Book contents
- Frontmatter
- Contents
- Acknowledgements
- Introduction: a summary life
- Part I Law
- 1 Coke: the appeal to reason
- 2 Selden: the appeal to contract
- 3 The rights of the Crown
- 4 Interregnum
- 5 Protectorate
- 6 Restoration: ‘the nature of laws’
- 7 Restoration: constitutional theory
- 8 Restoration: legal practice
- Part II Religion
- Part III Natural philosophy
- Conclusion
- Appendix: Hale and witchcraft
- Bibliography
- Index
- Titles in the series
7 - Restoration: constitutional theory
Published online by Cambridge University Press: 05 May 2010
- Frontmatter
- Contents
- Acknowledgements
- Introduction: a summary life
- Part I Law
- 1 Coke: the appeal to reason
- 2 Selden: the appeal to contract
- 3 The rights of the Crown
- 4 Interregnum
- 5 Protectorate
- 6 Restoration: ‘the nature of laws’
- 7 Restoration: constitutional theory
- 8 Restoration: legal practice
- Part II Religion
- Part III Natural philosophy
- Conclusion
- Appendix: Hale and witchcraft
- Bibliography
- Index
- Titles in the series
Summary
Selden believed that the common law was nothing but a contract, an arbitrary agreement which the English people happened to have made. To know the law, on Selden's view, was to know the nation's history: to trace successive actions of the legislating ‘state’. Whatever the truth of this theory, it was not of much practical use, as it yielded no presumptions what the people had agreed. The advantage of Sir Edward Coke's account, identifying common law with ‘reason’, was that it vindicated what every lawyer did. It explained a judicial concern that the system should be certain and consistent, for these were indications that ‘reason’ had been found. It justified some reference to present social needs, as there were no occasions (or so it was presumed) for which so wise a law did not provide. Where Selden's law was rigid, Coke offered a flexible tool; he looked to the needs of the present, where Selden was imprisoned by the past. The danger in Coke's theory, as the lawyers had reason to know, was that his legal rhetoric might come to be misused: that a layman's conception of reason, of eccentric political content, would replace the professional learning of the sages of the law.
- Type
- Chapter
- Information
- Sir Matthew Hale, 1609–1676Law, Religion and Natural Philosophy, pp. 98 - 117Publisher: Cambridge University PressPrint publication year: 1995