriting the special normative force of law: M Hale ‘Treatise of
the Nature of Laws in General and Touching the Law of Nature’ British Library MS Hargrave
485. Unlike Hobbes, Hale never doubted the existence of a rational moral order, but he was keenly
aware of the difficulties human beings have in coming to agreement on the features of that moral
order in the vast complexity of ordinary social life. We need positive law, he argued, to introduce
artificial order into a situation of normative disorder resulting from the defects of our ordinary rea-
soning faculties and especially of our wills and motivation: Hale (n 73) 501–5. Natural law under-
writes our law not by providing the first principles from which practical decisions can eventually
be drawn, but by enforcing our agreement to abide by the artifices of law sounding in the silence
of natural law’s lex permissiva (permissive law).
119 Note that they equally opposed consulting extra-legal social norms (they would have called them
‘customs’). The close interdependency of common law and custom in the country did not manifest
itself at this point in adjudication. In this respect, classical common law jurisprudence differs
deeper into the accumulated fund of experience and example provided by the
common law. Discretion is unlawful, Coke maintained, if by discretion one means
judgment ‘by the crooked cord of private opinion’.120 Properly understood, how-
ever, discretion is discernment from within the law (discretio est discernere per legem).121
Common lawyers were not inclined to regard the process by which they found
reasoned solutions to legal problems as proceeding in discrete stages, but rather as
a continuous process of probing the resources of recorded experience until a solu-
tion was found that could be seen to be reasonable and fair. In Calvin’s case—a
paradigm novel case—Coke referred the alleged rule of construction that instructs
the judge, when the explicit text of law runs out or is silent, to look first to usage
and custom (moribus et consuetudine), and where that is lacking to have recourse to
reason (recurrenaum est ad rationem). ‘Rightly and legally understood’, he insisted,
‘reason’ in this last clause must be understood to mean ‘the legal and profound rea-
son of such as by diligent study and long experience and observation are so learned
in the laws of this realm, as out of the reason of the same they can rule in the case
in question’.122
Sixty years later Hale made the same point: when ‘Authorities or Decisions of
former Times in the same or the like Cases’ leave the matter undecided, the judge
should appeal to ‘the Reason of the Thing itself’. But even here this is not the con-
scientious discretionary judgment of the judge (as Chancellor Ellesmere would
have had it),123 but rather the situated, experience-informed judgment of the
judge using all the resources the vast body of the law provides, thinking by anal-
ogy and extension from all that he knows, to fashion a just and workable solution,
just as a good contract lawyer, who is immersed in the details of the agreement and
the day-to-day interactions of the parties, would do.124 The overriding aim is
not to find the result dictated by abstract principles of natural law, but to solve
the practical problem and keep ‘the law consonant to itself’, and for this the
markedly from contemporary accounts of modern common law adjudication, eg MA Eisenberg

The Nature of the Common Law (Harvard University Press Cambridge Mass 1988).
120 E Coke Second Institute of the Laws of England (Garland New York 1979) 227b.
121 ibid.
122 Coke (n 67) 7th Report. Coke’s opinion in this case is a brilliant, if extreme, example of this deep
common law mentality. His appeal to natural law at a crucial point in his argument is not a
momentary failing, but, at least in his considered view, a further exercise of this fundamental com-
mon law methodology. The same is true for the other oft-cited case in which Coke appeals explic-
itly to what appears to be principles of natural law: Dr Bonham’s case (1610) in Coke (n 67) 8th
Report 117a–21a. In that case, it is clear that Coke goes out of his way to demonstrate that the
principle on which his decision rests, nemo judex in re sua (no one may judge his own case), is not
merely a principle of ‘natural justice’ but is a fundamental principle of common law, deeply impli-
cated in its structure and outlook.
123
Ellesmere (n 111) 219–21. It is worth noting, however, that although Ellesmere writes here as Lord
Chancellor, he still shows signs of his common law training, for he says this exercise of reasoned
judgment in novel cases like Calvin’s nevertheless must be based ‘on strong arguments deduced a
similibus’ and subject to consensus among learned, but the learned men he has in mind are not com-
mon law judges but rather the clerici: 220, 227.
124
Hale (n 51) 46.
‘experience and observation’ of common law judges provide a more reliable basis
of judgment than ‘the aery speculations and notions and consequences and deduc-
tions from certain preconceived systems of … philosophers’.125 The reason of the
law, on this widely held view, is available only to the ‘artificial reason’ of the
trained common lawyer.
Critics of the common law from James I and Hobbes to Bentham and beyond
have been willing to accept that the deliberations of the common lawyer were
artificial, but they doubted they had anything to do with reason. Our investigations
to this point have left us with a number of questions that must be explored further.
Can Coke, Hale, and all their colleagues make a plausible case for the rational
credibility of the ‘artificial reason’ of the common law? If so, can we also credit the
results of this reasoning with the force of law? Do they yield anything like binding
precedent? Wherein ultimately lies the normative force of common law construed as
a discipline of artificial reason? These are questions to which we will turn in part
II of this article.
125 Hale (n 90) folios 153, 154.

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University of North Carolina – Chapel Hill

Public Law and Legal Theory Research Paper No. 03-9

Classical Common Law Jurisprudence (Part 1)

Visit UNC School of Law at www.law.unc.edu.

CLASSICAL COMMON LAW JURISPRUDENCE (PART I)

In 1610, John Selden wrote a remarkable history of the ‘ancient constitution’ of

Proceedings of the American Philosophical Society 271, 310 fn 19.

essential to jurisprudence as the history of philosophy more generally is to philo-

B H ISTORICAL R OOTS OF E NGLISH C OMMON L AW

Classical common law jurisprudence was articulated by reflective but politically

common law was, according to Milsom, ‘the by-product of an administrative

12 van Caenegem (n 3) 25.

26 Baker 2000 (n 20) 161 (footnote omitted).

C T HE C OMMON L AW C ONCEPTION OF L AW : A N O VERVIEW

54 Blackstone (n 25) vol 1, 68.

D C OMMON L AW AS C USTOM OF THE R EALM

1 The Coke–Davies Position

2 The Hale–Selden Position

E C OMMON L AW AS C OMMON R EASON

[C]ommon law [is] nothing else but common reason.104

Common law jurisprudence was built on two complementary and interdependent

markedly from contemporary accounts of modern common law adjudication, eg MA Eisenberg

125 Hale (n 90) folios 153, 154.

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