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TO DAVID LYONS and
TO LINDA, IN MEMORIAM
Preface to the First Edition
[Bentham’s writings] are like exploded shells, buried under the ruins which they have made.
Fitzjames Stephen, Digest of Law of Evidence.
Bentham is a pivotal figure in the history of Anglo-American jurisprudence. He gave both utilitarianism and legal positivism their first detailed exposition and defence in English, and negotiated a sophisticated marriage of the two doctrines. But Fitzjames Stephen’s disparaging comment contains more than a grain of truth. Bentham’s most important jurisprudential work has lain buried under a great rubble. In this rubble we find the ruins of much of the practice and ideology of the Common Law system he so mercilessly and effectively attacked, but also a mountain of inaccessible and largely unpublished manuscripts, the remains of a very long and curiously undisciplined writing career. Spent shells are buried here, to be sure, but live ones with great explosive potential remain.
Among the potentially most explosive are his early reflections on the foundations of law and adjudication. They introduce us to a jurisprudential debate of historic dimensions and fundamental philosophical significance. Bentham’s writings, and the tradition of debate to which they contribute, raise questions concerning not only the nature and tasks of law, but also the role of normative moral-political theory in the construction and defence of conceptions of the nature of law.
The present work is the first part of a larger study of these issues of philosophical jurisprudence, issues which remain at the centre of our practice of law. Durkheim observed that ‘law reproduces the principal forms of social solidarity’ in a culture.1 To this we might add that a culture’s available conception (or, as in our culture, conceptions) of the nature of law models masks and interacts with these forms of social solidarity (i.e. forms and conceptions of social order and community). The history of a society and of its legal practice, and the history of attempts to understand and conceptualize them, shape contemporary forms of ‘social solidarity’, which in turn
1 E. Durkheim, Division of Labor in Society, 68.
shape that practice. Recent debates in Anglo-American philosophical and legal circles concerning the nature and foundations of law and the forms and limits of judicial reasoning (and theories of constitutional judicial review) have been decisively shaped by the history of our legal practice and attempts to understand it. A key piece of that history was written in seventeenth- and eighteenth-century Britain at the birth and maturing of its two dominant legal ideologies: positivism and Common Law theory. The dispute between these two ideologies is not only historically interesting, it is philosophically fundamental. The terms of our contemporary debate, the range and nature of the problems both practical and theoretical needing contemporary solution, were all set in this period. Perhaps the most powerful witness to the depth and pervasiveness of this influence is the utter naturalness to us of these terms and assumptions. It is difficult for us now to conceive of law except against the background of these assumptions.
The aim of the following study is to situate these assumptions, to trace the evolution of the terms of this debate, and thereby to gain some critical perspective on them. I am convinced that we shall be able more adequately to address the general philosophical questions that interest us now after we have fully understood the assuptions and perceptions that have shaped them and given them life. For such understanding, we must return to this formative period in the history of our legal culture. While my ultimate aim is critical and philosophical, the immediate aim of this work is historical and expository. Thus, save for some very sketchy remarks in 9.4 and 13.2, I have not sought to address directly the philosophical questions raised by the debate between Bentham and the Common Lawyers, nor have I attempted a full-scale evaluation of the debate itself. The remarks in 9.4 and 13.2, accordingly, are meant to be no more than tentative suggestions of the directions a systematic philosophical investigation might take.
A major theme of this study, explored through a number of variations, is the relationship between authority and reason, and more specifically between individual rational judgment and the law’s claim to authority. Bentham and the Common Lawyers took sharply different views of this relationship, and had sharply different perceptions of the social problems which gave immediate practical and political urgency to the issue. We shall see how these assumptions and perceptions called forth contrasting conceptions of the nature and fundamental tasks of law.
In Bentham’s legal thought, this set of problems took shape as the problem of the relationship between a strict direct-utilitarian theory of practical reasoning and a strongly positivist conception of laws as publicly accessible and
empirically identifiable authoritative rules with fixed verbal formulations. This problem is most sharply focused in his theory of adjudication, where his (‘antinomian’) utilitarian practical philosophy and his positivist conception of laws intersect and demand reconciliation. For this reason Bentham’s theory of adjudication is the centre-piece of this study.
The most obvious path of reconciliation of utilitarianism and positivism is to interpret Bentham’s theory of practical reasoning along indirect- (rule-) utilitarian lines. But this, we shall see, conflicts with some of Bentham’s deepest philosophical commitments. His sophisticated attempts to reconcile these two doctrines is intelligible, I shall argue, only if we abandon the received interpretation of his positivism and its philosophical motivation. An alternative interpretation of his theories of law and judicial reasoning is detailed and defended in Parts II and III.
