2. The Unintended Results of Historical Development

C H A P T E R 2

The Unintended Results of Historical Development:

The Beginnings of the Analytical Framework

AS THEY DEVELOPED OVER TIME, a number of social and economic phenomena came to be recognised (by their students) as both highly orderly and of the utmost usefulness. These phenomena were human activities but they had not been deliberately instituted. The problem therefore arose of how to account for them.

1. This situation was fi rst confronted in the English common law, in the attempt to characterise it in general terms for fellow-lawyers, for students of the

law, and later, in attempts to protect it against royal intervention.

a. The antiquity of the common law was the fi rst of its characteristics to be explicitly recognised and articulated. Its age was at fi rst taken quite literally. One Sergeant (in the fourteenth century) supposed the common law had existed since the world began.1 Sir John Fortescue thought it to be older than the Romans or the Venetians (and therefore the best.) Sir Edward Coke likewise supposed that the various Anglo-Saxon codes published in his time simply omitted unwritten customary law — i.e. the common law had already existed during the earliest Anglo-Saxon times.2 What is signifi cant here is not the inevitable naivete of these views, but the recognition that the common law was an historical phenomenon.

b. It was recognised that the common law was not an invention. Rather it was seen to be practice — not just long-continued practice, but usage which had survived a long selection process; — a process which eliminated the less useful and retained the more useful customs. Written legislation or edict went

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through no such elimination test of its general usefulness, and hence often proved a handicap to the people.3

Sir Edward Coke

This same recognition that law is generalised usage is found in the writings of Sir Edward Coke:

“The law of England is divided ... into three parts: 1, the common law, which is the most generall and ancient law of the realme ...; 2, statutesor acts of parliament; and 3, particular customes .... I say particular, for it be the generall custome of the realme, it is part of the commonlaw.”4

Coke goes on to give the sources for all three:

“The common law appeareth in the statute of Magna Charta and other ancient statutes (which for the most part are affi rmations of the common law) in the originall writs, in judicial records, in our bookes oftermes and yeares — Acts of parliament appeare in the rolls of parliament, and for the most part are in print”5

Particular customs are defi ned thus:

“Of every custom there be two essentiall parts, time and usage, time out of minde .... and peaceable usage without lawfull interruption”6

The substance of both common law and statute are determined by reference to actual common practice (or non-practice):

“... as usage is a good interpreter of lawes, so non usage where there is no example is a great intendment that the law will not bear it ... Notthat an act of parliament by non user can be antiquated or lose his force, but that it may be expounded or declared how the act is to beunderstood.”7c. Coke discerned an order in the common law — an order which was not produced by a single ordering mind or even a single generation. Rather, the common law was the outcome of long experience and of many generations of past judicial decisions on individual cases. The result was a diff erent kind of orderliness — of an immensely higher degree of complexity. Hence such an order was not immediately obvious, but required long study and observation and deep thought before its regularity could be fully grasped. Legal (and judicial) expertise then was expert knowledge of a highly complex social formation, which had been created by an unknowably large number of minds. 8

Judicial decisions become such by articulating and expressing the principles of the common law; personal opinions are those that are not constrained by these rules:

“... they [the parties to a case] pray the discretion of the justices; which is as much to say, as, that they would discerne what the law adjudgeth thereupon, ... for ... discretio et discernere per legem, quid sit justum, that is, to discerne by the right line of law, and not by the crooked cordof private opinion, which the vulgar call discretion ...”9

Coke distinguishes very clearly between the inherent structure of the common law and any individual’s grasp thereof:

“... the knowledge of the law is like a deep well, out of which each man draweth according to the strength of his understanding. He that rea—cheth deepest, he seeth the amiable and admirable secrets of the law

....”10

Only when we thoroughly assimilate to our own thinking the internal structure of the rules of the common law, can we say that we know the law. These rules are summary statements of the general principles involved in an open-ended series of particular cases. Thus by penetrating through to the general, we can master the various particulars as they arise.11

The general rules of the common law are such that they cannot speak for themselves; they have to be discerned and declared; and this is the function performed by judges:

“There be three things ... whereby every subject is protected viz. rex, lex, et rescripta regis, the king, the law, and the king’s writs. The law is the rule, but it is mute. The king judgeth by his judges, and they are the speaking law, lex loquens. The processe and the execution, whichis the life of the law, consisteth in the king’s writs.”12

Their provenance means that the general principles of the common law have to be regarded as incontrovertible:

“Principium, quod est quasi primum caput from which many caseshave their originall or beginning, which is so strong, as it suff ereth no contradiction; and therefore it is said in our books, that ancient principles of the law ought not to be disputed, Contra negantem principia non est disputandum13.”

But this enunciation of common law principles emerges from decisions made in a series of cases — it is emphatically not the unsupported view expressed by a single judge in a single case:

“... these cases are in mine opinion rightly adjudged against a sudden opinion ... to the contrary.”14

Long established rules protect everyone’s interests:

“... the knowne certaintie of the law is the safetie of all.”15

Hence judges reject proposed changes that don’t fi t in with such well-settled general principles:

“... that by a new and subtile invention of pleading, an ancient principle in law ... should be subverted, which ought not to be suff ered; and therefore ... the wisdome of the judges and sages of the law haveallways suppressed new and subtile inventions in derogation of the common law. And therefore the judges say in one booke, We will notchange the law which alwayes hath been used. And another saith, It is better that it be turned to a default, than the law should be changed, or any innovation made.”16

Hence consistency with common law principles is the test which both statute and any specifi c custom have to pass: the common law

“corrects, allows and disallows both Statute Law and Custom, for if there be repugnancy in a Statute, or unreasonableness in Custom, the Common Law disallows and rejects it....”17

The actual details of Coke’s famous encounter with James I are now beyond recovery;18 but the quotation from Bracton usually included in the story certainly demonstrates that when Coke placed the common law in fi nal control of both legislation and the king’s prerogative, he was continuing in a tradition already established in the thirteenth century:

“quod Rex non debet esse sub homine, sed sub Deo et lege.”

And again,

“the law makes the king”

“there is no king where will rules and not the law”19

Coke and James I

d. As against Coke (and Bracton) James I held that the law expressed his will. And so, as he was the supreme judge, so were

“inferior judges his shadows and ministers ... the King may, if he please, sit in Westminster Hall in any Court there, and call their Judgments in question ... The King being the author of the Lawe is the interpreter of the Lawe.”20

On another occasion, James I put this view even more starkly, adding that no subject could set limits on his prerogative:

“Encroach not upon the prerogative of the Crown ... it is presump—tuous and high contempt in a subject to dispute what a king can do, or say that a king cannot do this or that; but rest in that which is theking’s will revealed in his law.”21

Hobbes v. Coke

The most systematic exposition of this stand came from Hobbes, inter— woven with an explicit attack on Coke. Hobbes argues that long usage cannot make law since, fi rstly, unreasonable customs are not law and secondly, whatever is reasonable is self evident: long usage cannot make it more so.28 Anyone may become a judge: since the common law is reason (and therefore everyone can express it) while statutes are printed with indices.23 All men have reason in common with Sir Edward Coke; and so if he is a judge, it is only by virtue of royal appointment to that position.24

Hobbes denies Coke’s view that law is the outcome of many generations of judicial decisions: law is made by authority.25 Everyone can put forward his own individual argument as to what the law is: but sovereign authority is the only common element in the several legal systems of diff erent countries; so the king, although an individual, is the divinely-ordained source of both statute and common law. 26 Thus law is the command of a properly-constituted authority:

“A Law is the Command of him, or them that have the Soveraign

Power, given to those that be his or their Subjects, declaring Publickly, and plainly what every of them may do, and what they must forbear to do.”27

By submitting to authority we agree to obey its orders, made for the public benefi t:

“For the Statutes were made by Authority, and not drawn from any other Principles than the care of the safety of the People. Statutes are not philosophy as is the Common-Law, and other disputable Acts, but are Commands, or Prohibitions which ought to be obeyed, because

Assented to by Submission made ... to whosoever had the Soveraign

Power ...; so that the Positive Laws of all Places are Statutes.”28

Statutes create order because they are enforced; and a governing authority (however constituted) must be given the forces necessary to compel obe— dience.29 For consistency, the supreme legislator also has to be the ultimate judge, and therefore judges too are public offi cials appointed by royal authority along with other offi 30 cials. Authority creates law and law then creates justice:

“... a Just Action ... is that which is not against the Law; it is Manifest that before there was a Law, there could be no Injustice, and therefore Laws are in their Nature Antecedent to Justice and Injustice, and you cannot deny but there must be Law-makers, before there were any

Laws, and Consequently before there was any Justice ...”31

Thus by enforcing private rights, the sovereign authority creates such rights as private property. 32 In short, for Hobbes the law was a simple phenomenon:

a matter of commands given to subordinates, enforced by offi cials.

