CHAPTER SEVEN:

THE NATURAL LAW PHILOSOPHY OF THE COMMON LAW

I. INTRODUCTION

The Common law exhibits a philosophical orientation and approach towards law
based on Classical Natural Law Theory. As such therefore, it could have been
included as an aspect of the previous chapter on Classical Natural Law Theory.
However, it has several features which entitles it to separate treatment.

First of all, the Common Law is an actual legal system which originated in England
and is a part of many other legal systems today. Hence, it is not just a higher law,
but actual, judge-made, customary, positive law. “It emphasizes the centrality of
the judge in the gradual development of law and the idea that this law is found in
the distillation and continual restatement of legal doctrine through the decision of
courts.”1 Secondly, the influence of the Common Law is still greatly felt among
Anglo-American judicial systems, including that of the Philippines. Indeed, the case
of In Re Shoop (xx Phil. xxx [1941]) classified Philippine jurisprudence as a common
law legal system. Finally, it is both instructive and insightful to consider how natural
law philosophy was interwoven into the Common Law to become part of an existing
and effective legal system. Hence, the philosophy of the Common Law deserves a
distinct chapter.

II. THE ORIGINS OF THE COMMON LAW

The Common Law may be meant as a law common to an entire country, like
England, or to the entire world or universe, as Natural Law claims itself to be. It is
in this second sense of common law that it enjoys the status of a natural law.
Although, strictly speaking, the Common Law merely refers to the law common to
all of England, and later on of the entire United Kingdom, many lawyers, judges, and
jurists used it to refer to a law common to all humanity.

The Common Law originated in this manner:

“At the time of the Norman Conquest there was no central court which
regularly administered a law common to the whole country. English law
was, for the most part, administered in many different local courts; and
the law thus administered was the customary law of the district. From
the books of the beginning of the twelfth century which describe this
law, we can see that it consisted of three main bodies of custom, which
corresponded to the three main political divisions of the country at the
time of the Conquest. There was the Mercian law, the Dane law, and
the West Saxon law. They all varied in their contents—indeed, if their
provisions were the same on any given point such agreement was
thought worthy of note; and within these three districts the customs of
different localities varied. These variations were also accentuated by
another cause. At the time of the Conquest what we may call the
national system of local courts—the system of communal courts—
which administered this customary law, was overshadowed by the
1
Roger Cotterrell, The Politics of Jurisprudence, London and Edinburgh: Butterworths, 1989, p. 21.
existence all over the country, of various franchise and other private
jurisdictions belonging to the larger landowners, both lay and
ecclesiastical. The result was that, at the time of the Conquest,
England was covered with a network of competing courts and
conflicting jurisdictions which had ‘their roots in various principles, in
various rights, the rights of the king, of the church, of feudal lords, of
ancient communities.’ The political dissension which enabled the
Normans to conquer the country was reflected in the diversity of the
laws and the courts by which it was governed.

The immediate effect of the Norman Conquest was to increase rather

than diminish this confused mass of local customs. The twelfth
century law books show that to them had been added an admixture of
Norman laws and customs, and some elements of the canon and
Roman law. Nor was there any change in the various local courts
which administered these customs. But the Norman Conquest did give
England what she most wanted—a strong ruler with the power and the
will to make his influence felt throughout the country; and this strong
ruler governed through a royal court staffed by the ablest men of the
day. Already at the beginning of the twelfth century this royal court
was making its influence felt upon the law of the country. The most
important of these twelfth century law books—the Leges Henrici Primi
—recognized the law of this court as a fourth species of law, superior
to the tribal customs of the West Saxons, the Mercians, and the Danes
in its universality, its stability, and its power. Under Henry I, this
strong central court was beginning to get some definite organization;
but as yet much depended on the personality of the king. Under a
weak king like Stephen, the nascent central government disappeared.
But under Henry II, it was so revived and strengthened that we can see
the beginnings of distinct departments of government; and what is
most important from the point of view of legal history, its jurisdiction
was so strengthened and extended that we can see the beginnings of a
centralized judicial system which administered a law common to the
whole country. It is this centralized judicial system which will gradually
reduce the local courts to insignificance, and substitute one common
law for that confused mass of local customs of which the law of
England had formerly consisted.

The beginnings of this centralized judicial system and this common law
were due to the powers of the crown. But the abuse of the large
powers of the crown by John produced a national uprising which
resulted in the granting of the Magna Carta. Naturally, some of the
clauses of Magna Carta dealt with the new centralized judicial system
which had just begun to make its influence felt. A few of these clauses
represented the views of the great nobility who disliked a system
which was the most efficient curb on the feudal disorder. But, for the
most part, the new central organization was regulated, not destroyed.

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 Its continued existence was taken for granted; and thus the future of a
centralized judicial system and a common law was assured.” 2

The judges who administered this law common to the whole country were itinerant
judges who traveled from shire to shire dispensing the king’s justice.

“We have seen that in the twelfth century itinerant judges travelled
round the country, and that they were commissioned to perform many
governmental functions, judicial and administrative. We have seen
too, that the character of the commissions under which they acted
varied. Some gave them wide judicial and administrative powers, and
others gave them only a limited judicial authority. During the first half
of the thirteenth century there was no great change. Bracton tells us
that the circumstances under which and the forms in which such
commissions were given to these justices were infinitely various. But
we can see from his book that a distinction was growing up between
the justices commissioned to hear all pleas, and those commissioned
only to take the assizes or to deliver a gaol. It is not, however, till the
end of the thirteenth and the beginning of the fourteenth century that
these commissions were regularly issued at definite dates, or that that
their forms were definitely fixed. We shall see that some of these
commissions became obsolete at an early date, while others continued
to be issued right down to modern times; and the courts held by the
justices under the latter class of commissions gradually came to be
integral parts of the judicial system, closely linked up with the common
law courts.”3

A circuit system was soon established wherein the itinerant judges played an
important part. The circuit system avoided two disadvantages a decentralized
judicial system would have wrought.