This interpretation differs substantially not only from standard textbook accounts of Bentham’s jurisprudence, but also from some recent scholarly work, in particular L. J. Hume’s excellent discussion of Bentham’s political theory.2 The differences may dissolve into differences of emphasis, although I suspect some will in fact resist any attempt at simple reconciliation. No doubt the differences are due to the quite different points from which our interpretations begin and the primary theoretical interests that drive them. L. J. Hume is mainly concerned with Bentham’s theory of governmental structure, and his focus is on Bentham’s mature work on the constitution. I am more concerned with strictly jurisprudential questions and in particular with Bentham’s theory of the practical reasoning of judges and citizens under law. Although Bentham’s work on the Constitutional Code is enormously important for my interpretation as well, I start from a study of Bentham’s earliest criticisms of the Common Law tradition, and I try to construct in detail the context of this jurisprudential debate. This starting-point is especially useful because it brings to light general principles and concerns of Bentham’s jurisprudential thought to which he remained committed throughout his life, principles and concerns which are given their most vital statement in these early (largely unpublished) writings. (It also highlights the important influence of David Hume on Bentham’s legal thought
2 L. J. Hume, Bentham and Bureaucracy, 171–5, 238–43, and passim. Because most of Parts II and III were drafted in near final form some years ago, I was not able to take account of L. J. Hume’s work in detail without increasing substantially the length of the text. The same is true for two other excellent recent studies of Bentham from which I learnt a great deal: F. Rosen’s Jeremy Bentham and Representative Democracy and R. Harrison’s Bentham.
and draws attention to Hume’s great but seldom-noticed contributions to jurisprudence.)
There may be a more comprehensive perspective within which L. J. Hume’s revised standard interpretation and my revisionist interpretation can be reconciled. Perhaps not. Bentham’s writings are so extensive, and were written for so many different occasions, problems, and audiences, that it is not surprising if attempts to render the vast rubble of this material into a systematic and coherent set of theories yield quite different, conflicting, but equally plausible interpretations. Throughout this work, I sought an interpretation of Bentham’s jurisprudence that is honest to the material he left us and to the historical and intellectual context in which he wrote. But at the same time I sought a philosophical interpretation of the relationship between Bentham and the Common Law tradition which can genuinely illuminate the underlying philosophical and political issues with which they grappled.
Durham, North Carolina G.J.P.
July 1985
Preface to the Second Edition
Bentham and the Common Law Tradition (BCLT) was first published in 1986, but it was written over a period extending from 1979 to 1985, a time of extraordinary creative activity in Anglo-American political and legal philosophy. In 1962, H.L.A. Hart’s Concept of Law reinvigorated philosophical reflection on the nature of law and in the late 1970s Ronald Dworkin (Taking Rights Seriously, 1978) and Joseph Raz (The Authority of Law, 1979) initiated an intense debate over the core doctrines of positivist legal theory. Similar major strides forward were made in moral and political philosophy. In 1965, David Lyons published Forms and Limits of Utilitarianism and John Rawls published A Theory of Justice in 1972. The latter, especially, gave new life to the enterprise of political philosophy in the English-speaking world that had lain dormant for decades. The central doctrines, merits, and limits of legal positivism and of political utilitarianism were again at the centre of a vigorous philosophical debate.
As a young philosopher, I wanted to enter this debate. I chose to do so indirectly, by exploring the roots of these two philosophical traditions in the work of Jeremy Bentham. The 1970s had seen a resurgence of interest in the work of Jeremy Bentham, largely due to initial efforts by the Bentham Project to publish Bentham’s vast body of writings in modern, scholarly editions. Especially important was the publication of three early works of Bentham— his Introduction to the Principles of Morals and Legislation, Of Laws in General, and Fragment on Government/Comment on the Commentaries— edited by H. L. A. Hart and J. H. Burns. David Lyons’ In the Interest of the Governed, Ross Harrison’s Bentham, Fred Rosen’s Jeremy Bentham and Representative Government, and Hart’s Essays on Bentham spurred scholars to look much more deeply into the moral and jurisprudential writings of Jeremy Bentham.
