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The Origins of Historical Jurisprudence: Coke, Selden, Hale

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The Origins of Historical Jurisprudence: Coke, Selden, Hale Articles The Origins of Historical Jurisprudence: Coke, Selden, Hale Harold J. Berman CONTENTS INTRODUCTION ............................................. 1652 I. T HISTORICAL BACKGROUND OF ENGLISH LEGAL PHILOSOPHY, TWELFTH TO SEVENTEENTH CENTURIES ......................... 1656 A. Scholastic Jurisprudenceand Its Sixteenth-Century Rivals ......... 1656 B. Richard Hooker's "Comprehensive" Legal Philosophy ........... 1664 C. The Legal Theory of Absolute Monarchy: James I and Bodin ...... 1667 II. SIR EDWARD COKE: HIS MAJESTY'S LOYAL 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 NV.Woodruff Professor of Law, Emory Law School; James Barr Ames Professor of Law, Emeritus, Harvard Law School. The valuable collaboration of Charles J. Reid, Jr., Research Associate in Law and History, Emory Law School, is gratefully acknowledged. 1651 1652 The Yale Law Journal [Vol. 103: 1651 A. Coke to Selden to Hale ................................. 1694 B. Selden ' Historicity Versus Coke's Historicism ................. 1695 C. The Consensual Characterof Moral Obligations ............... 1698 D. The Origins of Positive Law in Customary Law ................ 1699 E. Magna Cartaand the Five Knights' Case .................... 1700 IV. SIR MATrHEW HALE'S LIFE AND WORKS ........................ 1702 A. Hale's PersonalIntegrity in a Revolutionary Age ............... 1702 B. Hale's Integrative Jurisprudence........................... 1708 V. THE RELATIONSHIP OF ENGLISH HISTORICAL JURISPRUDENCE TO SEVENTEENTH-CENTURY RELIGIOUS AND SCIENrIFIC THOUGHT ........ 1721 A. JurisprudentialCounterparts of Basic Calvinist and Neo-Calvinist Religious Beliefs ............................ 1722 B. Contrasts and ParallelsBetween the New Jurisprudence and the Revolution in the Natural Sciences ................... 1724 VI. EPILOGUE: FROM HALE TO BLACKSTONE, BURKE, AND SAVIGNY ....... 1731 A. The Embodiment of HistoricalJurisprudence in the Doctrine of Precedent and the Normative Characterof Custom ..... 1732 B. Blackstone and Burke: The Defense of Tradition Against the New Rationalism ................................... 1733 C. Savigny and the Disintegrationof Jurisprudencein the Nineteenth and Twentieth Centuries ........................ 1736 In the seventeenth century, leading English jurists introduced into the Western legal tradition a new philosophy of law, which both competed with and complemented the two major schools of legal philosophy that had opposed each other in earlier centuries, namely, natural law theory and legal positivism. The new philosophy eventually came to be called historical jurisprudence, or the historical school. It predominated in some countries of Europe as well as in the United States in the late nineteenth and early twentieth centuries and has played an important role in the thinking of American judges and lawyers down to the present day, especially in constitutional law and in those areas of the 19941 Origins of Historical Jurisprudence 1653 law in which the common law tradition is still taken seriously.' Indeed, it is the foundation of the English and American doctrines of precedent. Each of these three major theories, or schools, has many variations, but each also has a distinctive core of meaning. Natural law theory treats law essentially as the embodiment in rules and concepts of moral principles that are derived ultimately from reason and conscience. Positivism treats law essentially as a body of rules laid down ("posited") and enforced by the supreme lawmaking authority, the sovereign. The former theory views law as rooted primarily in morality ("reason and conscience"); the latter views law as rooted primarily in politics ("the will of the lawmaker"). Most positivists do not deny that law ought to serve moral ends, the ends of justice, but argue that what law is is a political instrument, a body of rules manifesting the policies of the legitimately constituted political authorities. Only after it is established what law is may one ask what it ought to be. Naturalists, if I may so call them, believe, on the other hand, that one cannot know what the law is unless one considers at the same time what it ought to be, since, they argue, it is implicit in legal norms that they have moral (including political) purposes and are to be analyzed, interpreted, and applied in the light of such purposes. The naturalist will deny the validity, indeed, the legality, of a rule or action of the political authority that contradicts fundamental principles of