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9 I. Law generates law, creating its own procedures, methods, unspoken assumptions which, taken as a whole, form a legal culture, in turn transfusing the political culture in which it grows. English and in time American legal cultures molded themselves primarily around variants of the common law, which Americans fashioned to reflect the needs of colonial cultures and their prevailing elites. Roman or civil law was occasionally cited in chancery courts, not so much as defining law, but rather as indicating legal principles. Lord Mansfield, who presided over the King’s Bench for most of the second half of the eighteenth century, took steps to introduce equity or civil principles into many of his judgments in commercial cases. He never liked the common law so much, he said, as when it was like equity.1 In England, other fields included the law merchant, whose precepts got absorbed by the common law during the eighteenth century, and also, notably, ecclesiastical law, of which a residue still, at the time of writing, survives in the bench of bishops in the House of Lords. This arrangement, peculiar to the relationship of the Church of England to the state, could have no constitutional equivalent under the Constitution of the United States. The courts of high commission were swept away early in the life of the Long Parliament. Before that upheaval, the common law had been swallowing the other and lesser jurisdictions. Ecclesiastical jurisprudence covered those areas of life, such as marriages, births, deaths, and burials, which were the province of the church. The common law itself was much influenced by the canon or civil law, so that the two couldn’t be easily disentangled; judges, law o∞cers, and commentators, like the early seventeenth-century 1 Where the Law Comes From The Courts and the Making of Society Contract & Consent 10 attorney general in Ireland Sir John Davies, who were steeped in civil law did not hesitate to borrow one from another.2 At the foundations of the common law lay medieval commentaries such as those attributed to Bracton and Fleta, together with accumulations of casebooks, beginning with some three centuries of Year Books; but at its heart lay the idea of reason. The common law’s method used both, applying reason to case history, accumulating in the process an ever growing mound of precedent. Precedent (sometimes spelled “president”) was not in itself law. But it was evidence of law. It signaled directions even if it did not enforce conclusions. In the early seventeenth century, Sir Edward Coke, attorney general, chief justice, and later member of Parliament, injected his own brand of legal reasoning into the common law, well knowing that reason, which had always been in very high repute in the Western tradition of theology, and its cousin, philosophy, enjoyed exceptional prestige among the gifts of God to man. To understand the subsequent growth of the common law and at the same time to pursue its hold on the legal processes of England’s Anglophone colonies, we must reckon with the concept of reason in those earlier generations. Reason, then, was more than logical procedure, the ability to argue that if A was A, then B must be B: it was the faculty of the mind which was responsible for moral understanding, and could therefore control the unreasoning passions. Reason was the faculty through whose operation men and women might know the di≠erence between right and wrong; and reason also told them why right was right and wrong, wrong. A telling Shakespearian example is the extraordinary exchange between Prospero and Ariel which may be interpreted as the moral climax of The Tempest. Ariel, in obedience to his master’s commands, has rendered his enemies helpless, though conscious, and returns to report their abject condition; but then he touches Prospero with the a≠ection of pity. Though understandably chagrined at receiving moral instruction from a spirit, Prospero relents: “And with my nobler reason , ’gainst my fury/Do I take part.”3 There were two distinct modes of thinking about reason, and both had political implications. For Shakespeare, reason was universal; and he was addressing audiences who understood it in that light. For his near contemporary Edward Coke, however, it was esoteric , almost cabalistic. Coke attributed to the common law a mode of reasoning that was cumulative, resulting from the application of human intellect to legal records and piles of casebooks assimilated through long years of study. It was also...

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