Berman, Harold J. Law and Revolution II: The Impact of the Protestant Reformations on the Western Legal Tradition. (Cambridge, Massachusettes: Belknap Press/Harvard University Press, 2003)

The story of the English Revolution is a story of the development of parliament and the struggle for power between Monarch and Parliament, Parliament and Monarch. From absolute monarchy to constitutional monarchy, the evolution of political and legal organization was determined by the power struggles of England’s rulership and the constant back and forth between politically-sanctioned Catholicism and politically-sanctioned Protestantism, in all their various forms. At one point in the history both ends of the spectrum were given sanction, including anglo-catholics and conforming puritans. The two groups left out however were the extreme branches, Non-Conforming Puritans and hyper Roman Catholics.

Prior to 1640 and the Cromwellian insurgency Mother England was governed by an absolute monarchy. By 1689 not only had a party system emerged with major forms of power, but Parliament (with a capital P) was the defacto head of the Church of England). In the judiciary circuit, in 1640 judges were appointed and served at the will of the monarch and exercised justice as was proportionate to the whims of the King. By 1689 justices were given independence of the crown, and the common law court system was made supreme over all other courts, (including the powerful prerogative courts established by the Tudor monarchs) and common law itself became the constitutional law of England. Jury and judge became separate and independent of one another, witness and evidence systems were established, and the doctrine of precedent was given its modern meaning.

In response to the growing popularity of natural reason as the foundation of jurisprudence, King James I and Jean Bodin argue that “through law the ruler keeps order in society just as through law God keeps order in nature. Reason, in King James’ philosophy is not immanent in nature and in society, as it was believed to be by most scholastic theologians and philosophers ever since Saint Anselm and Abelard.” (235) In any state of nature, James argued, headship is necessary and the most similar form to that of the nature of God this can take is in the form of kingship. This authority bears out on society patterned after that of Christ to the Church, and soul to the body. “Kingship in [James] theory, is the soul of the body politic.” (235)

Jean Bodin’s major polemic work targeted the French Heugenot conception of divided sovereignty. However, Bodin was not in total opposition to the possibility of an aristocratic order. He merely argued instead that monarchy was far preferable. Francis Bacon made similar claims across the chanel in King James’ court, and argued that as nature requires and produces government, thus “government requires and produces law.” Anything other than absolute monarchy, Bacon claimed, “were apt to dissolve.”As god’s representative to earthly rule, kings are required by God to fulfill the divine commandment to “maintain justice in their kingdoms and to observe the principles of natural law, that is, the principles of reason and conscience.”

Jean Gerson wrote that “all law, including English law has its ultimate sources in the natural law of reason, the eternal law of God, general customs, and general legal principles.” 232

Does Gerson place too much emphasis on reason for the derivation of law?

Hooker asserts that law “is founded in will and politics and in the corruption of human nature, which requires, for the sake of sociability itself, submission to the commands of a political authority. Government is the result of man’s natural inclination to sociability; all particular forms of government, however are the result of man’s express or tacit consent to submit to those particular forms…” 233

If government is the natural result of man’s sociability, and if man had sociability before the fall, would hooker argue that government is prelapsarian?

Does the shift towards Constitutional Monarchy indicate changes in social mores?

Coke did not deny the validity of King Jame’s version of natural law theory…was he right then to shift English common law and define it in historical terms?