Edward Coke’s Artificial Reasoning & The Superiority of the Judiciary

The famous proprietor of the idea of “artificial reason” was the English Chief Justice presiding over the famous Dr. Bonham’s Case, which consequently led to the modern conceptions of judicial review. This stemmed from the ideas of what common lawyers meant by artificial reason — giving rise to the idea that judges may invalidate statutes because of their ability to comprehend the law better as they are able to base decisions on “the artificial reason of past cases applied by legal custom”.

In the early 1600s, Coke in his position as Chief Justice offered to James I the idea that “his Majesty was not learned in the laws of his realm of England and causes which concern… his subjects are not to be decided by natural reason but by artificial reason and judgment of law”, i.e. he was essentially preventing the King from adjudicating in legal cases because the King constitutionally lacked what the Judiciary had: an ability to reason artificially. Although the King argued that Law was founded upon reason, that he, others and judges had reason, it was Coke’s argument that “law is an act which requires long study and experience, before that a man can attain to the cognizance of it”.

The common law at the time, i.e. the non codified laws and custom that do not include statutes drew on principles of both general customs (resulting from popular assent) and principles of natural law (resulting from rationality and reasoning) — the former which English lawyers labeled as perfect equity. However, for Coke there was a major divide in what the common law was perceived to be as and what it actually required to be. Maxims (the “strength and warrant”) of customary law was not a result of popular consent, and the resulting authority of writs and other technical matter that was relevant to customary law was essentially a result of Westminster’s customs rather than the populous’. For Coke, it was only judges who had spent years learning these customs who developed the ability to give authority to law.

Coke presented the idea of two separate types of reasoning abilities: natural and artificial, with only the latter being represented in common law and legal argument. Artificial reason he defines as “An artificial perfection of reason gotten by the long study, observation and experience, and not of every man’s natural reason”. Coke found that legal interpretation was uniquely distinct from general “natural” reasoning granted to all individuals and can be only achieved through training and education. Natural reason is “the reason of broad universal principles external to ordinary sources of law, accessible to individual rational minds, by which that law is measured”.

The idea of artificial reasoning in common law arises out of historical means rather than a means of natural law related reasoning. Common law was a result of hundreds of years of reasoned judgments by wise men, where the laws that survived were clearly the result of being beneficial and subsequently advantageous in maintaining principles of law. However, unlike natural law, the common law was based on pure pragmatic reason. The judiciary’s analysis of the cases before them, and their subsequent applications and exercise of the law was a result of a shared reason that the judiciary had together with both the present and the wisdom of the past. Individual natural reason could not match this alone, not for all the natural reason of the population combined.

It is clearly inadequate in legal practice at the time, the idea that the authority of law comes from judges who are able to reason it’s validity from their higher and artificial understanding of what law is; we can see in practice that the courts were unable to dispense the law in a manner that was in keeping with ideas of fairness. The development of it’s inadequacy resulted in the essential need of the distinct courts of equity which seems to be reflective of the fact that despite their years of education in the law, their higher understanding of the procedural aspects of law, their higher understanding of maxims and customs, a supposedly trained and disciplined judiciary capable of deliberative judgments reflective of their higher reasoning skills are still clearly getting it wrong when dispensing judgments and remedies.

Despite this problem, Coke defines the common law as “nothing else but reason” (the law of reason — lex est ratio sumna). Coke divides the sources of law as being from three distinct possibilities, i.e. the common law, the statutory law and customs. The common law for him gained its authority from natural principles of justice and reason; and so it was clearly lawyers, judges and legal writers who historically developed the principles of common law over time — it was a cumulative collection of reasoning by men who had long studied the law and its applications. The idea for Coke in establishing law’s validity through a judicial concept of reasoning is that “no man and not, no main untrained in law, ought to be wiser than the law”. For Coke the common law must be wiser than the natural reason of all men for it to gain any authority over them.

When trying to reconcile the idea of custom with artificial reason, the latter of which is seemingly out of grasp of natural reason we see a conflict between the average man wholly ignorant of the law, and the idea of a complex technical structure of maxims, legal language, rules and doctrines, as well as customs that were distinct and wholly legal in nature than what an average man would perceive to be customary. It then seems easy to understand Coke’s persuasive argument that artificial reason gives rise to the validity of common law.

