Edmund Burke and the Common Law Tradition Reconsidered

イギリス哲学研究第 33 号（2010 年） Edmund Burke and the Common Law Tradition Reconsidered Sora Sato Introduction: John Pocock’s ‘Edmund Burke and the Ancient Constitution’ In The Ancient Constitution and the Feudal Law (first published in 1957, reissued in 1987), J.G.A. Pocock argues: Every one of Burke’s cardinal points, as just enumerated, can be found in Hale rebuking Hobbes, in Coke rebuking James I, or in Davies rebuking the partisans of written law;... From what sources Burke derived it, and with what elements of eighteenth-century thought and his own genius he enriched it, are questions for the specialist; but that Burke’s philosophy is in great measure a revitalization of the concept of custom and the common-law tradition may be safely asserted as part of the present study’s contentions.（1） In his essay entitled ‘Burke and the Ancient Constitution’, （2） Pocock repeats his argument that Burke’s traditionalism should be understood in the context of the common law tradition, and also that Burke was aware of this tradition. At the end of this essay he also writes: in order to explain Burke’s traditionalism, there is no need to suppose more than his continued employment and highly developed understanding of certain concepts which came from the common law (as he [Burke] recognized) and were generally in use ＊ This essay is largely based upon the present author’s MSc dissertation submitted to University of Edinburgh in August 2009. I would like to thank Professors Thomas Ahnert, Harry Dickinson, Tamotsu Nishizawa, Kenji Fujii and two anonymous referees for their valuable comments. I am also grateful to seminar participants at Hitotsubashi University for helpful comments and discussion.. （1） Pocock (1987, p. 243). （2） This essay was first published in The Historical Journal, 3:2 (1960), 125-143. See also Pocock (1985, pp.193-194). ─ 51 ─ Edmund Burke and the Common Law Tradition Reconsidered as part of the political language he spoke with his contemporaries.（3） We may also remind ourselves of some passages in The Machiavellian Moment, such as ‘[t]he writings of Sir Matthew Hale (d. 1675), the Chief Justice who had upheld the common law throughout the Protectorate, form one of the most brilliant articulations of the philosophy of custom － of usage, presumption, and prescription － that links Fortescue, Coke, and Edmund Burke’.（4） When Pocock reissued The Ancient Constitution and the Feudal Law in 1987, he commented upon his own previous arguments, saying ‘I shall maintain that the case for finding elements drawn from Coke and Hale in Burke’s doctrine of prescriptive authority has been made out’.（5） Then, can we say that Pocock argues for the immediate connection between Burke and the classical common lawyers such as Sir Edward Coke and Sir Matthew Hale? Surely not, because Pocock writes in his ‘Burke and the Ancient Constitution’: But the present essay is not designed to show that Hale “influenced” Burke or that Burke “derived” his ideas from Hale; such phraseology is universally agreed to be inadequate.（6） Nevertheless, several passages of Pocock’s, including those quoted above might have left readers with the impression that he defended Burke’s direct link to the particular classical common lawyers. The present essay intends to re-examine the thesis ‘Burke and the Common Law Tradition’, including an assessment of Pocock’s arguments. The present author will argue that a connection between Burke and the classical common lawyers is not evident at all, simply because there is little evidence to support such an argument, and also briefly suggest at the end that the relationship between Burke and the common law tradition should be examined within a wider range of eighteenth-century political discourse than Pocock examined. I. The Early Burke When Burke was a student at Trinity College Dublin, he studied the idea of natural law through his reading of Samuel Pufendorf. He also studied common law during c.1750-1754 at the Middle Temple in London, although he did not like the study of law. Like other students, he might have read Coke’s Institutes during this period.（7） In his first published book A Vindication of Natural Society (1756), Burke denounces lawyers: They [lawyers] have so bewildered the World and themselves in unmeaning Forms and Ceremonies, and so perplexed the plainest Matters with metaphysical Jargon, that it carries the highest Danger to a Man out （3） Pocock (1971, p.232). （4） Pocock (1975, p.404). See also p.15. （5） Pocock (1987, p.379). （6） Pocock (1971, p.230). （7） Lock (1998, pp.37, 64-73). See also Clark (2005, p.78). ─ 52 ─ イギリス哲学研究第 33 号（2010 年） of that Profession, to make the least Step without their Advice and Assistance. Thus by confining to themselves the Knowledge of the Foundation of all Mens Lives and Properties, they have reduced all Mankind into the most abject and servile Dependence.