[MUSIC] What was Cook's role in the development of English constitutional thinking? >> The traditional understanding of the English Constitution had been that the king had two sorts of duties. One was a duty to do justice to his people. What this meant in effect was that he had a duty to run a court system that behaved in predictable ways. The second was a duty to serve the common good. On occasion serving the common good might obviously involve ignoring what the court system told him what to do. So there was a tension between the king's duty to do justice, and the king's duty to serve at the common wheel. The normal way of expressing this thought, had been to say that the king had two powers. He had an ordinary power, which was expressed within the court system. And an extraordinary power, or sometimes a prerogative power. Which is a power that he exercised outside the scrutiny of the courts and the lawyers who worked within them. What happened partly as a result of Cooke's work, in the early 17th century, was what's sometimes described as a constitutionalist revolution. That's to say that it came to be believed that all of the king's powers were ordinary powers. All of the kings powers were powers that could in principle be defined and interpreted by common law judges within the courts. Cook's role in this revolution was to insist on the supreme rationality of English common law. Cook, you'll remember, believed that the English Common law was so wise that it could be regarded simply as reason as applied to England as natural law, as applied to England. And because it was so wise, it could be presumed to have something to say about every conceivable situation. So the key thought for Cook was that the common law had absolutely no gaps. Because there were absolutely no gaps in the common law, it was always possible for a judge to come up with a legal answer when asked what the king ought to do. And this obviously had a catastrophic effect upon the extent of royal power. It had often been said in the past that although ordinarily speaking, the king had a duty to keep the law. Under certain extraordinary circumstances, particularly emergency circumstances, the king had the duty to override the law, in the name of the common good. But Cooke's teaching was that there could be no such thing as an extraordinary circumstance. The result was that every conceivable problem that the nation might face, was a problem that had a legal answer to it. It was always in principal possible for a judge to say whether or not what the king was doing was legal. And the consequence of that, of course, was that all the rights enjoyed by the subjects were legal rights, and absolutely all of those rights could be guaranteed within the court system. As you might expect, court, or Cook, made extraordinarily full use of Magna Carta in making this argument. It was a great significance to him, that the property and liberties could not be removed from individuals. Without the judgment of their peers or an act of Parliament or some process recognised by the law of the land. In effect, what this meant was that large areas of royal activity, which have previously been completely unconstrained by the opinions of judges instead became activities that were in principle within the jurisdiction of the ordinary court system. And the consequence of that of course was that the king ceased to be untrammeled by law. And the expectations of the law that Cook managed to foster, expectations that individual liberties, individual inheritances should be treated with tremendous respect thereafter, of course, dominated the self-understanding of the English political nation. >> How did the people of England in practice encounter Magna Carta? >> The idea of Magna Carta throughout its history has been much more important than the details of it's content. Englishmen in the course of the English Revolution between 1640 and 1660, on the whole, encountered Magna Carta. If they were interested in its content through the medium of Sir Edward Cooke's commentary in the second part of the Institutes of the Laws of England. In particular, this is how the levelers, the proteo democratic movement that much scared the authorities throughout the 1640s and '50s encountered both Magna Carta and the expectations that Magna Carta managed to create. If you read Magna Carta through the eyes of Sir Edward Cook as a declaration of English liberties that always have existed and always ought to exist, some very interesting possibilities get created. You'll remember that the essence of Cook's claims about the common law had been that common law was reasoned as applied to England. One way of putting that might be to say that common law is the law of nature, as applied to England. So you've got an implied equation, an implied equivalence between English law and reason. And as soon as you've got an implied equivalence between English law and reason, you have an argument that can be run, both in a conservative and in a radical direction. The conservative way of reading the argument is to say that whatever is is right because the law is reason, all existing English institutions are perfectly reasonable. Although they might appear not to be. They're the product of a history which has guaranteed their wisdom. But the radical way of reading the equivalence is, of course, to start from an idea of what is reasonable, and then to say, because a particular arrangement is reasonable, it must form a part of the law of England. And that is what the levelers, on the whole, did. They greatly despise lawyers. They greatly despise the court system as it actually operated and wished above all else to reform it as much as possible. But the idea of an immutable core of English law that guaranteed English liberty was none the less of great significance to them. And that's been of great significance, actually, to most subsequent attempts by radically minded people to reform the English constitution. On the one hand, there has always been a contempt for English institutions, the details of the court system in particular as they actually exist. But very few English radicals down to the 19th century were prepared to say that English institutions were wrong from the start. There has always been a hope that sufficiently diligent historical inquiry will discover at some point, however remote in the national history, normally before the Norman conquest a free country. With free institutions that are a model for the English today. And this Janus-faced character of the English appeal to common law. An appeal which can be run both in a conservative and in a radical direction. Of course, that's great explanatory significance. The fact that even radicals in the 18th century and to some extent, ever since, have been very reluctant to let go of the idea that English institutions correctly understood, can be understood as free institutions. Has meant that there's been a deep national unwillingness to make a total break with the past.