“We have seen that, but for this (circuit) system, the extremely
centralized judicial system, which was the result of the victory of the
common law courts over the older local courts, would hardly have been
tolerable either to litigants or to jurors. This system provided some
relief without any appreciable decentralization, and without the two
great disadvantages which decentralization would have entailed.

The first disadvantage of too extensive a measure of decentralization

would have been the danger that local differences in the rules of law
substantive and adjective would have sprung up. This would have
been a real danger at a time when difficulties in means of
communication, and difficulties in the diffusion of knowledge,
somewhat easily led to the formation of local customs. It was, as Hale
had pointed out, met completely by the circuit system. ‘For those men
are employed as justices, who, as they have had a common education
in the study of the law, so they daily, in Term-time, converse and
2
Sir William Holdsworth, A History of English Law, Vol. I, ed. by A.L. Goodhart and H.G. Hanbury, London:
Sweet and Maxwell, 1903.
3
Id., p. 264.

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 consult with one another; acquaint one another with their judgments;
sit near one another in Westminster Hall, whereby their judgments and
decisions are necessarily communicated to one another, either
immediately, or by relations of others. By this means their judgments,
and their administration of common justice, carry a consonancy, a
congruity, and uniformity to one another: whereby from that confusion
and disparity that would unavoidably ensue if the administration was
by several incommunicating hands, or by provincial establishments.’

The second disadvantage of decentralization, which was prevented by

the circuit system, was one which would have been felt at all times,
and acutely felt both in the Middle Ages and right down to the end of
the seventeenth century. The circuit system helped, as Hale points
out, to prevent ‘factions and parties in the carriage of business, which
would soon appear in every cause of moment, were the trial only
before men residing in the counties;’ and its efficacy in this direction
was helped by the rule that the judges of assize must not exercise
their jurisdiction in the counties in which they had been born, or in
which they resided. That it did not entirely prevent factions and
parties in the Middle Ages and later we shall see; but there can be no
doubt that it exercised a powerful influence in this direction.

The maintenance, then, both of uniformity and impartiality in the

administration of the law were the two great legal advantages which
resulted from the circuit system. Its chief political advantage was that
it provided the central government with a means of controlling the
conduct of the local government, which was exercised by judicial
officers and to a large extent under judicial forms. We have seen that
the judges of assize inherited some of the old political functions of the
justices in eyre; and these functions were exercised, like those of their
predecessors, under the judicial forms of indictment and presentment.
Obviously this tended to strengthen the belief, inculcated by many
mediaeval lawyers and political philosophers, that the maintenance of
a supreme law was the great aim of government. It is a belief which is
a condition precedent for the stability of any sort of constitutional
government; and the fact that it was very universally held in the
seventeenth century was of priceless value to those who fought the
battle for constitutional government in that century. That it was then
universally held was due in no small degree to the manner in which the
working of law to be no mere technicality of the lawyers or abstraction
of the philosophers, but an article in the political creed, and a part of
the political instinct of all Englishmen.”4

III. THE DECLARATORY THEORY OF PRECEDENT

That the Common Law derived from a natural law philosophy was due in essence to
the declaratory theory of precedent. As such, it postulated that the judges, when
they decided cases, were not making, creating or developing law; rather they were
discovering or uncovering it.
4
Id., pp. 283-284.

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“. . . According to the declaratory doctrine of common law, judges do
not make law. They are, in Blackstone’s words, ‘the depositaries of the
laws, the living oracles, who must decide in all cases of doubt’
(Blackstone, 1809, Commentaries on the Law of England, 15th edn.,
edited by E. Christian, London: Cadell and Davies, I, p. 69). The
authority of law is seen as a traditional authority. The judge expresses
a part of the total, immanent wisdom of law which is assumed to be
already existent before his decision. The judge works from within the
law which is ‘the repository of the experience of the community over
the ages’ (Postema, 1986, Bentham and the Common Law Tradition,
Oxford: Oxford University Press, p. 32). Thus, even though he may
reach a decision on a legal problem never before addressed by a
common law court, he does so not as an original author of new legal
ideas but as a representative of a collective wisdom greater than his
own. He interprets and applies the law but does not create it, for the
law has no individual authors. It is the product of the community
grounded in its history. Judicial decisions, according to Matthew Hale,
writing in the seventeenth century, do not make law ‘for that only the
king and parliament can do’ but are evidence of law, and ‘though such
decisions are less than a law, yet they are a greater evidence thereof
thanthe opinion of any private persons, as such, whosoever’ (quoted in
H. Levy-Ullman, 1935, The English Legal Tradition: Its Sourses and
History, transl. by M. Mitchell, London: MacMillan, p. 56). Thus the
judge is the spokesman for the community about its law, but a
particularly authoritative spokesman.

Such a viewpoint could lead to apparently radical conclusions. A judge

could mistake the law (Postema, 1986, pp. 9-11, 194-195). Blackstone
(1809 I, p. 70) writes: ‘The doctrine of the law then is this: that
precedents and rules must be followed, unless flatly absurd or unjust’.
But law (wiser than any individual) is the perfection of reason, so an
unjust and absurd decision cannot be declaratory of the law. It is not
bad law but, in Blackstone’s view, no law at all. It follows that
doctrines of precedent—the doctrine that judges are bound to treat as
binding on them the essential legal grounds of decision adopted in
similar cases previously determined in courts of higher or perhaps
equal status—is a complex one in classical common law thought. It is
also perhaps much more flexible than it is typically portrayed as being.
The judge must attach great weight to previous decisions, not only for
practical and political reasons (maintaining sufficient certainty in legal
doctrine, avoiding usurpation of the legislative function) but also for
theoretical reasons. Those decisions provide, in general, the best
available evidence of the collective wisdom of the common law. An
individual judge or court must subordinate individual reasoning and
values to those enshrined in the law. On the other hand, the reasoning
and values of the law are greater than those not only of the presently
deciding judges, but also of any of the precedent-creating judges of
the past. Hence the theory of common law does not dictate a slavish
adherence to precedent. Even where prior judicial decisions can be

