27 Pages Posted: 18 Nov 2003
The classical conception of law, articulated by seventeenth century common law jurists like Sir Edward Coke and Sir Matthew Hale, drew inspiration from earlier natural law sources, but also reflected dominant features of native common law practice and the special political pressures to which it was subjected in that turbulent period of English history. Common law jurisprudence, even in its heyday, had not matured into a full-fledged philosophical theory of law, but a number of important notions to which common law jurist gave complex and conflicting expression influenced orthodox understanding of English (and later American) legal practice for centuries thereafter.
This essay offers a partial philosophical reconstruction of the classical common law conception. It is meant not as a contribution to legal history, but rather as a systematic articulation of the conception worthy of careful attention of latter-day legal theorists. The essay is in two parts. Part I opens with a sketch of the historical roots of the common law, and then isolates in broad strokes the main themes or issues debated by common law jurists. Common law jurists agreed that law was to be understood as "reasonable usage." For many common lawyers this involved both common custom and common reason, but these notions were as contested as they were central to the common law mind. They were also thought to be interdependent: custom was always subject to the test of reason, but reason was embodied in the common practices of law. The relations and conflicts between these two notions are explored as well as the connection between the common law notion of common "artificial" reason or and traditional notions of natural law and natural reason.
Suggested Citation: Suggested Citation
Postema, Gerald J., Classical Common Law Jurisprudence (Part 1). Oxford University Commonwealth Law Journal, Vol. 2, No. 2, pp. 155-180, Spring 2003. Available at SSRN: https://ssrn.com/abstract=462941 or http://dx.doi.org/10.2139/ssrn.462941
By Peter Smith