Selden, a Legal and Philosophical Giant

In 1887, Frederic William Maitland founded a learned society devoted entirely to English legal history, the Selden Society. Its namesake was the English jurist and legal historian John Selden (1584-1654), and the choice was apt, for Selden, his elder Edward Coke (1552-1634), and his junior Matthew Hale (1609-1676), were largely responsible for what is today known as the tradition of English common law—or “the English philosophy of law,” as Harold Berman called it.[1]

Selden was far and away the greatest historian of the three; he certainly was more interested in comparative law and more intimately aware of, hence, engaged with, European scholarship than either Coke or Hale. Nonetheless, it is inconceivable to me that there could have been either Selden without Coke, or Hale without Coke and Selden.

The connections between these three were multiple and firm. For example, Selden, as an advisor to the Parliament of 1621, provided historical evidence in support of Coke’s efforts to assert the right of the “High Court of Parliament” to legislate on any matter of the realm, and specifically to constrain the king’s ministers, thus, the sovereign’s prerogative, from undermining what Coke and others viewed as established law. That year, as a result of their efforts, Coke was arrested and so was Selden.

In 1628, but now with Selden as a member of Parliament, he and Coke collaborated, in the aftermath of the “Five Knights’ Case,” to formulate the “Petition of Right.” The following year Selden was again arrested, with Coke, at the age of 77, retiring from public life.

As for Hale, he was the executor of Selden’s will. But more telling of the connection between the three, it fell to Hale to defend Coke’s idea of “artificial reason” (which one can see in Coke’s “Prohibitions del Roy” and “Institutes 97b,” but also implicitly in other places such as in “Calvin’s Case”) against Thomas Hobbes’ attack on both it and the tradition of common law in Hobbes’ A Dialogue Between a Philosopher and a Student of the Common Law of England.[2]

Coke, author of Commentary on Littleton which deals with laws on property and which also appears as the first part of the Institutes, 11 volumes of judgments on judicial decisions known as “The Reports,” and the four-volume Institutes of the Laws of England (excerpts from all three appear in the Liberty Fund’s The Selected Writings of Sir Edward Coke, edited by Steve Sheppard), had been Solicitor General, Attorney General, Speaker of the House of Commons, Chief Justice of the Court of Common Pleas, Chief Justice of the King’s Bench, and member of the Parliament throughout the 1620s. Hale, author of the History of the Common Law and Analysis of the Law, had been Judge of the Court of Common Pleas and Chief Justice of the King’s Bench.

Between Coke and Hale, and connecting the former to the latter during the political turmoil of 17th century England, when the nature of law, sovereignty, and the state became objects of contestation, was Selden, a remarkable scholar whose courageous devotion to truth and liberty has been well analyzed by G.J. Toomer’s exhaustive two-volume John Selden: A Life in Scholarship (2009), Jason Rosenblatt’s Renaissance England’s Chief Rabbi: John Selden (2006), and Sergio Caruso’s two-volume La Miglior Legge del Regno: Consuetudine, Diritto Naturale e Contratto nel Pensiero e nell’Epoca di John Selden (2001). And now we have Ofir Haivry’s important John Selden and the Western Political Tradition.

During his life, Selden was known as “the chief of learned men,” as John Milton described him in his Areopagitica; as “the best of men and a very brave citizen,” as Hugo Grotius referred to Selden; as “the bravest man in all languages,” so Ben Jonson; “the learnedest man on earth,” according to Cambridge University’s John Lightfoot; and “the glory of the men of culture and their chief ornament,” in the words of  Edward Pococke, holder of the first chair of Arabic at Oxford. Edmund Burke, in his Reflections on the Revolution in France, acknowledged that his own views were a continuation of those of Selden.

Perhaps the most intriguing and revealing description of Selden was made by his contemporary Joannes Stephanus Rittangel, Professor of Semitic Languages at the University of Koenigsberg, addressing him, in Hebrew, as “our honored teacher and sage, Rabbi Selden” (morenu harav rav Seldenus). The significance of Rittangel’s description is that it captures Selden’s primary scholarly interest during the last 25 years of his life, namely his extraordinary and wide-ranging examination of the Jewish legal tradition, the most important result of which was his lengthy De Iure Naturali et Gentium, Iuxta Disciplinam Ebraeorum (On Natural Law and the Law of Nations, According to the Teachings of the Jews). Dr. Haivry, vice president of the Herzl Institute in Jerusalem, is currently editing for publication a completed translation of De Iure, the appearance of which will be a noteworthy contribution.

