Conclusion: Law and the
State in History
The combatantsin the ideological battles of the early seventeenth
century shared the assumption that states and laws came into existence
together. In the new edition of Fortescue’s De Laudibus Legum Anglie
which he prepared in 1616, John Selden ridiculed Coke’s assertion of
the unrivalled antiquity and consequent excellence of English law. The
answer to the ‘trivial demand, When and how began your common
laws?’, Selden wrote, was ‘when and in like kind as the laws of all other
States, that is, When there was first a State in that land, which the
common law now governs: then were natural laws limited for the con-
veniency of civil society here, and these limitations have been from
thence, increased, altered, interpreted, and brought to what they are;
although perhaps... they are not otherwise than the ship, that by often
mending had no piece of the first materials... which yet (by the Civil
law) is to be accounted the same still.’^1
Selden’s State appears to be a civil society which is at least con-
ceptually prior to the laws governing it: this book has presented it rather
as the laws and legal institutions themselves, which were the things first
perceived as having an ordered state. The word ‘state’ has been found
in common use in the middle ages to mean both legal order in a country
and the position of individuals or ‘estates’ of people within that order,
and ‘the state of the king and the kingdom’ has appeared as the formula
translating a legal into a political relationship. The concept of the state
was not the bloodless abstraction of philosophers standing apart from
affairs and judging constitutions with hindsight, but the working idea of
rulers and administrators coping with the realities of the present: an
idea of the condition of the kingdom that needed ‘reform for the better’
in order to survive times of war and social upheaval. Laws were under-
stood to be ‘the life of the body politic’, as the king was the head and
the subjects the trunk—the ever-changing life of a body which (in the
terms of Selden’s metaphor) remained the same organism though every
(^1) Sir John Fortescue, De Laudibus Legum Angliae, ed. and tr. S. B. Chrimes (Cambridge
UP, 1942), 15–18; cf. J. W. Tubbs, The Common Law Mind: Medieval and Modern
Conceptions(Baltimore and London: Johns Hopkins UP, 2000), 141–7.