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 considered to state accurately the common law, a later judge is bound
not only by those decisions but by the principle implicit or explicit in
them (cf. Postema, pp. 194-195). Further, while classical common law
thought denies that the judge is creative as a maker of law, he is not
merely passive as a finder or revealer (Levy-Ullmann, 1935, p. 54) of it.
The judge is the privileged representative of the community, entrusted
with its collective wisdom, which he is authorized to draw upon
constructively in order to produce solutions to novel issues raised
before the court.”5

Related to the Declaratory Theory is the Traditionary Theory, that law is common,
immemorial custom. Law, to Blackstone, is “the accumulated wisdom of the ages.” 6
“For the Common Law of England is nothing else but the Common Custome of the
Realm . . . it cannot be made or created either by Charter, or by Parliament . . . but
being only matter of fact, and consisting in use and practice, it can be recorded and
registered no-where but in the memory of the people.” 7 According to Hale, the
doctrines of the common law “are grown into use, and have acquired their binding
Power and Force of Laws by a long and immemorial Usage, and by the strength of
Custom and Reception in this Kingdom. The Matters, indeed, and the Substance of
those Laws, are in Writing, but the formal and obliging Force and Power of them
grows by long Custom and Use.”8

Gerald J. Postema concluded:

“That is, the law now exists and has its authority, its ‘formal and
obliging Force’, by virtue of general use and acceptance. The law
reports, on this view, are the public record of this use and practice,
having recorded the decisions, actions, and opinions of those most
extensively involved on a daily basis with all segments of it . . . On this
view, both the meaning or normative content and the authority of the
precedential case rest on its being recognized as an integral part of the
collective experience (or ‘wisdom’) of the community, of which the law
is the repository. Legal precedent is simply the formal memory of the
people.”9

Sir Matthew Hale formulated elegantly the declaratory theory of precedent. He

asserted that the decisions of courts cannot “make a law properly so called, for that
only the King and Parliament can do; yet they have great weight and authority in
expounding, declaring, and publishing what the law of this Kingdom is, especially
when such decisions hold a consonancy and congruity with resolutions and
decisions of former times, and though such decisions are less than law, yet they are
a greater evidence thereof than the opinion of any private persons, as such
whatsoever.”10

5
Cotterrell, supra. n. 1, pp. 25-26.
6
Sir William Blackstone, Commentaries on the Laws of England, i. p. 67.
7
Sir John Davies, Irish Reports (1612), “Introduction.”
8
Sir Matthew Hale, A History of the Common Law, 3rd edn. C. M. Gray (Chicago, 1971), p. 17.
9
Gerald J. Postema, “Some Roots of our Notion of Precedent,” Precedent in Law, ed. by Lawrence Goldstein,
Clarendon Press, Oxford, 1987, p. 16.
10
Sir Matthew Hale, supra., n. 6, p. 90.

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The Declaratory Theory is further elaborated upon thus:

“The declaratory theory receives its most authoritative exposition in

Blackstone’s Commentaries on the Law of England. Blackstone
claimed that judges are ‘the living oracles’ of the law, obliged to decide
in all cases of doubt according to the law of the land. Their judicial
decisions are ‘the principal and most authoritative evidence, that can
be given, of the existence of such a custom as shall form part of the
common law. . . . For it is an established rule to abide by former
precedents, where the same points come again in litigation . . .’ The
judge possesses delegated authority not to pronounce new law ‘but to
maintain and expound the old one’. He does not alter or vary law
which has been solemnly declared and determined’; he does not
decide according to his ‘private sentiments’ or ‘his own private
judgment’.

Thus the judge searches the records, discovers the law previously
recognized, declares and expounds it, and applies it to the dispute
before him. ‘It is the province of the judge’, stated Parke B. in Egerton
v. Brownlow, ‘to expound the law only; . . . the unwritten or common
law from the decisions of our predecessors and of our existing courts,
from text-writers of acknowledged authority, and upon the principles to
be clearly deduced from them by sound reason and just inference . . .’
Previous decisions ‘have become part of the recognized law, and we
are therefore bound by them, but we are not thereby authorized to
establish as law everything which we may think for the public good,
and prohibit everything which we think otherwise;. It is not the
province of the judge ‘to speculate upon what is the best, in his
opinion, for the advantage of the community’.” 11

Under this theory, the judge plays an intrinsic role as the ‘living oracle’ of the law.

“The judiciary is a major player in the legal drama as conceived by

Common Law theory, yet the role is that of the ‘living oracle’ of the law
(1 Comm. 69), an expert witness to it, not its creator. 'Judex est lex
loquens’, Coke insisted—the judge is the mouthpiece of a law which
transcends the judiciary. Judicial decisions bind the parties to a case,
Hale asserts, but

‘they do not make Law properly so called . . . yet they have a

great Weight and Authority in Expounding, Declaring, and
Publishing what the Law of this Kingdom is especially when such
Decisions hold a Consonancy and Congruity with Resolutions
and Decisions of former Times; and tho’ such Decisions are less
than a Law, yet they are a greater Evidence thereof than the
Opinion of any private Persons, as such, whatsoever.’
11
Peter Wesley-Smith, “Theories of Adjudication and the Status of Stare Decisis,” Precedent in Law, ed. by
Lawrence Goldstein, Clarendon Press, Oxford, 1987, pp. 73-74.