Sir Matthew Hale

e . In his (unfi nished Mss) reply to Hobbes (and elsewhere) Sir Matthew

Hale constantly contrasted the obvious rationality of geometrical or mathematical reasoning with the circumstantial problems — the solving of practical diffi culties — faced by the law. Hence in the latter fi eld, it was not possible to parallel the clearly-demonstrable theorems of geometry or mathematics. Any attempt to model a legal system after Euclid failed when dealing with actual cases.33 In framing laws for a group, the problem is not so much general principles — these may be broadly agreed upon — but their application in specifi c instances; intellectual achievement is not of much help here. 34 The best judges are men with a wide variety of human experience; profound thinkers make very poor justices, precisely because they lack the common touch.35

Defi nite laws, derived from experience, give men stable rules to live by.

This is quite distinct from being subjected to the uncertainty and arbitrariness of whatever opinions particular people might happen to have. If every judge’s individual opinion is to be the rule, then we have corruption, partiality and confl ict. The costs of uncertainty and arbitrariness are immensely greater than those of defi nite known rules.36 From the study of past cases, we obtain the rules on which decisions are based; by adhering (as far as possible) to these rules in future cases, we achieve the general end aimed at by all systems of law:

certainty and the reduction of arbitrariness.37

But even with defi nite rules, some undesirable consequences are unavoidable, since all possible developments cannot be foreseen; and so the constant issue is how not to make an old problem’s solution the new problem;

“... it is a thing of greatest diffi culty, So to Contrive and Order any

Lawe that while it remedyes or provides agst one Inconvenience, it introduceth not a worse or an equall.”

Immediate consequences are easily foreseen; but human aff airs are an interconnected web:

“A Man that hath a prospect at once ... may with ease enough fi tt a Lawe to that ... But ye texture of Humane aff aires is not unlike theTexture of a diseased bodey labouring under Maladies, it may be of so various natures that such Phisique as may be proper for the Cure of one of the maladies may be destructive in relation to ye other, and yeCure of one disease may be the death of the patient.”38

Thus the judge has to consider unintended as well as intended consequences, and weigh up costs and benefi ts. 39 Furthermore, circumstances alter cases, and circumstances are infi nite in their variety.40 Thus change is inherent in the law:

“From the Nature of Laws themselves in general, which being to be accommodated to the Conditions, Exigencies and Conveniencies ofthe People .... as those Exigencies and Conveniences do insensibly grow upon the People, so many Times there grows insensibly a Variation of Laws, especially in a long Tract of Time ...”41

As circumstances change over time, so must the law:

“It is very evident to every Day’s Experience, that Laws, the further they go from their original Institution, grow the larger, and the more numerous: In the fi rst Coalition of a People, their Prospect is not great, they provide Laws for their present Exigence and Convenience: But in Process of Time, possibly their fi rst Laws are changed, altered or antiquated .... But whatsoever be done touching their Old Laws, there must of Necessity be a Provision of New, and other Laws successively answering to the Multitude of successive Exigencies and Emergencies,that in a long Tract of Time will off er themselves ...”42

Among the latter are “the various accessions and alterations in points of

Commerce and dealing ...”43 In sum, “Use and Custom, and Judicial Decisions and Resolutions, and Acts of Parliament” alter old laws and introduce new ones, although the precise time period for such changes is not known explicitly or clearly.44

Thus the study of the common law is a highly specialised discipline, not just an exercise in deductive logic.45 Mathematics and geometry clearly require considerable time to master them, yet their propositions are far easier to demonstrate and assimilate than the structural principles of the common law.

Hence common lawyers are better suited to become judges than those trained in philosophy or mathematics.46

Rationality is not confi ned to whatever is immediately obvious or is developed by a single mind. Indeed, the outcome of an historical process involving many minds may be infi nitely more orderly, though its principle is not patently manifest.47 Experience over a long period of time results in a kind of knowledge which a single mind or even group of minds could never provide, or possibly even grasp:

“Again I have reason to assure myselfe that Long Experience makes more discoveries touching conveniences or Inconveniences of Lawsthen is possible for the wisest Councill of Men att first to foresee. And that those amendments and supplemts that through the various 80 Early Modern England | Sudha Shenoy

Experiences of wise and knowing men have been applyed to any Law must needs be better suited to the Convenience of Laws, then the best

Invention of the most pregnant witts not ayded by Such a Series and tract of Experience.

All these things are reasonable, the particular reason of the Laws &

Supplemts themselves perchance are not obvious to the most Subtill

Witts or Reason.

And this adds to ye diffi cultie of a present fathomeing of the reason of

Laws, because they are the Production of long and Iterated Experience wch, tho’ itt be commonly called the mistriss of Fooles, yett certainly itt is the wisest Expedient among mankind, and discovers those defects and Supplys wch no witt of Man coud either at once foresee or aptly remedye.”48

Thus the rationale of custom and practice is not, and need not be, instantaneously self-evident; to demand such immediacy is to mistake the nature of the object itself. 49 Similarly, a language (such as English or French) has various grammatical rules and usages for which “no immediate reason can be justly given or required, but institution or custome, which is a tacite institution.”50

Thus Hale recognised a class of customary institutions (which included the common law and language) which were as necessary and useful to mankind as mathematics and other sciences; but while the latter were patently orderly, the former required deep study to discover their internal structure.51

Hale already recognised that because law and language arose out of practice, they embodied the distilled circumstances faced by generations of men

— they were essentially historical in nature. Thus they were another type of order than those obtained by construction or deduction, and so they required another kind of understanding and explanation.

Edmund Burke

f. Burke’s foundation was the common law. He recognised that many minds contributed to its development over time; it was the joint outcome of both general principle and particular circumstance:

“... the science of jurisprudence, the pride of the human intellect, which, with all its defects, redundancies and errors, is the collected reason of ages, combining the principles of original justice with the infi nite variety of human concerns ...”52

Burke systematically applied common law principles to legislation, opposing the anti-Catholic legislation passed in Ireland because it was “against the Early Modern England | Sudha Shenoy 81

spirit of the common law.” Any statements of the law only articulated pre-existing general principles:

“All human laws are, properly speaking, only declaratory; they may alter the mode and application, but have no power over the substance of original justice.”53

To identify mere legality with the law is literally antisocial:

“It would be hard to point out any error more truly subversive of all the order and beauty, of all the peace and happiness, of human society, than the position that any body of men have a right to make what laws they please; or that laws can derive any authority from their institution merely and independent of the quality of the subject-matter.”54

Neither democratic legislation nor political authority nor judges could make the law:

“... of all things this was the most truly absurd, to fancy that the rule of justice was to be taken from the constitutions of commonwealths, or that laws derived their authority from the statutes of the people, the edicts of princes, or the decrees of judges. If it be admitted that it is not the black letter and the king’s arms that makes the law, we are to look for it elsewhere.”55

Royal decrees as well as democratic legislation could be equally unlawful:

“Have these gentlemen never heard ... of anything between the despotism of the monarch and the despotism of the multitude?”

“These old fanatics of single arbitrary power dogmatized as if heredi—tary royalty was the only lawful government ... just as our new fanatics of popular arbitrary power maintain that a popular election is the sole lawful source of authority.”56

Legislation could only re-state those rights already held by the people under the common law; charters and declarations were merely “a reaffi rmance of the still more ancient standing law of the kingdom.” Hence

“it has been the uniform policy of our constitution to claim and assert our liberties, as an entailed inheritance derived to us from our forefathers, and to be transmitted to our posterity; as an estate belonging especially to the people of this kingdom, without any reference whatever to any other more general or prior right.”

