Why is the English common law so important to those who consider themselves “small-c” conservatives? While this question may seem straightforward, it is more complicated than it first appears. To answer it is to go to the very heart of what any position of political, social or legal conservatism means in the Anglosphere.
Roger Scruton, in his masterful England: An Elegy, invokes the work of Immanuel Kant to give one of the best descriptions of what English common law actually is. It is from this account that the importance of common law to nations with a British heritage, such as Australia, can be ascertained:
The “common law” of England … arose from local judgements, and not from decrees issued by the sovereign … It is known as “case law”, since it derives from the judgements delivered in individual cases … But this description is also a misconception. The common law is no more made by the judge, than the moral law is made by the casuist. Kant argued that the moral law is known to all rational beings, and that they acknowledge it even when they cannot put it into words. Whether or not Kant was right on this, it is certainly true that the common law of England developed in the manner that he described. As in Kantian morality, those who obeyed the law were not necessarily those best able to explain it, and in all difficult cases an effort of impartial reflection was needed, if the rights and wrongs of the matter were to be known. It was to this task of reasoned reflection that the courts were devoted … the resulting system is of an admirable simplicity, embodying a vision of law that did not merely distinguish England and its colonies from almost all other countries in the world … but provided a paradigm of natural justice.
In short, English common law is a bottom-up system of jurisprudence “discovered” by judges who establish legal precedents based upon the individual cases they preside over. It is an expression of the people and their culture in judicial form; and a mode of dispensing justice that is fundamentally influenced by tradition and custom. Common law embodies the conservative ethos and is an organic expression of the conservative mindset, inherently opposed to the top-down statutes of “big government”, utopians and societal planners.
This essay appears in the July-August Quadrant, now on sale.
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As Scruton notes however, the Anglosphere is almost unique in its legal structure, especially when compared with continental Europe. The laws of most European nations (and hence their previous colonial possessions) are based on the top-down approach much derided by Anglosphere conservatives. In Prussia for instance, while a form of common law did exist into the nineteenth century, the promulgation of the 17,000-article Allgemeines Landrecht für die preußischen Staaten (General National Law for the Prussian States) in 1794, under the orders of Frederick II, led the way to a statute-centred approach to lawmaking. Despite numerous border and regime changes, this judicial culture persists in modern Germany. Another influence on Prussian lawmaking came from France. In that bloodstained nation, the ideas of “the revolution”, and the resulting legal framework imposed by the French authorities since the guillotine began to start falling, are a prime example of everything wrong with trying to establish top-down order through “reason” alone. The centralised big-statism of the French Republic and its contradictory catchphrase of “liberty, equality, fraternity” destroyed and replaced the pre-Revolutionary French legal order.
The top-down legal culture of these two nations has had a direct impact on the judicial approach of the European Union, of which Germany and France are the two most influential members. The choking mass of rules and regulations enforced by that most bureaucratic of organisations is diametrically opposed to the precedent-centred common-law approach of the United Kingdom, and was beginning to erode the UK’s unique legal heritage until the 2016 Brexit vote provided a glimmer of hope for a restoration of common-law supremacy. Indeed, the final Brexit arrangement has the potential to rebuild the pre-eminence of common law in the UK, although that would also require parliament to remember that more statutes do not mean better government, and instead allow the common law to flourish again. That last point is just as pertinent in Australia as well.
However, if it was not for the endeavours of one man, Sir Edward Coke, law in the Anglosphere could have veered off down the path of continental Europe. This astonishing legal mind really ought to be better known and respected among conservatives—especially the kind of free-marketeer whose hatred for the ever-encroaching state comes without a respect for the customs and traditions enshrined in common-law precedents.