This does however further beg the question that the law is then inaccessible to the common man. Most men would already be alienated from the costs of trying to get a legal remedy, but where legal remedies are obtained through a means independent of any values that the common man may hold at the time, it seems unfair for a decision reached of reasoning that they can never do to bind their actions. Where the idea of natural reason is held inferior in a legal sense, that the average man can never artificially reason the law, the common man is left alienated further in the sense that he may never be able to contest whatever judgment is passed by a judiciary, whether it’s wrong or right in the circumstances.

The judiciary are given far too much power as a result — i.e. as the judiciary can essentially invalidate statutory law where it does not coincide with the principles of customary law based upon the common law. It can be questioned whether it is a power that is deservedly given to them. Study of the law may place them in a better position to dispense the law, but it does not place them in any position superior to anyone with the same capabilities of reasoning whether they are artificial or natural. Drawing a distinction between the two, especially where the former is self-declaratory, as a basis for usurping legal powers is a brave step for Coke (especially one that was not without ramifications from King James I).

It is difficult to see how artificial reasoning can exist. Whether its debateable that reasoning is innate and either awakens or develops or arises out of natural development of the mind or the brain is irrelevant, however, the idea that to reason is like a skill has been prevalent throughout philosophical writings and jurisprudential ideas. We can infer that Coke here refers to the same phenomenon — that the human mind is capable of higher reasoning always — that his ability to reason can be developed through things like education, study etc. It seems far-fetched to say that natural reason and artificial reason are two distinct abilities (by saying that it is not every man’s reason, Coke alienates it from natural reason entirely), with the former presiding only in the minds and abilities of judges. The origin of artificial reason leaves much to be desired, with Coke referring to no more than essentially what aids it’s development (i.e. the common law).

If it can be argued that natural reason is the foundation or at least basis for artificial reason to begin its development so that the judiciary is able to then build upon that artificially, it still doesn’t account for the validity of their decisions. The authority that the judiciary has does not seem to arise from their ability to artificially reason, but in fact from something completely independent, though distantly related, of their abilities. The validity of their judgments come from their posts as judges, not their abilities to judge, though the latter may result in the former it does not provide validity in a legal sense. The power that they are able to have comes from the idea that they are judges.

With some modern theorists putting forward the idea that judges are in fact trustees of the British common law, and that common law belongs to the realm (i.e. the populous) and that would take into account a judges’ responsibility to develop their abilities of reasoning (whether artificial or natural) since the decisions that they arise at would affect the populous as a whole. They would have a responsibility in their posts to the people, rather than strictly speaking, to the law — one that Coke ignores. For Coke, the judiciary gains its powers from their commitment to the study of law (i.e. artificial reasoning), but those powers are limited in a common law sphere — that which gives the judges their ability to gain the power for judicial review only serves to limit it in that sphere. Where law becomes limited only in some aspects, it is difficult to see its universality — i.e. judges should ideally be able to take into accounts arguments independent of the law of the reasoning is sound. As mentioned previously, where the strict approach that artificial reasoning results in, the outcome of which serves a limited purpose of granting appropriate remedies for the people. Coke’s aims with artificial reasoning seem purely to prevent the monarchy from interfering with the law, which in turn results in its alienation from everyone who is not part of the law.

The idea of reconciliation of one that artificial reason in a common law capacity needs to be reconciled with common custom is difficult if the distinction between the two is drawn. It can be inferred from Cook’s writings that the common law is a technical and legally superior concrete system of law arising out of the learned and reasoned deliberations of lawyers (judges) over a long period of time. He agrees with Fortescue in the idea that the legal common law is in fact “ancient”. This would make it completely distinct from the idea of localised customs; and it would be difficult or near impossible to reconcile the two without the eradication of the validity of one.

