THE PROBLEM AND ITS MODES
A) Experience, Usage and Prudence
[I]
A SUSTAINED INTENTION throughout this book will be that of depicting early modern republican theory in the context of an emerging historicism, the product of the ideas and conceptual vocabularies which were available to medieval and Renaissance minds—such as C. S. Lewis called “Old Western”1—for the purpose of dealing with particular and contingent events and with time as the dimension of contingent happenings. The republic or Aristotelian polis, as that concept reemerged in the civic humanist thought of the fifteenth century, was at once universal, in the sense that it existed to realize for its citizens all the values which men were capable of realizing in this life, and particular, in the sense that it was finite and located in space and time. It had had a beginning and would consequently have an end; and this rendered crucial both the problem of showing how it had come into being and might maintain its existence, and that of reconciling its end of realizing universal values with the instability and circumstantial disorder of its temporal life. Consequently, a vital component of republican theory—and, once this had come upon the scene, if no earlier, of all political theory—consisted of ideas about time, about the occurrence of contingent events of which time was the dimension, and about the intelligibility of the sequences (it is as yet too soon to say processes) of particular happenings that made up what we should call history. It is this which makes it possible to call republican theory an early form of historicism, though we shall find that many of the connotations of our word “history” were at that time borne by other words and their equivalents in various languages—the words “usage,” “providence,” and “fortune” among them. Well-developed conceptual vocabularies existed in which the implications of these and other terms were expanded, and these vocabularies to some extent cohered with one another; so that it is possible, and seems not improper, to reconstruct a scheme of ideas within which the sixteenth-century mind sought to articulate the equivalent of a philosophy of history. This, with its many difficulties and frustrations, constituted the conceptual framework within which the doctrine of the vivere civile—the ideal of active citizenship in a republic—must struggle to maintain itself; and that struggle is the subject of this book.
The next three chapters therefore consist of an exposition of what appear to have been the chief of these vocabularies, the principal modes of rendering the particular phenomenon, the particular event in time, as far intelligible as possible. The assumption throughout will be that this was difficult: that the late medieval and Renaissance intellect found the particular less intelligible and less rational than the universal; that since the particular was finite, it was local both in space and time, so that time became a dimension of its being and consequently shared in the diminished rationality and intelligibility of the particular. The language employed suggests that this assumption is susceptible of a philosophical explanation. The vocabularies which will be isolated, and around which this book will be organized, will be seen to have been of a sub-philosophical nature and to have offered means of rendering time and the particular intelligible on the assumption that they were less than perfectly rational; and hypotheses will be put forward concerning late medieval philosophy, designed to show why this imperfect rationality may have troubled men’s minds.
The following generalizations may be advanced. Medieval philosophy tended to debate whether the sole true objects of rational understanding were not universal categories or propositions which were independent of time and space. The process of arriving at knowledge of them had indeed to be carried out within time and space, but recognition of their truth or reality was grounded upon perceptions independent of either; there was a self-evidence which was timeless and non-circumstantial. Reality of this order consisted of universals, and the activity of reason consisted of the intellect’s ascent to recognition of the timeless rationality of universals. The truth of a self-evident proposition was self-contained and did not depend upon contingent recognition of some other proposition, still less upon evidence transitory in time and space; it was in this self-contained quality that timelessness largely consisted. In contrast, the knowledge of particulars was circumstantial, accidental, and temporal. It was based upon the sense-perceptions of the knower’s transitory body, and very often upon messages transmitted to his senses by other knowers concerning what their sense-perceptions had permitted them to sense, to know, or to believe. Both for this reason and because propositions concerning particular phenomena had to be constructed by moving through a dimension of contingency, in which one proposition was perpetually dependent upon another, knowledge of particulars was time-bound, just as the phenomena of which it was knowledge, localized by particularity in space and time, were time-bound themselves.
If we use “history” as a name for this time-dimension, we can say that a scholastic “philosophy of history” emphasized its contingent and sub-rational character; but there are several senses in which we can say that the scholastic intellect did not offer a philosophy of history at all. By “history” we normally mean successions of events taking place in time, social and public rather than private and subjective in character, which we try to organize, first into narratives and second into processes; but this was not an objective which the scholastic intellect greatly valued. Narrative, the mere telling of a tale, it followed Aristotle in considering inferior to poetry, as poetry was inferior to philosophy, because it was inferior in bringing to light the universal significances of events; and these were best arrived at by thinking which abandoned the particular event altogether and rose above it to contemplation of universal categories. As for processes and time as the dimension of process, the process of change which the Aristotelian intellect singled out was that by which a thing came to be and then not to be: physis, the process by which it fulfilled its end, perfected its form, realized its potential, and then ceased—all of which are extensions of the idea of coming to be and then not to be. All things come to an end in time, but the intelligibility of time was closer to being in the things, since the essential systole and diastole were in the being and not-being of the things, and it was this of which time was the measure. But the being and not-being of a thing is not identical with the replacement of that thing by another thing; it is a closed process whereas the latter is open-ended; and to the extent to which the Aristotelian intellect identified change with physis, it tended to adopt a circular concept of process and therefore of time. This had the advantage of rendering time entirely intelligible. If time was to be measured by motion, Aristotle considered,
regular circular motion is above all else the measure, because the number of this is the best known. Now neither alteration nor increase nor coming into being can be regular, but locomotion can be. This also is why time is thought to be the motion of the sphere, viz. because the other movements are measured by this, and time by this movement.
This also explains the common saying that human affairs form a circle, and that there is a circle in all other things that have a natural movement and coming into being and passing away. This is because all other things are discriminated by time, and end and begin as though conforming to a cycle; for even time itself is thought to be a circle. And this opinion again is held because time is the measure of this kind of locomotion and is itself measured by such. So that to say that the things that come into being form a circle is to say that there is a circle of time; and this is to say that it is measured by the circular movement; for apart from the measure nothing else to be measured is observed; the whole is just a plurality of measures.2
It is easy to detect that Aristotle was well aware that to treat time as circular because the sphere was the most perfect figure, and consequently the best measure, was an intellectual convenience and not—what it became for others—an expression of faith in the ultimate intelligibility of the universe; little less easy to see that he understood the difficulty of applying the circular concept to history, that is, to “human affairs.” For in human affairs a great diversity of things happen without any predictable order, and we can only say that these form a cycle as a means of saying that the whole variety of human experience forms a single gigantic entity having its own self-fulfilling and self-repetitive physis. Post-Aristotelian philosophies existed which were prepared to make this assertion, but we are now warned against overestimating their importance;3 it was well enough understood that the application of physis to human affairs was an intellectual convenience and a metaphor, and it was, after all, Greeks who pioneered the writing of history as what it has so largely remained, an exercise in political ironics—an intelligible story of how men’s actions produce results other than those they intended.
