Posted: April 28, 2005
n this brief, cogently argued book, John Phillip Reid, the leading legal historian of the American Revolution, sets his life's work in context. The book describes the rule of law as it emerged in England and migrated to America in the centuries leading up to 1776, and it explains Reid's reasons for his choice of subject.
The book's title is "rule of law," not "the rule of law." The former was a common-law concept, whereas the latter is a political idea. England enjoyed the rule of law, Reid suggests, because Englishmen believed in "rule of law ideas." Rule of law meant that the kingdom operated by known rules and constructions of law, rather than according to the arbitrary dictates of the King or Parliament. In the 1650s, Reid shows, Parliament begged Oliver Cromwell to desert the title "Lord Protector" and assume the mantle of "King." King had a precise legal definition, and for that reason the rights, obligations, and limitations upon kingly power were well understood and could be managed within the confines of English law. On the other hand, the title of "protector" was unknown to law, and "its authority rested on force, not law." The common law was, as Sir Edward Coke said, an "artificial reason," and to desert that reason was to open the door to arbitrary power.
Given that construction of the topic, it is no surprise that Reid gives us a story of lawyers and jurists. It was they who developed and managed the common law, and, Reid argues, they did so in their ordinary course of business. Simply to function, England's courts needed agreed-upon rules, procedures, and concepts. By developing these rules, and making them law in the realm, "common lawyers served liberty by serving their clients." That the lawyers had to plead before local juries across England was important, for it kept the reason of the bar tethered to the reason of the English people. Judges were particularly important, since " judges often leave a written record explaining their rulings, and they have the reasonings of other judges from over the centuries with which to measure their own judgments and to which to conform their rulings." As in Tocqueville's America, England's lawmen were a class apart, ensuring liberty by providing regularity in law and restraining arbitrary actions from all sides.
England's lawyers understood themselves to be following rather than making law. Even when precedent seemed to give little or no direction, they took themselves to be discovering law rather than creating it. So thoroughly did England's lawyers and jurists live the life of this law that they greeted Robert Filmer's idea that "to govern, is to give law to others" not so much with horror as with incomprehension. Baffled by the idea that law could be an arbitrary assertion of power, they "had difficulty understanding the new law that the theorists of absolutism were bringing into academic fashion." Another way of saying the same thing is that they held the particular laws of England to be just. Thus did the artificial reason of the law strive to be reasonable in the grand sense. John Pym expressed the common sense of the day when he said that, "the Law is that which puts a difference betwixt good and evil, betwixt just and unjust; if you take away the Law, all things will fall into confusion, every man will become a Law to himselfe. "
Reid's design in this little book is not merely to describe how the popular belief that England worked according to known rules of law was part and parcel of a government of laws, not of men in the 17th and 18th centuries, but to describe its subsequent decay, first in England and then (perhaps) in America. To that end, he overlaps his discussion of rule of law with two other streams of argument. In the first, he contends that the rise of Parliamentary supremacy in England (and after 1707 in Britain) undermined the old notion of rules of law restraining government. In time, Britons came to believe in the rule of laws—dictates of the sovereign Parliament (more precisely, the King-in- Parliament), rather than of the customary legal restraints on government. The second, related story is that most modern scholars have agreed with the new, positivist view. From the early 20th century, for example, America's legal academy—and the administrative state it supports— has embraced the notion that the rule of law is, was, and can only be the rule of laws promulgated by a sovereign authority.
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One sees the turn in England's law, Reid suggests, in the trial of Charles I. The specter of an arbitrary king, ruling contrary to law, generated a Parliament that itself might become arbitrary. Charles I begged Parliament to charge him with a recognized, common-law crime. When Parliament responded by dismissing rather than engaging the king's reasoning, it indicated that "the shoe of arbitrariness had shifted to the other foot." In practice, that development took place gradually. Well into the 18th century, Reid argues, British lawyers were trained to think of rule of law in the old manner. Reid suggests that the key turn took place when Parliamentarians replaced lawyers and jurists as the central figures in British law, and Parliament, rather than rule-of-law ideas, became the focal point of British liberty—rather than accept the change, America revolted.
The legal academy, Reid finds, has so thoroughly accepted the modern idea of law that it has missed this whole story. His brother historians have dismissed these constitutional and legal arguments as "either the rumblings of lawyers beneath the concern of intellectuals," or as rationalizations "intended to disguise and obscure what was really going on." Reid almost feels sorry for them because they are blinkered by an education that "not only has taught them to think of law as the command of the sovereign but has conditioned them to think it could be nothing else." Too many historians lack the imagination to enter into a world in which law could be said to rule.
Reid's critique of legal and historical scholarship has two purposes. One concern is strictly historical. Most historians fail to understand the past on its own terms by failing to take the law seriously. The question historians should ask is not whether men sometimes compromised their principles in pursuit of their self-interest, but whether on the whole they upheld what they took to be law. For example, Reid shows that demonstrably racist judges in post- Civil War Mississippi repeatedly let freedmen off for technical reasons. One scholar found, much to his surprise, that "a legal culture existed in trial courts that did not respond well to elite manipulation." That, Reid says, was "rule-of-law fostered by the taught judicial tradition."
Reid describes the life of the law in a community with a Talmudic understanding of law. The common law was understood to be whole, perfect, and complete—a just law for England. The achievements it fostered at home and abroad were and remain considerable. What, one might ask, becomes of a society that sees law as nothing more than an exercise of power, or, even worse, as a tool by which the few exploit the many?
Though he has fun at the expense of Marxists, realists, positivists, and the devotees of critical legal studies, he does not quite turn the corner on them. Reid's limitations, however, are born of his virtues. He is so thoroughly immersed in his subject that he can hardly view it from the outside. That enables him to explain how rule of law operated and to demonstrate its virtues. At the same time, it makes him so angry about what theorists have done to the rule of law in the past few centuries, and so concerned about an administrative state staffed by lawyers who do not understand the rule of law, that he is unable to accept the possibility that theorists might be able both to account for and to support the rule of law that he knows and loves. Given the importance of the legal academy nowadays, such a theory may be necessary to restore the rule of law, rightly understood, to its proper place in our free society.