Why Common Law Is Sceptical of Philosophy
Why Read This
What Makes This Article Worth Your Time
Summary
What This Article Is About
Justice Philip Sales of the UK Supreme Court, drawing on Lon Fuller and Ludwig Wittgenstein, argues that purposive analysis is central to legal interpretation. However, he acknowledges a paradox: while common law claims to prioritize practical experience over abstract philosophy, this preference itself represents a profound philosophical commitment. The author, Saai Sudharsan Sathiyamoorthy, explores how this anti-intellectual stance shapes legal reasoning and distinguishes common law from philosophical inquiry.
Tracing the tradition from Justice Edward Coke’s concept of “artificial reason” to contemporary judicial practice, the article demonstrates that common law relies on inductive and analogical reasoning derived from specific cases rather than deductive reasoning from abstract principles. Historical examples, including the Case of Prohibitions (1607) and Justice Markandey Katju’s observations, illustrate how legal expertise is constructed through sustained participation in legal practice rather than theoretical mastery.
Key Points
Main Takeaways
The Central Paradox
Common law’s rejection of philosophy is itself a philosophical position that requires intellectual justification and careful examination.
Artificial Reason
Justice Coke’s concept frames legal reasoning as constructed expertise requiring long study, not natural logic accessible to all.
Inductive Methodology
Common law builds principles from specific cases through analogy and precedent rather than top-down deductive reasoning from theory.
Professional Exclusivity
Legal reasoning constitutes a shared tradition among lawyers, inaccessible through abstract reasoning alone and requiring sustained practice participation.
Pragmatic Focus
Judges prioritize reaching just, workable solutions to concrete disputes over articulating comprehensive theoretical frameworks or general principles.
Philosophical Influences Persist
Despite its anti-theoretical rhetoric, common law has absorbed ideas from natural law, utilitarianism, and legal positivism throughout its history.
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Article Analysis
Breaking Down the Elements
Main Idea
The Performative Contradiction in Common Law
The article’s central thesis reveals an intellectual paradox: common law’s explicit rejection of abstract philosophy itself constitutes a philosophical position requiring theoretical justification. By examining how judges from Justice Coke to contemporary practitioners claim to value experience over theory while simultaneously articulating sophisticated epistemological commitments, the author demonstrates that the distinction between practical and philosophical reasoning is more rhetorical than substantive. This matters because understanding common law requires recognizing that its methodology, though presented as pragmatic, rests on unacknowledged philosophical foundations.
Purpose
To Expose Unexamined Assumptions
The author aims to bring critical scrutiny to common law’s self-conception as atheoretical. By first explaining Justice Sales’s philosophical framework through Fuller and Wittgenstein, then contrasting it with common law’s stated methodology, the piece challenges legal practitioners to acknowledge the theoretical commitments implicit in their approach. The article seeks to demonstrate that while judges may believe they’re simply applying accumulated practical wisdom, they’re actually operating within a specific epistemological framework that privileges certain forms of knowledge production over others. This critical examination invites reflection on whether common law’s anti-philosophical stance serves legitimate methodological purposes or represents an unexamined professional ideology.
Structure
Contrasting Philosophical Framework with Professional Practice
The article employs a dialectical structure: Philosophical Introduction → Historical Evidence → Methodological Analysis → Reconciliation. It begins by presenting Sales’s theoretical framework drawing on Fuller and Wittgenstein, then identifies the paradox of common law’s philosophical skepticism. Historical examples from Justice Coke and the Case of Prohibitions establish the tradition of “artificial reason,” followed by contemporary reinforcement through Justice Katju’s observations. The piece then analyzes common law methodology as inductive and case-based before acknowledging that philosophical influences have nonetheless shaped the tradition. This structure moves from abstract theory to concrete practice to critical synthesis, mirroring the very tension it examines.
Tone
Analytical, Measured & Intellectually Curious
The author adopts a scholarly yet accessible tone that respects both philosophical and legal traditions while maintaining critical distance. Phrases like “intriguing paradox that warrants deeper scrutiny” and “demands careful consideration” signal intellectual engagement rather than polemic attack. The tone remains measured even when identifying contradictions, acknowledging that common law’s methodology has genuine strengths (“what works above what looks good on paper”) while insisting its theoretical foundations deserve examination. This balance allows the piece to challenge professional orthodoxy without alienating legal practitioners, inviting them to reflect on assumptions rather than defend against accusations.
Key Terms
Vocabulary from the Article
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Tough Words
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Relating to the theory of knowledge, especially regarding its methods, validity, scope, and the distinction between justified belief and opinion.
