THE COMMON LAW SUBVERSION OF PLURALISM?
PART 13: LESSONS OF LEGAL PLURALISM
This post is part of a lengthy series exploring the world of legal pluralism, particularly (though not exclusively) as it was grounded in the world of the medieval constitution. For a full index of the installments so far, see the introductory post, here.
In this installment, I want to dissect a fascinating analysis provided by J. G. A. Pocock, in his class book, The Ancient Constitution and the Feudal Law.1 Pocock presents an interesting case that common law, basing its legitimacy on customary law, ultimately transfigured the latter into a legitimization of state sovereignty, against the very pluralism which had been the lifeblood of customary law. In fairness, as we’ll see, Pocock warns against excessively instrumentalist interpretations along these lines. My analysis of Pocock’s treatment though is not that this politicization of customary law was engaged in bad faith, merely that it was an empirical process.
Pocock begins by establishing that the common lawyers – as they’re called in the scholarship – did indeed perceive and defend the common law as expression of what with Grossi we called customary law. Speaking of the period in which common law came to be instituted, primarily during the reign of James I, in the early 17th century, Pocock says:
The English supposed that the common law was the only law their land had ever known, and this by itself encouraged them to interpret the past as if it had been governed by the law of their own day; but in addition the fact that the common law was a customary law, and that lawyers defined custom in a way which heavily emphasized its immemorial character, made even more radical the English tendency to read existing law into the remote past.
Pocock particularly, though not exclusively, focused upon how the dynamics we’re discussing here were charted in the thinking of unquestionably the most influential of the common law lawyers, Sir Edward Coke. Those familiar with this history will know that Coke was famous for his battles with James I over the foundations of sovereignty and political legitimacy. Having said that, Pocock emphasizes Coke’s, and the other common lawyers’, apparent unconcerned confidence in their position:
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Coke's thought does not read like that of a man on the defensive; he does not insist or argue that the common law is the only system that has ever prevailed in England, but takes it as much for granted as the air he breathes; and the assumption seems to be made no less instinctively by the other lawyers of his generation and by most of the royalists and parliamentarians of the mid-century.
In the first decade of the new century, then, English lawyers were prepared to define common law as custom and to defend custom against written law in language which recalls certain French ideas of an earlier generation.
Toward demonstrating the validity of these claims, Pocock provides several quotations. First are the words of Sir John Davies, Attorney-General for Ireland, in his 1612 Irish Reports to the Lord Chancellor:
For a Custome taketh beginning and groweth to perfection in this manner: When a reasonable act once done is found to be good and beneficiall to the people, and agreeable to their nature and disposition, then do they use it and practise it again and again, and so by often iteration and multiplication of the act it becometh a Custome; and being continued without interruption time out of mind, it obtaineth the force of a Law.
And this Customary Law is the most perfect and most excellent, and with-out comparison the best, to make and preserve a Commonwealth. For the written Laws which are made either by the Edicts of Princes, or by Councils of Estates, are imposed upon the Subject before any Triall or Probation made, whether the same be fit and agreeable to the nature and disposition of the people, or whether they will breed any inconvenience or no. But a Custome doth never become a Law to bind the people, untill it hath been tried and approved time out of mind, during all which time there did thereby arise no inconvenience: for if it had been found inconvenient at any time, it had been used no longer, but had been interrupted, and consequently it had lost the virtue and force of a Law.
So, we find here an expression of the notion of customary law very much in keeping with what saw in Grossi’s history of European law. Customary law is rooted in what he’d called factuality: a hardnosed, trial-and-error, legal evolution in interaction with a beneficial consequentialism. Like Grossi’s path analogy, the customary law becomes the law because enough people follow the custom to wear a path, and they do so because the consequences to their community of such a custom/law have provided sufficient benefit to continue taking the same legal path. And so it is that such customary law reaches through the ages with its beneficial guidance.