In other words, this was based “not on abstract principles, ‘as the rights of men’, but as the rights of Englishmen, and as a patrimony derived from [our]

forefathers.”57

Thus the British constitution was “a prescriptive constitution, whose sole authority was that it had existed time out of mind.” It “never was the work of any legislator, never was made upon any foregone theory.”58

Thus Burke also discerned the existence of undesigned social phenomena; but he saw too that the further unintended consequences of actions or rules could be the opposite of those appearing immediately:

“... the real eff ects of moral causes are not always immediate; but that which in the fi rst instance is prejudicial may be excellent in its remoter operation, and its excellence may arise even from the ill eff ects it produces in the beginning. The reverse also happens: and very plausible schemes, with very pleasing commencements, have often shame—ful and lamentable conclusions. In states there are very often someobscure and almost latent causes, things which appear at fi rst view of little moment, on which a very great part of its prosperity or adversity may most essentially depend.”59

Experience is the best test of any social formation; and experience brings about unsuspected and unpredictable benefi ts:

“old establishments are tried by their eff ects. If the people are happy, united, wealthy, and powerful, we presume the rest. We conclude that to be good from whence good is derived. In old establishments various correctives have been found for their aberrations from theory. Indeed they are the results of various necessities and expediencies. They arenot often constructed after any theory; theories are rather drawn from them. In them we often see the end best obtained, where the means seen not perfectly reconcilable to what we may fancy was the original scheme. The means taught by experience may be better suited to political ends than those contrived in the original project. They again react on the primitive constitution, and sometimes improve the designitself, from which they seem to have departed.”60

The experience and knowledge encapsulated in grown institutions were greater than could be acquired in a single lifetime or by a single mind:

“We are afraid to put men to live and trade each on his own private stock of reason; because we suspect that this stock in each man is small, and that the individuals would do better to avail themselves ofthe general bank and capital of nations and of ages.”60

Burke has a very clear idea of what reason can accomplish when examining social institutions; its job is to elucidate the actual functioning of successful institutions.

“I do not vilify theory and speculation — no, because that would be to vilify reason itself ... No, whenever I speak against theory, I mean Early Modern England | Sudha Shenoy 83

always a weak, erroneous, fallacious, unfounded or imperfect theory, and one of the ways of discovering that it is a false theory is by comparing it with practice.”

“... instead of casting away all our old prejudices, we cherish them to a very considerable degree ... Many of our men of speculation, instead of exploding general prejudices, employ their sagacity to discover the latent wisdom which prevails in them. If they fi nd what they seek, and they seldom fail, they think it more wise to continue the prejudice, with the reason involved ...”62

Thus only intellectual hubris could take social and political reform as the equivalent of writing on a blank sheet:

“I cannot conceive how any man can have brought himself to that pitch of presumption, to consider his country as nothing but carte-blanche, upon which he may scribble whatever he pleases.”63

Reform can only proceed from what already exists:

“A spirit of innovation is generally the result of a selfi sh temper and confi ned views. People will not look forward to posterity, who never look backward to their ancestors.”

“A state without the means of some change is without the means of its conservation.”

“... the idea of inheritance furnishes a sure principle of conservation and .... of transmission; without at all excluding a principle of improvement.”

“... in what we improve, we are never wholly new, in what we retain, we are never wholly obsolete.”

“All the reformations we have hitherto made have proceeded upon the principle of reverence to antiquity ...”

“The two principles of conservation and correction ...”

“At once to preserve and to reform is quite another thing.”64

Thus in Burke we fi nd precisely an Old Whiggish grasp of social formations: correctly apprehending the nature of undesigned social phenomena, and recognising the kinds of change inherent in them. Burke was neither a mindless devotee of monarchy nor of democracy. What he sought rather was to subordinate legislation and policy to the grown principles of the common law; and in this he carried forward the insights of the older common lawyers.

David Hume

g. Hume brought out some signifi cant aspects of social formations such as the common law, while emphasizing other aspects already seen by older lawyers.

i. General practice over time established not only the rules of the common law, but also the social formations of language and money.65ii. The existence of general rules of law led to the need for systematic and impartial enforcement — hence the emergence of government. But for government to be obeyed, people had to have already acquired the habit of obeying rules. Once again, the law 66had to precede the state.

iii. The common law was a system of general rules — only such rules were free of doubt and uncertainty, and so could produce order. If there were no general rules, then greed, bias and opposing views of what was appropriate in particular cases would result in disorder.67

The remoter and less desirable consequences of breaking a general rule in any specifi c case were as real as the immediate benefi ts of such a breach. But since the more distant outcome was more distant, the balance — in any single case — would always weigh in favour of the breach. 68 Now while the outcome of applying a general rule in a single case might be, and very often was, perverse, the overall benefi cial impact of the entire system of rules would became evident only when such general rules were applied consistently in 69all cases. Thus it was the entire set of general rules — its observance by everyone — which was productive of, and essential to, both social and individual welfare: the outcome in a single case was no indicator of the overall result. 70 Thus Hume underlined the interdependence amongst the rules of the common law and its systematic nature.

The Common Law: A Summary

2. Thus among those social formations that are the unintended results of historical development, the common law was the fi rst to be recognised. By the sixteenth century it had developed suffi ciently for its distinctive characteristics to be discernible. And so, in attempting to articulate its general attributes, the

English common lawyers were trying to identify the features of an actual historical entity, a phenomenon which had already developed historically. In sum, the common lawyers discovered the following properties in the common law:

i. It was an undesigned social phenomenon; it had not been invented. The common law was custom, i.e. human action continued over a long period of Early Modern England | Sudha Shenoy 85

time. These customs survived and developed as they proved their usefulness over time.

ii. The principles of the common law are made explicit in the process of solving practical diffi culties: this leads to the enunciation of the general principles involved.

iii. Thus the common law is an interconnected set of rules. The eff ects of acting on these rules only become evident over the long-term; so too the eff ects of breaking a rule.

iv. Because it is built up by the actions of many men over time, the common law incorporates more knowledge than is available to any single mind or generation of men. Thus it is useful in more ways than anyone could have foreseen.

v. Thus the common law is an order of another kind than that produced by design. The orderliness of the common law is far more complex and requires deep study to be recognised. This order cannot be made immediately obvious or explicit, as with geometry.

Mandeville

3. It next began to be realised that other social phenomena besides the common law had similar characteristics and could be explained in the same way.

a. Mandeville pointed out that not only law, but a wide range of skills, crafts, pursuits, and occupations were the results of slow accretion over time, embodying the experience of many generations of men.

“... every Art and Science, every Trade, Handicraft and Occupation, that are profess’d and follow’d in such a City as London; and all the

Laws, Prohibitions, Ordinances and Restrictions... Among [these]

there are very few that are the Work of one Man, or of one Generation;

the greatest part of them are the Product, the joynt Labour of several

Ages.”71

Over the long-term, a social process — one involving many men — incorporated and transmitted more knowledge than that available individually with each man concerned:

“... to what prodigious Height, from next to nothing, some Arts may be and have been raised by human Industry and Application, by the uninterrupted Labour, and joint Experience of many Ages, tho’ none but Men of Ordinary Capacity should ever be employ’d in them.”

“... we often ascribe to the Excellency of Man’s Genius, and the Depth of his Penetration, what is in Reality owing to the length of Time, and the Experience of many Generations, all of them very little diff ering from one another in natural Parts and Sagacity.”72

To illustrate this point, Mandeville used the example of shipbuilding. A large number of diff erent skills are needed to construct a ship. Thus each man involved contributes to achieve something he could not accomplish individually, — but he does this in the ordinary exercise of his occupation.73

The practical wisdom contained in social phenomena is of another kind, than that acquired explicitly through formal learning:

“The Wisdom I speak of, is not the off spring of a fi ne Understanding, or intense Thinking, but of sound and deliberate Judgement, acquired from a long Experience in Business, and a Multiplicity of Observations.”74b. Mandeville now observes a key aspect of human action: he realises that men manifest the most complex rules in their actions, in the form of the many diff erent skills they learn and practise. Even children can acquire the most diffi cult skills.75 No one can state how they do this, nor do they realise the ratio-nale of their actions. But the rules thus acted upon are so intricate that extensive study is required to analyse and elucidate them. Similarly, in many practical occupations, men use knowledge they are completely unaware of, and they are skilled at following processes that science cannot (as yet) explain. Mandeville cites the examples of seafaring skills, of soap-boiling, and the various methods of dyeing cloth. Even those who are illiterate, or have been press-ganged, eventually become quite adept in the skills required on board ship. And practical men continue to make improvements in both shipbuilding and seafaring techniques. But it has been shown that, in sailing and steering a ship, the most intricate mathematics are involved. Yet even a young helmsman can guide a ship by force of habit, in total ignorance of the precise angle between keel and rudder. Similarly, in making soap, or dyeing cloth, men follow the most complicated processes and make continuing improvements and changes in their methods. They do this without any knowledge of the chemistry involved

(which, in many cases, was unknown in Mandeville’s time, as he mentions.) 76

Not only such intricate practical skills, but also useful habits and customs, are passed from man to man by imitation:

“...how many useful Cautions, Shifts, and Stratagems, [men] will learn to practise by Experience and Imitation, from conversing together...’77

In short, men first develop and extend those practices and techniques that prove to be useful; only afterward do investigators realise the inherent complexities of these Early Modern England | Sudha Shenoy 87

actions. This means that the long-term outcome of many such practices could not have been foreseen at the time they began to be adopted:

“...diligent Enquirers have often stumbled by Chance on useful Discoveries of Things they did not look for, and which human Sagacity labouring, with Design 78a priori never would have detected…”

c. Finally, Mandeville recognised that language emerged and developed by the same sort of process found in other human pursuits:

“Then which way could any Language ever come into the World...? By slow degrees, as all other Arts and Sciences have done, and length of time; Agriculture, Physick, Astronomy, Architecture, Painting, & c79.”

