Table Of ContentATreatise of Legal Philosophy and General Jurisprudence
Volume 8
A History of the Philosophy of Law in the Common Law World, 1600–1900
ATreatise of Legal Philosophy and General Jurisprudence
Editor-in-Chief
Enrico Pattaro, CIRSFID and Law Faculty, University of Bologna, Italy
Advisory Board
Norberto Bobbio †
Ronald M. Dworkin, School of Law, New York University, USAand
Faculty of Law, University College London, UK
Lawrence M. Friedman, Stanford Law School, Stanford University, USA
Knud Haakonssen, Department of History, University of Sussex, UK
Associate Editors
Gerald J. Postema, Department of Philosophy, The University of North
Carolina at Chapel Hill, USA
Peter G. Stein, Faculty of Law, University of Cambridge, UK
Assistant Editor
Antonino Rotolo, CIRSFID and Law Faculty, University of Bologna, Italy
ATreatise of Legal Philosophy and General Jurisprudence
Volume 8
A History of the Philosophy
of Law in the Common Law
World, 1600–1900
by
Michael Lobban
Department of Law, Queen Mary, University of London, UK
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TABLTEAB LOE OFF CCOONTNENTTES NTS V
A Note on the Author VII
Preface IX
Chapter 1 - Precursors 1
1.1. The Age of Bracton 1
1.2. The Age of Fortescue 7
1.2.1. Fortescue on the Constitution of England 8
1.2.2. Fortescue on the Nature of Law 11
1.3. Christopher St. German 14
1.3.1. St. German on the Grounds of the Law of England 15
1.3.2. St. German on the Power of Parliament 17
1.3.3. Law, Conscience, and Equity in St. German’s Thought 20
1.4. Equity, Common Law, and Statute under the Later Tudors 25
Chapter 2 - The Age of Sir Edward Coke 29
2.1. Common Law Reasoning in the Early Seventeenth Century 33
2.2. The Common Law and Legislation 41
2.3. The Common Law and the Crown 47
2.4. Common Law and Equity 51
Chapter 3 - The Age of Selden and Hale 59
3.1. The Positivism of Selden and Hale 61
3.2. Hooker, Selden, and Hale on the Source of Political Authority 65
3.3. Constitutional Theories in the Civil War 71
3.3.1. Philip Hunton and the Mixed Monarchy 72
3.3.2. Henry Parker and Parliamentary Absolutism 74
3.3.3. Thomas Hobbes and the Sovereign State 77
3.3.4. Hale and the Revival of Common Law Constitutionalism 80
3.4. Thomas Hobbes’s Challenge to the Common Law 81
3.5. History, Custom, and Authority in Selden and Hale 86
Chapter 4 - The Age of Blackstone and Kames 91
4.1. Challenging the Common Law: Sidney, Locke, and Popular
Sovereignty 91
4.2. Common Law Constitutionalism Reasserted:
Blackstone and the Glorious Revolution 95
VI TREATISE, 8 - THE COMMON LAW WORLD, 1600–1900
4.3. Natural Law and Authority in Blackstone’s Thought 99
4.4. Blackstone and Judicial Reasoning 105
4.5. Scottish Legal Literature before Kames 110
4.6. The Natural Jurisprudence of Lord Kames 114
4.7. Kames’s Theory of Obligations 118
Chapter 5 - The Age of the Federalists 123
5.1. The Common Law Mind and the American Revolution 123
5.2. The Federalist Idea of a Constitution 130
5.3. Early Ideas on Judicial Review 136
5.4. The Supreme Court under John Marshall 139
5.5. Federalist Jurisprudence 145
Chapter 6 - The Age of Bentham and Austin 155
6.1. Jeremy Bentham on the Foundations of Law 156
6.2. Bentham’s Critique of the Common Law 162
6.3. Bentham’s Code 167
6.4. The Foundations of John Austin’s Jurisprudence 173
6.5. Austin and Common Law Reasoning 179
6.6. Austin’s Analytical Jurisprudence 182
Chapter 7 - The Age of Maine and Holmes 189
7.1. The Early Career of Sir Henry Maine 189
7.2. Ancient Law 192
7.3. After Ancient Law 198
7.4. The Rise of Formalism in America 205
7.5. The Early Work of Oliver Wendell Holmes 208
7.6. Holmes’s The Common Law 212
7.7. Holmes’s Later Work 218
Conclusion 225
Bibliography 233
Index of Subjects 257
Index of Names 263
A NOTA ENO OTE NON T THHE EAU TAHUORTHOR VII
Michael Lobban is professor of Legal History at Queen Mary, University of
London. After finishing his doctorate at Cambridge University, he held a Jun-
ior Research Fellowship at St. John’s College, Oxford, and has held posts at
the University of Witwatersrand, the University of Durham and Brunel Uni-
versity. Michael Lobban’s research interests lie in the field of English legal his-
tory and the history of jurisprudence. He is the author of The Common Law
and English Jurisprudence, 1760–1850 (Oxford: Clarendon Press, 1991),
which was the joint winner of the Society of Public Teachers of Law’s prize
for outstanding legal scholarship in 1992, and of White Man’s Justice: South
African Political Trials in the Black Consciousness Era (Oxford: Clarendon
Press, 1996). He has also written widely on aspects of private law and on law
reform in England in the eighteenth and nineteenth centuries, as well as co-
editing, with C.W. Brooks, a volume entitled Communities and courts in Brit-
ain, 1150–1900 (London: Hambledon Press, 1997).
PRPEREFFAACCE E IX
This volume is primarily concerned with jurists’ and legal philosophers’
understandings of law, rather than with those of philosophers (such as J.S.