But it was one thing to recognize that there were limits to the application of circular physis to human history—to treating the succession of one thing to another on the analogy of the succession of the being and not-being of a single thing; quite another, at the philosophical level, to produce any equally satisfactory mode of treating the former succession. The Hellenic intellect wrote history, but it did not make history philosophically intelligible. As for the Christian intellect on these matters, it of course repudiated all ideas of cosmic recurrence; “the wicked dance in circles”;4 such a vision of things would make the world uncreated and endless. But Christian insistence on a God who had created the world and men at a point in time past and would redeem men and end the world at a point in time future, though of incalculable importance for the development of historical thought, did not of itself render intelligible the succession of particular events and phenomena in time, or ascribe any special importance to time considered as the dimension of that succession. The problem of divine foreknowledge, the problem of how the individual might relate his time-bound existence to the immediate presence of a timeless and eternal God, led Augustine and Boethius to postulate the idea of a nunc-stans or standpoint in eternity from which God saw every moment in time as simultaneously created and present; but whether the individual affirmed the nunc-stans as an act of intellect or of faith, it was evident that he could not share it and that one moment in time could not be known to an intelligence imprisoned in another moment. Nor was such knowledge of any final importance. Movement in fallen man, if effected by his own depraved will and intelligence, was movement away from God and toward further damnation, away from meaning and toward deepening meaninglessness (this movement may be detected in the Inferno). Given the promise of an ultimate redemption, historical time could indeed be seen as equally the movement back toward God; but this was effected by a separate sequence of acts of redemptive grace, sharply distinguished from and only mysteriously related to the happenings of history in the secular sense. The footsteps of God might be in history, but history as a whole did not consist of such footsteps; eternity might be in love with the products of time, but time was a passive and inert beloved. Finally, an Aristotelianized Christianity tended to restore the analogy of physis; man had lost his form, his true nature, and reformatio—the work of grace—was operating to restore him to it. One might debate whether redemptio was not something more than reformatio: whether the movement consisted of a circular return to the state of the unfallen Adam, or a spiral ascent to a condition higher than that lost by the felix peccatum;5 but in neither case did it consist of the succession of human actions and sufferings. Secular time—there is an etymological tautology here—was the theater of redemption, but not its dimension. Without redemption, furthermore, it was entropic: the loss of form, the movement from order toward disorder, which might be reversed but could not be meaningfully continued.
Christian thought concerning a succession of particulars therefore tended to consist of a succession of efforts to relate the particulars to universals, carried out by means that might be philosophical or poetical, typological, anagogical, or analogical—there was an impressive, even majestic, array of devices existing to this end—but operated so as to view each particular in its relation to eternity and to pass by the succession of particulars itself as revealing nothing of importance. The eternal order to which particulars were related was not a temporal or a historical order, even when it made history by manifesting itself in time; and history was often—though not always—seen as little more than a series of symbolizations, in which sequential narrative was of little more than expository significance.6 The dual meaning of words such as “temporal” and “secular” is at this point beginning to appear in its true importance: both connote the ideas of time (tempus, saeculum) and of the nonsacred because noneternal. It is a useful simplification to say that the Christian world-view—while of course containing the seeds of what was to supersede it—was based upon the exclusion from consideration of temporal and secular history, and that the emergence of historical modes of explanation had much to do with the supersession of that world-view by one more temporal and secular.
This book is concerned with some aspects of that process, and it is going to be argued that an important role in generating it was played by consideration of politics. There is a historically resonant vocabulary in which politics is presented as “the art of the possible” and therefore contingent, “the endless adventure”7 of governing men, the “ship” sailing “a bottomless and boundless sea”;8 and if we think of the domain of contingency as history, “the play of the contingent, the unexpected and the unforeseen,”9 it will appear that a powerful stimulus to the growth of secular historiography may arise from this view of politics (so that political man may prove to have had his own quarrel with the Christian world-view). But it is not from political philosophy, in the premodern sense of that term, that we shall see ideas of secular contingency arising. In what some still like to call “the great tradition” of that philosophy, the political community was seen as a universal phenomenon, something natural to man. Efforts were made to state its idea or form, to relate its principles to those of the universal order of which it formed part, and these tended for obvious reasons to remove it from the domain of particularity and contingency. Yet even within the philosophical tradition it was recognized that political society was, when viewed in the concrete, a secular and consequently a time-bound phenomenon. The province of philosophy was not perhaps extended to include the provision of wholly temporal modes of intelligibility, ways of understanding the time-bound from within secular time; but somewhat outside the philosophical tradition, modes of thought can be detected which were explicitly concerned with problems of political particularity, with what was intellectually possible when the particular political society was viewed as existing in time, when the particular contingency or event was viewed as arising in time, and when the particular society was viewed as a structure for absorbing and responding to the challenges posed by such events and as consisting, institutionally and historically, of the traces of such responses made in past time. An attempt will now be made to expound three such modes of thought and, in so doing, to construct a model which will help to elucidate what happened when the republican ideal posed the problem of the universal’s existence in secular particularity.
[II]
Sir John Fortescue (c. 1390-1479), an English lawyer and the kind of amateur of philosophy who helps us understand the ideas of an age by coarsening them slightly, wrote the greatest of his works, the De Laudibus Legum Anglie (In Praise of the Laws of England) about 1468-1471. At that time he was in exile with the Lancastrian claimants to the English throne, from whom he held the title of Lord Chancellor, but it is of far more significance that he had served before exile as Lord Chief Justice of the King’s Bench, the premier office of the English common law. If at a later time it was said of Francis Bacon that “he wrote philosophy like a Lord Chancellor,” it could with equal truth be said of Fortescue that—not for the last time in English history—he wrote philosophy like a Lord Chief Justice. The two great legal offices made different demands on the application of intellect to society, and encouraged correspondingly different social philosophies.10
The De Laudibus, at all events, is a dialogue on the study of English law between a Prince of Wales and a Lord Chancellor of England, both in exile. The chancellor seeks to persuade the prince that he should study the laws of the country he is to rule, as well as martial exercises; and when the prince objects that English law is known to be of such technicality that professional lawyers immerse themselves for years in its details before presuming to practice it,11 we encounter a reply that introduces us straightway to the central philosophical problem of our subject. The chancellor replies, in effect, that every branch of study is approached by gaining a grasp of its principles. These are called maxims in mathematics, paradoxes in rhetoric, rules of law (regula juris) in civil law, and maxims, once again, in the study of the laws of England. If the prince gains a knowledge of these maxims, he will deserve to be called learned in the laws of England, even though he never applies his knowledge to exact points of legal interpretation, which he will normally leave to his judges, serjeants-at-law, and other professional lawyers. The prince is satisfied by this reply, but it remains to be seen what he has gained by it. For in all that Fortescue says of these maxims, it is evident that, like the axioms, paradoxes, and so forth in other sciences, they are the universal, self-evident, undemonstrable principles on which, according to the basic procedures of Aristotelian philosophy, any system of knowledge must rest. They are acquired directly “by induction through the senses and the memory”; they “are not known by force of argument or by logical demonstrations”; they are not deduced from one another, or from any antecedent premise; “there is no rational ground for principles,” but “any principle is its own ground for holding it.”12 In all this, Fortescue is quoting direct from the medieval texts of Aristotle, and we have begun to observe the use of a rigorously deductive philosophy by a mind steeped in the practice of customary law.
