Andrea Padovani

The Metaphysical Thought of Late Medieval Jurisprudence

Whereas the Roman jurists of Antiquity, in line with the pragmatism of their law, were not inclined to address complex questions of natural philosophy, the glossators and commentators of late medieval jurisprudence displayed a radically different attitude. In doing so, they implemented a change of greatest importance in the history of juridical thought. What follows is an attempt to identify some of the metaphysical queries faced by the medieval jurists. I am aware that, for the moment, the intricacy and novelty of the argument, as well as the massive number of juridical works produced between the twelfth and sixteenth centuries, do not allow me to offer definitive conclusions. For each of the themes and questions to be discussed in the present essay, I have therefore consulted only a limited number of sources. In my mind, the selected documentation is particularly apt to illustrate the principal issues. Still, there is much that remains to be done. My interpretations do not preclude further investigation, nor do they cover many of the different approaches.

The Age of Selden and Hale

The first half of the seventeenth century saw continuing disagreements regarding the power of the crown, and its relationship with the law. The debate over the king’s power was revived after the accession of Charles I in 1625, particularly after he sought to finance a war with Spain through a forced loan, and used martial law powers to billet troops on the civilian population (see Cust 1987, chap. 1; Boynton 1964). In both cases, the legality of the king’s actions came under scrutiny. For his defenders, there were certain areas of prerogative power which lay beyond the remit of the common law. “Execution of martial law is necessary where the sovereign and state think it necessary,” the admiralty judge Sir Henry Marten told the Commons in April 1628: “Neither does it derogate common law in the execution of it” (Johnson et al. 1977– 1983, vol. 3: 548). For the common lawyers, however, this was a dangerous argument, for they were reluctant to admit that the crown had powers beyond the scrutiny of the law. As Sir Edward Coke retorted to Marten, “Our common law bounds your law martial” (ibid., 550).

The Age of Blackstone and Kames

Selden and Hale presented a reorientated vision of the common law, which focused on law as the product of positive imposition. They saw custom as a set of positive rules originating in the past, which had been developed by judicial argument in court. In their vision, the law of nature played a muted role, as a premise of the system rather than as a working tool. This vision proved a particularly influential one on common lawyers, as can be seen from an examination of the most important English jurist of the eighteenth century, Sir William Blackstone. Blackstone’s principal work, Commentaries on the Laws of England (1765–1969), was the fruit of his lectures at Oxford, and were designed to give an introduction to the law to the gentleman (see Lieberman 1989, chaps. 1–2). They were the best and most elegant overview yet written, and one which aimed to examine all aspects of law. Blackstone was more an expositor and summariser than a deep thinker, and his theoretical positions were often inconsistent. Nevertheless, the prevailing idiom of his work was that of Selden and Hale, both in his understanding of the nature of the constitution and in his views on the foundations and workings of the common law. At the same time that Blackstone was working, a different and less positivist view of law was being developed to the north of the border. There, the most important published jurist of the Scottish Enlightenment, Lord Kames, developed a theory which sought to answer questions left unanswered by Blackstone’s vision, on different premises.

The Age of the Federalists

In 1766, parliament passed the Declaratory Act, proclaiming that Westminster had full power to make law binding the colonies “in all cases whatsoever.” The notion of parliamentary sovereignty which it reflected was one generally accepted by eighteenth century English lawyers. The triumph of parliament in the revolution of 1688 was supposed to have secured liberty from despotism; and the language of English politics was henceforth much less legalistic than it had been in the seventeenth century. The structure of the balanced constitution was widely lauded, receiving Montesquieu’s seal of approval. Anxiety about arbitrary government now centred not on the structure of government, but on its operation. Opposition politicians feared that patronage and electoral corruption would increase the influence of the crown and its ministers, and thereby upset the balance. In this context, the rhetoric of civic virtue became more prominent, as “country party” ideologists drawing on the works of Machiavelli and James Harrington urged active political participation to prevent corruption (see Pocock 2003; Robbins 1959; Dickinson 1979). Politicians who argued that parliament was bound by the constitution understood it more in terms of its political spirit than in strictly legal terms. For Radical agitators, meanwhile, the prime remedy to political ills was not to declare limitations on the power of parliament, but to ensure greater representation of the people in the institutions. From the other side of the Atlantic, however, things looked altogether different. To Americans, parliament in the mid-eighteenth century came to look like an institutional equivalent of the Stuart kings, willing to interfere arbitrarily with their property rights. The Declaratory Act brought to a head a clash between two distinct visions of the common law, derived from the same tradition: an English positivist view centred on parliamentary sovereignty, and an American conception, which invoked fundamental, customary rights, which could not be removed by the legislature (Greene 1986a; Greene 1994; Reid 1986; Reid 1987; Reid 1991; Reid 1993).

The Age of Bentham and Austin

Hobbes’s attack on the common lawyers had presented jurists with the problem of how to reconcile a view which conceived of law in terms of authority, rather than reason, with the existence of a body of rules which were developed by courts over a period of time. Hale’s answer to Hobbes was to agree with his positivist conception of law, but to argue that the foundational rules of English law had originated in a past agreement, and were subsequently developed by judges. He had shown that judges, who had expertise in the law and experience of the world, could apply the rules of law to the new facts which came before them, judging when an old rule should be extended by analogy, and when there had to be resort to reason. However, while he spoke of the law as growing, Hale did not give a very detailed account of the methods judges were to use in developing the law, particularly in novel cases. Nor did his successor, Blackstone, add a great deal of enlightenment. Indeed, if the commentator was able to show that the fundamental rules of property could be clearly summarised and applied, in many other areas of crucial importance in a commercialising society, he was unable to explain how judges developed law, save by referring to ideas of natural equity.

The Age of Maine and Holmes

Building on the ideas of Bentham, John Austin developed an analytical jurisprudence which was to prove highly influential in the later nineteenth century. Although based on a command theory, Austin’s version was made more palatable to common lawyers since he argued against Bentham that law could be generated from the decisions of judges, and since he did not call for the abolition of the common law and its replacement by a code. While being the clearest exposition yet published of how the common law might generate rules, tensions remained in Austin’s theory. For although his analytical jurisprudence was premised on a definition of law as command, many of the rights and remedies he described were not clearly related to commands, while the closer one looked, the harder it was to see the rules which came from judicial decisions in terms of commands.