I first decided to join the growing group of scholars because Bentham was reputed to be the father of modern utilitarianism and of legal positivism. The juxtaposition of these two general theories in his work puzzled me. Initially, I wondered how a committed legal positivist could dismiss English Common Law as ‘a thing merely imaginary’ and how a utilitarian committed to the principle of utility as the ‘ruler and decider of all things’ could embrace a project of codification that seemed to relegate judicial
decision-making to rigid rule-application. I decided to look to Bentham’s work to find a way to resolve this tension. Also, it struck me at the time that contemporary legal philosophers were content to ignore the long history of reflection on law and its role in society (except, of course, for obligatory discussions of John Austin and Aquinas). I sensed that the philosophical debate at the time was much the worse for this willful ignorance. I came increasingly to believe that genuinely philosophical jurisprudence involves extended, critical engagement with its history. Only through such engagement, I thought, can we hope to see beyond the horizons of immediate theoretical and practical concerns and interests and to recast our disputes in fresh and newly productive terms.
Thus, in writing BCLT I sought a genuinely philosophical engagement with Bentham’s sophisticated legal and political theories. I believed that for this purpose it was not appropriate to engage with him simply as a virtual contemporary. I thought, rather, that only uncovering the themes, theories, and arguments of Bentham, the historically situated philosopher and legal reformer, would suffice. My aim was not merely to translate Bentham’s positivist doctrine into the conceptual framework of late twentieth century analytic legal philosophy, but at the same time it was not my aim merely to bring to light a composite of the views of the historical Bentham. Rather, I sought a historically informed and philosophically engaged critical reconstruction of Bentham’s views and his arguments for them. This required, first, that I situate his work in its historical and theoretical context, and the problems, issues, and challenges characteristic of it. Second, it required locating Bentham’s core jurisprudential doctrines in the context of his vast body of work. A key interpretive principle guided me: Bentham’s formulations of general or abstract themes or doctrines must be read in light of his often extremely detailed attempts to apply them to a variety of practical circumstances. I believed that Bentham deserved to be treated as a careful writer and a serious philosopher, who sought to articulate a coherent, comprehensive public philosophy in which rational understanding of the nature, tasks, and limits of law played a crucial role.
This two-fold interpretive strategy led me first to explore the practice and nascent theory of classical English common law, represented first by Bentham’s main target, William Blackstone, but more importantly by Blackstone’s sophisticated seventeenth-century predecessors, especially Sir Matthew Hale. To capture the full significance for Bentham of the classical common-law mode of understanding and practising law, I found it necessary to locate common-law jurisprudence in the context of the larger philosophical debate,
represented by Hobbes and Aquinas and later Hume, about the relationship between reason, convention, authority, and law. Hume’s work provided a bridge from the philosophically naïve work of seventeenth-century jurists to the philosophically sophisticated eighteenth-century EnlightenmentEmpiricist tradition of moral and political philosophy in which Bentham found himself at the beginning of his career. Hume proved especially helpful for understanding Bentham not only because he introduced Bentham to the idea that public utility was the measure of all (political) virtue, but even more because he explored the relationship between utility and rule-governed social practices (‘justice’ in his terminology) and convinced Bentham of the fundamental utility-relevance of expectations for the coordination of social interaction. He also developed an account of conventions that enabled me to explain key features of Bentham’s notion of sovereignty. BCLT’s project of relating these various theoretical approaches to understanding legal practice and institutions to each other resulted in novel interpretations of classical common-law jurisprudence, Humean political and legal philosophy, and Bentham’s utilitarian jurisprudence.
Among the most important themes emerging from the reconstruction of Bentham’s legal theory in BCLT are the following. First, attracting the greatest attention is the thesis that Bentham did not embrace the methodological positivism of John Austin and contemporary analytic legal philosophy, as Hart had claimed. BCLT argues that rather than constructing a morally neutral, strictly conceptual analysis of the concept of law Bentham grounded his account of the nature of law—and indeed his proposal for the concept of law—on distinctively utilitarian grounds. He self-consciously practised what I call ‘normative jurisprudence’. I defend the philosophical coherence and appropriateness of this approach in Chapter 9 after setting out Bentham’s use of this method in preceding chapters. A crucial, related theme of BCLT is that Bentham maintained that the fundamental task of law is to promote what he called ‘security’—which involves securing legitimate expectations in thick contexts of social interaction and securing full and effective accountability of the exercise of ruling power (‘security against misrule’, as he called it). This, according to Bentham, is the primary end of law; its most effective means, he argued, is publicity. This deep commitment to publicity and utility—understood as securing expectations and accountability—led Bentham to embrace the model of laws as commands of sovereign lawmakers. Laws, so conceived, require explicit public articulation and manifest authenticity that can be determined without engaging in extended debate over the moral adequacy of the laws. Thus, BCLT argues,
Bentham proposed to conceive of laws in familiar positivist terms; but he did so not on morally neutral, conceptual grounds, but on the morally engaged, utilitarian grounds. Only laws so conceived could hope to serve the end of security, Bentham maintained.
