1 - Coke: the appeal to reason

Summary

Hale was a noted judge, in a period respectful of judges, a ‘man of great authority’ for his expertise in law. His career and his writings exemplified an obvious but very puzzling feature of seventeenth-century English political life. The culture to which he belonged was deeply constitutionalist in feeling: participants assumed, that is to say, that the purpose of debate was always to establish what the law of England was, not what it ought to be. In itself, this was hardly a matter for surprise; there was a sense, in late Renaissance Europe, in which every political argument was legal. The law, as Justinian's Institutes had put it, was ‘the knowledge of things human and divine’; it included every principle that was relevant to administering a state. Particular local arrangements (ius civile) were open to supplementation and correction with reference to rules (described as the ‘laws’ of nature and of nations) that were binding on all humanity in every place and time. By the outbreak of the English civil wars, most of Hale's countrymen had come to a very much odder belief: that the repository of all this wisdom was their esoteric and unwritten system, the unapologetically provincial common law.