May 02, 2012

A favourite quotation

I was chatting to a friend this weekend about the origins of human rights- and dragged up this quotation from Sir Edward Coke, its one of my favourite quotations- and I thought it worth posting up.

We are but of yesterday (and therefore had need of the wisdom of those that were before us) and had been ignorant (if we had not received light and knowledge from our forefathers) and our daies upon the earth are but as a shadow in respect of the old ancient dayes and times past, wherein the laws have been by the wisdom of the most excellent men in many succession of ages, by long and continuall experience (the triall of light and truth), fined and refined, which no one man (being of so short a time) albeit he had in his head the wisdom of all the men in the world, in any one age could have effected or attained unto. And therefore it is optima regula, qua nulla est verior aut firmior in jure, Neminem oportet esse sapientiorem legibus: no man ought to take it upon himself to be wiser than the laws.
Coke said this in Calvin's case- a case about whether a Scot could claim rights under English law. The quotation though really isn't about the case itself- as much as it is about the principle of what is a law. It sits with some of the things that we have seen recently in Oakeshott- though I suspect Oakeshott did not derive his thinking from Coke's. Coke believed law was formed by tradition however there is a tension in his thought: notice his principles of fining and refining and the contrast between that and the resolution against change. Coke is in favour both of change and against it: the quotation incorporates a contradiction. 

The contradiction, I think, is not as important as one might think. Coke stated this during a case- it was a legal opinion rather than a philosophical argument. Coke was not writing a course in formal logic- rather he was writing a sentiment. His phrase was an argument within a political and legal realm: to make that argument the emotion is key, and Coke gets that emotion in his writing. It may not be great philosophy but the reason the phrase is requoted is that its both good politics and good law.


Indy said...

Culturally, Lynn Hunt makes a good case in "Inventing Human Rights" that emotion is where human rights begins, because it's correlated with the rise of the epistolary novel and a whole raft of changes in society that indicate much more empathy overall.