Coke and the Western Legal Tradition
Has the past still something to tell us? Is an English barrister, attorney general, and Chief Justice from the Elizabethan and Jacobean eras of contemporary interest? Although counterintuitive, Elio Gallego is convinced the answer is a determined yes, if that person is Sir Edward Coke (1552–1634). And as Gallego explains in this book published for a Spanish-speaking readership, his appeal extends more broadly than the Anglo-American world.
Gallego is a professor of law and political science in Madrid who spent a sabbatical year at the Jacques Maritain Center in Notre Dame studying the life and works of Coke. Even though the book is unlikely to reach best-selling status, it is worthwhile, and not just for the compact and academic world of legal scholars, but for a cultivated general public. Gallego takes the great questions and battles of Coke’s time and explains why they matter for ours, transforming a scholarly book into an exciting political essay that brings light to several current political and juridical discussions.
Coke is possibly the most important figure in the history of English law. As Attorney General, he helped prosecute the Gunpowder Plot conspirators and Sir Walter Raleigh. Transferred to the judiciary, he led attacks on royal absolutism and parliamentary aggressiveness alike. He argued that even the King is under the law and that laws of Parliament were not valid if they violated “common right and reason.” The combatants in both the British Civil War and the American Revolution looked to Coke’s judicial decisions to support their claims against arbitrary power, and his great work, the Institutes (published 1628–1644), was for centuries a standard reference on the common law for practicing lawyers.
Let us consider some of the book’s more relevant points. First is Professor Gallego’s defense of the mixed regime, the standard political model of the Western tradition with its combination of elements from the three classical modes of government: monarchy, aristocracy, and democracy. The way each element limits the others and the checks-and-balances structure of the power, argues Gallego following Coke, do not weaken them. On the contrary, these limitations strengthen them. This idea may be counterintuitive to our contemporaries who prefer a more straightforward plebiscitary democracy, but the history and the current state of our political world supports Coke’s argument. The democratic age has eroded nearly all the vestiges from the ages when monarchy and aristocracy were dominant. The result has not been a new era of liberty but of the emergence of a new democratic Leviathan that recognizes no limits to its will and is becoming more and more powerful and frightening.
Gallego also explores the classical distinction between the roles of King and Parliament, where the King (or, generally speaking, the executive power), has to ask for money from the Parliament, which represents the people, in order to achieve his goals. This process reflects one aspect of the relationship between the King and his people—which was sometimes tense and controversial. But it worked reasonably well, at least until the French invented the idea of the absolute monarch. Coke, arguing with King James I, destroyed the basis of such absolutism for England when he declared that the king was not under any man, but under God and the Law: Quod Rex non debet ese sub homine, sed sub Deo et Lege.
When there is no difference between who requests money and who decides to supply it, as is now usual at least in the European democratic countries, the result is a kind of governmental schizophrenia and the door is open to de facto tyranny. Then, a government asks for money and concedes it to itself, which threatens the property rights of all, for such a Leviathan can increase its budget at will and impose endless fiscal charges on the people it supposedly represents. Gallego argues convincingly that this distinction and the efforts to abolish it are the root of the most important revolutions of the modern age: 1688 and the American Revolution, but also the revolt of the Comuneros in Castile in 1521. Coming back to our time, the insane levels of debt accumulated by the Western democracies is a consequence of this phenomenon.
As Gallego puts it, every conception of the law is defined by three great questions: is the law the product of the will or of the reason? Do we recognize or not a natural law superior to any human law? And finally, what role has custom in relation to the positive law? Coke’s vision of the law is extremely relevant to our days. We have grown used to judges who reinterpret laws in the most curious ways, typically in accordance with their own views of the good rather than the language of the law before them.
This spectacle seems unstoppable, in the United States at least. But Coke, a person who devoted his whole life to the law, tells us something completely different. Law is not something we construct: it already exists. We receive it, we discover it, and we declare it. Judges cannot reshape it, doing violence on it to make it fit the latest sociological fashion. The attempt resembles more the old sophists who were good at distorting reality but unable to found a just society.
From this perspective, we can better understand a sentence of Coke’s that was important in igniting Gallego’s interest in him. It says: “Reason and authority are the two brightest lights of the world.” Both provide guidance and they should not contradict each other, but complete each other. This vision differs significantly from most contemporary approaches, which look skeptically on claims of authority or tradition.
Parts of this book will be especially attractive to those with a more scholarly interest in Coke. First is a chapter devoted to Coke’s legacy and the contrast between his views and those of Burke and Locke. Both were supposedly indebted to Coke, but careful reading, as Gallego shows, reveals a huge distance in their thought. Also of interest is the contrast Gallego draws between Coke and Martin Luther: one happy with the old liberty, well-balanced, fearful of risky changes; the other enthusiastic but unstable, uneasy and anxious, influenced by the philosopher William of Ockham and rejecting the natural order in favor of a pure act of will from God. The consequences of this distinction for our vision of law and politics are crucial: are they born from sin and evil or from the divine order? The book finishes with an extensive appendix that collects juridical mottos from Coke’s pen, both in Latin and Spanish, a little treasure for those who can appreciate it.
Jorge Soley is an economist who has been professor of history in the Universidad Abat Oliba CEU in Barcelona, Spain. He is vice president of the Spanish Fundación Burke and founder and member of the Board of Trustees of the Center for European Renewal, which promotes the annual Vanenburg meetings and publishes The European Conservative. He is president of European Dignity Watch, a nonprofit organization based in Brussels and focused on the defense of personal freedom and responsibility, fundamental rights, and the family.
Posted: August 18, 2014
Religious Liberty and the Tragic Approach to Legal Theory