On Edward Coke’s Constitutional Thought and the Value of the Traditional Chinese Legal Thoughts〔* 〕

Ma Yuli

(Law School Shandong University，Jinan Shandong 250100)

Ⅰ．Background of Coke’s constitutional thoughts

Sir Edward·Coke(1552-1634)，the most distinguished legal thinker in the transition period of Britain from conventional society to modern capitalist society，is a key figure during the transformation period of Britain from the Middle Ages to modern times．His constitutional ideas mainly embody in the principle of the supreme status of the common law，independence of judges and judicial review and due process，all of which bear the brand of the time with their experience and wisdom．

The middle of 16th century，the turning period from the feudal age to capitalist age of Britain，witnessed the fierce struggle between the old force of feudalism and the new force of capitalism．The common law had been consolidated and improved，yet still influenced by Rome laws．The particularity of Coke’s legal thoughts determined by the special time lied in the coexistence of traditional，conservative legal thoughts and new thoughts which boycotted autocratic monarchy．The principle of King in Parliament of the Tudors was changed by the accession of King James I(1603-1625)，who believed that it was the king who created the law，not the other way around，and that people should submit to their ruler because the ruler，with their absolute power，secured the position by God’s will and natural order of all creatures．The later monarchs followed his idea and stopped cooperating with the parliament，thus giving rise to the dissatisfaction of the Parliament and the increasingly intensified contradictions between the Parliament and the royal powers．Therefore，Coke’s age provided a distinctive theme for the formation and development of his legal thoughts，namely restricting autocratic monarchy．

Besides，Coke’s career and unparalleled wisdom were both vital for the formation of his constitutional thoughts．The ups and downs of his life were almost mingled with his struggle against autocratic monarchy．The experience of fighting against royalty and the precious lessons he learnt from it contributed to the formation and development of the legal thoughts of Coke．

Ⅱ．Main contents of Coke’s constitutional thoughts

Coke’s constitutional thoughts are mainly centered on the restriction of royal power and the protection of civil rights，which can be analyzed form the following aspects:

1．The common law is supreme while the King is under the ruling of the law

Coke advocated common law and devoted all his life to promoting it．He proposed the legal thought of the supreme status of common law from the legal tradition of ancient Britain．The basic doctrine was that“King hath no Prerogative，but that which the Law of the Land allows him”．It was judge，instead of the King，who had the power to interpret the Prerogative．Coke believed that the common law granted power to the king and the proper rights and prerogative to all British people．The common law stipulated the basic structure of government and basic rights of people，and in fact，it included the all content of the constitution．Therefore，the common law possessed a supreme status and neither kings nor Parliament could go against it，or they would be restricted by the law．The principle of the supreme status of the common law constituted the theoretical framework and powerful weapon of his restricting the power of kings and parliament．

Coke was also against kings’interference in the jurisdiction，as was evidenced by the incident of“Sunday meeting”on November 10，1608．Coke refuted to the preach of Archbishop of Canterbury and argued that“according to the law of Scotland，kings have no right to judge any cases，and all cases，civil or criminal，should be submitted to the court in accordance with laws and national conventions”．Coke’s theory of rational laws incorporated the restriction of the modern expansion of royalty to some extend and implied the theoretical foundation of judicial independence．

However，Coke’s thought that the King was under the ruling of the law didn’t thrive in Britain and the king thought it was crime of treason，and the same goes with his theory of the supreme status of the common law and restricting the power of parliament．However，his theory has been adopted by America，as is evidenced by the constant check on jurisdiction by judges under the guidance of the Supreme Court of the US．

2．Judicial independence and judicial review

Coke believed that laws belonged to the career field which was independent from politics，and that only well-trained and experienced legal minds could understand laws．Nobody was allowed to be engaged in the trial of cases before they became judges with broad legal knowledge and rich practical experiences in legal activities．Therefore，Coke believed that“kings should leave judicial matters to his judges in accordance with laws”．He strongly opposed kings’interference of judicial trail and firmly safeguarded judicial independence．

The judicial review proposed by Coke is undoubtedly another milestone of the world constitutional history．He pointed out that“many cases in the books seemed to suggest that in many cases，the common law will manipulate the bills of parliament，or even declared them invalid in that the former would inspect the latter when they were against it to secure rights and ration，or they could not be implemented．”It was a revolutionary opinion despite that Coke himself didn’t fully grasp its meaning．However，it has won supporters in Britain and exerted huge influence on American constitution，laying theoretical foundation for the American judicial review system．

3．The principle of due process and the protection of civil rights

Due process only possessed procedural meaning when it originated from Britain，but Coke still give it substantial meaning．The principle of due process was fully manifested in the case of Dr．Bonham and the interpretation of the 39th provision of the Great Charter．