In the philosophy which Fortescue is outlining here, all rational knowledge is essentially deductive. Knowledge, of whatever kind, starts with the acceptance of certain basic principles, some of which are the foundations of all knowledge as such, while others distinguish knowledge into its various branches and form the bases of the various sciences which they distinguish. The rational proof of any statement is arrived at by demonstrating that it is the necessary logical consequence of some principle or combination of principles, and from this it follows (a) that there can be no rational proof of any principle, since nothing which can be deduced from a principle is a principle itself, (b) that any branch of knowledge—mathematics, rhetoric, civil law, English law—consists of knowledge of the relevant set of principles and their deducible consequences. Reason in the strict sense of the term is simply that by which we are enabled to perform deductions from principles; induction is the mental process by which we arrive at knowledge of principles; but that by which we recognize what cannot and need not be proved, namely the truth of principles, is neither reason nor induction—intuition, though not used by Fortescue, is possibly the best word for it. But if we use “reason” slightly more loosely, to mean that faculty of the mind by which the consequences of principles are detected and validated, we instantly encounter the central difficulty of Fortescue’s argument with respect to English law. Principles, inescapably, are universal statements; and from universals we can deduce only universals. Now if English law is to be a rational branch of study, it must consist of certain principles, underived from other principles, and their consequences, which must be true of all English legal situations to which they apply. It is affirmed that English law consists of a series of uniform deductions from certain maxims, with which it is all logically coherent; but what principles (we must now ask) could there be, underived from other principles and intuitively perceived to be self-evident, of which “England” is the subject? “England” must be the name, either of a unique constellation of factors, or of a member of a class of which there are other members. In the former case there could be no body of universals concerning it, since you cannot make universal statements concerning a single unique object; in the latter the principles and universals concerning English law would apply also to the law of other members of the class to which “England” belonged. But the prince in Fortescue’s dialogue, when he doubted whether he could study English law, expressed doubt also whether he should study it in preference to civil law, i.e., the law of Rome; and the chancellor undertook to settle both doubts, that is, to convince him that there existed a readily accessible rational science of English law as distinct from the law of other nations. Fortescue’s purpose seems entangled in contradiction from the start, and the prince’s chance of learning the law by mastering a purely “English” set of principles appears to be foredoomed.
At a rather later point in the De Laudibus Fortescue declares it to be a universal truth in the study of law that all human laws are either law of nature, or custom, or statutes.13 The law of nature consists of those self-evident principles of justice, and their universally deducible consequences, which are true and have binding force among all men. Human laws may be simply the translation of the commands of natural law into the formalized commands or rules of a particular kingdom. But there is nothing here which need detain the student of specifically English law, for
the laws of England, in those points which they sanction by reason of the law of nature, are neither better nor worse in their judgements than are all laws of other nations in like cases. For, as Aristotle said, in the fifth book of the Ethics, Natural law is that which has the same force among all men. Wherefore there is no need to discuss it further. But from now on we must examine what are the customs, and also the statutes, of England, and we will first look at the characteristics of those customs.14
The universal principles of justice are cognizable by reason and, it should seem, it is they which form the maxims on which the science of jurisprudence is founded; they which the prince may learn by the brief exercise of his own reason, while leaving their detailed application to his professional servants with their long years of specialized study and experience. But there is nothing specifically “English” about knowledge of the law of nature, or of that part of English law which is identical with the law of nature or with the corresponding element in the laws of other nations. To discover what is uniquely English about the laws of England we must turn to what have been described as “custom and statute,” the two remaining categories into which all human law must fall. It is in these divisions that the law of England is uniquely English, and the law of any nation uniquely itself.
In agrarian societies which are highly decentralized and traditional, but which a professionally organized class of literate bureaucrats, obedient to a central direction, is trying to bring under control, it is common—at least in the West—to find a distinction between unwritten custom, usage, or tradition, recognized by the king’s servants but recognized as being already established by the spontaneous and traditional adoption of society itself, and the written commands, edicts, ukases, or statutes as Fortescue calls them, imposed upon society by order of the king and his literati, whether or not these claim to be digesting or modifying what was previously unwritten tradition. It may be observed that the distinction, though clear, is not absolute; it may be hard to distinguish between a written judgment, recognizing that such has been and is the law by virtue of custom, and a written decree, ordaining that such is and shall be the law by virtue of the authority of whoever issues the decree. English lawyers sometimes attempted to distinguish on this basis between unwritten law or lex non scripta, which might be written down but which claimed no authority but that of custom and tradition, and written law, lex scripta or statute, whose authority was that of the author of the writing—normally the king in parliament; but parliament also functioned as a court, whose business was to declare old law (custom) rather than to promulgate new (statute), and in a statute itself the notion of a declaration of custom might survive and render its nature ambiguous.
Fortescue’s problem may be resummarized as follows. Customs and statutes together make up the particular laws of any nation. Now if these are to claim rational justification they must be rationally deducible, or at least contain nothing contrary to what is rationally deducible, from the principles of natural justice; but it is not their deducibility or their rationality which gives them their particular character. To understand wherein the laws of England differ from those of Rome or France, we must investigate not their rationality—since therein they are identical with those of other nations—but the ways in which the principles of justice have in them been applied to the special character and circumstances of England. In short, English law contains—as does the law of any nation—an element other than the purely rational, based on the cognition of circumstances and conditions peculiar to England and on the application or adaptation of universal principles to these local and peculiar conditions.
Fortescue’s account of this element is found in his seventeenth chapter, which follows immediately, without the interposition of a word, upon the passage last quoted.
… and we will first look at the characteristics of those customs.
[XVII] The kingdom of England was first inhabited by Britons, then ruled by Romans, again by Britons, then possessed by Saxons, who changed its name from Britain to England. Then for a short time the kingdom was conquered by Danes, and again by Saxons, but finally by Normans, whose posterity hold the realm at the present time. And throughout the period of these nations and their kings, the realm has been continuously ruled by the same customs as it is now, customs which, if they had not been the best, some of those kings would have changed for the sake of justice or by the impulse of caprice, and totally abolished them, especially the Romans, who judged almost the whole of the rest of the world by their laws. Similarly, others of these aforesaid kings, who possessed the kingdom of England only by the sword, could, by that power, have destroyed its laws. Indeed, neither the civil laws of the Romans, so deeply rooted by the usage15 of so many ages, nor the laws of the Venetians, which are renowned above others for their antiquity—though their island was uninhabited, and Rome unbuilt, at the time of the origins of the Britons—nor the laws of any Christian kingdom, are so rooted in antiquity. Hence there is no gainsaying nor legitimate doubt but that the customs of the English are not only good but the best.
[XVIII] It only remains, then, to examine whether or not the statutes of the English are good …16
and with that, indeed, Fortescue has completed all that he has to say in the De Laudibus concerning the grounds for the legitimation of custom. In this chapter, at once very English and very medieval, the particular laws of particular nations are being legitimized by reference, not to reason and the knowledge of universals, but to antiquity and usage. The laws of Rome and Venice are good because they have been for very long periods in continuous use; the laws of England are the best because they have been in use longest, and the testing to which they have been subjected is underlined by consideration of the succession of kings, of various ruling races, who had opportunity to have changed them if they had so desired. But we are told nothing of the process of rational reflection by which these rulers decided that the existing laws were the best, nor—strictly speaking—is it possible that we should be. The essentially deductive process which was reason in Aristotelian philosophy was capable of testing a law only by testing its conformity to the principles of natural justice, and that test, however valuable and necessary, was not the only one. In dealing with the particular laws of particular nations, Fortescue must also ask whether they suit the peculiar character and circumstances of the nation whose life they regulate, and that is what is being tested here. In that context, of course, the laws of England can be “better” than those of Rome or Venice only in the sense that they suit the English better than their equivalents suit the Romans or Venetians. How is such an elusive comparison to be carried out? Since reason is concerned with universals, there must be some other instrument which detects national character and conditions and tests the suitability of national law to these conditions.