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 The office of the judge is not to make, but publicly to expound and
declare, the law; jus dicere not jus dare. In the latter activity they are
the recognized authorities. Judicial opinions, expounding and declaring
the law, then, are not themselves law but only ‘the principal and most
authoritative evidence, that can be given, of the existence of such a
custom as shall form a part of the common law’ (1 Comm. 69,
emphasis added). In the course of reaching and attempting to justify a
decision, the judge must seek to formulate the law on the matter in
dispute. His opinion must be regarded as the best judgment of one
skilled in discovering and formulating such rules of law. The authority
and weight of judicial opinions, then, is the authority of an expert
reporting his or her findings, not the final or formal authority of an
official whose saying makes it so. (The holding has such final
authority, but the formulation of the law on which the holding is
supposed to rest does not.)”12

Opposed to the declaratory theory is the positivist theory, which locates the law in
the judge’s will.

“(The declaratory) theory has been widely condemned. Austin

castigated it as a ‘childish fiction and Bentham poured scorn upon it for
its apparent similarity to the method adopted by the dog-owners, when
training their pets. The common law, said the positivists, existed (if it
existed at all) because it was laid down by judges who possessed law-
making authority. Law was the product of judicial will. It was not
discovered but created.”

IV. THE COMMON LAW AS REASON AND JUSTICE

A. As Reason

That the Common Law is a natural law is based on the doctrine that the common
law represents reason.

“At the same time, acceptance manifests and is based on a sense of

the reasonableness of the rules of the Common Law. ‘Reason is the
life of the law,’ Coke said, ‘nay the Common Law itself is nothing else
but Reason.’ A.W.B. Simpson summed up the doctrine this way: ‘In the
common law system no very clear distinction exists between saying
that a particular solution to a problem is in accordance with the law,
and saying that it is the rational, or fair, or just solution.’ We must take
care not to misstate the view. The view is not that the rules and
provisions of Common Law each uniformly commend them to the
people as conforming to some independent standards of justice or
reasonableness, and for that reason win their approval. Rather,
Common Law is seen to be the expression or manifestation of
commonly shared values and conceptions of reasonableness and the
12
Gerald J. Postema, Bentham and the Common Law Tradition, Oxford: Clarendon Press, 1986, p. 9; italics
Postema’s.

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 common good. The principles of Common Law are not themselves
validated by reason; but they are the products of the process of
reasoning, fashioned by the exercise of the special, professional
intellectual skills of Common Lawyers over time refining and co-
ordinating the social habits of a people into a coherent body of rules.
In this sense, Coke seems to be saying, it is in the nature of law to be
reasonable, but at the same time the law, emerging from this unique
intellectual process, constitutes the standards by which the community
judges the reasonableness or unreasonableness of actions. The visions
of good and evil by which a society judges its life and dreams its
dreams are drawn from the past and given concrete pubic expression
in its law.”13

The reason that the common law embodies is an ancient wisdom.

“The formal answer to this last question (why is it not possible to

assert openly that judges make law?) is that law embodies an ancient
wisdom which may, according to some conceptions of common law, be
considered timeless or, according to others, be seen as continually
evolving through collective experience. On either view judges can only
reflect this wisdom and not change it. In some classical common law
thought the claim of timelessness is taken to fantastic lengths.
Influential seventeenth century lawyers, such as Sir Edward Coke,
‘argued on the flimsiest of evidence that the common laws, inc luding
their most detailed procedural provisions, dated from the earliest
times’ (J.P. Sommerville, 1986, Politics and Ideology in England 1603-
1640, London: Longman’s, p. 90). Even Magna Carta was treated as
declaring ancient law, confirming and making enforceable rights which
had long existed (Sommerville, 1986, p. 98). Coke claimed that in all
its major parts the law and constitution had remained unchanged since
the Saxon era and even before (Postema, 1986, p. 19). These strange
views were always controversial but the reason for asserting them at
times when the authority of common law was seriously challenged (as
in the early seventeenth century) is not hard to see. This authority
was traditional in nature. Rooting it in distant or even mythical past
emphasised that it was certainly not derived from the present power of
any monarch or other political authority.” 14

There exist two conceptions of the reasonableness of the Common Law. The first
kind is a particularistic kind of reason, based on a special, ‘artificial reason’.

“According to this conception, the reason of the law is entirely

concrete and particular, inseparable from the particular situations
brought to the law, and resolved by it. It is the reason not of rules and
principles, but of cases. Thus, the reason of the law is guaranteed, not
by any external principles or criteria of rationality to which it allegedly
conforms, but rather by its own internal coherence and completeness,

13
Postema, supra., n. 10, p. 7; italics Postema’s.
14
Cotterrell, supra. n. 1, p. 27.

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 by the fact (or rather the presumption) that the myriad of particulars fit
together into a coherent whole.

The reason of the law consists in the fact that it makes possible a
special kind of reasoning. Lawyers are connoisseurs of cases in point,
cognoscenti of matters at hand’. Neither deductive nor inductive, their
reasoning is analogical, arguing from particular cases to particular
cases, reflecting ‘upon the likenesses and dissimilarities of particular
instances either actual or hypothetical, particular to particular—similia
e similibus as Bracton called it’. Analogy is ‘the stuff of law’, according
to Charles Fried because it is

‘the only form of reasoning left to the law when general

philosophical structures and deductive reasoning give out,
overwhelmed by the mass of particular details. Analogy is the
application of a trained and disciplined intuition where the
manifold of particulars is too extensive to allow our minds to
work on it deductively. This is not a denial of reason; on the
contrary, it is a civilized attempt to stretch reason as far as it will
go.’”15

It is the other conception of reason that I am interested in, since this is the
conception which provides Common Law Theory its naturalistic character.