As I have written previously for Law and Liberty on the likely reasons for Selden’s interest in the Jewish legal tradition (“Reading the Talmud in the Tower of London”), I repeat here only two conclusions.

First, Selden viewed that tradition as comparable to that of the English common law: both were based upon recognition of continuity but, in fact, a continuity through change. As Haivry notes, Selden was fond of comparing the common law to “the house (or ship) that’s so often repaired that no original material remains which yet, by the civil law, is to be accounted the same still.” (This is not the place for a detailed discussion of the rough parallels between what became the common law doctrine of precedent and the rabbinic methodology of legal argument, the Selden-based example of which being the rabbinic derivation of the Noahide Laws applicable to all of humanity.)

Second, Selden thought that both legal traditions exhibited a relation between fundamental, natural laws and the particular laws of a national tradition. That relation is worked out not through abstract reasoning but through a tradition of articulation based upon reflection on experience—that is, “artificial reason.”

Both traditions, so Selden argued, recognize certain fundamental laws: that, above all, one should honor one’s agreements or promises (Pacta sunt servanda or Fides est servanda); that it is preferable to reach resolution of disputes through talk, guided by rules such as due process (Coke’s understanding of the use of the phrase lex terrae in the Magna Carta as discussed by him in the Second Part of the Institutes) rather than through violence (in the Bible, the prohibition of murder as conveyed, in Genesis 9:6, through the covenant between God and Noah and his descendants, that is, all of humanity, a prohibition to be enforced by human institutions); and  thus that courts are the necessary venue for reaching such settlements through law, which, qua law, must be commanded and enforced.

Selden, following Richard Hooker and Grotius—but, as Haivry makes quite clear, going further and in a different direction than the latter—found these universal laws in the Noahide precepts as laid out in the Babylonian Talmud, Sanhedrin 56-59. In proceeding in this manner, writes Haivry, Selden provided “a theoretical justification of customary law,” but a justification that in no way should be equated with some kind of amoral relativism. It is an understanding of law that while recognizing the centrality of historical development (that is, tradition, including, as Selden was explicitly aware, the complications of its reception) is nonetheless not historicist.

In this regard, it is, I think, worthwhile to consider the ways in which Selden’s understanding of the law overlaps with Lon Fuller’s procedural natural law in the latter’s The Morality of Law (1964), and also what Selden’s skepticism about reason, an extension of Coke’s use of “artificial reason,” has in common with Frank Knight’s skepticism and Friedrich Hayek’s understanding of the limitations of the use of knowledge.

What John Selden and the Western Political Tradition offers that is either absent from or not as developed in the previous works on Selden is, writes Haivry, “an extensive account of Selden’s political ideas” that influenced the “views of such figures as Clarendon, Hale, and Edmund Burke,” making Selden “a founding figure of what we may term the traditionalist approach to constitutionalism.” The difficulty in establishing this account is that Selden did not systematically formulate his philosophical ideas beyond what appears in Book 1 of Iure Naturali. Even so, Haivry argues that Selden’s writings “offer by far the most comprehensive and theoretically cogent model of customary national law within a universal framework than any other that had been proposed before,” reconciling “authoritative customary law with some kind of universal moral and legal principles.”

Extracting what amounts to a political philosophy of the tradition of common law from Selden poses difficulties given the absence of any sustained philosophical discussion in his extensive corpus. Nonetheless, Haivry admirably succeeds in establishing Selden’s significant place in the Western political tradition. The result of Haivry’s effort is a book highly worthy of our attention.

Its more important parts are chapters four (“Law ‘Fitted to the Genius of the Nation’: Selden’s Theory of National Tradition and Politics”) and five (“Selden and the ‘Universal Philosophy of Morals’ Drawn from the Hebrew Tradition”). Each is preceded by a competent overview of Selden’s life, books, and ideas; an examination of the “early-modern crisis of knowledge and obligation”; and a comparison between Selden’s apparent understanding of the foundations of political order with those of Grotius, Hobbes, and Robert Filmer. The book concludes with a chapter on Selden’s theory of the relation between religion and state in which Haivry deals with the overly facile characterization of Selden as an Erastian, followed by the final chapter on “John Selden and the Tradition of Historical Constitutionalism.”