Born in 1552 and dying in 1634, Coke was able to establish the supremacy of common law in England, such that it was strong enough to withstand the arguments and challenges of those who favoured a break with the culture and tradition of the past, a centralised big-state, and a legal code centred on top-down statutes. It is because of this remarkable individual that the legal approach in Anglosphere nations such as Australia is as it is today and, considering the importance of common law in conservative thought, it is in no small way Coke’s responsibility that modern Anglosphere conservatives have the concept of best-practice jurisprudence that they do today.
Coke was fortunate to have been born into a family with a strong connection to the legal profession on both paternal and maternal sides. His father Robert, an ambitious and influential barrister in Coke’s home county of Norfolk, had represented many powerful local clients, and had attained the status of minor gentry when his success enabled him to buy several manors. However, when Coke’s father died, leaving nine-year-old Edward as the only male child of eight, his mother remarried, to the half-French Robert Bezoun. While Coke may have followed his biological father into the legal profession, his stepfather was also influential in his early years, and the two are believed to have got on well. Bezoun, a strong-willed and able man, was of high status in Norfolk, and is thought to have imparted his upstanding character onto Coke.
Coke followed his early education at the free Norwich Grammar School with three years at Trinity College in Cambridge, where he didn’t enrol in a degree. Following Cambridge, Coke packed his parents’ old law books in his saddlebag and rode to London to begin legal studies at the Inner Temple. Called to the bar aged twenty-six, it was only a year before Coke had a marked impact on the common law by being on the side of the winning counsel in Shelley’s Case (1581). The precedent set in this complex matter of property inheritance law, although now abolished in the UK and most of America, can still be found in operation in most Canadian jurisdictions.
From his time at the bar, Coke rose rapidly, and by thirty-three he was the “elected recorder” for Norwich, a position similar to that of the then powerful Justice of the Peace. At thirty-five Coke held this same role in the larger town of Coventry, and by forty was the elected recorder in London. At forty-one he was the elected speaker in the House of Commons, and by forty-two he was Attorney-General. It was in the competition for this most coveted of positions that Coke first came into contact with the man who would become his near life-long antagonist, Sir Francis Bacon.
Leaving aside the intense personal conflict between these two, which even included a tussle over the daughter of Queen Elizabeth’s most senior minister (who became Coke’s second wife), Coke and Bacon were intrinsically opposed on a professional and philosophical level. It is hard to think of two minds as greatly at odds with respect to their espoused systems of jurisprudence, their opinions on the role and place of the law and the judges that preside over it.
Bacon, an admirer of Machiavelli who took a very high view of the royal prerogative in lawmaking and thought the role of lawyers to be that of “lions under the throne”, had an authoritarian and top-down approach to justice. Although it can be argued that Bacon’s interest lay more in the field of science, it was a supposed project of his to codify the law of England. Bacon took a scientist’s mind to the field of jurisprudence, and his writings on legal matters are said to have influenced the Code Napoléon (1804), the legal code of one of France’s post-revolutionary iterations.
To Coke, on the other hand, lawyers were not “lions under the throne”, but “umpires between King and subject”. The common law was the champion in Coke’s vision of the legal system, as opposed to any attempt to codify the law. Omitting the vast array of tit-for-tat encounters that both Coke and Bacon engaged in to try and destroy the professional standing of the other, what is ultimately important is that, while Bacon had initially held the upper hand in this war of attrition, Coke eventually won out by guiding Bacon’s impeachment for accepting bribes.
What is so important about this conflict between Coke and Bacon is that the winner was able to claim one of the most important prizes imaginable: the ability to determine the subsequent legal structure of the nation that was to become the world’s greatest empire, as well as that of its future colonies. By thwarting Bacon’s legal ambitions and establishing himself as a top authority at such a critical time in English history, Coke was able to guarantee the high status of common law as opposed to statute or decree, and prevent Bacon’s planned codification. If Coke had instead been destroyed by Bacon, as Bacon had no doubt intended, then the English legal system would very likely not be centred on the common law. Not only would it bear all of the hallmarks of its continental compatriots, but the nature and culture of the English and their Anglosphere kinsmen would also differ greatly.