If the “legal” common law is in fact distinct from a general common law of the realm (or even as the general common law of the realm) where the common law of the courts could however be seen as the common law of the realm (which in all technicalities it was and aimed to be — whether it achieved that goal is debateable), it is still difficult to reconcile it with the fact that it refuses to take into account local customs of the time. The idea of the courts was so that the same law would apply in fairness to everyone. It was a consolidation of all good laws prevalent in the different communities across England. However, the common law at the time of Coke’s writings became much more than that. It developed into something wholly independent of traditions and values. It went from the law of the people to the law of the lawyers. Even if it is a law that governs customs, the reconciliation lies in the fact that is superior in authority to customary law. Customary law, or the law of the people was then relegated to inferior and in some cases illegal status if it did not meet the standards of statutory and common law. The judiciary however, or more specifically, Coke’s idea of a judge would have to for all purposes ignore any reasoning outside of the law and outside of it’s artificial boundaries.

Instead of trying to result in a compromise with the law and the people, Coke presents an elite judge who’s aim is to follow the common law because that’s what the reasoning derived from the common law tells him to do. The circular nature of artificial reasoning is in fact, not so reasonable. For all their pomp and ceremony over artificial reason, Coke’s judges seem hollow in the very nature of the aims of law itself. The judges seem like actors who have memorised their lines better, and so have declared themselves to be more understanding of them.

However, we see the idea of a judiciary that is legally elite present in Dworkin’s saying that “all judges are by necessity philosophers and that no judge is a better philosopher than Hercules.”. He clearly rejects the natural law sting — the idea that law is representative of “constant and objective moral truths that exist independently of humans…and which are capable of identification through a faculty of natural reason possessed by each rational person.” For him law and morality are related (though not the same) however, the idea of legal truth (i.e. what is just) is derived through “a process of reflection that oscillates between consideration of beliefs… and a general theoretical structure that shows those beliefs to constitute unified and justifiable body of convictions”. Where there are complex bodies of rules, there must be interpretation of those practices to understand the normative beliefs so that a judge may reach a “reflective” equilibrium in his decision so that he can achieve a coherence of localised values to law — and so achieve a single theory so that all humane values are harmonised.

In a way Dworkin’s approach reflects the approach that Coke has, though Coke’s aims seem to be different. For Dworkin, the harmonious interpretation of law resides in the Herculean judges’ ability to achieve equilibrium in his decision making in the interpretation of the law and the complex ideas of the legal world. However, for Coke, although the idea of a herculean judge is similar (in that such a judge must have an ability to artificially reason to be able to dispense with law properly), he refuses to believe that any law is better or equal to the common law. The idea that an equilibrium must be reached to harmonise all law is one that is not favoured by Coke, instead he posits that the common law as a result of time and wisdom, and that the common law would consequently be better founded than any other source of law.

In attempting to explain the relationship between custom and reason, Coke although admits that there is space for conflict where the traditions of common law may clash with abstract abilities of a judge to reason, he posits that in such circumstances, the traditions would reign supreme. However, it has been noted that in his judicial opinions that Coke never “bolster(ed) his case by speculating about the reasons for common law rules”. Evidently Coke merely relied on the blind faith that his artificial reason was based on the wisdom of lawyers over time without taking into consideration that the origins of that wisdom may either be incorrect, inappropriate or possibly even taken out of context. With his refusal to rely on actual reason, it’s hard to see how artificial reason can make up the deficit left as a result.

Although actual modern judges have previously “lambasted” writers like Dworkin and Coke as unrealistic. Judges are expected by them to consider all relevant legal arguments as individuals, to know hundreds of years of legal practice, precedent, sources and reasoning and apply it to a single case simply because they have access to the legal knowledge and legal realm and doing so would as a result provide the most reasoned argument possible. It is a Herculean task that is clearly impossible for a human judge to actually, in practice come to achieve. Artificial reasoning arising from long periods of study in itself and legally humanistic ideas of reaching equilibrium through coherence to harmonise all law is almost independent on some of the presumed aims of law — that law should be applied justly. Judges are applying the law because that’s what judges do, not because that is what they should do. The idea that they are providing remedies while relying on the common shared wisdom of hundreds of years and hundreds of wise men does not leave room for actually providing efficient remedies in a manner contingent with the actual facts of the case.

However, the idea that judges could use powers of reasoning beyond the scope of the common law itself, or look beyond the law to provide legal remedies (whether it is through artificial reason or not) is an idea that extends the powers of the judges further than what Coke would have intended; and it is one that should also be avoided. Judges should be limited by the scope of the common law, their artificial reasoning should be reconciled merely with custom and nothing more for the mere fact that their powers are then as a result confined and controlled. Having an absolutist judiciary rather than an absolutist monarch is no better a situation, as both would give way to circumstances of injustice.

