Coke’s ‘Tales’ about Sovereignty

Abstract

During the seventeenth century, longstanding tensions in the relationship between royal prerogative and the rule of common law came to a head. The results of these struggles led to the constitutional limitation of royal prerogative in the Bill of Rights 1689 arising from the Glorious Revolution of 1688 that brought an end to the Stuart dynasty. Yet the ground for these conflicts had been prepared well in advance, as the Westminster Parliament and, in particular, the common law judiciary developed a concept of the rule of common law that overrode and held primacy over the personal exercise of power of the king and framed the sovereignty of Parliament on the basis of Parliament’s institutionalization as the highest common law court. Key to this was the jurist Sir Edward Coke who, over the course of decades and in spite of monarchical attempts to sideline him, crafted a web of history and legal arguments that championed artificial reason and confirmed Parliament’s leading position in a judicial as well as political sense. As this article demonstrates, Coke’s argumentations were creative inventions, and his ideas of supremacy of law and Parliamentary sovereignty were based more on well-told “tales” than legal correctness. In doing so, however, Coke shaped the course of the constitutional conflicts with Stuart absolutism, thereby setting English common law on a unique and treasured path that protected it from arbitrary intrusion and, ultimately, heavily influenced the British idea of the rule of common law that continues to this day.