Whether or not Selden is best understood as a political theorist or as a jurist and historian of the law remains an open question. But to a large extent answering it is irrelevant, as long as one recognizes that law should be central to political philosophy. It seems to me that Selden’s political theory followed his understanding of what the law required. If his work is viewed through the lens of law, one can see that he, like Coke, was suspicious of sovereignty, including the sovereignty of Parliament; for the sovereignty to be acknowledged was that of the common law. Of course, this acknowledgement does not avoid the problem that Coke, Selden, and Hale recognized when Parliament is the High Court of the land. But Coke had responded to this problem in “Bonham’s Case,” the first step toward our understanding of judicial review.

If Selden’s work is viewed through the lens of historical jurisprudence, a number of problems come into sharper focus. For example, rather than examining theoretically Selden’s views on the relation between religion and state from the perspective of, and in contrast to, Gelasius’ doctrine of the two swords (as Haivry does in chapter six), complications arise once one acknowledges the historical existence of different and at times competing law codes—those of the state and the canon law of the Church—in the aftermath of the reforms of Gregory VII.

At issue here is that the English legal tradition did, in fact, recognize different law codes of respectively heterogeneous corporations, rather than a uniform law of the land. After all, there had been a long tradition of canon law in England and that law often dealt with property, for example, in matters of inheritance.

As someone who is quite sympathetic to Haivry’s argument, shares his interest in Selden’s work, and finds the present book most stimulating, it still behooves me to put difficult questions. Doing so might bring out complications not only in Selden’s views but also in conceptions that the author and I may hold in common. Thus, it is not clear what kind of satisfactory guidance the English legal tradition provided in the conflict between Henry VIII and Thomas More. Furthermore, one should always keep in mind not only that tradition is always developing—as Selden knew, in contrast to the occasional statements of Coke, who nonetheless practically also knew—but that tradition has diverse, even tension-ridden, components.

One must approach with considerable care the category “the genius of the nation” as used by Selden in, for example, his commentary on the late 13th century treatise known as Fleta (where his use of the phrase is indistinguishable from Coke’s use of it),[3] not to dismiss it as being nothing more than mystical hogwash, but to refine Selden’s (and Coke’s) recourse to the category, as did Maitland in his English Law and the Renaissance (1901). A cultural unity that rightly allows us analytically to speak of a nation should never be understood to imply uniformity.

There is a great deal of subtlety in Haivry’s book which this review has not addressed but which awaits the reader. Given that Selden spent the last half of his adult life (with the important exception of his intriguing commentary on Fleta, with its finely calibrated analysis of the Lex Regia in the English legal tradition and with its apparent shift of emphasis of the category lex terrae from primarily “due process” to “the laws and customs of the Realm”) on an extensive examination of Jewish law, it is appropriate to conclude with Haivry’s surely correct evaluation of that examination:

A major motive behind [Selden’s] Hebraic learning had very much to do with Selden’s other main intellectual concern, the defense of English common law. His inquiries into English law, its nature and the challenges to it, in the intellectual as well as the political and judicial spheres, brought Selden from very early in his career to reflect on, and search for, the principles of a practical and moral justification for customary law. He eventually found much of the interpretative framework and theoretical underpinnings, for which he was looking, in the national, continuous, and adaptive Jewish legal tradition.

That tradition was able to be “the epitome of continuity through change” because it was “unconnected to the usual agencies of state coercion.” However, the rule of law embodied by an institutionally distinct judiciary, as an obstacle to state coercion, is by no means free from numerous complications. This, too, Selden realized.  One problem would be determining the principles by which judicial review should be carried out—a subject much discussed by contributors to Law and Liberty. There are others, a few of which I raised previously in my essay, “Why Freedom is a Legal Concept.” But clarifying and addressing those matters will be greatly aided by the familiarity with the history or philosophy of English law which Haivry’s book provides in its welcome examination of Selden’s ideas.

[1] Harold Berman, “The Origins of Historical Jurisprudence: Coke, Selden, Hale,” Yale Law Journal 103:7 (1994), 1651-1728.

[2] Hale’s defense, “Sir Matthew Hale on Hobbes,” with important introductions by Frederick Pollock and W.S. Holdsworth, was published in the Law Quarterly Review CXLVII (July 1921): 274-303.

[3] John Selden, Ad Fletam Dissertatio (Cambridge, 1925), with a valuable introduction by David Ogg, p. 165.