However, he qualified this command model almost as soon as he articulated it. He departed from the familiar Austinian model in two important respects explored in BCLT. First, he developed a notion of sovereignty far more sophisticated and nuanced than Austin’s. BCLT argues that his understanding of the criteria of authenticity of laws, provided by the notion of sovereignty, rests on a keen understanding of the public role of law in coordinating social interaction, and on the role that criteria of authenticity play in the ordinary (utilitarian) practical reasoning of law subjects. Second, Bentham’s publicity-security project also engaged him in a deep exploration of the essential systematic nature of law. He explored the basic logical and structural features of law, arguing that we can understand what a single law is only by seeing how laws fit together logically and substantively as a coherent system aimed at enabling social coordination. He also argued that, although the mandatory or directive character of law (what he often called the ‘penal’ part of law) is often the most immediately apparent to us, the more fundamental and functionally prior feature of law is its constitutive character. Bentham argued that it is by constructing and constituting social and political relations—frameworks within which rational, utility-minded individuals interact in their daily lives—that law does its most important expectation-securing and accountability-securing work. Sanction-backed directives, on his view, are auxiliaries, supporting this primary work of law.
Thus, BCLT argues that a core notion of Bentham’s general jurisprudential theory is his idea of a ‘pannomion’—a complete and comprehensive code (or interrelated system of codes) of law, the provisions of which are internally related to each other and their reasonableness is exhibited in their organization, structure, and explicit articulation. Bentham’s work on the civil as well as penal codes, on procedure and evidence, and on the political constitution of power, is integral to his view of the nature of law. Accordingly, another important task of BCLT is to explore Bentham’s principles of institutional design and his view of the relation between institutional incentives and disincentives and rational, utility-based decision-making. This discussion is especially important for understanding Bentham’s mature theory of adjudication.
One major problem running through much of Bentham’s writings is how to reconcile the need for certainty and stability of social and political
arrangements on the one hand, and the rational demand for flexibility to meet ever-changing circumstances on the other. From Hume, Bentham learned the utility of stable institutions and systematic arrangements of rules, but I argue that he was also convinced that the fundamental rational principle by which we must evaluate acts, rules, and institutions—the principle of utility—was also the most fundamental principle for rational decisionmaking. Since even the most well-constructed and rationally grounded rules may call for actions which, in the particular circumstances, fail to meet the demands of utility, these two understandings of utility, law, and rational decision-making seem to be in conflict. Bentham struggled with this problem early in his career, seeking a way to introduce stability into all-tooflexible and radically uncertain common-law practice. Through codification of the law, Bentham sought to address the problem of instability of law, but it left him with the task of defining the discipline of judicial reasoning in the shadow of ideal codes. Perhaps the most controversial thesis of BCLT holds that Bentham reconciled certainty and flexibility by according judges wide discretion to decide particular cases according to their best judgment of the balance of utilities, guaranteeing the accountability and appropriate motivation of such discretionary decision-making through institutional incentives, and by insuring that their decisions lacked the force of precedent. BCLT argues that Bentham sought a creative institutional, rather than a theoretical, solution to the certainty/flexibility problem. However, I conclude that ultimately this ingenious solution either fails to meet Bentham’s own demanding standards of publicity or falls victim to the same criticisms that he directed against common-law practice of his day. In the Afterword (Chapter 14), I revise my understanding of Bentham’s institutional account of adjudication in light of subsequent criticism.
Emerging from this extended exploration of the work of Bentham is a philosophical account of the nature of law that fits no familiar category and forces rethinking of the traditional contrast between positivism and natural law theories. Bentham’s critique of classical common-law jurisprudence offers for our consideration two sharply different approaches to the problem of securing publicity and a robust rule of law. Also emerging from this study of Bentham’s legal philosophy is a model of jurisprudential method that stands in stark contrast to Austin’s jurisprudence and much current analytic legal philosophy. In none of his theorizing did Bentham exclude from his view political, sociological, economic, or moral considerations. His creative jurisprudential intellect ranged freely over all provinces of thought.