Mill), whose views are handled in other volumes of the Treatise, particularly in
Patrick Riley’s Volume 10. In the chapters that follow, brief mention has been
made of John Locke and of Thomas Hobbes, insofar as their theories were di-
rectly of relevance to, and discussed by, common lawyers. However, since
both of these thinkers are given more comprehensive treatment by Professor
Riley, readers should consult his volume for a fuller discussion of these think-
ers. In the current volume I have modernised all spelling and punctuation.
In such a work as this, it is inevitable that the author will draw many ideas
both from the published work of other scholars and from the guidance and
advice of colleagues and friends. I hope in the body of the text to have drawn
the reader’s attention to relevant published works of other authors. The Cla-
rendon Edition of Thomas Hobbes’s Writings on Common Law and Heredi-
tary Right (ed. Alan Cromartie and Quentin Skinner, Clarendon Press, Ox-
ford 2005) unfortunately appeared too late to be taken account of in this vol-
ume, but readers are referred both to its edition of Hobbes’s A Dialogue be-
tween a Philosopher and a Student of the Common Laws of England and to Dr.
Cromartie’s very useful introduction.
I should like to take this opportunity to express my gratitude to a number
of people who have helped me in a number of ways during the writing of this
volume, though without pretending to hold any of them in any way to account
for any infelicities and errors which may remain. I am especially grateful to
Chris Brooks, who has been a consistent source of stimulating and thought-
provoking ideas and comments, as well as offering generous guidance, advice
and assistance. I have long greatly appreciated both his friendship, and his ex-
ample. I have also benefited from the comments and advice of Neil Duxbury,
David Lemmings, David Lieberman, Wilfrid Prest and Philip Schofield. John
Langbein was kind enough to allow me to read his unpublished work on the
early history of Yale Law School, and was an excellent host when I presented
some of the ideas contained here at a seminar at Yale Law School in 2001. I
am also grateful to David Lemmings for inviting me to present some of the
material at a conference at the Australian National University in the same
year. Some of the material in Chapters 3–5 of this volume is discussed in a
chapter in the volume of proceedings from that conference, The British and
Their Laws in the Eighteenth Century (Boydell & Brewer, Woodbridge 2005)
under the title, “Custom, Nature and Authority: The Roots of English Legal
Positivism.” I have also given a more extended version of some material con-
X TREATISE, 8 - THE COMMON LAW WORLD, 1600–1900
tained in Chapter 4 in a chapter entitled, “The Ambition of Lord Kames’s Eq-
uity,” in Law and History, edited by Andrew Lewis and myself (Oxford Uni-
versity Press, Oxford 2004). The research for the current volume was done at
Brunel University and Queen Mary, University of London, as well as at the In-
stitute of Advanced Legal Studies in the University of London, which elected
me to a Visiting Senior Fellowship for 2000–2002. I am grateful to each of
these institutions for their support and to the encouragement of my col-
leagues. Finally, a word of thanks is due both to Gerald Postema, for his sup-
port and encouragement during this project, and to Enrico Pattaro and his
team in Bologna, for the efficient and good humoured way in which they have
co-ordinated a large and complex project.
Michael Lobban
Queen Mary, University of London
Department of Law
CHAPCTEhR a1 p- PtReErC U1RSORS 1
PRECURSORS
1.1. The Age of Bracton
Legal historians since F. W. Maitland have agreed in dating the origins of the
English common law to the era of the reign of Henry II (1154–1189) (Pollock
and Maitland 1968; Milsom 1976; Hudson 1996; Brand 1992b). Although the
Anglo-Saxon monarchy prior to the Norman conquest was strong and rela-
tively centralised, with kings issuing law codes and taking an active interest in
the maintenance of law and order and in dispute resolution (see Wormald
1999a, Wormald 1999b), it was only with the introduction of new remedies in
the 1160s and 1170s that the foundations were laid for a system of justice in
which cases would be commenced by a regular procedure of returnable writs,
and judgments rendered by a professional judiciary, operating in courts keep-
ing records (see in addition Turner 1985; Brand 1992c). These remedies were
regular and available throughout the king’s domain, and the royal courts ad-
ministered “one national law and not a multitude of local and regional cus-
toms” (Van Caenegem 1988, 29). When historians speak of the “common
law” in the late twelfth and early thirteenth centuries, it is this system which
they are referring to: the term itself was not then in use. By the mid-thirteenth
century, however, the expression “common law,” adapted from the canonists’
invocation of a ius commune, was widely used to mean the body of law admin-
istered in the court which was distinct from statutes enacted by the king with
his council, prerogative and local custom (Hudson 1996, 18; Pollock and
Maitland 1968, I: 176–7).
The era of the formation of the English common law saw the production
of two treatises on “the laws and customs of England” which give some
insights into how early jurists thought about law, legislation and custom. The
first, written between 1187 and 1189, was known as Glanvill, after Sir Ranulf
de Glanvill, the justiciar of England by whom it was presumed, probably in-
correctly, to have been written. It was a largely practical and procedural work,
describing the writs used before the king’s justices in civil litigation, though it
also contained some substantive discussions (see Turner 1990; Brand 1999).
Writing, as he was, in the early period of the formation of the common law,
Glanvill acknowledged that there was a “confused multiplicity” of “laws and
legal rules of the realm,” but he felt that there were enough general rules to be
written down. At the same time, the author showed some familiarity with the
terminology and concepts of Roman law. Although England’s laws were un-
written, he said, “it does not seem absurd to call them laws—those, that is,
which are known to have been promulgated about problems settled in council
