Matthew Hale, on the Law of Nature, Reason, and Common Law: Selected Jurisprudential Writings

Matthew Hale, on the Law of Nature, Reason, and Common Law: Selected Jurisprudential Writings, Edited by Gerald J. Postema. (Oxford University Press, November 2017)

UNC Legal Studies Research Paper

Posted: 28 Nov 2017 Last revised: 20 Feb 2018

See all articles by Gerald J. Postema

Gerald J. Postema

University of North Carolina - Philosophy

Date Written: November 22, 2017

Abstract

Lawyer, judge, public figure and Member of Parliament, legal historian, theologian, and amateur natural philosopher, Sir Matthew Hale worked and wrote in the middle decades of the seventeenth century, that most turbulent period of English political history. A deeply reflective practitioner, he observed, analysed, and gave theoretical expression to the common law from many different vantage points. His reflections on reason, law and the foundations political authority are collected in this volume. It sets two of Hale’s pivotal but nearly inaccessible jurisprudential works—his Treatise on the Nature of Laws in General and touching the Law of Nature and his “Reflections on Mr Hobbes His Dialogue of the Laws”—in context of other key works of legal history and legal and constitutional theory. The Treatise reveals a complex general understanding of law and moral and legal reasoning. “Reflections” brings these very general considerations to bear on English common law, through a critical response to Hobbes’s all-out attack on common-law jurisprudence. “Reflections” suggests a conception of judicial reasoning, and a view of political authority, that deepens the view articulated in Hale’s longer and more systematic work. Hale’s views on practical reasoning, discussed in Treatise, are elaborated and related explicitly to the necessary discipline of law in his “Preface to Rolle’s Abridgement,” in parts of his History of the Common Law, and, crucially, in “Reflections.” The view, suggested in Treatise, that “human law” is necessarily instituted in the “constitutions” (practices, customs, and ways) of specific communities—manifesting therein their “consent”—is enriched and deepened in History and “Considerations touching Amendment of the Law.” His views about the foundations of political authority, sounded in Treatise, are argued at length in Prerogatives of the King and “Reflections.” Taken together, these writings offer a rich and subtle articulation of the classical common-law understanding of law reason, and authority. The editor presents these seminal writings in a text accessible to modern readers interested in law, jurisprudence, political theory, philosophy or intellectual history. He contributes an extended introduction, setting the writings in their historical and theoretical context.

Keywords: Common Law; Natural Law; Jurisprudence; Reason; Authority; Matthew Hale

Suggested Citation

Postema, Gerald J., Matthew Hale, on the Law of Nature, Reason, and Common Law: Selected Jurisprudential Writings (November 22, 2017). Matthew Hale, on the Law of Nature, Reason, and Common Law: Selected Jurisprudential Writings, Edited by Gerald J. Postema. (Oxford University Press, November 2017); UNC Legal Studies Research Paper. Available at SSRN: https://ssrn.com/abstract=3076027

Gerald J. Postema (Contact Author)

University of North Carolina - Philosophy ( email )

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Chapel Hill, NC 27599-3125
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