A couple of additional traits, Pocock observes, are revealed as implied in Davies’ characterization. These are, first, that the customary law is a product of a kind of collective wisdom of the people; and second is the axiomatic position that this customary law is, and must be, the product of ancient origin. It is in fact England’s ancient constitution. Another passage from Davies emphasizes the former addendum:
…so framed and fitted to the nature and disposition of this people, as we may properly say it is connatural to the Nation, so as it cannot possibly be ruled by any other Law. This Law therefore doth demonstrate the strength of wit and reason and self-sufficiency which hath been always in the People of this Land, which have made their own Laws out of their wisedome and experience, (like a silk-worm that formeth all her web out of her self onely) not begging or borrowing a form of a Commonweal, either from Rome or from Greece, as all other Nations of Europe have done; but having sufficient provision of law & justice within the Land, have no need Justitiam & judicium ah alienigenis emendicare, as King John wrote most nobly to Pope Innocent the Third
Pocock teases out of these characterizations of customary law the attitude of the time that this very nature of customary law recommended its superiority over positive law (to use a more contemporary phrase): law created by a sovereign:
An idealization of custom was developing which would exalt its wisdom above that of the individual. The laws enacted by prince or parliament may grow obsolete, but custom must always be perfectly up-to-date, since if it had proved inadequate to the problems of the present age the people would simply have abandoned it. On the other hand, the fact that they have retained it shows that it has confronted and solved more problems over the centuries than the present age can hope to imagine. Written laws contain no more than the wisdom of one man or one generation, whereas custom in its infinite complexity contains the wisdom of many generations, who have tested it by experience, submitting it to a multitude of demands, and by retaining it have shown that it has proved equal to them all.
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Pocock observes that Coke picks up precisely Davies’ emphases here, in his own characterization of the common law, emphasizing his own concept of “artificial reason.” Though, as we’ll soon see, something a bit slippery is unfolding in Coke’s translation of customary into common law:
The law which the judges declare is unwritten and immemorial, and Coke praises it for precisely the same reasons as Davies. It embodies the wisdom of generations, as a result not of philosophical reflexion but of the accumulations and refinements of experience. This is Coke's famous concept of 'artificial reason'; what speaks through the judge is the distilled knowledge of many generations of men, each decision based on the experience of those before and tested by the experience of those after, and it is wiser than any individual— even James I— can possibly be.
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Pocock quotes Coke, from his Seventh Report, along these lines:
…our days upon the earth are but as a shadow in respect of the old ancient days and times past, wherein the laws have been by the wisdom of the most excellent men, in many successions of ages, by long and continual experience, (the trial of light and truth) fined and refined, which no one man, (being of so short a time) albeit he had in his head the wisdom of all the men in the world, in any one age could ever have effected or attained unto. And therefore it is optima regula, qua nulla est verior autjirmior injure, neminem oportet esse sapientiorem legibus: no man ought to take it on himself to be wiser than the laws.
Pocock then summarizes this manifestation of what he called “the common law mind,” which stretched at least from Davies to Burke, as such:
Institutions which have survived this process [of trial-and-error] for a long time must be presumed to have solved innumerably more problems than the men of the present age can imagine, and experience indeed shows that the efforts of the living, even mustering their best wisdom for the purpose, to alter such institutions in the way that seems best to their own intelligence, have usually done more harm than good. The wisdom which they embody has accumulated to such a degree that no reflecting individual can in his lifetime come to the end of it, no matter how he calls philosophy and theoretical reason to his aid. These propositions may all be found in the writings of Coke, Davies and Hale, as well as in those of Burke.
This depiction celebrates a rolling evolutionary consequentialism. And yet, Pocock notes at this point that despite what one might be inclined to deduce from this appeal to customary law, a curious anomaly is exposed once one looks at the common lawyers’ thinking – notably in the case of Coke – a little more closely. The historicity which would seem to be implied in such a notion of customary law, somehow, the common lawyers managed to precisely jettison from their frame of reference:
If the idea that law is custom implies anything, it is that law is in constant change and adaptation, altered to meet each new experience in the life of the people; and it might seem that there was no theory more likely to lead to a historical conception of the nature of law. Yet the fact is that the common lawyers, holding that law was custom, came to believe that the common law, and with it the constitution, had always been exactly what they were now, that they were immemorial: not merely that they were very old, or that they were the work of remote and mythical legislators, but that they were immemorial in the precise legal sense of dating from time beyond memory— beyond, in this case, the earliest historical record that could be found.