（8） However, as the Vindication is an ‘ironic’ work, which imitates and ridicules Henry St. John Bolingbroke, it might be difficult to prove to what extent the passage above reflects the young Burke’s own ideas.（9） His early attitude towards jurisprudence seems to be more evident in his An Essay towards an Abridgment of the English History (1757-?) and Fragment: An Essay towards an History of the Laws of England (c. 1757-?) than in the Vindication. For instance, when Burke says in his Fragment, Thus the Law has been confined and drawn up into a narrow and inglorious study. And that, which should be the leading science in every well-ordered commonwealth, remained in all the barbarism of the rudest times, whilst every other advance by rapid steps to the highest improvement, both in solidity and elegance; insomuch that the study of our jurisprudence presented to liberal and well-educated minds, even in the best Authors, hardly any thing but barbarous terms, ill explained; a coarse but not a plain expression; an indigested method; and a species of reasoning, the very refuse of the schools; （10） This passage, as F.P. Lock argues, ‘though describing the seventeenth century, was clearly inspired by his own experience’. Throughout his life, Burke seemed to hate narrow professionalism.（11） In his Abridgment Burke seems to appreciate the concept of the ancient constitution, although he does not share the seventeenth-century myth of ancient constitutionalism. According to R.J. Smith, Burke’s Abridgment proposes a ‘progressive’ view of the English Constitution. It is ‘a statement of evolutionary Whiggism’: the English Constitution has developed from simple origins to the higher state.（12） In Burke’s Abridgment and Fragment, there are only two elements which show institutional continuity between the Saxon age and Norman England: law and Christianity. Elements of Saxon law survived and became parts of the later English law. A stronger continuity between the Saxon and Norman periods is proved by the church, however, although it was altered by the Normans.（13） Burke asserts that the post-Conquest Church contributed to the production of English liberty, and that the canons strongly influenced the growth of English common law.（14） Like Hume, （8） Burke, A Vindication of Natural Society, WS, I, p.176. （9） For this problem, see Kramnick (1977, p.91). （10） Burke, Fragment: An Essay towards an History of the Laws of England (c.1757), WS, I, pp.323-324. （11） Lock (1998, p.71). （12） Smith (1987, p.85). （13） Smith (1987, pp.87-88). （14） Cf. Hale (1713; 1971, p.43). There Hale writes: ‘Again, The Growth of Christianity in this Kingdom, and the Reception of Learned Men from other Parts, especially from Rome, and the Credit that they obtained here, might reasonably ─ 53 ─ Edmund Burke and the Common Law Tradition Reconsidered Burke emphasizes the role of the Great Charter but denies the Saxons’ contribution to English liberties. However, unlike the old Whigs, the lawyers and most enlightened critics, Burke is willing to ‘grant credit to the medieval churchmen for their share in the creation of the English legal and political heritage’.（15） In his Fragment Burke rejects the myth of English law as immutable. He states that ‘it is obvious, on the very first view of the Saxon Laws, that we have entirely altered the whole frame of our jurisprudence since the Conquest’.（16） In his Abridgment Burke also writes that ‘English laws, manners, and maxims were suddenly changed’ after the Conquest.（17） As a late eighteenth-century man, Burke did not adopt the naïve ancient constitutionalism of the common lawyers such as Coke. For our purposes, the early Burke’s understanding of Hale is significant. Burke writes: Lord Chief Justice Hales’s history of the Common Law is, I think, the only one, good or bad, which we have. But with all the deference justly due to so great a name, we may venture to assert that this performance, though not without merit, is wholly unworthy of the high reputation of its author. The sources of our English Law are not well, nor indeed fairly laid open; the ancient judicial proceedings are touched in a very slight and transient manner; and the great changes and remarkable revolutions in the Law, together with their causes, down to his time, are scarcely mentioned.（18） As Pocock points out, the early Burke misunderstood Hale, because Hale at times mentioned the changes and growth of the English law.（19） We may even question if Burke carefully read Hale since it is very apparent that Hale defended the mutable nature of law in his History of the Common Law of England.（20） II. Prescription and Government Burke’s most explicit expression before 1790 on his connection to the common law tradition is probably his draft speech against the motion for parliamentary reform in 1782.

Load more