In the second half of the twentieth century, it became the accepted wisdom in the law schools and, eventually, in law firms and on the bench that judges made law. It was impossible to observe the work of the Warren and Burger Courts, as well as the activity of many state supreme courts, and not conclude that Oliver Wendell Holmes, Jr. got it right when he said the judicial role was essentially legislative in nature. Holmes, and the school of “legal realism” that he profoundly influenced, now have an almost unshakeable hold on the minds and hearts of law professors and legal historians. For these moderns, the idea that there might be an objective “rule of law,” an authoritative set of principles existing apart from the politics or economics of the moment, which neutrally could dictate the outcome of court cases and simultaneously protect the liberty of citizens, simply makes no sense.
Worse, the contagion of this positivist view of law has spread to such an extent that legal and constitutional historians, when they examine the work of courts, legislatures, and executives of earlier eras, blithely assume that any invocations of the “rule of law” by those living, say, in the sixteenth through nineteenth centuries, were simply a means of disguising the social or political goals they sought to achieve by couching them in purportedly neutral and traditional legal language.
In this delightful and quixotic little book (less than 100 pages of text), John Reid sets out to turn the conventional wisdom on its head and suggest that these ancients, at least, really did mean what they said, and that the “rule of law,” for hundreds of years, was correctly believed to be a bulwark to liberty. Reid is now regarded as the dean of practicing legal historians, and his multi-volume Constitutional History of the American Revolution, although widely unread, is still understood to be the most thoughtful and deep exposition of the manner in which the taught English legal tradition (of which the concept of the “rule of law” was an integral part) influenced and informed the American colonists’ break with Great Britain.
For decades Reid has been conducting a rear-guard action against the dominant historiography on the American Revolution, whether that dominant historiography stressed social, economic, or ideological explanations. For Reid, the Revolution was fought against novel English encroachments on what the colonists believed to be their ancient unwritten constitution, their rights to liberty free of governmental interference guaranteed, they believed, by the English Common law, as expounded by the great seventeenth-century common law jurists such as Sir Edward Coke and Sir Matthew Hale.
It is Reid’s aim in this book to show that those who conceived of the American Revolution as Englishmen fighting Englishmen for the rights of Englishmen were in a long line of “rule of law” theorists, including not just Coke and Hale (and their thirteenth-century predecessor Bracton), but also such unlikely actors as Charles I (the hapless monarch beheaded in the English Civil War), and those who sought to persuade Oliver Cromwell, who ruled over England as Lord Protector, to accept the title of King.
It was said of Edmund Burke (who, I suspect, is one of Reid’s heroes because of his belief in the “rule of law”) that the only fair sample of his writing was everything he wrote, and the same might be said of Reid’s opus. Still, those acquiring this volume will catch a tantalizing glimpse of the power of Reid’s exposition of the English common law and will gain some insight into why one might actually come to believe that a world in which judges were not legislators was a better world than ours. One might quibble with some parts of Reid’s analysis—I think he slights a bit too much the religious influence on the great titans of the common law, the knowledge of which would also be a corrective to current emphasis on the arbitrariness of judges—but in our degraded age, in which our senators are battling over “judicial ideology,” even a modest effort from Reid like this one is to be cherished and recommended to anyone who really cares about the law.
By John Phillip Reid