Arguably, Pocock suggests, this mode of thinking lent itself to a kind of tautology:
…the beginning of the records of the king's courts in the twelfth century was proof, not that those courts began at that time, but of their great antiquity, and it was usual and— given the presumptions— logical to add that if the earlier records had not been lost or stolen, they would prove the existence of the courts in times earlier still.
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And, what does it turn out is revealed by this ancient customary law, intuited more than revealed, by Coke, but the sovereign legitimacy of parliament over the aspirations of James I. I’ll quote Pocock at some length sketching out this essential insight into how common law axioms were ultimately leveraged to the benefit of parliament.
…belief in the antiquity of the common law encouraged belief in the existence of an ancient constitution, reference to which was constantly made, precedents, maxims and principles from which were constantly alleged, and which was constantly asserted to be in some way immune from the king's prerogative action; and discussion in these terms formed one of the century's chief modes of political argument. Parliamentary debates and pamphlet controversies involving the law or the constitution were almost invariably carried on either wholly or partially in terms of an appeal to the past made in this way; famous antiquaries were treated as authorities of recognized political wisdom; and nearly every thinker noted for his contribution to political theory in its usual sense— Hunton, Milton, Lilburne, Hobbes, Harrington, Filmer, Nevile, Sidney: only Locke appears to be an exception among notable writers— devoted part of his pages to discussing the antiquity of the constitution.
…historical thinking of the kind we have seen in Coke would make it possible to claim, with sincere and entire conviction, that many of the privileges or rights which parliament, or the courts of common law under a vigorous chief justice, desired to possess in the present had been theirs in the remote past. Thought of this kind encouraged the production, from legal or chronicle sources, of evidence of action taken in very distant times, which could then be identified with contemporary conditions and claimed as a precedent.
But it would be insufficient to explain the seventeenth-century's habit of recourse to the past merely as a search for precedents, as an eager legal antiquarianism; it was plainly much more. To claim that a precedent exists is to claim that a system of law as old as that precedent is still in force, and the arguments used in the Ship-money Case implied Coke's principle that the law of England was of pre-Conquest antiquity. When it was claimed that a remote precedent existed for such a right, it might very well be claimed in addition that the right was of immemorial antiquity.
…the attraction which the concept of the ancient constitution possessed for lawyers and parliamentarians probably resided less in whatever ultimate principle provided its base, than in its value as a purely negative argument. For a truly immemorial constitution could not be subject to a sovereign: since a king could not be known to have founded it originally, the king now reigning could not claim to revoke rights rooted in some ancestor's will. In an age when people's minds were becoming deeply, if dimly, imbued with the fear of some sort of sovereignty or absolutism, it must have satisfied many men's minds to be able to argue that the laws of the land were so ancient as to be the product of no one's will, and to appeal to the almost universally respected doctrine that law should be above will.
…as parliament laid claim to new powers these were represented as immemorial and included in the fundamental law, and close study would probably also reveal that as later controversies, particularly those of the mid-century, gave rise to new political ideas and principles, these also were included.
But, again, while this initial axiomatic position of the common lawyers, promoting a “time out of mind,” immemorial origin of the English ancient constitution, initially leaning upon the customary law foundations of legal pluralism, which denies the claims of the state’s sovereignty over the local people, occasioned by the jettisoning of a real historicist legal scholarship, results in the transfiguration of the customary law, run through the ringer of common law, into a rationale for a different configuration of the sovereign state.
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…as the [17th] century progressed assertions that the law was immemorial tended to be replaced by assertions that parliament, and especially a house of commons representing the property-owners, was immemorial. One of the underlying themes in the history of seventeenth-century political thought is the trend from the claim that there is a fundamental law, with parliament as its guardian, to the claim that parliament is sovereign.
So, the common law lawyers were an instrument in the transfiguration of customary law into the positive law of parliamentary sovereignty.