“But there is at work in classical Common Law theory another

conception of reason which becomes especially important by the mid-
eighteenth century. This conception gives reflective reason a much
wider scope in the law and portrays the Common Law as a rational
science based on first principles, or at least potentially transformable
into such a science. This conception links reason with general
justifying principles which are instanced in, and illustrated by,
particular decisions and settled rules.

One can find this conception clearly at work in Blackstone’s

Commentaries (sometimes alongside the particularist conception).
‘The law of England acts upon general and extensive principles’, he
maintains (1 Comm. 425). Although we normally find no need in daily
life to inquire after the reasons or grounds of laws governing our
common life and the use and disposal of our property, yet it is possible
to consider law ‘not only as a matter of practice, but also as a rational
science . . . [and] to examine more deeply the rudiments and grounds
of these positive constitutions of society’ (2 Comm. 2). At least in part
the task of the Commentaries was that of ‘examining the great outlines
of the English law, and tracing them up to their principles’ (4 Comm.
5).

The study of the principle underlying the law was especially important
for students, and future practitioners of the law. Blackstone attacked
the apprenticeship system which exposes lawyers only to practice, and
15
Id., pp. 30-31, italics Postema’s.

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not to its underlying principles. Not only will such lawyers fail to
understand the foundations of their own law, he argues, but they will
be ill-equipped for the practice of law except in routine cases. If the
student is ‘uninstructed in the elements and first principles upon which
the rule of practice is founded, the least variation from established
principles will totally distract and bewilder him . . .’. He will be unable
to comprehend any argument drawn ‘from the spirit of the laws and
the natural foundations of justice’ (1 Comm. 32). Students must have
impressed on them, ‘the sound maxims of the law of nature, the best
and most authentic foundations of human laws’ (1 Comm. 33).

Nevertheless, Blackstone was somewhat ambivalent about the role of

natural law notions in the Common Law of England. On the one hand,
one finds appeal to natural law considerations with some frequency in
the Commentaries—for example, in his defense of the institution of
property (2 Comm. 1-15) and of the state’s right to punish (4 Comm. 5-
9). Yet, when he took the Bench, he was much less willing to make
such appeals and, in fact, was severely critical of those, like the
activist Mansfield, who sought to utilize natural law language to
introduce considerable innovations in the Common Law. And there is
much in the Commentaries to support this conservative reaction.

Mansfield was, of course, the most vigorous advocate of this

conception in the Common Law among the judiciary in the eighteenth
century. The law ‘would be a strange Science’, he argued

‘if it rested solely upon cases; and if after so large an increase of

Commerce, Arts and Circumstances accruing, we must go to the
time of Richard I to find a Case, and see what is Law. Precedent
indeed may serve to fix Principles, which for certainty’s sake are
not suffered to be shaken, whatever might be the weight of the
principle independent of the precedent. But precedent, though
it be Evidence of law, is not Law itself; much less the Whole of
the Law.’

This, in some respects, goes no farther than the view we saw Hale
embrace. But Mansfield insisted that the ‘law does not consist in
particular cases; but in general principles which run through the cases
and govern the decision of them’. And this may go farther than Hale
would have been inclined to go, especially since Mansfield did not
scruple to identify these principles with natural justice, equity, and
common reason. As David Liebermann has pointed out, Mansfield’s
decisions provide some of the most forceful statements of the place of
natural law in English jurisprudence in the eighteenth century. It
appears that the Common Lawyers in the eighteenth century did not
refuse to appeal to general notions of justice, convenience, and
common good (often framed in the language of natural law) when the

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 particular, black letter resources of the law were found inadequate to
the task.”16

Hence, it is not surprising that this has been said of the Common Law: “The
common law is the absolute perfection of reason.” 17 Fr. Figgis adds:

“The Common Law is pictured invested with a halo of dignity peculiar

to the embodiment of the deepest principles and to the highest
expression of human reason and of the law of nature implanted by God
in the heart of man. As yet men are not clear that an Act of Parliament
can do more than declare the Common Law. It is the Common Law
which men set up as an object of worship. They regard it as the
symbol of ordered life and disciplined activities, which are to replace
the license and violence of the evil times now passed away. . . . The
Common Law is the perfect ideal of law; for it is natural reason
developed and expounded by a collective wisdom of many
generations. . . . Based on long usage and almost supernatural
wisdom, its authority is above, rather than below that of Acts of
Parliament or royal ordinances which owe their fleeting existence to
the caprice of the King or to the pleasures of councilors, which have a
merely material sanction and may be repealed at any moment.” 18

B. As Justice

Another way of characterizing the Common Law is as a fount of morality and justice.
This once again traces its connection or communion with natural law.

“Even outside the family law, the law of nature is not altogether
banned. For instance, in 1768, in an appeal from a decision of Lord
Mansfield, a unanimous judgment of the Court of Exchequer said: ‘The
law of Nature is the law of God. . . . we mean to bottom this judgment
upon the law of God, the principles of reason, morality, and the
common law. . . .’ It is interesting to note how the Court bundles all
the terms together, as though they meant the same thing. This seems
to be the characteristic of the mentality of English judges. But their
hearts are in the right place. They are practical, and they do not care
much for names.”19

Wu also noted the Common Law’s intrinsic connection with Christian morality.

“The common law is too deeply rooted in Christianity to be cut loose

entirely from the natural-law tradition. It has a noble idea of man, of
the human person. It sets the highest value on human life and human
liberty, on the rational and social nature of man. It has not worked out

16
Id.,pp. 33-35; italics Postema’s. Reference is made to Sir William Blackstone’s Commentaries on the Laws of
England.
17
2 Co. Inst., p. 179.
18
Figgis, Divine Right of Kings (2d. ed. 1914), pp. 228-230.
19
John C. H. Wu, Fountain of Justice, New York: Sheed and Ward, 1955, pp. 104-105; citing Low v. Peers,
Wilmot’s Reports, pp. 364, 371, 374 (1770).