His methodological approach and the substantive doctrines it generated still warrant serious critical attention from legal theorists and philosophers.
A brief note on the text: this second edition of BCLT reproduces the original 1986 text, except for occasional minor editorial corrections. Endnotes direct readers to subsequently published work in which I elaborate and in some cases revise views expressed in the text. Since 1986, the Bentham Project has published much of Bentham’s work on jurisprudence and related issues in excellent critical editions by the Bentham Project. Especially relevant to this study was the publication of Of the Limits of the Penal Branch of Jurisprudence, edited by Philip Schofield (Oxford: Clarendon Press, 2010), which supersedes Of Laws in General, edited by H. L. A. Hart (London: Athlone Press, 1970). I have chosen not to alter original citations to OLG for all references to material common to these versions, although I have occasionally noted revisions that can be found in Limits. Finally, I dedicate this edition in loving memory of Linda T. Postema, and in gratitude to David Lyons, mentor, guide, and inspiration.
Acknowledgements
Research for this work was begun in 1978 under grants from the National Endowment for the Humanities and The American Council of Learned Societies. I am very grateful for their generosity, without which the project in its present form would never have been conceived. A research development grant from the Arts and Sciences Foundation of the University of North Carolina at Chapel Hill enabled me to prepare the manuscript for publication.
Throughout the long gestation of this work I have benefited in many ways from a large number of people, more than I can now name or even recall. Courtesy and co-operation were freely extended to me by all the members and staff of the Bentham Project at University College London and the staff of the manuscripts library of the College. They made my several visits not only productive, but also genuinely delightful, experiences. Professor J. H. Burns was a generous and unerring guide through the morass of Bentham manuscripts and helped me greatly to situate Bentham’s work historically. John Dinwiddy and Charles Bahmueller helped me at several points. Claire Gobbi was always ready to assist, with grace, intelligence, and charm.
Professor H. L. A. Hart read and commented on portions of early drafts, as did Ross Harrison. I benefited greatly from conversations with them. William Twining’s encouragement, support, and colleagueship over these years carried me through times when I thought the project was beyond my means. David Lyons taught me the value of both careful textual scholarship and rigorous philosophical reflection on problems of jurisprudence. I hope this work approaches the standards he set for both.
A special word of thanks goes to David Lieberman. Much of the interpretation of Parts II and III was hammered out in conversations with him over the years, and I could not have begun to write Part I without the superb guidance of his own yet unpublished work. He tirelessly read draft after draft. They are much better for it.
My colleagues at Johns Hopkins University and the University of North Carolina at Chapel Hill have generously supported my seemingly interminable work on Bentham. Especially helpful were Stephen Darwall, Richard Flathman, W. D. Falk, and Thomas Hill, Jr., who read portions of the manuscript and gave wise critical advice. I also benefited from the
critical comments of Bikhu Parekh and Annette Baier on selected chapters. Claire Miller, Brad Wilson, Carolyn Joines, and Muriel Dyer helped prepare draft after draft, always under impossible deadlines. I am grateful for their cheerful and efficient service.
To my family, Linda Triezenberg Postema and Alicia Sue Postema, I owe a special debt. Pushkin’s ‘Capricious belles of the grand monde’ may have redeemed their otherwise ‘insupportable conversation’ with an occasional brilliant interpretation of Bentham (Onegin, Ch. 1, verse xlii), but yet another interpretation of Bentham from me had the opposite effect on dinnertime conversation. Nevertheless, through the years Linda and Alicia have unselfishly supported and encouraged my all-consuming preoccupation and cheerfully indulged my ‘insupportable conversation’. While this debt can never be fully repaid, I acknowledge it with joy and dedicate this work to them.
I also wish to thank the following for permission to quote copyrighted material:
The Oxford University Press for passages quoted from Hume’s Treatise of Human Nature and Enquiries.
The Athlone Press, London, for passages drawn from Bentham’s Of Laws in General, Introduction to the Principles of Morals and Legislation, and Comment on the Commentaries and Fragment on Government. Editors and publishers of Revue Internationale de Philosophie for material which appeared in an article by me in that journal.
PART II: BENTHAM’S CRITIQUE OF COMMON
PART III: LAW, UTILITY, AND ADJUDICATION
Abbreviations
(see Bibliography for full references)
BL Add. MSS Bentham MSS in the British Library.
Bowring The Works of Jeremy Bentham. Published under the Superintendence of . . . John Bowring, 11 vols. Bowring i, 161 = vol. 1, p. 161.