Such an instrument there is, and it is called usage or experience; but since it is not reason in the fully reflective and ordered sense of the term, it is, though available only to intelligent creatures, unanalytic, uncritical, and inarticulate. It can be, and very often is, unconscious. Men observe usages and customs, or they do not. If the customs are observed, they must be good customs in the sense of well suited to the people who observe them; but the people could not tell you why the customs they observe are good or those they abandon bad, not merely because the people are not philosophers, but because the philosopher himself could not tell you. The philosopher can see only the universal aspects of things; there is no method, no self-critical or self-verifying intellectual procedure, yet evolved for dealing with their particular aspects. Consequently, the goodness of a good custom can be inferred from the fact of its preservation; it can hardly be demonstrated, since demonstration consists in deduction from a universal premise, and no such premise can contain the particular character and circumstances of the people whose custom it is. We cannot give the “reason” why a custom is good or bad; we can only say “there is reason to believe” that it is good (because preserved) or bad (because abandoned). This is what Edmund Burke—a direct heir of this way of thinking—was to call “prescriptive” or “presumptive” reasoning. Because a custom or a particular institution had a “prescriptive” claim—i.e., was already established—there was a “presumption” in its favor; we presumed that it had been found to work well.17
The longer it had been in existence, the greater the presumption in its favor. The naivety of Fortescue’s argument that English law is best because oldest should by now be becoming intelligible. There can, according to a strictly deductive conception of reasoning, be no rational mode of dealing with particulars, no rational way of proving that a nation has certain characteristics or that its laws suit those characteristics. How then can there be any comparative evaluation of legal systems? The Venetians have testified that their law suits them by retaining it for a very long time; the English have testified to the suitability of their law in exactly the same way. There is no rational—or, in modern terms, scientific—method of selecting and analyzing the peculiar characteristics of the Venetians and the English respectively, detecting and analyzing the peculiar characteristics of their respective laws and evaluating the latter by measuring them against the former. We cannot rationally say that (or why) English law suits the English better than Venetian law suits the Venetians; we have only two sets of presumptions, neither of which can be fully stated or rationally demonstrated. We can, however, have recourse to the last refuge of the social scientist when faced with incommensurables: we can quantify. If the laws of England are indeed older than those of Venice and have been longer in continuous usage, then more men, in more years and more situations, have testified silently in their favor; there is a greater weight of experience, a greater weight of presumption, impelling us to believe them satisfactory to the historic society where they obtain, than exists with regard to the laws of Venice. Such is the rationale of the argument from antiquity, with which in this book we shall be much (though indirectly) concerned. It is a direct consequence of the shortcomings of the deductive philosophy.
But the prince of the De Laudibus is now seen to have been cheated by his chancellor. He was assured that if he would only learn the principles of English law, he would know enough to understand what his judges and other professional lawyers were doing when they applied these principles to concrete cases. It has turned out, however, that the cognition of concrete cases and the discernment of how principles are to be applied to them is a sharply different intellectual process from the cognition of principles and the deduction of their logical consequences. Indeed, it is scarcely an intellectual process at all; it is a matter of pure trial and error, since the test of a custom’s goodness is not its demonstrable rationality, but the simple fact of its having remained in usage. Therefore the learning of a professional lawyer is not to be reduced to a knowledge of principles and their consequences; it is knowledge of what customs have been retained and what the technical, rather than logical, consequences of their retention have been. Customary law is a technical and traditional, rather than a rational structure; and Fortescue is well on the way to the later conception—expressed by Sir Edward Coke, another Chief Justice—of English law as “artificial reason.”
Thus you, prince, would marvel at a lawyer of England if he told you that a brother shall not succeed in a paternal heritage to a brother not born of the same mother, but that rather the heritage shall descend to a sister of the whole blood or shall fall to the lord-in-chief of the fee as his escheat, because you are ignorant of the reason for this law. But the difficulty of such a case does not in the least perturb one learned in the law of England. Wherefore … you will realise that if by instruction you will understand those laws of which you are now ignorant, you will love them, since they are the best; and the more you reflect upon them, the more agreeably you will enjoy them. For all that is loved transfers the lover into its own nature by usage, wherefore, said Aristotle, Use becomes another nature.18
It will be argued later on that the last sentence is of great importance: that in the concepts of “use” and “second nature” may be found the beginnings of the historicist doctrine that we become what we do and so make ourselves. But there was not much for the prince to do with English law but love it and permit it to transform his nature. Words like “the reason for this law” and “since they are the best” consciously beg the question. Such statements were not demonstrable and consequently were above criticism. The prince was in no position to criticize the application of law by his judges, unless reason should tell him that what they were doing was contrary to natural justice. Except in such rare cases, the reason of the law was prescriptive and based on antiquity; he could only accept (and, of course, love) the customs of his kingdom on the presumption that, being ancient, they were good and, being the oldest in the world, they were also the best. The judges knew what the usages of the kingdom were, and his knowledge of natural justice and its consequences not only did not tell him but did not equip him to find out; for the study of customary law was not a scholastic process of rational deduction but—as Coke was to tell James I19—a matter of lifelong study in the records and working experience in the courts.
It is very possible that Fortescue’s main intention was still to argue that English law was reasonable, in the sense that it could be shown to be consonant throughout its structure with deductions performed from the principles of jurisprudence or the maxims characteristic of common law itself. But there exists in his thought an inexpugnable level at which it appeared that English law was not rational, in the sense that it could never be reconstructed by the performance of any such deductions. Other forms of intelligence than the philosophical, which took longer to learn because they were based on experience rather than study, had been at work in its making; and consequently, the prince might hope to admire his judges intelligently, but—once the point was reached at which law had to be considered custom—admire he must.
Custom is the fruit of experience, operating at the lowest and least articulate level of intelligence, that of trial and error. Only experience can establish it; only experience can know it to be good; and the experience of the mind that recognizes it necessarily rests on the experience of countless other men in past generations, of which the custom itself is the expression. Custom therefore is self-validating; its own existence and its own presumed longevity are the main reasons for presuming it to be good and well suited to the needs and nature of the people, and it peremptorily requires the scrutinizing mind to rest satisfied with the assumptions which it contains about itself. The prince is not equipped to be a critic and reformer of custom for the following reasons: there is no method, other than that of experience itself, by which the intellect can reason from the needs and nature of the people to their customs, or determine scientifically whether the latter are well or ill suited to the former; and since there is only experience, which must be accumulated rather than systematically constructed in the three-score and ten years of a man’s lifetime, the prince must recognize that his is the experience of one man only, not to be pitted against that of the myriad men of antiquity which has gone to the making of any single custom, let alone the whole body of the customary law of his realm.
