![handle is hein.journals/oxuclwj3 and id is 1 raw text is: 0Oford Cnliversiy Commoinwealth Lat Journal
ARTICLES
CLASSICAL COMMON LAW JURISPRUDENCE (PART II)
GERALD J POSTEMA*
'Ahen it is said that law represents the rule of reason, it is appropriate to ask what kind
of reason is meant. I
Custom and reason, we learned in part I of this article, were the organizing con-
cepts of the classical understanding of common law, and because they were cen-
tral, they were also much contested. We also learned that these notions were
regarded as interdependent: custom was always subject to the test of reason, but
reason was embodied in the common practices of law. One especially important
understanding of the interdependence of these notions emerged at the end of our
discussion in part I. The reason of the law, it was said, was the 'artificial reason' of
the trained common lawyer. Lon Fuller, one of the most important champions of
common law jurisprudence in the 20th century, advised us in the epigraph above
to take a close look at any claim to associate law with the rule of reason, however
ancient or venerable it is. The task of part II of the article is to explore 1 7th cen-
tury views of the nature of this 'artificial reason' and more generally its account of
the normative foundations of common law.
A ARTIFICIAL REASON
[H] is Majesty was not learned in the laws of his realm of England, and causes which con-
cern the life, or inheritance, or goods, or fortunes of his subjects, are not to be decided by
natural reason, but by the artificial reason and judgment of law ...2
Coke famously wrote, 'the common law itself is nothing else but reason', but
rushed to add that by this he meant 'an artificial perfection of reason gotten by
long study, observation, and experience, and not of every man's natural
Cary C Boshamer Professor of Philosophy and Professor of Law, University of North Carolia at
Chapel Hill.
L Ftiller At/atomy of Lau (Greenwood Press W\estport 1968 )5.
2 Proibitioms del Roy (1607) in E Coke The Reports of Sir Edward Coke, i Thirteen Parts J Moore Dublin
1793) 12th Report 63, 65. Note, I have altered the spellng and capitalization ni quotatious firom 17th
cem ltury works to con I orm to moder standards. In \\hat Illows I will continue to do so silently unless
there is risk of altering or obscurng the meanng of the quotation.
SUMMER 200,3](ViewImageLocal?handle=hein.journals/oxuclwj3&div=1&collection=&method=preview&ext=.png&size=3)
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