170
 an explicit scale of values, but if we look at it as a whole, we should
see that it sets a much higher value on the interests of personality
than on the interests of property.”20

He adds:

“Needless to say, no system of human law can be perfect, or even

nearly so. But it is no exaggeration to say that Anglo-American
jurisprudence—the common law of England before the nineteenth
century and the common law of America since the eighteenth century
—is permeated with the spirit of Christianity to a greater degree than
any other system of law except Canon Law. You find dark spots here
and there; but where the common law is at its best, you feel that Christ
Himself would have smiled upon its judgments. It is so because in
many cases the judges have not hesitated to draw their inspiration and
light from the words of Christ and His Apostles, particularly St. Paul. In
American jurisprudence especially, you find traces of the Christian
influence wherever you may turn.”21

The common law indeed reflected God’s reason.

“Common law’s reason was often claimed to be derived from God’s

reason (Sommerville, 1986, p. 92). Certainly, as has been noted
earlier, it was considered to transcend the reason of individuals,
however wise. Thus a fundamental natural law of reason was held to
inform common law, allowing highly controversial claims to be made in
a few famous seventeenth century cases that ‘when an Act of
Parliament is against common right and reason, or repugnant, or
impossible to be performed, the common law will control it, and
adjudge such act to be void.’ On the other hand, in the same period,
the appeal to traditional authority became, in the doctrine of the
Ancient Constitution, the mythical idea that English common law
remained essentially unchanged since a time that predated all relevant
political authorities, and so had a transcendent authority unaffected by
political change. Some common lawyers even denied that there had
been a military conquest in 1066 which entailed any legal
discontinuity. ‘To admit a conquest was to admit an indelible gain of
sovereignty upon the English constitution’ (J.G.A. Pocock, 1957, The
Ancient Constitution and the Feudal Law: A Study of English Historical
Thought in the Seventeenth Century, New York: W.W. Norton Reprint
1967, p. 53). Thus, with what now seem bizarre claims about the
authority of transcendent natural reason and the significance of myths
about the sources of common law in history, common lawyers fought
to maintain the independent force of common law at a time when
already it was preparing to give way to types of authority rooted in
political sources which it could not theoretically comprehend.” 22

20
Id., pp. 104-105.
21
Id., p. 168.
22
Cotterrell, supra. n. 1, pp. 36-37.

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Barnard had this to say. According to him, the common law

“having a principle of growth and progress in itself . . . is already . . .

the most complete and admirable system of law—the most healthy
and vigorous in its principles, the most favorable to civil liberty,
standing the nearest to the divine law, and the best fitted to be the
auxiliary and helper of religion itself in the government of individual
men and of human society—that has ever existed on earth.” 23

V. THE LAW REPORTS

There can be no effective system of precedent if there were no system of law

reporting. For a judge to be bound by previous decisions, there must be a way for
the judge to access these decisions. That was the function played by the law
reports. It has had a long and distinguished history.

“Shortly after the death of Bracton appeared the Year Books. The
earliest of them came out in 1292. They were produced by lawyers
who had been organized in the Inns of Court and Chancery. These Inns
were virtual centers of legal study, which carried on and further
strengthened the tradition of the common law as a system of case
law.”24

Brunner describes the Reports in this manner:

“Reports, i.e. professional memoranda, not, like records, serving as

official memorials of judicial acts, but giving only secondary attention
to the concrete facts of a particular case, and intended to give
information of points of interest to legal practitioners. They therefore
contain only a brief narration of facts, upon which the records lay the
principal stress, but give more fully the arguments of counsel and
grounds of decision. The Reports were written by officially appointed
and paid reporters. It is uncertain when this was first done. The
Reports from the time of Edward II to Henry VIII, barring several gaps,
were printed under the name the Year Books.” 25

Holdsworth elaborates:

“The Year Books are the Law Reports of the Middle Ages and written by
lawyers for lawyers. From the reign of Edward I to the reign of Richard
III they stretch in a series which is almost continuous. In the reigns of
Henry VII and VIII they become more and more intermittent; and the
last printed Year Book is of the Trinity Term 27 Henry VIII. During the
terms and years of these centuries they give us an account of the
doings of the King’s Courts which are either compiled by eye-witnesses

23
Barnard, Discourse on the Life, Character, and Public Services of Ambrose Spencer, 1849, p. 52.
24
Id., p. 78.
25
Heinrich Brunner, “The Sources of English Law,” Select Essays in Anglo-American Legal History, by various
authors and compiled and edited by a Committee of the Association of American Law Schools, Boston: Little,
Brown, and Company, 1908, Vol. II, pp. 31-32. The claim that the reporters were official is disputed.

172
 or from the narration of eye-witnesses. They are the precursors of
those vast libraries of reports which accumulate wherever the common
law or any legal system which has come under its influence, is studied
and applied. If we except the plea rolls they are the only first-hand
account we possess of the legal doctrines laid down by the judges of
the fourteenth and fifteenth centuries, who, building upon the
foundations which had been laid down by Glanvil and Bracton,
constructed the unique fabric of the mediaeval common law. Because
they are contemporary reports they are of the utmost value, not only
to the legal historian, but also to the historian of any and every side of
English life. Just as the common law is a peculiarly English possession,
so these reports of the doings of the Courts which constructed this
common law are a peculiarly English source of mediaeval history. No
other nation has any historical material in any way like them. Yet, until
well on into the last century, they existed only in black letter books,
published in the seventeenth century, and printed in contracted law
French so carelessly as to be in many instances unintelligible; and the
greater part of them are still in this condition. No one had cared to
study the manuscripts upon which these printed books were based;
and the tale told by tradition as to their origin was accepted without
question and without verification. For about the last forty years their
unique historical importance has been gradually arousing some
interest in them. The work done upon them by the late Mr. Horwood
and by Mr. Pike for the Rolls Series, and, above all, the work done upon
them by Professor Maitland for the Selden Society, has taught us much
of their origin, of the language in which they are written, and of their
meaning and importance in the history of England and English law.” 26