It is therefore hard for Fortescue’s prince to legislate, for the reason that there is no scientific method of determining what particular laws will suit particular peoples or particular situations. The only method known to the scholastic mind is that of deductive logic, which deals only with universals; the adjudication of the particular must be left to experience, which for the most part issues in customs, and in the immeasurably slow processes of the formation of custom the prince’s intellect has no preeminence. Sometimes, it is true, laws must be promulgated in shorter time than it takes for a custom to crystallize out from the general mass of behavior, and here we reach the third division of legislation according to Fortescue, the category of statute. But here too the dichotomy of reason and experience, and the principle of the quantifiability of experience, operate. Immediately after he has grounded custom upon usage and antiquity, Fortescue says:
It only remains, then, to examine whether or not the statutes of the English are good. These, indeed, do not emanate from the will of the prince alone, as do the laws in kingdoms which are governed entirely regally, where so often statutes secure the advantage of their maker only, thereby redounding to the loss and undoing of the subjects.… But the statutes of England cannot so arise, since they are made not only by the prince’s will, but also by the assent of the whole realm, so they cannot be injurious to the people nor fail to secure their advantage. Furthermore, it must be supposed that they are necessarily replete with prudence and wisdom, since they are promulgated by the prudence not of one counsellor or a hundred only, but of more than three hundred chosen men—of such a number as once the Senate of the Romans was ruled by—as those who know the form of the summons, the order and the procedure of parliament can more clearly describe. And if statutes ordained with such solemnity and care happen not to give full effect to the intention of the makers, they can speedily be revised, and yet not without the assent of the commons and nobles of the realm, in the manner in which they first originated. Thus, prince, all the kinds of the law of England are now plain to you. You will be able to estimate their merits by your own wisdom, and by comparison with other laws; and when you find none in the world so excellent, you will be bound to confess that they are not only good, but as good as you could wish.20
The dice are as heavily loaded as ever against the capacity of the prince, as a student of comparative legislation, to arrive at any other conclusion, and as heavily against his ability to function as a legislator or critic of legislation, in respect of statute no less than of custom. Particular laws—this is the key of the matter—can be framed only by experience, by usage in the long run and by prudence in the short; the prince’s experience is only that of one man, as against that of his three hundred counselors, of the body of his subjects now living or the unnumbered democracy of the dead of antiquity (the test of quantification makes custom presumptively wiser than statute); and his reason, which tells him only whether custom and statute are in accordance with the principles of natural justice, can after all tell him no more than reason will tell any other animal rationale who possesses it. On every score, then, the prince whose authority is above that of any other man cannot legislate effectively without afforcing his reason and experience with the reason and experience of as many other men as possible, and this is never done better than when he joins with the democracy of the dead to respect the usages of antiquity. Here we have come to one of the pillars supporting Fortescue’s preference for the prince who rules by law and consent over the prince who rules by his own reason and experience alone. The latter need be no tyrant, but an honest man attempting the impossible and neglecting the help which others can bring him. The whole question, however, deserves to be reviewed in a wider theoretical context.
C. H. McIlwain, in Constitutionalism Ancient and Modern,21 traced the philosophical distinction between Fortescue’s regnum regale and regnum politicum et regale back to the parting of the ways followed by Plato when he wrote the Republic and by the later Plato and Aristotle after him. In the Republic, Plato raised the question whether the city should be ruled by law or by the unfettered wisdom of its ideal ruler, and decided in favor of the unrestricted authority of the philosopher-ruler. He did so on the grounds that a law was only a generalization which must be modified to fit the particular case, or else distort the particular case to make the latter fit it, whereas the philosopher possessed an intuitive grasp of universals which gave him, at one and the same time, an intuitive grasp of the essential character of each particular case. Where a law was like a stiff bar which must be bent to fit each case if it was not to break it, the philosopher’s wisdom was fluid; it flowed around each case and embraced all its details. But for this to be true, the relation between universals and particulars must be very different from what it is in Fortescue’s medieval Aristotelianism. The doctrine of the Republic involves the existence of the Ideas or Forms of Platonic philosophy, those ideal and perfect intellectual objects which constitute the only real world, to one of which every object in the phenomenal world of our senses corresponds, but of which it is only a derivative and imperfect copy. Knowledge of the Forms is not sense-knowledge, nor is it abstracted or generalized from sense-knowledge; it is attained when the intellect is directly illuminated by the Form itself, or by the world of the Forms, as happens to the prisoner in the Myth of the Cave when he escapes from a place where he can see only the shadows of things cast by firelight and emerges into the sunlight where he can see things themselves. Once our intellects have been illuminated by the Forms, we have complete knowledge of all the phenomenal things derived from them, because derivative reality is illuminated by the reality from which it is derived. In this way—but only in this way—the philosopher-ruler can be said to know particular situations and cases better than the general rules of the law can be said to “know” them.
But in the Statesman and the Laws, McIlwain continued, the later Plato was prepared to consider the possibility of a philosopher-ruler whose knowledge was not knowledge of Forms but consisted in a series of generalizations from experience. Such a ruler should submit his decisions to be disciplined by laws, since these generalizations could be constructed on a wider basis than was possible to his intellect alone. Government of this kind, however, would necessarily be imperfect, since its knowledge would consist of generalizations abstracted from experience, which must be laboriously reconverted into concrete terms to fit each individual case, which in turn might contain elements not allowed for in the original generalization. There must be a discontinuity between abstract and concrete, universal generalization and particular case, in any system of knowledge except that enjoyed by the philosopher of the Republic; and it could be argued that the lesser breed of ruling intellect must be doubly disciplined by law, first by the need to submit his individual decisions to the law’s general rules, secondly by the necessity to accept some sort of guidance when it came to converting them into particular decisions—for if his only knowledge was of imperfect generalizations, imperfect too must be his understanding of particular cases.
Aristotle, in the Politics, developed this line of argument and, discussing whether wisdom or the law should rule, concluded that only if a philosopher should appear whose intelligence was as far above that of men as theirs was above that of beasts should he rule without the discipline of law; a ruler who possessed the same kind of intelligence as his subjects, but raised to its highest attainable level, could not possibly be as wise as the laws.22 The implication is that Aristotle was ceasing to believe that the Forms were real, or at least were knowable by man. Because our bodies located and limited us in space and time, we could know only what our senses and memory told us and what our intellects then did with the information thus received. Ideas were thus “attained by induction through the senses and memory,” as Fortescue summarizes Aristotle as saying; they were abstractions from the data. But the abstractions thus arrived at formed propositions, and some of these propositions were self-evident principles; that is, their truth was instantly and intuitively perceived by the intellect. Now the history of Aristotelian metaphysics shows that it was possible to regard these absolute intellectual propositions as real entities, and even as the only ultimate reality created by God; the phenomenal world appeared as the exemplification, operation, modification, or even degeneration of its principles, which thus came after all to resemble Platonic Forms more closely. But even if ultimate reality was intellectual, it could be known by men—rational animals, but animals all the same—only in the shape of concepts abstracted from sense-data and social communications. Christianity, with its emphasis on the difference between the life of the body and that of the spirit, encouraged the idea that “now I see through a glass darkly, but then face to face”; and in Christian Aristotelianism the direct apprehension of intellectual reality was possible only to angels, those created intelligences who sought knowledge of the Creator’s works but, because they were spirits without body, parts, or passions, were unrestricted in space or time and had no need of sense, memory, or inductive generalization, but knew reality immediately and intuitively. Because their knowledge had not to be filtered through the mesh of particularity, it was said that angels were species, not individuals: universal, not particular beings. Time, then, was the inescapable condition of particular existence.