Furthermore when considering ideas of assent and limitation, Coke seems to have most definitely awarded the judiciary power beyond the means of their post, regardless of the fact that they are learned in the legal customs of the time. With statutory provisions (in theory) arising out of the assent of the populous, i.e. the law is what the majority of the subjects of the realm assent to, it seems almost contrary to the provisions of the rule of law to grant a small and elite non representative body power over provisions that have been assented to by the population. Who are judges to invalidate the law that people want to be governed by simply because it conflicts with the provisions, traditions, customs or even procedural aspects of an unwritten law known only to lawyers?

It can be concluded then that artificial reason is the basis for Coke’s theory in awarding the judiciary their judicial powers, and granting them an elite legal status in which they are able to dispense with assented statutory law where it conflicts with customary legal principles — an idea that is both contrary to the rule of law and one that clearly was inadequate in serving the needs of the populous (presented by the developments of equity based courts). Although he attempts to reconcile the idea of artificial reason with customs by presenting that the former is a direct result of the latter, it is difficult to see that this as a legal principle holds judicial power. Furthermore the idea of judicial artificial reason itself is a concept that is both inherently flawed and alienates law from the people that it governs. An alternative position to seeing judges as artificially reasoning without actually questioning the source of their artificial reason, having judges as trustees of the common law and using abstract reasoning (i.e. natural reasoning) alongside artificial reasoning would provide the best formula for them to dispense with their judgments in a fashion keeping in with both the wisdom of the common law and the reasoned judgments that the populous so desires.

BIBLIOGRAPHY

Books

Sir Edward Coke, The selected writing and speeches of Sir Edward Coke, Vol.1, Edited by Steve Sheppard, Liberty Fund, Indianapolis, Vol. 1

Sir Edward Coke, Institutes of the Laws of England I, J.H. Thomas, ed, 1986

Allen D. Boyer, Sir Edward Coke and the Elizabethan Age, Stanford University Press, 2003

K. Tuori, Ratios and Voluntas: The Tension Between Reason and Will in Law, Ashgate Publishing, 2011

Alan Cromartie, Sir Mathew Hale, 1609–1676: Law, Religion and Natural Philosophy, Cambridge University Press, 1995 (Page 13)

John Dodderidge, The Lawyer’s Light, London, 1629=

Gary L. McDowell, Equity and the Constitution: the Supreme Court, Equitable Relief and Public Policy, University of Chicago Press 1982

A.J. Sebok, Legal Positivism in American Jurisprudence, Cambridge University Press, 1998

C.J. Friedrich, Rational Decision, Aldine Transaction 2007

D.E.Edlin, Judges and Unjust Laws: Common Law Constitutionalism and the Foundations of Judicial Review, University of Michigan Press 2008

S. Sheppard, G.P. Fletcher, American Law in a Global Context: The Basics, Oxford University Press, 2005

Articles

Allen D. Boyer, Understanding, Authority, and Will: Sir Edward Coke and the Elizabethan origins of Judicial Review, Boston Law Review 39, 1997

J. E. Bickenbach, The Artificial Reason of the Law, Queen’s University, 1990

Harold J. Cook, Against Common Right and Reason: The College of Physicians Versus Dr. Thomas Bonham, 29 Am. J. Legal Hist. 301 1985

Gerald Postema, Common Law Jurisprudence (Part 1), Oxford University Commonwealth Law Journal, Vol. 2 No.2

M. D. Walters, Legal Humanism and Law-as-integrity, Cambridge Law Journal 67(2), 2008

Richard A. Posner, The Role of the Judge in the Twenty-First Century, 86 B.U.L Rev. 1049, 2006

Sarah M Cravens, Judges as Trustees: A Duty to Account and an Opportunity for Virtue, 62 WASH. & LEE L. REV. 1637, 2005

Jason S. Crye, Ancient Constitutionalism: Sir Edward Coke’s Contribution to the Anglo-American Legal Tradition, The Journal Jurisprudence 235, 2009

Cases

Thomas Bonham v College of Physicians, 8 Co. Rep. 114, 1610

The Prohibitions del Roy, 12 Co. Rep. 63, 1607