The origins and history of law reporting are as follows:

We cannot give the exact date when to some lawyer ‘the happy
thought’ first came of noting down the proceedings of the Court. The
earliest printed Year Book in the Rolls Series is of the year 1292; but
there are, as we have seen, earlier manuscripts. Their writers,
Professor Maitland thinks, are person who are noting down the latest
points for the use of themselves or their friends. They give no dates.
Often they do not arrange their matter chronologically. Rather they
distribute it under suitable heads after the manner of the writers of the
later printed Abridgements. Thus, ‘it is only by degrees that the oldest
law reports became “Year Books,” and even when the purely
chronological scheme has obtained the mastery, we may see that for a
while the men who write the manuscripts or have the manuscripts
written for them are by no means very careful about assigning the
cases to the proper years and terms.’ In later times, the ‘chronological
scheme’ does obtain the mastery. No doubt as the years went on
reporting became a regular pursuit. Still it was an open pursuit. The
Books of Assizes are reports in a style very different from that of the
26
William Searle Holdsworth, “The Year Books,” Select Essays in Anglo-American Legal History, by various
authors and compiled and edited by a Committee of the Association of American Law Schools, Boston: Little,
Brown, and Company, 1908, Vol. II, pp. 96-97.

173
 other Year Books of Edward III’s reign. They are more concise than the
Year Books usually are, giving rather the gist of the argument and the
decision than a report of the actual proceedings. The Longo Quinto
represents a more elaborate form of reporting than had yet been seen.
Often it seems to be more impersonal, and to give the gist of several
reports rather than the actual account of the eye-witness. No doubt,
too, the reporters became more skilful, more professional as time went
on; they allowed themselves fewer scattered notes, fewer personal
details. The report of the cases is the main thing; and the report grows
fuller. Perhaps it may be allowable to conjecture that, with the
growing organization of the legal profession, there grew up some sort
of organized system of reporting. With the more frequent citation of
cases in court, and the greater authority attached to them, the need
for reports grew more pressing. We really have no positive evidence
at all as to the conditions under which the Year Book was published to
the profession. No doubt, as in later times, there was extensive
borrowing, and hasty copying of borrowed materials as and when they
could be got. It is, however, difficult to suppose that a profession so
well organized as that of the law did not devise or encourage some
sort of informal organization for the production of reports. It is perhaps
more than a coincidence that the serjeant’s chief practice was in the
Common Bench, and that the greater number of cases reported in the
Year Books are common pleas. If there was some sort of organization
for the production of reports, and if the legal profession exercised
some control over it, we can easily see how the tale of their official
origin arose. Such a tale would the more readily believed y an age
which had had time to forget the conditions which had prevailed before
the introduction of printing. We sometimes speak of ‘the Law Reports’
as official; but the historian of our age will search the national accounts
in vain for information as to the sums paid by reporters.” 27

The importance of a system of case reporting cannot be emphasized sufficiently:

“It is on the system of case law . . . that the common law of England
was very largely based in Blackstone’s day. Let us recall Burke’s
emphatic words: ‘The English Jurisprudence hath not any other sure
foundation nor consequently the lives and property of the subject any
sure hold, but in the maxims, rules and principles, and judicial
traditionary line of decisions contained in the notes taken, and from
time to time published (mostly under the sanction of the judges),
called Reports . . . To put any end to Reports is to put an end to the law
of England.’”28

The origins of law reporting and how it came to be essential and indispensable to
English legal practice is recounted as follows:

27
Id., pp. 109-110.
28
William Searle Holdsworth, “The Case-Law System: Historical Factors which Controlled its Development, The
Life of the Law, ed. by John Honnold, London: Collier-MacMillan Limited, 1964, p. 44.

174
 “In course of time the system of reporting gradually developed to meet
the obvious needs of a legal profession engaged in administering a
system of law, the principles of which depended almost entirely upon
the practice of the Court. Just as books of precedents of writs and
pleadings were necessary in order that the lawyer might present his
case in proper form to the Court, so reports of decided cases were
necessary if he was to know the principles which the Court would apply
to decide the case. Indeed it is probable that it was only gradually that
these books of precedents were differentiated from the law report.
The book of precedents occasionally borrows from the Year Book; and
the Year Book sometimes gives us extracts from the pleadings, and
thus serves the purpose of a book of precedents. The two things
came, however, to be entirely distinct. Broadly speaking, the book of
precedents deals with the formal and procedural side of legal practice,
while the Year Book deals chiefly with the application of the principles
which underlie, not only the procedural rules, but also the rules of
substantive law. Thus for an intelligent understanding, an intelligent
application of the precedents, the reports in the Year Books were
essential; and perhaps to many practitioners this consideration was a
greater incentive to the study of the Year Books than the fact that it
was only through them that a knowledge of the principles of the law
could be attained. ‘The spirit of the earliest Year Books,’ says
Professor Maitland, ‘will hardly be caught unless we perceive that
instruction for pleaders rather than authoritative fixation of points of
substantive law was the primary object of the reporters.’ But though
the needs of the pleader may have been the paramount consideration
in the minds of the earliest reporters, though such needs always
continued to be an important consideration, it had been clear, since
the days of Bracton, that without a knowledge of the doings of the
Courts there could be no knowledge of English law. His treatise could
not have been written if he had not access to such information through
the records which he had retained for a period. But records were
valuable things. By a lucky chance perhaps a lawyer might get access
to a few of them; but neither the apprentice, nor even the serjeant,
could be sure of getting the constant access to a series of such
documents which would be necessary if they were to be used for
purposes of instruction or as aids to practice. Moreover much pleading
took place, and much argument thereon, which never appeared on the
roll; and this was often as interesting to lawyers as the matters which
appeared there. The legal profession was obliged to supply its own
peculiar wants for itself; and thus the report of the doings of the Court
made by lawyers for lawyers arose.” 29

The authoritativeness of judicial decisions, as reported in the Year Book, is

explained thus:

“A reliance on cases was, as we have said, as old as Bracton; and we

can see from the early Year Books that a considered decision was
regarded as laying down a general rule for the future. ‘The judgment
29
Holdsworth, supra., n. 19, pp. 107-109.