The philosopher-king of the Republic was thus transformed into an angel and exiled from this world to another. In Christian thought, of course, the two worlds interpenetrate; but though the church had the task of maintaining certain of the truths of eternity on earth, it was not expected that angels would come to undertake the burden of rule over earthly societies, and it was therefore remote even to impossibility that any earthly ruler would have the intuitive grasp of reality that would enable or entitle him to dispense with laws. Aristotelian thought, in fact, brings us, even in an Athenian and pre-Christian context, to a philosophy of government not too remote from that of Fortescue. Knowledge is built up by generalization and abstraction from the data, and some of these generalizations are seen to be universal propositions whose truth is self-evident and independent of the inductive process. Such principles become the foundations from which reason can derive further propositions, whose truth can be demonstrated by showing them to be necessary logical consequences of the truth of the first principles. But from abstract universals only abstract universals can be deduced, and if reason is identical with deductive logic, the inductive process cannot be put into reverse. Sooner or later we must face the problem raised by Plato, that of how the generalization can be made to fit the particular, and we must face it without the aid of a Platonic philosopher who has intuitive and perfect knowledge of the particular and its characteristics. What sort of knowledge is possible of the particular? By what intellectual instrument can accommodation of the universal and the particular be carried out?
So far as human government is concerned, Aristotle’s answer is plain: common experience. This is the meaning of his famous dictum that the judge of a dinner is not the cook, but the man who has to eat it.23 At the lowest level of unreflecting human intelligence, you need neither the art of the shoemaker nor the science of the chiropodist to know whether or not your boots hurt you; when the shoemaker and the chiropodist have done their best, you will have to tell them the result of their labors; and if, as is particularly likely to happen in affairs of government, there is no shoemaker or chiropodist to help you, it is theoretically possible—though extremely uneconomic—to go on stitching yourself pairs of boots until, by trial and error which may have involved your learning so little from your errors that ultimate success is a matter of pure luck, you hit on a pair which do not hurt you. When wise rulers have generalized about the needs of the people and the circumstances of their lives, and have framed laws as a result of these generalizations, they should leave it to the people to decide whether the laws actually suit their needs and circumstances; for only thus can the gap between idea and reality be bridged. This may be done by calling an assembly of the people and asking them whether they think the law will suit them. No individual may be able to repeat the process of generalization which the rulers have performed, but the sum total of their predictions will probably furnish the rulers with an excellent critique of their law’s chances of success. This is the case for governing by consent. But the same result may be achieved by usage, by leaving the people free to decide for themselves whether to observe the law or ignore it. The outcome of their decision will not be a prediction—“We think this law will or will not suit us”—as it will be if you consult an assembly, but rather a verification: “The people have retained the usage, so it suits them; they have abandoned it, so it does not.” And the people are quite capable of framing their own customs, without rulers to guide them, simply by falling spontaneously into patterns of behavior which constitute usages. This is the case for governing by custom.
The only objection to legislating by waiting for popular usages to form themselves is that this takes an extremely long time (though, as we have seen, this has compensating advantages; the older a custom, the more reasons for thinking it suits the people, and the fewer for fearing that circumstances may arise in which it does not). It must take a long time, for essentially what we are asking is that one man’s experience of particular things be added to another’s until a consensus is built up, and that this process be repeated over a time-dimension until the resultant custom can claim the authority of repeated usage and antiquity. But further, this—the slow creation of a custom—is only the most highly developed instance of what all particular legislation, particular acts of government and particular decisions must be. For if reason is concerned only with deduction and universals there is no science or method of dealing with the particular per se. Each man must use his own judgment of the particulars he happens to know, and the only way of extending its sphere beyond the merely private is by combining it with other men’s judgments of their particular knowledge. Since there is no organized critique of particular judgment—since it is like (though not identical with) an art rather than a science—one of the few criteria by which one judgment can claim a priori superiority over another is that of the number of men whose experience has gone to its making. The judgment of three hundred men is by that figure more likely to be the best than that of one man; the judgment of many generations than that of the men now living; the oldest custom than the custom slightly less old. “The individual is foolish,” said Burke; “the multitude, for the moment, is foolish; but the species is wise and, given time, as a species it always acts right.”24 He meant, incidentally, the biological, not the scholastic, species.
All such statements are statements concerning probability, since the rightness of a decision can be demonstrated only insofar as it accords with principles, not particulars—except, indeed, that on the “second nature” argument, my customs have become so much a part of my self that they must be right for me. It is another matter to ask if they are right for my external circumstances, as opposed to my personality. But a custom is a particular judgment to which so many men’s experience testifies, and which has attained so high a degree of consistency under repeated tests over time, that the probability of its continuing to give satisfaction (given the stability of conditions which it presumes and helps to maintain) is very high indeed. However, a custom is a judgment which it is possible to view in the longest of long runs, and there must be many judgments which have to be made with the concurrence of fewer men’s experience. Burke’s “individual” and “multitude for the moment” have both to make decisions, although both are “foolish” in the relative sense that the quantity of experience and knowledge of particulars that goes to the making of their decisions is measurably less than is available to the “species given time.” The decisions of the “multitude for the moment” are Fortescue’s statutes, and the virtue displayed in making them is what he calls “prudence.” The “proof”—it is not, of course, a demonstration—of a custom is its antiquity, and “prudence” might be defined as the ability to formulate statutes which will stand the test of time and acquire the authority and antiquity already enjoyed by customs. But prudence is also the virtue displayed by the individual in making his decisions, for in the last analysis it is nothing less than the ability to make such use of one’s experience, and that of others, that good results may be expected to follow.
Aquinas defines art as “right reason about things to be made (factibilium),” prudence as “right reason about things to be done (agibilium),” and some modern translators render ratio as “judgment,” so as to minimize the difficulty of distinguishing between speculative ratio which proceeds from principles and practical ratio which proceeds toward ends.25 He continues by quoting Cicero as mentioning “three other parts of prudence, namely memory of the past, understanding of the present and foresight of the future,” and concludes that these “are not virtues distinct from prudence,” but “integral parts or components.”26 Prudence, it should now be evident, was the present and future, where custom was the perfect, tense of experience. In custom, experience judged what had proved good and satisfactory; it judged also what had proved adapted to the particular nature, or “genius,” of the people, and this judgment was likely to be self-fulfilling, since use and custom created this “second nature” as well as evaluating it—the past was perfect indeed. In statute experience judged what further experience was likely to confirm, but should in theory do this only where custom could not be shown to have done its work already. When in the course of human events, unstable and fluctuating in time as they were, a contingency arose which was not already integrated into usage, the first steps must be taken toward attending to that integration. Statute was based upon experience and expected the confirmation of further experience; it was therefore a step taken at a moment when a new emergency had arisen a number of times, and experience had accumulated to the point where the process of generalizing it into custom could begin. Experience, in the shape of prudence, performing this generalization, was Janus-faced; it bridged the gap between innovation and memory, statute and custom, present, future, and past.
But what of the very first response to a contingency, the action taken for the first time? In this connection McIlwain was led to establish his famous if controversial distinction between jurisdictio (the saying of the law) and gubernaculum (the holding of the tiller).27 He rightly saw that the first response to contingency formed part of prudential theory, but that it could be only indirectly if at all grounded upon experience. Let something happen for the first time. Either it bears no resemblance whatever to any previous occurrence, in which case we have no language for it and no way of dealing with it; or it resembles previous occurrences sufficiently to appear to belong to a class of such occurrences, but presents sufficient characteristics (or combinations of characteristics) of its own to appear what we uneasily term sui generis or unique. If characteristics of the latter sort preponderate, it will be inappropriate to summon a council of elders and pool their experience; the thing must be dealt with on the basis of its newness, which will almost certainly appear coterminous with the speed with which it comes upon us and demands a response. If time is the dimension of change, velocity is directly proportionate to unfamiliarity.