It was the idea of custom which convinced men that the law was ancient; the conclusion is a tempting one that it was as custom that they thought it was still binding. Coke and still more Davies do indeed seem to have thought at bottom in just this fashion; but does it follow that the average parliament man, barrister or pamphleteer, who made his appeal to “our ancient and fundamental laws, our ancient constitution”, was knowingly and deliberately appealing to the binding force of immemorial custom, and was clear in his mind what those words meant? It seems unlikely, yet it is hard to imagine what other ultimate basis his appeal could have had.
Pocock’s analysis then seems to imply that the common law notion of an ancient constitution, appealing to the customary law worked-out in time immemorial, was weaponized not merely to offset the power-seeking aspirations of Jame I, but ultimately as an instrument in the empowerment of parliament as itself embodying the very sovereignty against which parliament made pretense of defending the customary traditions of ancient popular wisdom. And he concedes, for many of those in or advocating on behalf of parliament and its sovereignty, no great insight into or wisdom of the purported immemorial ancient constitution was required for advocating on behalf of the interests of the merchant class represented by parliament.
Pocock does warn the reader against what he may have considered an excessively cynical reading of the facts as he presents them. He says that “the belief in an immemorial law was not a party-argument put forward by some clever lawyer as a means of limiting the king's prerogative: it was the nearly universal belief of Englishmen.” And a bit further on, he adds: “English historical ideas— those, that is, on the constitution and its antiquity— were not created primarily by party polemics.”
But it is possible his protestation is erring on the side of excessive caution. To repeat my observations from the beginning of this post: claiming that the common law and the common lawyers served as instruments in the transfiguring of customary law, away from its legal pluralist foundations, into a mode of sovereign state legal monism, need not assume any bad faith argument on their behalf. (Though it would be equally extravagant to assume there was never any such bad faith on the part of any advocates of parliamentary sovereignty.) That though would be beside the point. The observation here is merely an empirical one. The evolutionary biology position that I’ve elaborated at considerable length elsewhere is that humans will be disposed to adopt ideas that suit their fitness interests, however unconsciously such adoption is exercised.2
A self-serving rationalism – however much it gestures toward a legitimization leaning upon customary law and legal pluralism – that severs tangible connection with history and tradition, in the process of empowering a centralist sovereignty, is inherently a triumph of spatialism over temporalism. Still, one needn’t be consciously malevolent or even deliberative in acting as an agent of spatial interests amid the phenotype wars. Phenotypes merely pursue their own fitness interests, and so drive the historical spirals which embody that recursive playing out of the wars between such personality types. And as we see here, this corruption of the temporalist values of customary law through the conceptual constructions of the common law’s imaginary constitution was but another episode in the long story of the phenotype wars, that I’ve been documenting on this Substack, and in my new book, A Plea for Time in the Phenotype Wars.
I’m not yet quite done with this rather long series on legal pluralism. So, if you’re finding these glimpses into a history largely papered over by the spatialist hegemony – which would rather have you believe that the only alternatives are state sovereignty or deracinated individualism with its companion (purportedly) autonomous rationalism – and enjoying discovering about other kinds of genuinely rightwing alternatives to the present spatialist regime, be sure to…
Also, it might be a good idea to read my new book, A Plea for Time in the Phenotype Wars.
And, of course, if you know of others who you think might find value in these historical glimpses, please…
Meanwhile: be seeing you!
J. G. A. Pocock, The Ancient Constitution and the Feudal Law: A Study of English Historical Thought in the Seventeenth Century, 2nd Revised ed. edition (Cambridge: Cambridge University Press, 1987).
Various aspects and angles on this elaboration are provided across all three of the books in my trilogy on the social and political implications of evolutionary biology: Michael McConkey, Not for the Common Good: Evolution and Human Communications (Vancouver, B.C.: Biological Realist Publications, 2016), http://www.michaelmcconkey.com/product/not-for-the-common-good/; Michael McConkey, Darwinian Liberalism (Vancouver, B.C.: Biological Realist Publications, 2018); Michael McConkey, Biological Realism: Foundations and Applications (Vancouver, B.C.: Biological Realist Publications, 2020). The most detailed case study is in the former, while the most comprehensive theorization is in the latter.