This Day in Philosophy — 3 September: the judge who bound the king to law, and the general who beheaded him

The founding question of modern political philosophy can be put in a single sentence:

What binds the sovereign?

Two Englishmen who died on 3 September answered it from opposite ends.

The lawyer, judge and politician Sir Edward Coke died on 3 September 1634. On 3 September 1658 died Oliver Cromwell, who had the king executed and governed the country himself under the title of Lord Protector.

Twenty-four years lie between them. In those twenty-four years England killed a king, founded a republic and lost that republic.

Coke: the king is under the law#

Edward Coke (1552-1634) had a career spanning three reigns: Elizabeth I, James I and Charles I.

His philosophical importance gathers around a single thesis: the king is not the maker of the law but its subject.

The thesis was not Coke's invention. He revived the formula of the thirteenth-century jurist Henry de Bracton:

Quod rex non debet esse sub homine, sed sub Deo et lege — "The king ought not to be under man, but under God and the law."

Coke took that formula and placed it at the centre of seventeenth-century politics.

1607: the King's Prohibitions#

James I wanted to decide personally a land dispute in which the Archbishop of Canterbury was a party. The king took the view that, as a man possessed of reason, he held the power to judge.

Coke's reply — the episode known as Prohibitions del Roy — is one of the boldest scenes in legal history. Coke said the king could not decide cases himself, because the law is a reason of its own kind, and that reason can be acquired only through long study and experience.

The subtlety lies here: Coke does not say the king is without reason. He says the reason of the law is a different kind of reason from natural reason. This is the classic defence of the autonomy of law.

1610: Dr Bonham's Case#

Coke's philosophically most contested decision.

In the reasons for his judgment as Chief Justice of the Common Pleas he wrote: "in many cases, the common law will controul Acts of Parliament."

That is: a statute contrary to the fundamental principles of law may be held void.

The sentence was invoked in later centuries as the source of the idea of judicial review — particularly in American constitutional law. Exactly what Coke meant by it is still argued over; his influence is not.

1628: the Petition of Right#

Coke's last great act was to lead the drafting of the Petition of Right in Parliament. The document set out to stop Charles I raising forced loans to finance war; it also contained protections against arbitrary arrest.

When Coke died, the tension between king and Parliament was at breaking point.

Cromwell: killing the king was not enough#

Civil war began eight years later. In 1649 Charles I was executed — an unprecedented event in European history, a king tried and put to death by his own courts.

Oliver Cromwell was the war's victor and the founder of the new order. But the order he built did not last: he died on 3 September 1658, his son Richard succeeded him, and within two years the monarchy returned.

Cromwell was not a philosopher. But his death was a test of Coke's thesis in political philosophy.

The question was this: if putting the king under the law requires killing him, what law remains?

Hobbes's answer#

The most famous answer to that question was written in exactly those years.

Thomas Hobbes published Leviathan in 1651 — at the beginning of Cromwell's rule. His thesis was the exact opposite of Coke's: the source of law is the sovereign; there is no law that binds the sovereign, because there is no higher authority to bind him. To attempt to limit the sovereign is to return to civil war.

Hobbes took up the argument directly years later in another book: Behemoth, a dialogue inquiring into the causes of the English Civil War. Its title carries the monster of disorder — the opposite of Leviathan.

And Franz Neumann's Behemoth of 1942, which we took up in this column yesterday, chose the same title three hundred years later for the same reason: there was no state.

Two theses, still open#

The distinction between Coke and Hobbes is the core of present constitutional argument.

Coke's line: law precedes political will and limits it. Constitutional courts, judicial review and the concept of the rule of law follow from it.

Hobbes's line: law is the product of political will. To limit the sovereign is only to move sovereignty somewhere else — and then the question returns: what binds that?

The second objection is powerful and has no easy answer. Coke's strength and his weakness lay in the same place: English lawyers defending their rights appealed not to a philosophical principle but to a historical claim — these rights are ancient.

To say "it is ancient" is a different language from "it is natural", and it produces different consequences. A defence of rights that rests on tradition is defenceless where the tradition is cut.

The return of the monarchy after Cromwell's death is the proof of that weakness. That Coke's sentence is still quoted four hundred years later is the proof of its strength.

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Each day in this column we take up an event from the history of philosophy that falls on today's date.

Note: Edward Coke lived before photography, so the cover image is a contemporary portrait.