CC J. Bentham, Constitutional Code in Bowring ix. CC 6 = Bowring vol. ix, p. 6.
CC (CW) vol. 1 Jeremy Bentham, Constitutional Code Vol. 1, Bentham, Collected Works.
Civ Code
Jeremy Bentham, Principles of the Civil Code in B i. 297–364.
Comm W. Blackstone, Commentaries on the Laws of England. 1 Comm 68 = vol. 1, p. 68.
Comment J. Bentham, A Comment on the Commentaries, in A Comment on the Commentaries and A Fragment on Government, Bentham, Collected Works. Comment 119 = p. 119.
Enquiry I D. Hume, Enquiry Concerning the Human Understanding, in Hume’s Enquiries. Enquiry I 44 = Hume’s Enquiries, p. 44.
Enquiry II D. Hume, Enquiry Concerning the Principles of Morals, in Hume’s Enquiries. Enquiry II 195 = Hume’s Enquiries, p. 195.
FG J. Bentham, A Fragment on Government in A Comment on the Commentaries and A Fragment on Government, Bentham, Collected Works. FG I. 18 = ch. I, para. 18.
IPML J. Bentham, An Introduction to the Principles of Morals and Legislation, Bentham, Collected Works. IPML V. 14 = ch. V, para. 14.
IRE J. Bentham, Introductory View of the Rationale of Evidence, Bowring vi.
Limits J. Bentham, Of the Limits of the Penal Branch of Jurisprudence, Bentham, Collected Works.
LNC T. Hobbes, Questions Concerning Liberty, Necessity, and Chance, Hobbes, English Works V. LNC 50 = Hobbes, English Works vol. V, p. 50.
LW Jeremy Bentham, Legislator of the World: Writings on Codification, Law, and Education, Bentham, Collected Works.
OAM J. Bentham, Official Aptitude Maximized Expense Minimized, Bentham, Collected Works.
OLG J. Bentham, Of Laws in General, Bentham, Collected Works. OLG IV. 2 = ch. IV, para. 2.
PJP J. Bentham, Principles of Judicial Procedure, Bowring ii.
RJE J. Bentham, The Rationale of Judicial Evidence, Bowring vi and vii.
ST St Thomas Aquinas, Summa Theologiae. ST 1a2ae 90. 4 ad 3 = first part of second part, question 90, article 4, reply to objection 3.
UC Bentham MSS in the University College, London Library. UC lxix, 68 = box 69, p. 68.
UPL G. J. Postema, Utility, Publicity, and Law: Essays on Bentham’s Moral and Legal Philosophy.
PART I
LAW, CUSTOM, AND REASON
1
Elements of Classical Common Law Theory
For me it was not Zeus who made that order. Nor did that Justice who lives with the gods below mark out such laws to hold among mankind. . . . Not now, nor yesterday’s, they always live, and no one knows their origin in time.
Sophocles, Antigone.
Classical Common Law theory1 was born at a time when, emerging from feudalism, modern English society and the modern state were taking shape.2 Political power was increasingly centralized and the ideology of absolutism was making inroads not only on the continent of Europe, but also in England. The Royal Court assumed more and more directive control of society and the economy, and with this development emerged the idea that law could be used to control and direct society to serve the ends and goals of the sovereign. Law came to be viewed as the most powerful instrument in the sovereign’s repertoire.
1 From the perspective of comparative law, Anglophone legal systems are dominated by ‘common law’ even today. That is to say, conceptions of law and structures of legal argument typical of Anglophone nations have been decisively influenced by the fact that their legal systems developed not from the Roman, or Civil traditions, but out of English Common Law. Of course, this tradition goes back much farther than the seventeenth century. But it was in the late sixteenth and early seventeenth centuries that a distinctive Common Law jurisprudential theory developed. With the term ‘classical Common Law theory’, then, I wish to pick out a body of thought about the nature of law which begins to take distinctive shape with Sir Edward Coke. It is to be distinguished from contemporary views of Common Law practice and from earlier notions of the law of England—which may have been more directly and explicitly influenced by the natural law tradition (e.g. those of Fortescue, De Natura Legis Naturae, or St German, Doctor and Student).a
2 For a discussion of the history of this period, see C. Hill, Intellectual Origins of the English Revolution and The Century of Revolution, 1603–1714; J. A. G. Pocock, Ancient Constitution; F. Hayek, The Constitution of Liberty, ch. 11.
