ABSTRACT

We might dismiss the narratives that claim that the heritage of the common law stretches to a ‘time out of mind’ (Coke, 1826: x-xii) as fanciful fables told by those seeking to acquire or sustain power. But, as with much forensic make-believe, these are operative fictions, instrumental in shaping the English legal and political imagination. Whilst lubricating the newly centralised machines of government, the common law came to occupy a unique position of power within the emerging modern state. As Coke was keen to remind James I, the king was thought to be beneath no one, only under God and the law (Coke, 1607: 65).1 The common law’s claim to a uniquely antique history guaranteed it as a locus of authority apart from – and arguably superior to – monarchy. Such a characterisation might inspire a ‘classically liberal account of the strong common law as a safeguard against royal absolutism’ (Cormack, 2007: 37). However, I argue, in what follows, that by attending to certain motifs and interests within the common law tradition we might open possibilities for reimaging the ‘common law’ that gesture towards an alternative political sensibility. Such thinking takes the ‘common’ to be the first question

of law. In this account, law comes to be associated not with the liberal ‘self’ – the supposed bearer of our much-celebrated human rights – but with the on-going relations that constitute lives lived in common. This radical rereading of the ‘common law’ offers a corrective to the abstracted and reified language of rights by reawakening spirits of the common within the heritage of the common law. My thinking here hopes to counter the almost irresistible urge to associate law exclusively with state-sanctioned institutions and practices. The ‘law’ of the early-modern period meant much more than this; it gestured towards a ‘law of community’ and ‘sociality’ that preceded the exacting demands of positive or state law. By re-engaging this register of legality, I hope to articulate a sense of law which animates, rather than circumscribes, the social and communal bond.