175
 to be given by you,’ said Herle in argument in 1304, ‘will be hereafter
an authority in every quare non admisit in England.’ This does not of
course mean that all cases to be found in the lawyers notebooks were
regarded as authoritative. Still cases are cited even in the early Year
Books. The judges when pressed by the authority of precedents were
sometimes restive, as the following dialogue shows. ‘R. Thorpe. If it
so seems to you, we are ready to say what is sufficient; and I think that
you will do as others have done in the same case, or else we do not
know what the law is. Hillary, J. It is the will of the Justices. Stonore,
C.J. No; law is that which is right.’ And in Edward III’s reigns, if we
make allowance for the differences between the manuscripts and the
printed book, and the differences between the Year Book and the
modern report, we see cases cited and distinguished much in the same
way as they are cited and distinguished in modern times. This would
seem to show that the later Year Books are something much more than
students’ notebooks. Just as voluntary associations of students for the
purposes of legal education won their way to the position of the
Honourable Societies of the Inns of Court, so these students’ notebooks
became those Reports which Burke called the sure foundation of
English law, and the sure hold of the lives and property of all
Englishmen.”30

In ending, a graphic description of the Year Books and their peculiar source of
historical knowledge is provided:

There are many mediaeval records of various kinds which report

contemporary events. There are no other mediaeval records except
the Year Books which photograph the actual words, and actions, and
idiosyncracies of the actors as they were bringing these events to
pass. When we read the official record we think of a machine, which
automatically eliminates all the human dramatic element, and
describes events and results in one impersonal, accurate, and
stereotyped form of word. When we read the Year Book we think of a
human reporter, mainly interested it is true in law, but, for all that,
keenly alive to the exciting incidents of the trial which is proceeding
before his eyes—to judicial wit, an criticism, and temper, to the shifts
and turns of counsel, to the skilful move or the bungling omission,
even to the repartee and the exclamations which the heat of a hardly
contested fight evoke. Though therefore the Year Books are valuable
because they tell us much of the development of law, they are unique
because they picture for us days in court in successive terms and
years and through two centuries. Because they do this faithfully, not
neglecting that human element which today is and to-morrow is not,
they supply just that information which is omitted by those who record
with mechanical correctness merely the serious business done. We
see not only the things done; we see also the men at work doing them,
the way these men did them, and how they came to be done in that
30
Holdsworth, William Searle, “The Year Books,” Select Essays in Anglo-American Legal History, by various
authors and compiled and edited by a Committee of the Association of American Law Schools, Boston: Little,
Brown, and Company, 1908, Vol. II, pp. 110-111.

176
 particular way. It is for this reason that the Year Books are valuable
documents not only to the historian of English law, but also to the
historian of any part of English life. They create for us the personal
element, the human atmosphere, which makes the things recorded in
the impersonal record live again before our eyes.

VI. COMMENTS AND CRITICISMS

As a natural law theory, which shares the classical natural law doctrine that there is
a universal and objective justice which common law judges are unearthing and
discovering while they decide cases, and along with that the doctrine that the moral
order is part of the legal order, the criticisms of Classical Natural Law
Jurisprudence, as developed and articulated in the previous chapter, are applicable
also to Common Law Theory.

As a result, there is no need to once again reiterate those points. This chapter
merely goes to show that natural law jurisprudence had a pervasive influence
throughout various jurisdictions and legal systems, particularly in England, due to
the common law.

0–0–0–0–0

REFERENCES

Blackstone, William, Commentaries on the Laws of England, i. p. 67.

Brunner, Heinrich, “The Sources of English Law,” Select Essays in Anglo-American Legal History, by various
authors and compiled and edited by a Committee of the Association of American Law Schools, Boston:
Little, Brown, and Company, 1908, Vol. II, pp. 7-52.
Davies, John, Irish Reports (1612), “Introduction.”
Hale, Matthew, A History of the Common Law, 3rd edn. C. M. Gray (Chicago, 1971), p. 17.
Holdsworth, William Searle, “The Case-Law System: Historical Factors which Controlled its Development, The
Life of the Law, ed. by John Honnold, London: Collier-MacMillan Limited, 1964, pp. .
-----------A History of English Law, Vol. I, ed. by A.L. Goodhart and H.G. Hanbury, London: Sweet and Maxwell,
1903.
-----------“The Year Books,” Select Essays in Anglo-American Legal History, by various authors and compiled and
edited by a Committee of the Association of American Law Schools, Boston: Little, Brown, and Company,
1908, Vol. II, pp. 110-111.
Postema, Gerald J., “Some Roots of our Notion of Precedent,” Precedent in Law, ed. by Lawrence Goldstein,
Clarendon Press, Oxford, 1987, p. 16.
-----------Bentham and the Common Law Tradition, Oxford: Clarendon Press, 1986.
Wesley-Smith, Peter, “Theories of Adjudication and the Status of Stare Decisis,” Precedent in Law, ed. by
Lawrence Goldstein, Clarendon Press, Oxford, 1987.
Wu, John C. H., Fountain of Justice, New York: Sheed and Ward, 1955.

177