Mandeville observes here the same process of historical change that Hale saw earlier in the common law.

Adam Ferguson

d . Adam Ferguson saw that the bulk of legal rules consisted of universally— followed customs:

“...the laws of every country consist more of customary practice, established by repeated decisions, than of statue or express constitution of any sort”.80

Customs become established only when they are followed in all instances, regardless of immediate outcome81. Ferguson now noted another key facet of human action: regularity in men’s actions produced a regular social order:

“Convention...may be supposed almost coeval with the intercourse of mankind. Men do not move in the same company together, without communications of mind and intention. These communications become objects of mutual reliance, and even that party may be charged with breach of faith who has belied the expectations he gave... From the fi rst steps, therefore, that are made in society, conventions may be supposed to go on accumulating in the form of practice, if not in theform of statue or express institution.”82

If men displayed no general rules in their actions, social life could not subsist:

“...habits...fi x the manner of men, no less than instinct is observed to fi x the practice of other animals.

If this were not the case, human life would be a scene of inextrica—ble confusion and uncertainty. One person could not know whetheranother...had any determinate rule of conduct, or whether a party, in any transaction, would abide by the sequel of what he himself had 88 Early Modern England | Sudha Shenoy

proposed. Were intelligent beings so anomalous in their disposition and conduct, the consequence would be no less perplexing...than the want of any uniform law...would be in the practice of mechanical acts; and would equally frustrate every exertion of prudence and foresightin the conduct of life.”83

As men gradually manifest the appropriate rules in their actions, new types of economic activity, and new capital goods, appear:

“Thus mankind acquire industry by many and by slow degrees...by these methods the habits of the labourer, the mechanic, and the trader, are gradually formed.”

“...the industry by which [property] is gained or improved, requires...a habit of acting with a view to distant object... This habit is slowly acquired, and is in reality a principal distinction of nations in the advanced state of mechanic and commercial arts.”84e. Ferguson saw that social formations were the long-term outcome of the kinds of rules that men acted upon, and the changes that followed in the circumstances in which men found themselves. Hence, the development of these formations could not have been foreseen — or even imagined before it occurred.

And even after these formations had evolved, no one realised the full extent of their complexity:

“Mankind, in following the present sense of their minds, in striving to remove inconveniences, or to gain apparent and contiguous advantages, arrive at ends which even their imagination could not anticipate, and pass on...without perceiving its end. He who fi rst said, ‘I will appropriate this fi eld: I will leave it to my heirs’, did not perceive, thathe as laying the foundation of civil laws and political establishments...”

“...the forms of society are derived from an obscure and distant origin, they arise, long before the date of philosophy, from the instincts, notfrom the speculations, of men. The croud of mankind, are directed in their establishments and measures, by the circumstances in which they are placed...”

“Every step and every movement of the multitude, even in what are termed enlightened ages, are made with equal blindness to the future; and nations stumble upon establishments, which are indeed the results of human action, but not the execution of any human design.”

“The establishments of men...[are] directed by the variety of situations in which mankind are placed. Those establishments arose from successive improvements that were made, without any sense of theirgeneral eff ect; and they bring human aff airs to a...complication, which Early Modern England | Sudha Shenoy 89

the greatest reach of capacity...could not have projected; nor even when the whole is carried into execution, can it be comprehended in its full extent.”85f. Ferguson recognised that in using a language, people utilised an immensely complicated apparatus of rules and vocabulary. Thus they manifested in practice a ‘know-how’ which professional students of language found extremely diffi cult to put into words:

“The peasant, or the child, can reason, and judge, and speak his language with a discernment, a consistency, and a regard to analogy, which perplex the logician, the moralist, and the grammarian, when they would fi nd the principle upon which the proceeding is founded, or when they would bring to general rules, what is so familiar, and so well sustained in particular cases.”86

Language developed through its very use:

“...it is necessary that the stock of language should wax with the growing occasions in which it is employed.”

“[men] change their words, to accommodate the circumstances in which they have occasion to use them they fi nd new forms of expression for every new subject...”

“Thus, men at work on the present stock of their language...ever contrive to adapt some new form of expression...it shews the capacity of man to eff ect, by degrees that gradual accumulation of signs, on which the progress of language consists.”87

Language and association amongst one another are the defi ning characteristics of mankind:

“...both associating and speaking in however rude a form, are coeval with the species of man. There must have been a society at the birth of man, and some species of expression where any concourse of numbers took place...”88

The human propensity to associate with each other means that human society eventually extends across national boundaries and through time:“Man’s talent for communication and intercourse is, no doubt, to be considered among the most irrefragable proofs of his destination to live in society, and even to render this society in some respects universal... Discoveries of science, models of invention, or attainments of genius, wherever they may have originated, fi nd their way to the world,and become a property of mankind.”

“In [the human] species, the communication extends from nation to nation, and from age to age, at any defi nite distance of place or time, 90 Early Modern England | Sudha Shenoy

and the society, or cooperations of men may be conceived as extended accordingly.”89

Thus Ferguson also saw that man could act on the basis of complex rules.

These actions gave rise to social formations that went far beyond anything which could be foreseen or designed. Both Mandeville and Ferguson recognised that there existed a wider category of social phenomena, which included not only the common law but other types of human action.

Dugald Stewart

g. Following Burke and Hume, Dugald Stewart saw that the evolution of the common law preceded, determined and led the growth of the English Constitution. Only those regulations that conformed to the spirit of the common law could be termed “constitutional”:

“...what we call the constitution...may...be defi ned to be that form of government and that mode of administering it which is agreeable to the 90general spirit of our established laws and usages.”

In short the English Constitution was simply an adjunct to the common law. And so any legislative rule which contravened the principles of the common law proved itself to be inconsistent with these pre-existing legal rules.

Thus practice demonstrated that such legislation was unconstitutional:

“In such a constitution, when any law contrary to the spirit of the rest is occasionally introduced, it soon falls into desuetude and oblivion...

Of such a law we may say with propriety that it is unconstitutional, not because we dispute the authority from which it proceeds, but because it is contrary to the spirit and analogy of the laws we have been accustomed to obey.”91

Stewart draws a parallel between the growth of the English constitution as shaped by that of the common law, and the development of language:

“...although the Constitution was the gradual result of circumstances which may be regarded as accidental and irregular, yet the very modeof its formation necessarily produced a certain consistence and analogy in its diff erent parts, so as to gibe to the whole a sort of systematical appearance.”

“Something similar to this obtains with respect to languages. These...are the gradual result of time and experience...yet every language, inprocess of time, acquires a great deal of systematical beauty.”

Since both law and language are orderly, only those innovations survive that can be assimilated in practice to the general structure already developed: Early Modern England | Sudha Shenoy 91

“For unless every new institution which was successively introduced, had possessed a certain reference or affi nity to the laws and usages existing before, it could not possibly have been permanent in its operation.”

“When a new word, or a new combination of words is introduced, it takes its rise from the same origin with every other expression which the language contains; — the desire of an individual to communicate his own thoughts or feelings to others. But this consideration alone isnot suffi cient to justify the use of it. Before it is allowed by good speak—ers or good writers to incorporate itself with those words which have the sanction of time in their favour, it must be shown that it is not dis—agreeable to the general analogy of the language, otherwise it is soonlaid aside as...anomalous and ungrammatical. It is much in the same manner that we come to apply the epithet 92unconstitutional to a law.”

In other words, legal and linguistic innovations are always introduced in the pursuit of some individual purpose. But a language and the legal system have to serve a huge variety of such purposes. So only those changes survive that cumulatively help to produce a general-purpose social tool.

Again following Burke, Stewart assesses the actual eff ects of the English

Constitution as it operates over the long term:

“Whenever a Constitution has existed for ages, and men have enjoyed tranquillity under it, it is a proof that its great and fundamental principles are all animated by the same congenial spirit.”

“...possessing...the strongest of all recommendations...an experimental proof of its excellence...”93

Stewart echoes Burke’s emphasis on the results of historical experience:

“It is a presumption in favour of any settled scheme of government against any untried project, that a nation has long existed and fl ourished under it.”

