Antonin Scalia’s Originalism and the Rhetoric of Judicial Office in Early Modern England

by guest contributor David Kearns

Since his death on 13 February 2016, much has been written on Antonin Scalia’s legacy as a Supreme Court justice. A significant strand within this literature has focused on Scalia’s enduring fascination—both in his judgments and in his statements outside the court—with the relationship between law and morality. Scalia famously remarked that lawyers were “not moral philosophers“; and that judges were not tasked with determining what rights should exist, but rather with what rights exist according to accurate Constitutional interpretation, a doctrine he described as “originalism.” A judge reasoning not through such interpretation but rather through the application of moral philosophy was, in Scalia’s words, a “charlatan.”

Commentators interested in this aspect of Scalia’s work have alleged that this supposed amorality was either a cover for actual immorality—his discussions of homosexuality, in one account, “reflect ugly, stubborn, unevolved beliefs”—or in fact was itself immoral. For Laurence H. Tribe, Scalia’s dedication to originalism precluded him from embracing the “just and inclusive society” that laws “should be interpreted to advance.”

This essay will focus on this latter response, and will show that Scalia’s rhetoric about the importance of accurate interpretation and application of existing law over moral concerns is a modern contribution to a judicial rhetoric that emerged in late seventeenth-century England in response to the British Civil Wars. In particular, it will explicate how Sir Matthew Hale—King’s Bench Chief Justice from 1671 to 1675—justified an amoral legal system rooted in accurate interpretation and application of past law as the only means to protect England against future civil conflict.

Hale was born in 1609, and after briefly attempting to join the priesthood, took up a career in law. He studied at Lincoln’s Inn before working as a barrister, and was appointed to judicial office under Oliver Cromwell, as Chief Justice of the Court of Common Pleas. Under the restored monarchy of Charles II, Hale served as Chief Baron of the Exchequer from 1660 to 1671, and as Chief Justice of King’s Bench—the highest common law court—from 1671 to his retirement in 1675. As well as his work as a judge, Hale wrote extensively on the common law, though published little in his lifetime.

In these works, Hale articulated his understanding of the common law and the role of the judges working in it. In his History of the Common Law in England, written in the 1670s, Hale explained that the common law consisted of the lex non scripta, the laws which existed from “before Time of Memory”: a legal term referring to the period before 1189, even if such laws still existed in written form (Hale, History, 3-4). The laws that made up the lex non scripta had three different origins: customs, practices of governance that survived “from Age to Age”; statutes; and previous judicial decisions, not laws as such but precedents which could aid in interpretation (44-5). Judges were bound to dispense judgments in line with these laws and with the lex scripta, statutes made post-1189 (166).

Hale expanded on this in his manuscript Reflections by the L[o]rd. Chiefe Justice Hale on Mr. Hobbes his Dialogue of the Lawe, written roughly simultaneous to his History. Hobbes’s A Dialogue between a Philosopher and a Student of the Common Laws of England comprised a lengthy attack on common lawyers: particularly Edward Coke, King’s Bench Chief Justice from 1613 to 1616 and one of Hale’s mentors. In the initial exchange between the Philosopher and Lawyer, Hobbes’s Lawyer claimed that, according to Coke, common law judges possessed a form of legal reason distinct from men’s natural reason. This was the “Summa Ratio“—the highest reason—an artificial form of reason constituted through “many successions of Ages,” through which it had been steadily refined by common lawyers (Hobbes, Dialogue, 9, 18).

Hobbes’s Philosopher rejected this argument, insisting instead that lawyers and judges possess no special form of reason, as “all Men… when they have applied their Reason to the Laws… may be as fit for, and capable of Judicature as Sir Edward Coke himself” (18). Judges should not rely on earlier judgments, as these were often contradictory (55). Instead, the king’s judgment, as expressed particularly in statute, should ground judicial work. Furthermore, the Philosopher asserted, the laws that constituted the common law had been made by kings—kings were “Legislator both of Statute-Law, and of Common-Law”—and it was thus the reason of these kings that guided the law (26).