From the position of Attorney-General, Coke’s career kept developing. At fifty-four, he became Chief Justice of the Court of Common Pleas, where he served for seven years. This was followed by three years as the Chief Justice of the King’s Bench (a royal appointment influenced by Bacon, who believed the transition would “tame” his nemesis). Although Coke’s tenure as Chief Justice ended acrimoniously (King James I eventually tired of his attempts to limit royal power and dismissed him) Coke was still able to enter a parliamentary career aged sixty-eight. It is arguably here that Coke did his most important work: curbing the authority of the King and promoting the supremacy of the common law.
Coke became the leader of the House of Commons in 1620, and Bacon was impeached in 1621, so Coke ended up well placed to enforce his judicial outlook upon all English people, including the King. However, matters were not that simple for Coke at the beginning of his parliamentary tenure, for King James dissolved parliament not long after Bacon’s impeachment. Coke was then thrown in the Tower of London, where he was held for nine months before his release when officials conceded to having no proof of wrongdoing.
Only when Charles I came to the throne in 1625, following James’s death, did Coke really make a tangible impact. The heavily indebted Charles, after dismissing parliament twice when it failed to agree to his demands for resources, summoned it for a third time; and it was at this moment of monarchical weakness that Coke was able to apply pressure on the new King. What started as a rather benign proposal, that no citizen should be imprisoned for more than three months without trial, soon developed into something far greater. When this original bill reached the House of Lords, the right of the “sovereign power of the Crown” (royal prerogative) claimed by Charles was defended, despite Coke insisting that it had no grounding in common law. As the King continued to make unsuccessful demands of parliament, Coke launched his masterstroke, by proposing the Petition of Right (1628). Second only to Magna Carta (1215) in its importance in Anglosphere legal history, the document contained only four articles:
- That no taxes could be levied without Parliamentary consent;
- That no citizen could be imprisoned without cause (a reinforcement of habeas corpus);
- That no quartering of soldiers in private homes could occur;
- That martial law could not be called during peacetime.
The weakened Charles ultimately capitulated to the demands of Coke and a supportive parliament, and the greatest legal mind in English history retired shortly afterwards.
It is difficult to overstate the importance of Coke’s championing of the Petition of Right. Most significantly, as the King himself had to obey the Petition’s four articles and his executive right was denied, the document enforced restrictions on the royal prerogative, which as Coke pointed out was not founded in the common law. This crucial development, explicitly favouring common-law reasoning over royal prerogative, sequentially led to the recognised supremacy of common-law authority over monarchical decree and all other legal alternatives in England from that time onwards. The Petition also ensured the vital legal tenet of habeas corpus, and created much of the current judicial inheritance of the Anglosphere nations.
Even the most rudimentary glance at Coke’s achievements makes for impressive reading, and this article largely omits the vital work that he did towards shaping the common law, such as in Bonham’s Case (1608) and Peacham’s Case (1615). In presiding over Bonham’s Case, Coke made the first ever judicial statement of the power of common law over legislation, stating that “when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such an Act to be void”. In the 1615 treason trial of Somerset clergyman Edmund Peacham, Coke denied that a written or verbal attack on the King constituted treason. This latter decision was against the wishes of James I and his minister Sir Francis Bacon. These precedents gained even greater importance when Coke ensured the supremacy of common law. Throughout his legal career, Coke also won many victories for individual liberty and an independent judiciary, such as: barring the King from judging any case of his choosing (Prohibitions del Roy), the outlawing of trespass onto property without request (Semayne’s Case), and the protection of an individual against double jeopardy (Vaux’s Case).
However, it is for his unwavering defence of common-law supremacy that Sir Edward Coke deserves to be best known. While his powerful legal intellect has earned Coke the title of “common law oracle”, maybe, considering his dogged determination and sheer bloody-mindedness in his defence of this customary law body, “common law crusader” may be the more apt sobriquet.
Oliver Friendship lives in Queensland.