Coke’s remark on the 39th provision of the charter obviously contained the principle of due process．He noted that“national laws”and “due legal process”were of the same meaning．He said that“national laws”were the common law which required“due legal process”．His interpretation made the Great Charter which was“left without anybody to care about it”adapted to the development of society and enabled it to restrict the kings’power，protect people’s rights and freedom，thus becoming the“general charter of civil freedom”．There is no doubt that Coke was the greatest“revivalist”in the movement called as the“revival of ancient constitution”．

The Petition of Right drafted by Coke in 1628 also embodied the principle of due process．It was an important result of fighting for the rule of law and judicial independence of the British people in the 17th century and was also regarded as the“most brilliant incident of Coke’s life”．The Petition of Right was reinterpreted by the Parliament after the victory of the British Bourgeois Revolution and was deemed as one of the origins of the British constitution．

Ⅲ．Review of Coke’s legal thoughts

Coke occupies an important position in the legal history of Britain．His followers even believe that“nobody can advance without his great works”．

The legal thoughts and principles proposed by Coke were in line with the requirement of the development of times and effectively restricted the autocratic monarch，exerting profound influence over the form of the then political struggle of Britain．His safeguard of the common law is conducive to restricting the struggle for royal power，thus making it easier to deal with the conflicts caused by the contradictions between British constitution and politics．The Petition of Right led by Coke was the prelude of the British revolution in 1940．Therefore，Coke is called the“most respectable and beloved judge”and the“warrior against autocratic monarchy”．

However，it cannot be denied that the constitutional thoughts of Coke were conservative to some extend considering the times of Coke．Although Coke’s remark of the case can be seen as the origin of the judicial review system，the restriction of autocratic monarchy was the theme of times in Britain during that time．The Parliament of the 17th century played a leading role in restricting autocratic monarchy，so the restriction of the power of the Parliament would do harm to social development．But generally speaking，Coke’s thoughts are proactive．

Ⅲ．“The old farmland would grow out new grain”— reviewing the modern value of Chinese traditional legal thoughts

The special historical background，Coke’s excellent life experiences and unparalleled wisdom have contributed to his influential constitutional thoughts．He maintained that“the King is under the ruling of the law”，which restricted the power expansion of the Stuart dynasty and protected the rights and freedom of common people．His thought that“the common law is supreme”has helped Britain overcome the crisis of being replaced by Rome and laid theoretical foundation for the establishment of judicial review．His thought of the“independence of judges”has laid foundation for the realization of judicial independence in Britain．His thought of due process has exerted far-reaching influence over the constitutional development of Britain and America as well as the progress of the world legal system．Although his idea of judicial review hasn’t been carried out due to the deeply-rooted Parliamentary supremacy in Britain，it has become the fundamental system of American constitution．Undoubtedly，Coke’s constitutional thoughts have influenced the development and path choice of American and British legal thoughts，particularly America．Considering the development momentum of the current judicial review and due process in America，great expectations can be placed on the development of rule of laws and civil rights protection．

Despite that Coke’s thoughts are centuries away from now，they are still thought-provoking as he said that“let’s read the works of ancient times because the old farmland would grow out new grain”．Chinese legal systems enjoy a worldwide reputation and important status in the history of world legal thoughts．“There is no civilization before the modern times that is more advanced and prospers than China．”Legal culture is the crystal of wisdom and spiritual asset created during the legal practice of the long progress of human civilization and the cultural foundation of the existence and development of social legal phenomenon．Despite that it is meaningful to transplant legal thoughts by learning from other countries’practice，we cannot neglect the traditional legal thoughts inherited in the national characteristics．It will be extremely beneficial to review and reinterpret the traditional legal thoughts，blend them with modern legal thoughts and create new values and drive the development of rule of laws by traditional legal thoughts．The process of inheritance and restoration will provoke our thinking on the series of problems of legal thoughts，such as power control，due legal process，judicial review，judicial reform and rights protection．

Notes:

〔1〕John Hostettler， Sir Edward Coke:a force for freedom，Barry Rose Law Publishers，1997，p．6．

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〔4〕〔英〕哈耶克:《法律立法與自由》，鄧正來譯，中國大百科全書出版社，2000年，第131頁。

〔5〕〔美〕小詹姆斯·R．斯托納:《普通法與自由主義理論:柯克、霍布斯及美國憲政主義諸源頭》，姚中秋譯，北京大學出版社，2005年，第35頁。

〔6〕〔英〕丹寧勛爵:《法律的未來》，劉庸安等譯，法律出版社，2011年，第9頁。

〔7〕John Henderson， Considerations on The Constitutionality of The Presidents Proclamations，http://www．constitution．org/cmt/hendj/ccpp．txt．

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