“...The happy experience of this country of a growing liberty and growing prosperity for fi ve hundred years...” 94

Economic Phenomena

4. With regard to economic phenomena, Mandeville, Adam Smith and

David Hume, all analysed orderly processes that could not be explained as deliberate intent. Nonetheless these ordered outcomes were the result of individuals’ actions.

a. Mandeville saw that the division of labour, specialisation and exchange, was a social — inter-individual — process.

As compared with autarky, the division of labour binds men together while it raises their productivity:

“...savage People all do the same thing: This hinders them from melio—rating their Condition, though they are always wishing for it: But if one will wholly apply himself to the making of Bows and Arrows, whilst another provides Food, a third builds tents, a fourth makes Garments,and a fi fth Utensils, they not only become useful to one another, but the Callings and Employments themselves will in the same Number of Years receive much greater Improvements, than if all had been promis-cuously follow’d by every one of the Five.”95

Analysing the production of scarlet cloth, he outlines the variety of raw materials, the large number and range of diff erent skills and trades, the diverse tools and implements, that are needed to provide the fi nal output. Some of these are obvious, others are much less so. The geographical areas involved are widespread and many risks must be taken. Thus a number of men all contribute their specifi c talents to produce something which isn’t even a luxury, but a mass-consumption good. 96 Mandeville sums up the role of exchange in establishing and maintaining society:

“...the Order, Oeconomy, and the very Existence of the Civil Society;

for as this is entirely built upon the Variety of our Wants, so the whole Superstructure is made up of the reciprocal Services, which Men doto each other.”97b. Adam Smith recognised that as the division of labour progressed, mass-consumption output rose substantially:

“It is the great multiplication of the production of the diff erent arts, inconsequence of the division of labour, which occasions...that universal opulence which extends itself to the lowest ranks of the people.” 98

The footwear, clothing, domestic utensils, food, drink and housing of a day-labourer — appeared to be the simplest of mass-consumption goods. Yet they are produced through the cooperation of vast numbers of people, using a large variety of production processes, and a wide range of specialised tools. 99

Smith now observes a key development, which appears as the division of labour is extended: the production process in eff ect brings together more people than could ever know each other personally; and their joint eff orts are all now necessary to the fi nal product:

“...without the assistance and cooperation of many thousand, the very meanest person in a civilised country could not be provided evenaccording to, what we falsely imagine, the easy and simple manner in which he is commonly accommodated.”

“In civilised society [everyone] stands at all times in need of the cooperation and assistance of great multitudes, while his whole life is scarce suffi100 cient to gain the friendship of a few persons.”

Smith sees that this interdependence — the outcome of the division of labour — is unique to humans. It means that all men’s abilities are utilised in providing mutually for one another’s requirements; this is not found in animals:

“Each animal is...obliged to support and defend itself separately and independently, and derives no sort of advantage from that variety of talents with which nature has distinguished its fellows. Among men,on the contrary, the most dissimilar geniuses are of use to one another; the diff erent produces of their respective talents, by the general disposition to truck, barter, and exchange, being brought, as it were, into a common stock, where every man may purchase whatever part of the produce of other men’s talents he has occasion for.”101

Smith recognises that exchange is a specifi cally human activity — it is not seen amongst animals; and that it is probably the result of the two human attributes — language and reasoning.102

Smith saw that the extension of the division of labour, and the resulting growth and quality of output, was the unintended result of individuals’ eff orts to raise their real incomes. He describes how specialisation and exchange might arise in a hunting tribe. Everyone wishes to increase the supply of cattle and other goods available to themselves. But they gradually discover that this end is best achieved indirectly, through barter, rather than by direct hunting and herding (i.e. autarky). Diff erent individuals discover they can specialise in the production of various goods and services — arrow-making, hut-building, dressing and tanning hides and skins, hunting, etc. By specialising and then exchanging their respective outputs, they jointly obtain higher real incomes than if each had produced for himself, in isolation from his fellows.103 Thus the division of labour develops as the orderly and unintended outcome of the pursuit of other ends altogether; no one foresees its development or its result:

“This division of labour, from which so many advantages are derived, is not originally the eff ect of any human wisdom, which foresees and intends that general opulence to which it gives occasion. It is the necessary, though very slow and gradual, consequence of a certain propensity in human nature which has in view no such extensive utility; the propensity to truck, barter and exchange one thing for another.”104

Thus Smith’s well-known invisible hand metaphor points to the development of an orderly process which leads to ordered results other than, and additional to, those aimed at by the actors involved.

c. David Hume’s analyses of the eff ect of a change in the money supply on prices, and of the balance-of-trade adjustment process, both illustrate the existence of self-balancing processes in economic aff airs. Such processes clearly operate independently of whatever is intended by the participants therein, and bring about orderly results that those involved could not have realised were occurring.

d. The economic phenomena that Mandeville, Smith and Hume analysed, had already appeared and had been developing for millennia. By the late seventeenth and eighteenth centuries there existed in Britain and Western Europe, a considerable volume of both interregional and international trade, extending into Africa and Asia, supplying a wide range of mass-consumption commodities. Thus Mandeville, Smith and Hume were trying to identify and elucidate the features of social processes that had already developed historically over millennia, processes that were clearly the result of the manifold actions of their fellow-men. How these actions brought about the unrealised social outcome was the problem to which all three addressed themselves. In short, they sought to provide a theoretical framework to help comprehend the long-term historical development they observed.

Language

5. In the fi eld of language, serious general study came at a much later date than with the common law. Among students in the eighteenth century, Rousseau held to the older view, that language had been deliberately invented by

Man under Divine guidance. Men arrived at language by conscious agreement on the lines of the Social Contract: “Such an institution could only be made by common consent ...”105

Partly in reaction to such opinions, the Prussian Academy held an essay contest (in 1769) on the question of whether and how men, on their own, could have evolved languages. Herder’s prize essay (published in 1772) argued that because language was so badly-arranged, it had to be a human institution, which grew out of human nature. (The Deity would have produced something altogether more organised and logical.) Language was inseparable from thought; both were unique to mankind.

Twentieth-century linguistics began, however, with Sir William Jones’

observation in his famous paper to the Royal Asiatic Society in Calcutta in

1786:

“The Sanscrit language, whatever be its antiquity, is of a wonderful structure; more perfect than the Greek, more copious than the Latin,and more exquisitely refi ned than either; yet bearing to both of them Early Modern England | Sudha Shenoy 95

a stronger affi nity, both in the roots of verbs and in the forms of grammar, than could possibly have been produced by accident; so strong, indeed, that no philologer could examine all three without believing them to have sprung from some common source which, perhaps, no longer exists. There is a similar reason, though not quite so forcible, for supposing that both the Gothick and the Celtick, though blended with a very diff erent idiom, had the same origin with the Sanscrit; and the old Persian might be added to the same family ...”106

Thus Sir William recognised linguistic change as simply another form of historical change and development; languages gradually evolved over time into new forms and types as circumstances changed. The same sort of process observed earlier (by Hale) in legal change, was now seen to occur in the fi eld of language as well.

In the early nineteenth century there appeared one of its more profound thinkers in linguistics, Wilhelm von Humboldt. He argued that men had an inherent linguistic capacity, so that language was a mental activity — the repeated attempt to express ideas via sounds. Thus language was essentially dynamic and ever-evolving — it could exist only in human minds and therefore it changed as ideas changed. This meant language was also an historical entity.

Humboldt appears to have been infl uenced by Herder’s insights; Humboldt, in his turn, infl uenced many twentieth-century linguistic students, notably Edmund Sapir (whose work Hayek used to some extent.) 107 Thus students of linguistics, too, eventually realised that language is the unintended result of individual human action — i.e., of historical development; although this recognition came at an appreciably later date than with the common law.

Overview

6. Thus between the late sixteenth and late eighteenth century, the historical existence of a number of distinct social formations came to be recognised.

These social orders were: the common law; occupational skills and attitudes;

the division of labour, specialisation and exchange; types of social relations;

and language.

a. In examining these social orders, their students saw fi rstly, that they were analysing historical phenomena that had already appeared and developed over past millennia, and that continued to change and evolve. Secondly, these students saw that they were investigating the actions of unknown numbers of their fellow-men — ie., the process whereby such actions jointly led to these various social formations, without any concerted design.

These historical phenomena appeared and developed because men could and did manifest the most complex rules in their actions. That is, human beings acted such that highly intricate patterns could be discerned in what they did — without, however, their being aware of this fact. Over time, as circumstances changed, and as people altered their actions, the complex patterns being manifested in these actions were likewise modifi ed in a gradual, piecemeal fashion.

