Contract, Classicism, and the Common-Weal

Abstract

This article examines the influence of classical jurisprudence over the substantive development of English common law in the early seventeenth century and, in particular, the extent to which Sir Edward Coke’s constitutional theories (as expounded in The Reports) were shaped by his interpretation of ancient political texts. The author examines the Ciceronian premise (to which Coke subscribed) that human law was predicated upon a contract or promise, reflecting concordance with divine law. Coke’s poetic skills enabled him to describe a mythical English landscape, in which freedoms were guaranteed by a fictive Ancient Constitution. Coke drew imaginatively upon iconic images of justice (notably Brutus, King Arthur, and Moses), to create a literary constitution that he attempted to equate with common law orthodoxy. The author suggests that, at a symbolic level, The Reports proffer an alternative constitution, in which the social contract between magistrate and subject of law represents the indivisible concurrence of human reason and divine will, and guarantees the constitutional supremacy of unwritten, moral law.