Writing against this, Hale contested Hobbes’s conception of legal reason, arguing that those trained in the common law possessed a form of reason specialized to their discipline. By applying their natural “Facultie of Reason” to the law through “readeing, Study and observation,” men “habituated” their “reasonable facultie” to the law, preparing them to serve as lawyer or judge (Hale, Reflections, 287-8, 292). No natural nor royal reason could thus adequately perform the duties of a judge, which involved interpreting the breadth of existing law—the lex non scripta and lex scripta—and accurately applying it to the present case.

Hale went on to extol the virtue of this method against those who would seek to root law in moral philosophy, deploying a vocabulary very similar to that later used by Scalia. Judges attempting to adjudicate through reference to “Casuists, Schoolmen, Morall Philosophers, and Treatises touching Moralls in the Theory” are “Co[m]monly the worst Judges” (289). Moreover, the accurate application of existing law was preferable to the deployment of any personally formulated legal principle “tho’ I am better acquainted w[i]th the reasonableness of my own theory” (291). Hale acknowledged that this process of interpreting and applying past law without concern for moral questions may indeed result in “some mischief,” but that “more must Suffer by the inconvenience of an Arbitrary and uncertaine law” resulting from a resort to moral theory.

The preservation of peace over legal innovation was particularly pertinent for Hale given his context. Hale had lived through the British Civil Wars and the Interregnum period following Charles I’s execution in 1649. He had witnessed the instability and violence of this period, as well as the threats to the common law that arose in the monarchy’s absence. Hale had chaired Cromwell’s Hale Commission, charged with developing law reforms, none of which were ultimately accepted by Cromwell’s government. As Commission chair, Hale was brought into contact with an array of opponents of the common law, including those who proposed dismantling the common law in favor of a scripture-based legal system (such as Hugh Peters in his Good Work for a Good Magistrate).

Writing in his History after the Civil Wars and Interregnum, Hale described this period as characterized by “Errors, Distemppers or Iniquities,” and claimed that it was only the common law that had “wasted and wrought out those distempers” (History, 30). Hale’s certainty that the common law protected the English state and that threats to his judicial method constituted threats to the state is palpable throughout his Reflections, as he warned of the “Instability, uncertantie, and varietie” threatened by a law grounded in moral theory. Such a grounding would risk “the happiness and Peace of the Kingdome”; it was instead preferable that judges apply “a Lawe by w[hi]ch a Kingdome hath been happily governed four or five hundr[e]d yeares” (Reflections, 291). For Hale, then, the amoral process of accurately interpreting and applying past law was to be preferred to any attempt to reconcile law with moral theory, which he saw as threatening to plunge England back into a state of violence.

Hale’s theories of law have remained central to modern jurisprudence on both sides of the Atlantic. As well as being cited heavily by William Blackstone, who himself remains regularly cited in modern law (see, for example, Lord Fraser’s citation of Blackstone in the immensely influential Gillick v West Norlk and Wisbech AHA), Hale’s judgments have been cited as precedent as recently as 1991, where his 1675 conviction of John Taylor for claiming that Christ was a “whore-master” and “bastard” formed part of the basis of Salman Rushdie’s acquittal for blasphemous libel (R v Chief Metropolitan Stipendiary Magistrate). This early modern English jurisprudence has also had a continuing influence on American law. This appraisal of Hale’s treatment of the law-morality relationship thus ought to give us pause in our criticism of Scalia. Whether Scalia lived up to his own challenge to accurately apply existing law, and whether such a practice continues to constitute a valid judicial method given its now-remote origins, remain questions for current legal commentators. We cannot, though, simply dismiss Scalia’s concern with the primacy of precedent as a personal moral failing, but must contend with it as a contemporary engagement with an enduring and powerfully justified tradition within the law.

David Kearns is a PhD candidate at the University of Sydney. His research focuses on English common law from 1660 to 1688, and in particular, the relationship between the common law and religious thought.

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