Thus these social formations are the changing outcome of the changing actions of many myriads of human beings, over many generations. Because so many people in such various circumstances contributed to the growth and evolution of these social orders, such formations constitute a sort of fund of practical knowledge. The availability of this fund — accumulated from the actions of numerous individuals — enables people to achieve far more than if they were confi ned to what they could acquire in isolation. The division of labour, in particular, allows men to draw on the abilities of vast numbers of their fellow-men. And so, through interdependence, they jointly obtain immensely more than under autarky.

In short, social formations appear as long-term regularities in the actions of numbers of people; — or, in other words, only when numbers of people display these regularities in their actions, is it possible to discern the appearance of social orders.

b. Thus the study of social orders began with the common law. As the analysis was extended to other social (inter-individual) phenomena, the essential disciplines of economics and linguistics were added.

Of the major students of social phenomena (considered above), seven were professional lawyers or else had strong legal interests or training (the exceptions being Mandeville, Ferguson and Dugald Stewart). In addition, fi ve were historians or else had a depth of historical reading and knowledge not usual amongst non-historians. Hale was a legal historian; Burke embarked on unfi nished histories of the common law and of England; Hume was an historian of

England; Smith’s writings are fi lled with extensive historical comparisons; and

Ferguson can be described not only as a fore-runner of comparative historical sociology, he also wrote a history of the Roman Republic. Linguistics — which

Sir William Jones and Wilhelm von Humboldt added to their legal training — has to be both historical and analytical. Hume and Smith added the key analytical discipline of economics to their legal and historical interests. Mandeville was an experienced and shrewd observer of human nature in all its extent and variety. Dugald Stewart alone was a mathematician, philosopher and economist, thus lacking any practical training or discipline. And today it is necessary to say explicitly (though not for all readers) that all the names mentioned Early Modern England | Sudha Shenoy 97

here were educated fi rst in the classical languages and their literature. Thus all those referred to had a systematic acquaintance with ancient history and classical society (what was known of both at the time).

F O O T N O T E S C H A P T E R 2

1. J.H. Baker, An Introduction to English Legal History (3rd ed, Butterworth 1990), p.1.2. J.G.A. Pocock, The Ancient Consitution and the Feudal Law (2nd ed, CambridgeUniversity Press 1987); p.33; pp.38-47,66-68. W.S. Holdsworth, History of English

Law, Vol V (3rd ed, Methuen, (1945) pp.459; 472-74.3. Cf Sir John Davies:“For the Common Law of England is nothing else but the Common Custome of the

Realm: and a Custome which hath obtained the force of a Law is always said to be Jus non scriptum: for it cannot be made or created either by Charter, or by Parliament, which are Acts reduced to writing, and are alwaies matter of Record; but being onely matter of fact, and consisting in use and practice, it can be recorded and registered nowhere but in the memory of the people.

For a Custome taketh beginning and groweth to perfection in this manner: When a reasonable act once done is found to be good and benefi ciall 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 without comparision 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 fi t 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 invonvenient 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.”

(Sir John Davies, Preface to his Irish Reports (16 74 ed); as quoted in J.G.A. Pocock,The Ancient Constitution ...(1987) pp. 32-33. And also:“Neither could any man ever vaunt, that like Minos, Solon or Lycurgus, he was the fi rstLawgiver to our Nation: for neither did the King make his own Prerogative, nor theJudges make the Rules or Maximes of the law, nor the common subject prescribe andlimit the Liberties which he injoyeth by the Law. But, as it is said of every Act or Science which is brought to perfection, Per varios usus Astem experientia fecit; so mayit properly be said of our Law, Per varios usus Legem experientia fecit. Long experience, and many trials of what was best for the common good, did make the Common

Law.” (ibid, p.41)

4. Sir Edward Coke, The First Part of the Institutes of the Laws of England (1832 ed;repr. New York 1979) 115b. See also 142, 344a, and 110b:

“... a custome cannot be alledged generally within the Kingdome of England; for that is the common law”.

5. I Inst., 115b.

6. I Inst., 110b. See also 344b:

“customes grounded upon reason, and used time out of minde; .... the construction and determination of these doe belong to the judges of the realme.”

7. I Inst., 81b.

8. I Inst., 97a:

“And this is another strong argument in law, Nihil quod est contra rationem est liatum;for reason is the life of the law, ay the common law itself is nothing else but reason;

which is to be understood of an artifi ciall perfection of reason, gotten by long study, observation, and experience, and not of every man’s naturall reason; for Nemo nasci-tar artifex. This legall reason est summa ration. And therefore if all the reason thatis dispersed into so many severall heads, were united into one, yet could he not make such a law as the law in England is; because by many successions of ages it hath beenefi ned and refi ned by an infi nite number of grave and learned men, and by long experience grown to such a perfection, for the government of this realme, as the old rule may be justly verifi ed of it, Neminem oportet esse sapientiorem legibus: no man out of hisown private reason ought to be wiser than the law which is the perfection of reason.”

And in Calvin’s Case:

“we are but of yesterday, (and therefore hath need of the wisdom of those that were before us) and had been ignorant (if we had not received light and knowledge from our forefathers) and 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) fi ned and refi ned, which no 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 eff ected or atained unto. And therefore it is optima regula, qua nulla est verior aut fi rmior in jure, neminem oportet esse sapientiorem legibus: no man ought to take it on himself to be wiser than the laws.”

(quoted in J.G.A. Pocock, The Ancient Constitution (1987) p. 35). See also I Inst 319b: “Quod vanum et inutile est lex non requirit. Lex est ratio summa, quae jubet quae sunt utilia et necessaria et contraria prohibet; and arguments drawn from hence are forcible in law.”

9. I Inst., 227b. See also 232b:

“For Ratio est radius divini luminis. And by reasoning and debating of grave learned men the darknesse of ignorance is expelled, and by the light of legall reason the right is discerned, and thereupon judgment given according to law, which is the perfection of reason. This is of Littleton here called legitima ratio, whereunto no man can attainebut by long studie, often conference, long experience, and continuall observation.

Certaine it is, that in matters of difficultie the more seriously they are debated and argued, the more truely they are resolved, and thereby new inventions justly avoided.”

10. I Inst., 71a.

11. I Inst., 395a:

“Ratio est anima legis; for then are we said to know the law, when we apprehend thereason of the law, that is, when we bring the reason of the law so to our own reason, that we perfectly understand it as our owne; and then, and never before, we have such an excellent and inseparable propertie and ownership therein, as we can neither lose it, nor any man take it from us, and will direct us (the learning of the law is so chained together) in many other cases.”

And further:

“... knowing for certaine, that the law is unknowen to him that knoweth not the reason thereof...”

12. I Inst., 130a.

13. I Inst., 343a. See also 11a:

“Maxime, a sure foundation or ground of art, and a conclusion of reason, ... so sureand uncontrollable as that they ought not to be questioned... And it is well said in our books, n’est my a disputer l’ancient principles del ley.”

14. I Inst., 148a.

15. I Inst., 395a.

16. I Inst., 282b. See also 232b, 343a (supra).17. Quoted in J. U. Lewis, “Coke’s theory of artifi cial reason,” Law Quarterly Review,Vol. 84 (July 1968) p. 334. See also Coke’s opinion in Bonham’s Case: “it appears in our books that in many cases the common law will control acts of parliament and sometimes adjudge them to be utterly void; for 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 act to be void.”

(Quoted in J. H. Baker, An Introduction to English Legal History (1990) p. 241). See also I Inst. 2726: “... the surest construction of a statute is by the rule and reasonof the common law.”

18. R. G. Usher, “James I and Sir Edward Coke”, Eng. Hist. Rev. Vol. XVIII (1903), pp.

664-75.

19. Both quotations are from Bracton; the fi rst is in Holdsworth, History of English Law,

Vol. V op.cit. p. 430; the second is in J. U. Lewis, op.cit., p. 336.20. Quoted in Usher, op.cit. p. 673.

21. Quoted in W. S. Holdsworth, op.cit., p. 429, fn. 1.22. “I deny that any Custome of its Own Nature, can amount to the Authority of a Law.

For if the Custom be unreasonable, you must with all other Lawyers confess that it is no Law, but ought to be abolished; and if the Custom be reasonable, it is not the Custom, but the Equity that makes it Law. For what need is there to make Reason Law by any Custom how long soever when the Law of Reason is Eternal?” Thomas Hobbes,

A Dialogue Between A Philosopher and A Student of the Common Laws of England

(1682; repr. Chicago 1971), pp. 96-97.

23. Dialogue, p. 56:

“....if I pretend within a month, or two to make my self able to perform the Offi ce of a

Judge, you are not to think it Arrogance; for you are to allow to me, as well as to other

Men, my pretence to Reason, which is the Common Law ....... and for Statute Law, seeing it is Printed, and that there be indexes to point me to every matter contained in them, I think a Man may profi t in them very much in two Months”.