The unprecedented event, therefore, must be dealt with by one man who did not have time to summon his council; but since it could not be dealt with by experience, dealing with it was unlikely to issue in statutes or general prudential statements by which further events of the same class could be dealt with. They must wait until the emergency has been repeated a number of times and was no longer entirely unprecedented. Given the fluctuations of human affairs, there were occasions when normative judgment and statute were inappropriate; the problem was too new, too unfamiliar, there was not enough time; but given the assumptions which underlay the concept of “experience,” the moment when statute would be appropriate would fairly surely come. McIlwain therefore found it possible to arrange the governing powers of a medieval king along a spectrum leading from jurisdictio to gubernaculum. At one end the decisions of experience had already been made and the monarch had only to say what they had been, to exercise memory to the exclusion of other aspects of prudence; his own experience need make no contribution to custom and he took no initiative of his own. At the various intermediate stages, as unfamiliarity and the required speed of response concurrently increased, more was demanded of prudence by way of inputs to the custom-forming process; the king took advice of fewer counselors, relied more upon his own prudence, but made decisions whose generality, permanence, and binding force as laws correspondingly decreased. Finally, the point was reached where unfamiliarity was total, response must be instantaneous, and there could be only one hand on the tiller; the monarch was absolute in the sense that his decisions were bound neither by custom nor by counsel, but they did not, because they could not, instantly become general laws of conduct. Only repetition and further experience could make them that.
This is to state the jurisdictio-gubernaculum sequence in a highly simplified and idealized form, which might indeed have surprised its author; and McIlwain’s critics have often asked whether his thesis does not oversimplify the facts of medieval government. Incautiously handled, it tends to produce theory not unlike that found so unsatisfactory in early Stuart England: that there were a royal power limited by law and a royal power not limited by law, with no necessary contradiction between them; and, following Harrington in the seventeenth century28 and Hume in the eighteenth,29 some modern writers have argued that medieval government was both less coherent and, under pre-Tudor conditions, more flexible than this would suggest.30 But it seems one thing to argue that the various forms of jurisdictio and gubernaculum were not so far institutionalized as to be clearly distinct, another to argue that the mode of thought which the words convey was not the principal or only scaffolding of theory available to medieval minds thinking about government. Now that we have stated it in a form presenting government as a series of devices for dealing with contingent time, we can see that the structures of which it consists are open-ended, no more to be distinguished from one another than the moments of past, present, and future into which we organize time. It thus becomes less surprising that medieval minds could speak of custom both as established by royal or ministerial action and as existing from uncreated antiquity; that the distinction between statutes as making new law and as declaring old were both apparent and habitually slurred over; that the distinction between the gubernaculum uttering an ad hoc decision, confined to a single emergency, and the gubernaculum establishing a rule possessing some degree of generality and to that degree binding in futurity (“law”), could not be maintained in practice. The Janus-like character of experience, of the present as a moment in time organized solely by sequential memory, accounts in principle for all these things.
We are concerned here somewhat less with what happened in government than with the deficiencies of the conceptual system to which government must appeal. Chief Justice Hengham on his bench knew well enough how to make new statute law by reinterpreting old;31 but Chief Justice Fortescue in his study could give no theoretical account of how this was done which did not reabsorb Hengham and his innovating prudence into the world of experience, custom, and retrospection. And at one end of the spectrum, where the concept of experience failed altogether and the contingency and its response were acknowledged as unique, nothing was left but mystery. With the policy decision we entered the sphere of pure gubernaculum, at the furthest remove from that of customary jurisdiction; in it all rulers were acknowledged to be at once absolute and highly insecure. In matters of policy, the king and his counselors must proceed with nothing but their own prudence and experience to guide them. It was their profession to do so; their lives were one long training in it; God, who had laid this task on them, might of his grace assist them to perform it; and they might develop a marvelous skill in the exercise of what was essentially a professional “mystery” or art. It was on their expertise in statecraft, in the arcana imperii or secrets of power, in judging the fluctuations of times and seasons, events, circumstances, and human wills, that outstandingly successful rulers, like Philip II of Spain—El Prudente—or Elizabeth I of England, based their claim to a mysterious and quasi-divine authority. The sphere in which they operated was that of the inscrutable providence of God, and success in that sphere seemed providential; it argued that they were divinely commissioned to exercise power. But the statecraft of pure policy was detached from either jurisdiction or legislation, for it had nothing to do with the establishment and maintenance of rules of law. It was a mysterious, in a sense an irrational, art of coping with the unique, the contingent, and the unforeseen, at the point where all hope must be abandoned of bringing things under legal control. But where experience could be mobilized in the form of custom or consent, and general rules could be established and interpreted, government became much less an arcane and mysterious art and—subject always to the sharp distinction between reason and experience—much more a rational method or science. On the assumptions used by men like Fortescue, the king’s statecraft did not entitle him to be either a judge or a legislator; the demands of government were not the same. He might have the prudence to be a policy-maker, where prudence was at a premium and experience at a discount; he quantitatively lacked the experience to be judge or legislator, as must any one man who did not call on the experience and the prudence of others.
The pure gubernaculum was pure mystery; and as long as experience remained the only means of generalizing about particular cases and testing the application of universals to them, jurisdictio and legislation by consent must remain the only methods of framing and administering laws that would stand up to intellectual scrutiny. Yet this philosophy of government must fail to cover satisfactorily those situations where gubernaculum was involved in jurisdictio, where the king was felt to be personally concerned in justice and legislation and charged, by reason of his office, with a responsibility for their proper performance which was not like that of any other man. Argument like Fortescue’s tended to strip him of any intellectual capacity commensurate with his office and leave him—as the chancellor of the De Laudibus left his prince—a mere respectful spectator of what his judges were doing, no wiser than any other intelligent layman. But no theory of gubernaculum seemed able to provide the king with a stable yet unique role in justice and legislation, since it was inherent in the whole philosophy we have been reviewing that the gubernaculum was in the last analysis a craft rather than a science, concerned with the unique rather than the recurrent, with the management of policy rather than the establishment of laws. Since the king was charged with this terribly difficult task, he enjoyed an authority analogous with or based upon that of God’s providence; since, too, there were points of contact between it and what was done in councils and courts of law, there were moments when the king, face to face with his counselors or his judges, might speak “as the roaring of a lion,” with the terrible and quasi-divine authority of gubernaculum. Then he might not be gain-said or resisted; then he might set aside laws, for short intervals, by the same authority. But when it came to decreeing judgment, to promulgating statutes, and particularly to the technicalities of customary jurisprudence, the voice of the lion was stilled and the inconvenient fact reemerged that laws were made by reason and experience, of neither of which had the king more than other men; James I and Coke were face to face again.
