Clark on The Knowledge of the Law Is Like a Deep Well: Coke and Bonham's Case in Context

David Clark, Emeritus Professor of Law, Flinders University, has published The Knowledge of the Law is like a Deep Well: Coke and Bonham's Case in Context. Here is the abstract.

The paper takes a private act approach to the case as it was based on a private act of parliament and shows how the legal and linguistic concepts of early seventeenth century England explain the case. The paper critiques prior scholarship for not noting this key distinction and argues that the cases and statutes cited in the case make sense because private acts were treated as on a par with conveyances, grants and other private legal instruments, and as such could be held void in the sense that the act was applicable in the circumstances of the case.

Download the article from SSRN at the link.

Grajzl and Murrell on Estimating a Culture: Bacon, Coke, and Seventeenth-Century England

Peter Grajzl, Washington and Lee University Department of Economics; CESifo, and Peter Murrell, University of Maryland Department of Economics, have published Estimating a Culture: Bacon, Coke, and Seventeenth-Century England. Here is the abstract.

We use machine learning to estimate the features of early seventeenth-century English culture, applying structural topic modeling to the works of Francis Bacon and Edward Coke. The estimated topics reflect a core set of cultural ideas spanning legal, political, scientific, and methodological themes. Legal topics are highly connected, revealing an advanced structure of common-law thought that straddles areas of ostensibly disparate legal scholarship. The methodology of the common law is used to structure principles that are applied to debates both inside and outside law. Interconnections between topics uncover a distinctive approach to the pursuit of knowledge, embodying both Coke's legal methodology and Bacon's epistemology. Similarities between Bacon and Coke overshadow differences when conditioning on intended audience and time of authorship. Our estimated topics are constitutive elements of an emerging culture that reflected a legacy of common-law thought and that provided the core intellectual paradigm as England began its early ascent.

Download the article from SSRN at the link.

Goodrich on Islands, Pirates, Sovereignty, and Jurisdiction @CardozoLaw

Peter Goodrich, Cardozo School of Law, has published Mos Piraticus: On the Haunting and Infesting of the Seas, at 29 Law & Literature 193 (2017). Here is the abstract.

The island and the pirate raise the question of jurisdiction. The pirate haunts the seas, meaning that the pirate reminds the commonwealth of its past and of its others, the common ownership and shared possession of all things that Erasmus and then John Selden translate into the common inheritance of a shared knowledge. The adages and exempla of the humanists mix and mingle with the maxims and regulae of an inherited law whose hieroglyph is not, as Sir Edward Coke argues, the Crown, but rather the double D of the Decretals and the Digest.

The full text is available online by subscription.

Jones @bchristophjones and Sarat @ljstprof on Justices as "Sacred Symbols": Antonin Scalia and the Cultural Life of the Law

Brian Christopher Jones, Liverpool Hope University, and Austin Sarat, Amherst College, are publishing Justices As 'Sacred Symbols': Antonin Scalia and the Cultural Life of the Law in the British Journal of American Legal Studies (2017). Here is the abstract.

The idea of the brilliant and elegant philosopher judge has a long and romanticized history. From Sir Edward Coke, William Blackstone and Joseph Story to Oliver Wendell Holmes, Louis Brandeis and Lord Bingham, the common law is replete with this vision of judging. In this vision, judges sometimes seem to be law makers as much as faithful it interpreters. In many ways Antonin Scalia fought against this traditional vision of the philosopher judge. He disliked activist judges who imposed their idea of wisdom on elected legislatures; in fact, he trumpeted his jurisprudence for its fidelity to law and deference to the popular will. But even though Scalia fought against the romantic vision of philosopher judge, he himself became a living symbol of a judicial philosophy, a symbol so powerful that sometimes it was difficult to disentangle the judge from his jurisprudence. His status as a symbol and how he achieved his status, was much different from the route of the judges mentioned above. This paper attempts to explain how Scalia became what we call a judicial “sacred symbol”.

Download the article from SSRN at the link. 

Stern @ArsScripta on Coke's Institutes and the Epistemology of the String Cite

Simon Stern, University of Toronto Faculty of Law, has published Margins of Authority: Coke's Institutes and the Epistemology of the String Cite. Here is the abstract.

Precedential authority has an important place in doctrinal explication and analysis in Anglo-American law. Efforts to manage these precedents visually, in the sixteenth- and seventeenth-century England, display a variety of solutions to the question of where precedents belong and how to represent them. Sir Edward Coke’s approach, in his Institutes (1628-44), was to place the citations in the margin; this way of managing textual authority connected legal concepts in a way that lent new significance to the citations. The discussion examines this development by considering it in relation to the introduction of perspective in visual art, in the early fifteenth century, and the use of infinitesimals in the new mathematics of the early seventeenth century.

Download the article from SSRN at the link.

Bilder on Charter Constitutionalism, Edward Coke, and the Virginia Charter

Mary Sarah Bilder, Boston College School of Law, is publishing Charter Constitutionalism: The Myth of Edward Coke and the Virginia Charter in volume 94 of the North Carolina Law Review. Here is the abstract.

Magna Carta’s connection to the American constitutional tradition has been traced to Edward Coke’s insertion of English liberties in the 1606 Virginia Charter. This account curiously turns out to be unsupported by direct evidence. This Article recounts an alternative history of the origins of English liberties in American constitutionalism. A quarter century before the Virginia charter, provisions assuring liberties to English children born overseas were inserted in the earliest letters patent. These provisions drew on an older practice extending liberties to children born overseas. Because of these provisions, persons born in the colonies were guaranteed the same liberties as those born in England. This explanation suggests new appreciation for the interpretive flexibility of early written constitutionalism. As the liberties provisions reveal, words described the underlying concept but were not used to fix a precise definition. Thus, various words could be altered over time to ensure that the concept adapted to contemporary political and legal issues. Throughout, however, the assurance remained that those born in the colonies possessed English liberties. This Article calls this genre of early written constitutionalism “charter constitutionalism” to emphasize this elastic interpretive practice. Charter constitutionalism deserves recognition as a founding strand of American constitutionalism.

Download the article from SSRN at the link.

The Origins of Coke's Common Law Thinking

Ian Williams, Faculty of Laws, University College London, has published The Tudor Genesis of Edward Coke's Immemorial Common Law at 43 Sixteenth Century Journal 103 (2012). Here is the abstract.

Edward Coke is well-known for his unhistorical approach to the common law and the ensuing myth of the ancient constitution. He is often taken as representative of common lawyers, an important group in the intellectual life of early-modern England. This article seeks to investigate Coke’s views on legal history, expanding upon Pocock’s seminal work in the field by demonstrating that Coke’s historical views were not a Jacobean development or a response to external circumstances. His views had been held, and propagated, since the early stages of his career as a lawyer and were shared by other lawyers. The article uses evidence of Coke’s reading of law books to demonstrate Coke’s historical method, showing how and why he reached unhistorical conclusions about the antiquity of the common law, and why Coke believed those conclusions to be factually accurate. Coke’s method was ahistorical, but used an approach to the understanding of texts which was widespread in early-modern England. The article also shows that Coke’s approach to historical sources can also be seen in the work of other lawyers.

Download the article from SSRN at the link.