“This stance exposes an important—and usually overlooked—intellectual commitment that demands careful consideration.”
A clever device or stratagem; the quality of being deliberately constructed rather than natural or spontaneous; skillful or artful contrivance.
“The true question is not whether legal reason is artificial, but what form of artifice it embodies.”
The theory or philosophy of law; the study of legal principles, concepts, and systems; the course which judicial decisions follow.
“Drawing on the works of American jurist Lon Fuller and philosopher Ludwig Wittgenstein, Sales illuminated why purposive analysis remains indispensable.”
A group of people sharing a common profession, interests, or purposes; a brotherhood united by shared values or practices.
“There is nothing natural about the common law, as it is supposed to be shared among a fraternity of lawyers.”
The quality of being logical, consistent, and forming a unified whole; the state of having parts that fit together harmoniously.
“Legal reasoning is always a constructed endeavour—an attempt to gain a degree of coherence in the chaotic elements of social existence.”
The ethical theory that actions are right if they promote happiness or pleasure and wrong if they produce unhappiness; the doctrine that usefulness determines moral value.
“From the natural law ideas of Thomas Aquinas to the utilitarianism of Jeremy Bentham and John Stuart Mill to the legal positivism of H L A Hart.”
Reading Comprehension
Test Your Understanding
5 questions covering different RC question types
1According to the article, Justice Edward Coke characterized legal reasoning as “artificial reason” requiring long study and experience rather than natural logic accessible to everyone.
2What does the author identify as the primary methodological approach that distinguishes common law from philosophical inquiry?
3Which sentence best captures the article’s central paradox about common law’s relationship with philosophy?
4Evaluate the following statements about Justice Philip Sales’s F A Mann Lecture according to the article:
Sales drew on Lon Fuller’s conception of law as “the enterprise of subjecting human conduct to the governance of rules.”
Sales argued that Wittgenstein’s philosophy demonstrates language has fixed referents independent of usage context.
Sales discussed how purpose shapes both the creation and interpretation of law in his lecture.
Select True or False for all three statements, then click “Check Answers”
5Based on the article’s discussion of Justice Markandey Katju’s remarks about executive service members, what can be inferred about the nature of legal expertise in common law systems?
FAQ
Frequently Asked Questions
Justice Edward Coke’s concept of “artificial reason” distinguishes legal reasoning from natural logic accessible to everyone. It represents “an artificial perfection of reason, gotten by long study, observation, and experience” rather than common sense. This idea is central because it justifies why legal expertise requires sustained training within the legal profession rather than general intelligence alone. The article uses this concept to explain why common law views its methodology as constructed through professional practice rather than derived from abstract philosophical principles.
Common law builds principles inductively from specific cases through analogy and precedent, moving from particular instances to general rules. In contrast, deductive reasoning starts with abstract principles and applies them to specific situations. The article explains that common law judges advance law “incrementally through the resolution of specific cases” rather than reasoning from comprehensive theoretical foundations. This case-by-case methodology makes common law skeptical of philosophers, economists, and theologians who prefer top-down deductive reasoning from abstract principles.
The article acknowledges that common law has not been completely isolated from philosophical thought. It mentions natural law ideas from Thomas Aquinas and William Blackstone, the utilitarianism of Jeremy Bentham and John Stuart Mill, and the legal positivism of H.L.A. Hart and Joseph Raz as philosophical systems that have shaped common law theory. This demonstrates that despite common law’s rhetorical opposition to abstract philosophy, it has selectively incorporated philosophical frameworks that illuminate aspects of legal language and practice when they prove useful for understanding how law actually functions.
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This article is classified as Advanced level. It requires understanding sophisticated legal and philosophical concepts, familiarity with abstract argumentation, and the ability to recognize paradoxes in intellectual positions. The vocabulary includes specialized terms like “epistemological,” “jurisprudence,” and “utilitarianism,” while the structure demands following complex arguments about the nature of legal reasoning. Advanced readers should be comfortable analyzing how professional disciplines construct their own methodological justifications and critiquing claims about the relationship between theory and practice.
The Case of Prohibitions established the principle that legal expertise trumps natural reason, even royal authority. When King James I claimed the right to decide legal matters based on his own reasoning, Justice Coke successfully argued that law requires specialized training inaccessible to those outside the profession. The article identifies this as “the foundational principle of practical law” because it established that legal decision-making belongs exclusively to those trained in the law’s “artificial reason.” This centuries-old case continues to justify why judges resist abstract philosophical intrusions into legal reasoning.
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