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Subject Area: Political Theory

The Transformation of English Common Law - Leonard P. Liggio, Literature of Liberty, Spring 1982, vol. 5, No. 1 [1982]

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Literature of Liberty: A Review of Contemporary Liberal Thought was published first by the Cato Institute (1978-1979) and later by the Institute for Humane Studies (1980-1982) under the editorial direction of Leonard P. Liggio.

Part of: Literature of Liberty: A Review of Contemporary Liberal Thought, 20 vols. 19781-982

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


The Transformation of English Common Law

Stephen A. Siegel

  • New York University

“The Aristotelian Basis of English Law, 1450–1800.” New York University Law Review 56(April 1981): 18–59.

Pre-modern legal thought (1450–1800) exhibited an Aristotelian epistemology which led lawyers to see law as fundamentally “a mosaic of rules” rather than a set of basic axiomatic principles. This pre-modern period may be suggestively divided into two periods: an earlier classical period (1450–1650) which emphasized wisdom as the source of the law's validity, and a later “decadent” period (1650–1800) that emphasized certainty as the source of law's validity. The shifting from one source of validity to the other reveals the influence of the scientific revolution on legal methodology; it likewise clarifies the significant way in which the decline of Aristotelian epistemology transformed pre-modern legal thought and led to modern (19th-century) legal thought.

In Aristotelian epistemology, practical knowledge (including legal knowledge) differs from theoretical knowledge (e.g., mathematics), in that it is comprised of probable truths, depends more on experience, and proceeds not by apodictic deduction or systematic construction but by reasoning through analogy and insight into the basis for “informed opinion.” Classical pre-modern lawyers (German, Fortescue, Coke) followed Aristotelian thinking here by emphasizing the role of “intuitive reason” in arriving at (probable) first principles and applying these principles to actual controversies on the basis of a long tradition of precedents, rather than on the basis of any systematic deductive structure.

The 17th-century scientific methods, however, were soon applied to the “moral sciences”—with a geometrical, deductive model taken as the paradigm for law. For Hobbes, the notion that law could be probable and unsystematic gave too much leeway for civil strife. Locke adopted Hobbes' reasoning here and applied an equally axiomatic model—only to reach different more liberal political conclusions. In response to this development, defenders of the common law (such as Matthew Hale, Chief Justice of England) countered that the rules of the common law are so numerous and concrete that, once learned, their application is straightforward. By contrast, the geometric method was considered too novel to be applied straightforwardly in law. However, by stressing the certainty of the common law (rather than its wisdom) these latter-day defenders of the common law had conceded that accumulated experience is a source of the law's validity only because it allows us to transcend “mere” probability. This concession gave a new sense to the notion of “reason” that the law should embody, and it allowed modern legal thinkers to reject probabilistic reasoning and precedent as the essential components of the “reason” that all common law should express.