24. Dialogue, p.62:

“.... no Man is born with the use of Reason, yet all Men may grow up to it as well as

Lawyers; and when they have applyed their reason to the Laws .... may be as fi t for, and capable of judicature as Sir Edward Coke himself who whether he hath more, orless use of Reason, was not thereby a Judge, but because the King made him so .....”

25. Dialogue, p.55:

“.... that the reason which is the Life of the Law should be not natural but artifi cial I cannot conceive. I understand well enough, that the knowledge of the Law is gotten by much study, as all other Sciences are, which when they are studyed and obtqained, 100 Early Modern England | Sudha Shenoy

it is still done by natural, and not by Artifi cial reason. I grant you that the knowledge of the Law is an Art, but not that any Act of one Man, or of many how wise soever theybe, or the work of one or more Artifi cers, how perfect soever it be, is Law. It is not

Wisdom but Authority that makes a Law. Obsecure also are the words Legal Reason; there is no Reason in Earthly Creatures but humane Reason; but I suppose that he means, that the Reason of a judge, or of all the judges together (without the King)

is that Summa Ratio, and the very Law, which I deny, because none can make a Lawbut he that hath the Legislative power. That the Law hath been fi ned by Grave and

Learned Men, ..... is manifestly untrue, for all the Laws of England have been made bythe Kings of England ....”

26. Dialogue, p.67:

“Would you have every Man to every other Man alledge for law his own particular

Reason? There is not amongst Men an Universal Reason agreed upon us any Nation, besides the Reason of him that hath the Soveraign Power; yet though his Reason be but the Reason of one Man, yet it is set up to supply the place of that Universal Reason, which is expounded to us by our Saviour in the Gospel, and consequently our

King is to us the Legislator both of Statute Law, and of Common Law.”

27. Dialogue, p.71.

28. Dialogue, p.69.

29. Dialogue, p.59:

“.... a Nation that is subdued by War to an absolute submission of a Conqueror, it may by the same Arm that compelled it to submission, be compelled to obey his Laws.

Also if a Nation choose a Man, or an Assembly of Men to Govern them by Laws, it must furnish him also with Armed Men and Money, and all things necessary to his

Offi ce, or else his Laws will be of no force, and the Nation remains, as before it was, in

Confusion.”

30. Dialogue, p.68:

“Ph. Since therefore the King is sole Legislator, I think it also Reason he should besole Supream Judge.

La. There is no doubt of that; for otherwise there would be no congruity of Judgments with the Laws. I grant also that he is the Supream Judge overeall persons, and in all Causes Civil, and Ecclesiastical within his own Dominions, ..... that he has ever been so by the Common Law .....; and to say all at once, there is no Magistrate, or

Commissioner for Publick Business, neither of Judicature, nor Execution in State, or

Church, in Peace, or War, but he is made so by Authority from the King.”

31. Dialogue, pp.72-73.

32. Dialogue, p.73:

“La. ..... without Statute-Laws, all Men have Right to all things .... Ph. .... no privateMan can claim a Propriety in any Lands, or other Goods from any Title, from any

Man, but the King, or them that have the Sovereign Power; because it is in virtue of the Soveraignty, that every Man may not enter into, and Possess what he pleaseth;

....”

33. “Reflections by the Lrd. Cheife Justice Hale on Mr Hobbes this Dialogue of the

Lawe”, in W.A. Holdworth, History of English Law, Vol V, op cit., Appendix, p.502:“of all Kind of Subjects where about Ye reasoning Faculties is Conversant, there is none of So greate a diffi culty for the Faculty of reason to guide it Selfe and come to any Steddiness as that of Laws, for the regulation and Ordering of Civill Societies and for the measureing of right and wrong, when it comes to particulars. And therefore it is not possible for men to come to the Same Certainty, evidence and Demonstration touching them as may be expected in Mathematicall Sciences, and they that Early Modern England | Sudha Shenoy 101

please themselves with a perswasion that they can with as much evidence and Cong—utie make out an unerring systeme of Laws and Politiques equally applicable to all

States and Occasions, as Eclide demonstrates his conclusions, deceive themselves with Notions wch prove inefectual, when they come to particular application”.34. “Refl ections......”, pp.502-503.

35. “Refl ections .....”, p.503:

“.... men of observation and Experience in Humance affaires and Conversation between man and man make many times good Judges, yett for the most part those men that have greate reason and learneing wch they gather up of Casuists, School—men, Morall Philosophers and Treatises touching Moralls in the Theory, that so are in high speculations and abstract notions touching Justice and Right, and as they differ in xtreamely among themselves when they come to particular applications, So are most Comonly the worst Judges that can be, because they are transported from the

Ordinary Measures of right and wrong by their over fi ne speculacons, Theoryes and distinctions above the Comon Staple of Humane Conversations”.

36. “Refl ections ......”, p.504:

“A certaine Law hath this inconvenience attending it that sometimes some persons or causes may Suff er by the rigour of a certaine Law, yett Infi nite more must suff er by the inconvenience of an Arbitrary and uncertaine Law.”

37. “Refl ections ......”, p.596.

“It is one of the things of greatest moment in the profession of the Common Law to helpe as neare as maybe to the Certainty of the Law and the Consonance of it to it selfe, that one age and one Tribunall may Speake the Same things and Carry on the

Same thred of the Law in one Uniforme Rule as neare as is possible; for otherwise that wch all places and ages have Contended for in Laws namely Certainty and to avoid Arbitrariness and that Extravagance that would fall out, if the reasons of Judges and advocates were not kept in their traces wold in halfe an age be lost.

And this Conservation of Laws within their boundes and Limitts could never be, unless men be well informed by Studyes and readeing what were the Judgemts and

Resolutions, and decisions and interpretations of former ages, and of other Courts and Tribunalss, and therebye to keepe a Consonance and Consistence of the Law to it

Selfe, wch wold never be done without much readeing, and observation and Study.”

38. “Refl ections ......”, p.503 (both quotations).

39. “Refl ections ......”, p.503-504:

“..... the Diffi cultie of makeing interpreting and applying Laws because ..... It requires a very large prospect of all the most considerable emergencies that may happen not only in that wch is intended to be remedyed, but in those other accidentall, Consequentiall or Collateral thinges that may Emerge uppon the Remedy propounded.

2dly a greate and Experienced Judgemt to weigh and consider whether the Convenience of the Law propounded may considerably preponderate the inconvenience that it will occasion.”

40. “Refl ections ......”, p.504.

41. Sir Mathew Hale, History of the Common Law of England (1739; Chicago 1971)

p.39.

42. ibid, p.41.

43. Henry Rolle, Un Abridgment Plusieurs Cases et Resolutions Del Common Ley (London 1668), Preface by Six Matthew Hale, p.vii.

44. History of the Common Law p.40.45. “Refl ections ...”, p.505:102 Early Modern England | Sudha Shenoy

“... it appears that men are not borne Comon Lawyers, neither can the bare Exerciss of the Faculty of Reason give a man a Suffi cient Knowledge of it, but it must be gained by the habituateing and accustomeing and Exerciseing that Faculty by readeing,

Study and observation to give a Man compleate knowledge thereof. And although a

Man that hath long and industriously Exercised himselfe in that Study cannot p’tend either to Infallibilitie in his Judgemt or to a full attainemt of all that is attaineable toucheing the Laws of England, yett he will be much better fi tted for right Judgemt therein, then he that hath no other Stock to trade upon then the bare Exercise of his

Faculty of reason, or that hath only taken the paines to read over the Titles of the Statutes or Indexes or Repertoryes of some Law bookes.”

46. “Refl ections ...”, p.505-506.

47. “Refl ections ...”, p.504:

“There are many things especially in Laws and Governmts yt mediately, Remotely, and Consequentially are reasonable to be approved, though the reason of the party doth not presently or imediately & distinctly see its reasonableness. For instance, it is reasonable for me to preferre a Law made by a hundred or two hundred persons of age, wisdome Exzperience and interest before a Law excogitated by my selfe .... a

Simple unexperienced younge man, though I discerne better ye reason of that Law that I have thought of then ye reason of the Law of those wise men”.48. “Refl ections ...”, pp.504-505.

49. “Refl ections ...”, p.505:

“... yett in thinges thus settled it is not necessary that the reasons of the Institution should be evident unto us. It is suffi cent that they are instituted Laws that give a Certainty to us, and it is reasonable for us to observe them though the particular reason of the Institution appeare not. And tis a foolish and unreasonable thing for any to fi nd fault with an Institution because he thinks he could have made a better or expect a Mathematicall Demonstration to evince the reasonableness of an Institution or the

Selfe Evidence thereof.”

