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02/02/2018

New Book: Selected Jurisprudential Writings of Matthew Hale
Michael Ramsey

Recently published: Matthew Hale: On the Law of Nature, Reason, and Common Law: Selected Jurisprudential Writings (Gerald Postema, editor) (Oxford Univ. Press 2018).  Here is the book description from Amazon: 

Lawyer, judge, public figure, historian, theologian, and amateur natural philosopher, Sir Matthew Hale worked and wrote in the middle decades of the seventeenth century, perhaps the most turbulent period of English political history. His reflections on reason, law, and political authority, unpublished in his lifetime, are collected in this volume. It sets Hale's previously unpublished Treatise on the Nature of Laws in General and touching the Law of Nature and his "Reflections on Mr Hobbes his Dialogue of the Laws" in context of other key works of legal and constitutional theory. The Treatise reveals a complex general understanding of law and of moral and legal reasoning. "Reflections" brings these general considerations to bear on English law, in his critical response to Hobbes's all-out attack on common-law jurisprudence. "Reflections" suggests a conception of judicial reasoning, and a view of political authority, that deepens the view Hale defends in the longer and more systematic work. His views on practical reasoning are elaborated and related explicitly to the discipline of law in his "Preface to Rolle's Abridgement" and in parts of his History of the Common Law. In the Treatise, Hale argues that human law is necessarily instituted in the practices and customs of specific communities, manifesting their consent; this view is enriched and deepened in the History and "Considerations touching Amendment of the Law". His views on the foundations of political authority, sounded in the Treatise, are argued at length in Prerogatives of the King and "Reflections". "Reflections" argues for necessary legal limits of ruling power and Prerogatives offers a systematic discussion of the nature and limits of political authority. Taken together, these writings offer a rich and subtle articulation of a classical common-law understanding of law, reason and authority. Gerald J. Postema present these seminal writings in a modernized text for readers from philosophy, law, political theory, or intellectual history. He contributes an extended introduction setting out the theoretical and historical context of the works.

Hale is a great source for understanding English legal tradition prior to the American founding.  From an originalist perspective, a question is whether he is a good source for understanding the Constitution (to the extent the Constitution drew on English legal tradition).  As I noted in my survey of Justice Scalia's methodology (p. 112-14 of the SSRN version), Scalia relied on Hale in a number of cases (see p. 113 fn. 53).  He did not fully explain that reliance.  Here are my brief thoughts (footnotes omitted, emphasis added): 

In Scalia’s assessment of the English law background, Blackstone’s Commentaries played a prominent though not exclusive role. Most of his opinions based on English legal tradition cite Blackstone as a principal or exclusive source. Scalia did not express reservations about Blackstone’s accuracy, and as noted above he regarded the Commentaries as the leading source of knowledge about English law in founding-era America. He also regularly cited the prominent English legal writers Edward Coke and Matthew Hale, plus a scattering of others, as well as sometimes-extensive discussions of English caselaw. Scalia also referred to later historians’ descriptions of pre-framing English practices—although he seemed to rely as much (or more) on historians from the nineteenth and early twentieth centuries as from modern time.

It is not entirely clear why Scalia thought these sources were probative. As to some of them—especially Blackstone and Coke—he emphasized that they were well known in founding-era America. That is not a complete explanation even in itself, as they were probably well known only to legal and political elites. If Scalia sought the meaning to a reasonable person of the time, he must have envisioned a reasonable person with legal knowledge, or at least with a person with inclination and ability to consult readily available legal sources. Moreover, it is doubtful (or at least not demonstrated in Scalia’s opinions) that some of the sources he used were well known in founding-era America. He may have thought that founding-era Americans were familiar with the principles of English law the sources reflected, even if not with the sources themselves; or perhaps he thought that reasonable interpreters would seek out even less familiar sources if a question arose.

Of course, as noted Scalia was not unusual in relying on Blackstone and other evidence of the framers’ English legal background. His reliance is notable in a self-described textualist, however, as it assumes a linguistic and conceptual continuity between the framing and the English law background (something not obvious in a revolutionary context). Coming from a proponent of following the Constitution’s original public meaning, Scalia’s approach illustrates a close association between his version of original meaning and history (in contrast to a more purely textual approach).