29 Pages Posted: 18 Nov 2003
This, the second Part of a two-part essay, offers a partial philosophical reconstruction of the seventeenth century common law conception of law. Part I identified two notions on which the conception was based: common custom and common reason. The interdependence of these two notions is most evident in the pivotal idea of the "artificial reason" of the trained common lawyer.
Part II of this essay undertakes to articulate and explore the seventeenth century understanding of the nature of "artificial reason." It is argued that it had less to do with the expertise of an elite than with a view of a special discipline of practical reasoning in which the public, discursive, and forensic context of its exercise is essential for its claim to authority. It is argued that the reason of the common law was "artificial" not in the sense of being professional or elite, but in the sense of being experienced and social. "Artificial Reason" was the product of reflective, public-spirited practical experience, as opposed to untutored individual intuition or a natural capacity for deductive reasoning exercised in abstraction from the concrete details of ordinary life.
Against the background of this understanding of the reason of the common law, the notion of binding precedent and its relationship to Parliamentary legislation is discussed. The essay closes with a consideration of the normative foundations of common law and speculates on how natural law views about God as the source of law's authority were reconciled with a basically non-voluntarist concept of law. The essay maintains that, despite its many variations, the constant theme in classical common law jurisprudence is the idea of law rooted in a disciplined practice of public practical reasoning, maintaining a substantial congruence (but not identity) with the thick texture of the ordinary life and affairs of people in the political community.
Suggested Citation: Suggested Citation
Postema, Gerald J., Classical Common Law Jurisprudence (Part 2). Oxford University Commonwealth Law Journal, Vol. 3, No. 1, pp. 1-28, Summer 2003. Available at SSRN: https://ssrn.com/abstract=462942 or http://dx.doi.org/10.2139/ssrn.462942
By Peter Smith