justice. I. See Harold J. Berman, Toward an Integrative Jurisprudence:Politics, Morality, History, 76 CAL. L. REV. 779, 788-97 (1988) [hereinafter Berman, Integrative Jurisprudence], reprinted in HAROLD J. BERMAN, FAITH AND ORDER: THE RECONCILIATION OF LAW AND RELIGION 289 (1993) [hereinafter FAITH AND ORDER]. On the role of historical jurisprudence in American legal thought in the nineteenth century, see generally ROSCOE POUND, 1 JURISPRUDENCE 63 (1959) ("The historical school ... was dominant in Continental Europe and in America in the last half of the nineteenth century."); Stephen A. Siegel, Historism in Late Nineteenth-Century Constitutional Thought, 1990 WIS. L. REV. 1431. A major American exposition of historical jurisprudence is JAMES C. CARTER, LAW: ITS ORIGIN, GROWTH, AND FUNCTION (1907). In the twentieth century the historical school came to be largely discredited or, more frequently, ignored by American legal philosophers. Thus Alan Watson, in the course of examining positivist and natural law justifications of the validity of customary law, disdains to discuss historical jurisprudence at all, on the ground that "Savigny's... general theory of law... is today universally rejected .. " ALAN WATSON, THE EVOLUTION OF LAWv 48 (1985). Nevertheless, the historicity of law continues to be strongly reflected in judicial opinions and in the thinking of practicing lawyers. A recent example of its vitality in constitutional law is the majority opinion of the Supreme Court of the United States in Planned Parenthood v. Casey, which grounds the "very concept of the rule of law" on "continuity over time" and "respect for precedent." 112 S. Ct. 2791, 2808 (1992). A famous example in tort law is the majority opinion of the New York Court of Appeals in 1916 in MacPhersonv. Buick Motor Co., in which Judge Cardozo reinterpreted a century of precedents concerning manufacturers' liability to remote users of their products, showing that what was originally thought of as an exception to a rule had gradually swallowed up the rule. 217 N.Y. 382, 384-91 (1916). Among American legal theorists of the latter half of the twentieth century, Alexander Bickel was one of the rare exponents of the historical school of constitutional philosophy that goes back, through Edmund Burke, to Hale, Selden, and Coke. See ALEXANDER M. BICKEL, THE MORALITY OF CONSENT (1975), especially ch. I, at 11-30 (sections entitled "Edmund Burke and Political Reason" and "The Supreme Court and Evolving Principle"); cf. Anthony T. Kronman, Alexander Bickel's Philosophy of Prudence,94 YALE LJ. 1567, 1600 (1985) ("The.. 'Whig' tradition, to which Bickel himself claims allegiance, is 'usually called conservative' and is associated 'chiefly with Edmund Burke."'). Kronman, however, identifies Bickel's legal philosophy as one of prudentialism, rather than historicity. See infra note 220. 1654 The Yale Law Journal [Vol. 103: 1651 In the four centuries preceding the Protestant Reformation, various natural law theories predominated, of which that of the thirteenth-century philosopher Thomas Aquinas (1225-1274) eventually became the best known.2 In the fourteenth and fifteenth centuries, Thomist natural law theory was challenged by those who, like William of Ockham, believed in the priority of will over reason, both at the divine and human levels, as well as those who, like Marsilius of Padua, and later Machiavelli, believed in the quintessentially coercive character of all government and law.3 In the sixteenth century, Lutheran and Calvinist political and legal theory found support in such "voluntarist" doctrines, although both Lutherans and Calvinists combined positivist theories with natural law theories and lived with the tension between them.4 These philosophical issues concerning the nature of law had, however, an historical dimension, which remained largely unarticulated. Ever since the early formation of discrete modem Western legal systems in the twelfth century, it had been taken for granted that a legal system has an ongoing character, a capacity for growth over generations and centuries. This was a uniquely Western belief: that a body of law, a system of law, contains, and should contain, a built-in mechanism for organic change and that it survives, and should survive, by development, by growth. Thus the new profession of jurists, coming out of the universities that were founded from the late eleventh century on, developed the newly systematized canon law of the Roman Catholic Church progressively, each generation building on the work of its predecessors; likewise, although to a somewhat lesser extent, the various new systems of royal law, feudal law, urban law,
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