What the king had in greater measure than other men was authority, but authority is ceasing at this point to be grounded upon any theory of human knowledge. We may conveniently appeal here to Walter Ullmann’s thesis of the “descending” as opposed to the “ascending” power;32 the ruler’s authority might come to him from his share in political intelligence (Fortescue’s politice) or it might come to him from above (regaliter), from God himself conceived as rex rather than lex, as will rather than reason. Even this Fortescue was disposed to minimize by equating it with the exercise of lex naturae, the law of universals perceivable by common human reason; but in particulars the divine authority was unshared to the point where it became a mystery how the king received it, for the precise reason that it was providential. Only God from the nunc-stans perceived the full meaning of the sequence of particular events, and it was easier to conceive of him as willing it. Providence was the name of his will as directing this sequence, at least as that will was perceived by men from inside time; and to them, who had no nunc-stans, it was inscrutable and mysterious. As the roaring of a lion, the king spoke with authority that descended to him from God; his authority therefore became inscrutable, mysterious, and not to be resisted. But the gift of authority added nothing to the faculties of his time-bound intelligence; it was a hierocratic rather than a secular phenomenon; and this is why Jean Bodin, like many another theorist of “absolute monarchy,” is to be found saying both that as a matter of authority, the king may set aside custom whenever he so wills, and that as a matter of prudence and even wisdom, he should will to do so only on the rarest of occasions.33 Even the king did not fully bridge the gap between God and man; and it seems to follow that authority left prudence behind it at a point where it left the domain of contingent time as perceived by human memory and entered that of time as shaped by the will and providence of God. But when providence decreed positive laws binding upon men in general, it operated from Sinai rather than Rome or Byzantium; its acts were not those of a human lawgiver. Before the king or the community could fully assert a power of positive legislation, there must be a theory vesting men with the ability to create new orders in the domain of secular history. In discovering why such a theory was still lacking, we have next to turn to a fuller exploration of the conspectus of providential time.
1 “De Descriptione Temporum,” in Selected Literary Essays (Cambridge University Press, 1969).
2 Aristotle, Physics, IV, 223b-224a; trans. R. P. Hardie and R. K. Gaye in W. D. Ross (ed.), The Works of Aristotle, VIII (Oxford: The Clarendon Press, 1930).
3 Robert F. Nisbet, Social Change and History: Aspects of the Western Theory of Development (New York: Oxford University Press, 1969); Chester G. Starr, The Awakening of the Greek Historical Spirit (New York: Alfred A. Knopf, 1968); History and Theory, Beiheft 6, “History and the Concept of Time” (Middletown, Conn.: Wesleyan University Press, 1966).
4 Psalms XI: 9; quoted as from St. Augustine in Frank E. Manuel, Shapes, of Philosophical History (Stanford University Press, 1965), p. 3.
5 See generally, Gerhart B. Ladner, The Idea of Reform: Its Impact on Christian Thought and Action in the Age of the Fathers (Cambridge, Mass.: Harvard University Press, 1959), and for a particular instance of debate, Jesper Rosenmeier, “New England’s Perfection: the Image of Adam and the Image of Christ in the Antinomian Crisis, 1634 to 1638,” William and Mary Quarterly, 3d ser., vol. 27, no. 3 (July 1970).
6 For one aspect of this, see William J. Brandt, The Shape of Medieval History: Studies in Modes of Perception (New Haven and London: Yale University Press, 1966).
7 F. S. Oliver, The Endless Adventure: Personalities and Practical Politics in Eighteenth-Century England (Boston: Houghton Mifflin, 1931).
8 Michael Oakeshott, Rationalism in Politics and Other Essays (London: Methuen, 1962), p. 127.
9 H.A.L. Fisher, preface to A History of Europe (Boston: Houghton Mifflin, 1935).
10 See the present writer’s studies of Sir Matthew Hale (1609-1676) in The Ancient Constitution and the Feudal Law (Cambridge University Press, 1957; New York: W. W. Norton, 1967), pp. 170-81, and Politics, Language and Time (New York: Atheneum, 1971; London, Methuen, 1972), pp. 215-22, 262-64.
11 Sir John Fortescue, De Laudibus Legum Anglie, ed. and trans. S. B. Chrimes (Cambridge University Press, 1949), ch. VII, pp. 19-21.
12 De Laudibus, ch. VIII, pp. 20-23.
13 Ibid., ch. XV, pp. 36-37.
14 Ibid., ch. XVI (the whole chapter), pp. 38-39.
15 The Latin is “tantorum temporum curriculis … in quantum … inveterate sunt” (p. 38), but the word usus frequently occurs in Fortescue’s text and is rendered by Chrimes as “usage.”
16 De Laudibus, ch. XVI, pp. 38-41.
17 See, for a theory of presumptive tradition, Politics, Language and Time, chs. 6 and 7.
18 De Laudibus, ch. V, pp. 14-17.
19 “Then the king said, that he thought the law was founded upon reason, and that he and others had reason as well as the judges: to which it was answered by me, that true it was, that God had endowed his Majesty with excellent science, and great endowments of nature; but his Majesty was not learned in the laws of his realm of England, and causes which concern the life, or inheritance, or goods, or fortunes of his subjects are not to be decided by natural reason, but by the artificial reason and judgment of law, which law is an art which requires long study and experience before that a man can attain to the knowledge of it”: Coke, Twelfth Reports, Prohibitions del Roy (12 Co. Rep. 65).
20 De Laudibus, ch. XVIII, pp. 40-41.
21 Ithaca: Cornell University Press, Great Seal Books, 1958, chs. II and IV.
22 Aristotle, The Politics, ed. and trans. Ernest Barker (Oxford: The Clarendon Press, 1946), pp. 134-35 (1284a), 126-27 (1282a-b). All citations hereafter are to this edition.
23 Ibid., p. 126 (1282a).
24 Edmund Burke, Works (London: George Bell and Sons, Bohn’s Libraries edition, 1877), VI, 147; notes for a speech On a Motion Made in the House of Commons, May 1782, for a Committee to Enquire into the State of the Representation of the Commons in Parliament. Cf. Politics, Language and Time, pp. 226-27.
25 St. Thomas Aquinas, Summa Theologica (Blackfriars: New York and London), vol. 23 (1969), 1a-2ae, question 57, 4 (p. 51).
26 Ibid., 57, 6 (pp. 57, 61).
27 McIlwain, op.cit. (above, n. 21), pp. 77ff.
28 Oceana (1656): “… no other than a wrestling match, wherein the king, as he has been stronger, has thrown the nobility, or the nobility, as they have been stronger, have thrown the king.… where the laws were so ambiguous that they might be eternally disputed and never reconciled.…” John Toland (ed.), The Oceana and Other Works of James Harrington (London, 1771), pp. 63, 69.
29 History of England (ed. of 1762), vol. V, ch. 1, p. 14: “… the several constituent parts of the gothic governments, which seem to have lain asleep for so many ages, began, every where, to operate and encroach on each other.”
30 Donald W. Hanson, From Kingdom to Commonwealth: the development of civic consciousness in English political thought (Cambridge, Mass.: Harvard University Press, 1970). See especially chs. 4-7, for a critique of the McIlwainian tradition.
31 See Hengham’s words to a pleader (Hanson, p. 207): “Do not gloss the statute; we know it better than you, for we made it, and one often sees one statute undo another.” Cf. T.F.T. Plucknett, The Legislation of Edward I (Oxford: The Clarendon Press, 1949), pp. 72-74. Hanson further (pp. 220-22) seeks to show that Fortescue did not make statute inferior to custom in the sense of being limited by it. But Hanson does not distinguish between the authority of statute and the prudence of its content.
32 Walter Ullmann, Principles of Government and Politics in the Middle Ages (London: Methuen, 1961).
33 M. J. Tooley (ed. and trans.), Six Books of the Commonwealth by Jean Bodin, abridged and translated (Oxford: Basil Blackwell, n.d.), pp. 43-44, 123-28.