50. Preface to Rolle’s Abridgment, p.vii.

51. loc. cit.:

“In things that have their originall much by insitution, men cannot easily or ordinarily by rational deduction fi nd them out, but only by instruction and education and yet those things are of as great necessity and use to mankind as other matters more obviously deducible by Argumentation.”

52. Edmund Burke, Refl ections on the Revolution in France (1790; Dent, 1910) p.92.

53. idem, “Tracts relative to the laws against Popery in Ireland”, in Works, Vol VI, (London: George Bell 1886), p.22.

54. ibid, p.21.

55. ibid, p.22.

56. Refl ections .., pp. 120, 24.

57. Refl ections .., pp.29-30; 33, 30.

58. idem, “Speech on the Reform of the Representation in the House of Commons,” in

Works, Vol VI, op. cit., pp. 146, 148.59. Refl ections .., p.58.

60. Refl ections .., pp. 168-69.

61. Refl ections .., p.84. See also pp.58-59:

“.... a matter which requires experience, and even more experience than any person can gain in his whole life, however sagacious and observing he may be ....” and again.

p.166. “ .... the work itself required the aid of more minds than one age can furnish.”

62 “Speech on the Reform of the Representation ....”, op cit, p.148; Refl ections, p.84.63. Refl ections .., p.153.

64. Refl ections .., pp.31, 19-20, 32, 29, 20, 164.65. David Hume, A Treatise of Human Nature, Vol II (1739; ed. T.H. Green and T.H.

Grose, Longman 1898) pp.263, 270. See also idem, Essays, Moral, Political, Liter-ary, Vol II (ed. T.H. Green and T.H. Grose, Longman 1907) p.275.66. Treatise, Vol II, pp.303, 304.

67. Treatise, Vol II, pp.283, 298-99. Cf. Hall’s exposition, Supra.68. Treatise, Vol II, p.301.

69. Treatise, Vol II, pp.269, 273-74; Essays, Vol II, pp. 273-75.70. Treatise, Vol II, pp.263, 269, 270.

71. Bernard Mandeville, The Fable of the Bees (1729; F.B. Kaye (ed). O.U.P., 1957 reprint), Vol II, pp.321-22. See also p.187: “Our Knowledge is advanced by slow

Degrees, and some Arts and Sciences require the Experience of many Ages, before they can be brought to any tolerable Perfection.”

72. ibid, pp.141, 142.

73. ibid, pp.141-42. Hume uses the same example, but somewhat more pointedly:

“... it must still remain uncertain, whether the excellences of the work can justly be ascribed to be workman. If we survey a ship, what an exalted idea must we form of the ingenuity of the carpenter, who framed so complicated, useful and beautiful a machine? And what surprise must we feel, when we fi nd him a stupid mechanic, who imitated others, and copied an art, which, through a long succession of ages, after multiplied trials, mistakes, corrections, deliberations, and controversies, had been gradually improving?” David Hume, “Dialogues concerning natural religion”, in A

Treatise of Human Nature, op.cit., Vol II, p.413.74. Mandeville, The Fable of the Bees, op.cit., p.322.75. “... without knowing any thing of Geometry or Arithmetick, even Children may learnto perform Actions, that seem to bespeak great skill in Mechanicks, and a considerable Depth of Thought and Ingenuity in the Contrivance besides.” ibid, p.140.76. ibid, pp.140-41, 143-45.

77. ibid, p.139.

78. ibid, p.179.

79. ibid, p.287.

80. Adam Ferguson, Principles of Moral and Political Science (1792; New York: AMS

Press 1973) Vol II, p.232.

81. “It is evident in particular, that custom may be pleaded against those who take the benefi t of it, where it is favourable to themselves; and who, therefore, may be reasonably supposed willing, in their turn, to comply with it, where it is favourable or benefi -cial to others”.

“... every party observing a custom, in those respects in which it is burdensome to himself, is entitled in his turn to expect the observance of it also in those respects in which it is benefi cial.” (ibid, pp.231, 232).82. ibid, p.232.

83. ibid, pp.232-233.

idem, An Essay on the History of Civil Society (1767; repr. Edinburgh University Press

1966), pp.97,82.

84. ibid, pp.122,182. See also p.123: “We are therefore to receive, with caution, the traditionary histories of Ancient legislators, and founders of States... we ascribe to a 104 Early Modern England | Sudha Shenoy

previous design, what came to be known only by experience, what no human wisdom could foresee...”

85. ibid, p.34. See also Principles of Moral and Political Science, op.cit., Vol I, p.43:“Parts of speech, which, in speculation cost the grammarian so much study, are in practice familiar to the vulgar: The rudest tribes, even the idiot, and the insane, are possessed of them: They are soonest learnt in childhood; insomuch, that we must suppose human nature, in its lowest state, competent to the use of them; and, without the intervention of uncommon genius, mankind, in a succession of ages, qualifi ed to accomplish this amazing fabric of language, which, when raised to its height, appears so much above what could be ascribed to any simultaneous eff ort of the most sublime and comprehensive abilities.”

86. ibid, pp.42,44,45.

87. ibid, pp.43-44.

88. ibid, p.47.

89. Dugald Stewart, Lectures on Political Economy (1855; repr. New York: Kelley 1968)Vol II, pp.422-23.

90. ibid, p.423. Cf. Sir Edward Coke, supra: the common law determines the interpretation of statutes.

91. loc. cit.

92. ibid, pp.423-424.

93. ibid, pp.423,424.

94. Edmund Burke, “Speech on the reform of the representation in the House of Commons”, Works (London: George Bell 1886) Vol VI, pp.146,149. 95. Mandeville, The Fable of the Bees, op.cit., p.284. See also:“... the truth of what you say is nothing so conspicuous, as it is in Watchmaking, which is come to a higher degree of Perfection, than it would have arrived at yet, if the whole had always remain’d the Employment of one Person; ... the Plenty we have of Clocks and Watches, as well as the Exactness and Beauty they may be made of are chiefl y owing to the Division that has been made of that Act into many Branches.”

(loc. cit.)

96. ibid, Vol I, pp.356-58.

97. ibid, Vol II, p.349. Mandeville, incidentally, realised that on both sides of an exchange,that which was given up — i.e. both parties increased their subjective utilities. He alsosaw that money obviated the problem of the double coincidence of wants, and that both supply (relative scarcity) and demand (utility) determined price.

“... if you want or like a thing, the Owner of it, whatever Stock or Provision he may have of the same, or how greatly soever you may stand in need of it, will never part with it, but for a Consideration, which he likes better, than he does the thing you want.” (loc. cit.)

“which way shall I persuade a Man to serve me, when the Service I can repay him in, is such as he does not care for? No Body, who is at Peace, and has no Contention with any of the Society, will do any thing for a Lawyer; and a Physician can purchase nothing of a Man, whose whole Family is in perfect Health. Money obviates and takes away all those Diffi culties, by being an acceptable Reward for all the Services Men can do to one another.” (loc. cit.)

“Nothing can be dear, of which there is great Plenty, how benefi cial soever it may be to Man; and Scarcity inhances the Price of Things much oftener than the Usefulness of them.” (ibid, p.350).

98. Adam Smith, The Wealth of Nations (Edwin Cannan, ed; New York: Modern Library

1937) p.11.

99. ibid, pp.11-12.

100. ibid, pp.12,14.

101. ibid, p.16.

102. “Whether this propensity [to exchange] ... as seems ... probable, ... be the necessary consequence of the faculties of reason and speech ... It is common to all men, and to be found in no other race of animals ...” (ibid, p.13).103. ibid, p.15.

104. ibid, p.13. See also: “As it is by treaty, by barter, or by purchase, that we obtain from one another the greater part of those mutual good offi ces which we stand in need of, so it is this same trucking disposition which originally gives occasion to the division of labour.” (ibid, p.15).

105. J.J. Rousseau, The Social Contract (1762; London: Dent 1973) pp.60-61.106. Quoted in Louis H. Gray, Foundations of Language (1939; repr. Macmillan, NewYork 1960) pp.435-36.

107. The material on the early history of linguistics is based on the following: (i) Otto

Jesperson, Language, Its Nature, Development and Origin (1929; repr. Allen andUnwin, London 1950), pp.26-29, 33-34, 55-60. (ii) R. H. Robins, A Short History of Linguistics (London: Longmans 1967), pp.134, 149-52, 174-78. See also L.H.

Gray, op.cit., p.435. The comment on Sir William Jones is mine.