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John Selden: From radical to conservative, but always an innovator


John Selden is famous, but not at all well known. His fame was earned as a lawyer (one of the cleverest, and absolutely the most learned, in 17th-century England), and as an MP who played a significant role in English political history from the 1620s to the 1640s. In the earlier period he helped to lead the House of Commons’s opposition to Charles I, being awarded several years of imprisonment in the Tower of London for his pains; but in the 1640s his energies turned more to opposing abuses of parliamentary power, such as the “Act of Attainder” against the Earl of Strafford — a kind of murder by legislative decree — or the exclusion of bishops from the Lords.

He also earned a place in English religious history, through his decisive interventions in the Westminster Assembly. This was an advisory body, set up by Parliament in 1643 in order to work out how to convert an episcopal Church of England into a Presbyterian one. Again and again, Selden succeeded in blocking or overturning the arguments of the dominant Scottish Presbyterians, who had to go scurrying back to their studies to do more homework. The eventual changes to the system of Church government were, as a result, much weaker than they would otherwise have been.

Yet at the same time Selden is not well known, at least not in the way that he would have wanted to be. He was a man of astonishing polymathic knowledge, equally at home with Greek calendar systems, Anglo-Saxon poems and Arabic chronicles. He acquired such an expertise in the study of Jewish texts, including the Talmud, the Aramaic Targums and many densely written rabbinical commentaries, that he was referred to, sardonically but also appreciatively, as England’s Chief Rabbi; and the information he gleaned from these studies was put to use in a string of works in Latin, discussing such matters as Jewish testamentary law and the nature and powers of the Sanhedrin. The Latin-reading European “republic of letters” paid warm tribute — despite the fact that his Latin was peculiarly rebarbative, stuffed with nonce-words and recondite allusions. But that Latin-reading public died out a long time ago, and these books now gather dust on the shelves.

For ordinary readers today just a handful of works are accessible, having been written in English or translated into it: the Historie of Tithes, a learned demolition of the idea that the Church could demand tithes by divine right; Mare clausum, a short treatise on the international law of the sea, which has been cited quite recently in relation to China’s attempts to lay claim to large parts of the South China Sea; and Table-Talk. This last text is the only one to have remained popular from the 17th century to the present: it gives Selden’s penetrating comments on a great range of topics, imbued with his caustic common sense.

A major recent monograph by Gerald Toomer has restored Selden’s stature as a scholar, following his legal, historical and philological arguments through every twist and turn of his treatises. But what of his political thought, and the connections that must surely have existed between his theorising and his actions as a politician? Standard histories of political theory, when they have noticed him at all, have tried to fit him into some lines of abstract argument about natural rights and sovereign authority that run from Grotius to Hobbes; but treating Selden in this way involves mostly passing over his own political record, and setting aside much of the (non-abstract) legal-historical content of his writings.

Enter Ofir Haivry, with a really searching and original study of John Selden as a politico-legal thinker. As Haivry shows, Selden’s political career, with its apparent shift from radical oppositionist to conservative critic of parliamentary innovations, followed a consistent set of principles. Selden was one of the leading English thinkers who developed a fully constitutional theory of the exercise of political power: apparently exceptional areas of decision-making, such as the royal prerogative, or emergency powers justified by “reason of state”, had to be enclosed within a legal framework, and the final guarantor of that framework was not the judges but Parliament itself. Yet the constitution was what it was, with the King’s distinct authority interlocking with parliamentary power; for MPs to appropriate royal rights was just as bad as the King imposing taxes without their consent.

The principle that, legally and politically, we must accept that things are what they are — and not what our a priori theorising would prefer them to be — marks Selden down as a conservative; for Haivry, indeed, he is the unacknowledged founder of an English conservative tradition, as important as Burke but writing more than a century earlier. At the same time, things are what they have gradually turned into. Much of this book is devoted to exploring Selden’s theories about how laws develop over time; and here too he is presented as an innovative thinker, someone who emphasised the role of the nation as a historical and cultural unit, imparting its own character to its legal-political arrangements.

An important focus here is on Selden’s engagement with Jewish legal traditions. (One senses that this may be what first drew Haivry, a co-founder of the Herzl Institute in Jerusalem, to Selden’s work.) On the face of it, the connection is problematic, as the Jewish nation had a very different history and culture from the English one. We could expect Selden to have become — as he did — an expert on Anglo-Saxon law, in order to understand long-term English developments; but why the laws of the Talmud?

Part of Haivry’s answer is that to Selden, the Jewish tradition offered an exceptional case-study of how a complex legal system can be maintained, changing and developing incrementally all the while, over a huge length of time. In this sense it was just an exemplary model for English Common Law, rather than an influence. But, more importantly, Selden also believed that Talmudic writers had preserved a fundamental set of natural laws, known as the “Precepts of the Sons of Noah”, which — Noah being the ancestor of the entire human race after the Flood — formed the basis of all legal and political systems.

These seven precepts overlap with some of the Ten Commandments; unlike the latter, they are not mentioned in the Hebrew Bible, being later extrapolations by Jewish writers. They prohibit idolatry and blasphemy, and murder, theft and sexual misconduct, and they also require the maintenance of a legal system; but the seventh precept, forbidding tearing a limb from a living animal and eating it, has always posed problems for commentators.

In his great treatise on natural law, De iure naturali & gentium, iuxta disciplina Ebraeorum (“On natural law and the law of nations, according to the teaching of the Jews”), Selden gave these precepts a foundational role for all societies: they had been revealed by God, but in principle they could also be deduced by natural reason. Human beings could also deduce that God exists, and that God would not leave evil deeds unpunished; and this was sufficient to show that the precepts were not just pieces of good advice, but laws, issued by a higher authority.

Was this a breakthrough in the development of natural law theory and political philosophy? In the cool light of history, one has to say: no — almost the opposite. It was a dead end, and much of the neglect of Selden that followed reflected a general inability to accept that a Talmudic tradition, little known except to people like him who were steeped in rabbinical learning, could hold the key to all human political organisation. The explanatory superiority of this unusual account over standard natural law theory (as set out by Thomas Aquinas and his followers) was not apparent. And indeed some of the points for which Haivry gives Selden special credit, such as his insistence that legal obligation presupposes the authority of a law-giver, can be found just as well in the Thomist tradition.

Nevertheless, this is a rich and thought-provoking study of a major thinker, who was a significant figure in English history and, as Haivry shows, an influence on English conservative thinking about laws and institutions and their essential “rootedness”. My only complaint is that the Cambridge University Press seems to have afforded Professor Haivry the services of neither a copy-editor nor a proof-reader. A book of this importance deserved better.
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