On the Laws and Governance of England.

Clark, Paul ; GUNN, ALBERT E.

FORTESQUE, John. On the Laws and Governance of England. Edited by Shelley Lockwood. Cambridge Texts in the History of Political Thought. Cambridge: Cambridge University Press, 1997. liv + 156 pp. Cloth, $59.95; paper, $19.95--Sir John Fortesque was a leading jurist in fifteenth-century England, and while his works are not rigorously philosophical or theoretical, they are a description and defense of English government at the crucial period when England was moving from medieval to modern times. One reason Fortesque's work is so fascinating is the tension and contrast between medieval and modern ideas.

Medieval optimism is Fortesque's overriding theme--in stark contrast to Machiavelli or Hobbes. Fortesque believed that men are basically good and that society is by nature a harmonious association in which all members voluntarily pursue liberty and justice, without the need for a powerful government.

Fortesque lived at the time of the Hundred Years War and the War of Roses, and one cannot help but be struck by the remarkable similarity in the lives of Fortesque and Hobbes. Both were intimates of the royal family, defeated in civil war; both fled to France and eventually returned to England to serve the crown. Yet unlike Hobbes, Fortesque's greatest fear is not civil war but tyranny, and his greatest good not order, but liberty. He writes that "A law is necessarily adjudged cruel, if it increases servitude and diminishes freedom, for which human nature craves" (p. 61). In contrast to the modern notion that freedom is the power to do whatever one wants, for Fortesque freedom is the power to do what one ought. Insofar as the law guides men to do what they ought to do, it does not restrict freedom but increases it.

While Fortesque gives advice about how the king can prevent himself from becoming too weak, which can tempt men to rebel, his overarching criticisms are of the growing French absolutism. The role of the sovereign is to defend against external enemies and against domestic criminals, "This the French king does not [do], though he keeps justice between subject and subject; since he oppresses them more himself, than would have done all the wrongdoers of the realm, though they had no king" (p. 91). The French kings had become tyrants, according to Fortesque, because they had ceased to rule with the consent of the Estates General, they had created a permanent professional bureaucracy and military, and they had imposed crushing taxes on the common people. The French system--which we recognize as the beginning of the modern bureaucratic state--is the primary foil used to explain the benefits of the traditional English system based on consent and cooperation.

The English political system was superior to all others because the whole people participated in the approval and enforcement of law. This is not just in the abstract sense of their representatives approving laws, but in the very real and direct function of the jury system and also of the militia. Every Englishman, including servants and laborers, was expected to be proficient with the bow. Fortesque placed great importance on the honest English yeoman with his longbow, who was the backbone of the English military system, and who not only could defeat the professional French knights, but also stood as a guard against civil war and tyranny at home. In contrast, the French tyranny taxed the citizens into grinding poverty to pay for the army and bureaucracy.

Of course, some of Fortesque's comparisons must be taken in the historical context of a partisan writer. He is not above exaggerating the benefits of the English system or exaggerating the defects of the French. Take for example his comment that "it is not poverty which keeps Frenchmen from rising [against their king], but it is cowardice and lack of hearts and courage, which no Frenchman has like an English man" (p. 111).

A further strength of the English system was its reliance on longstanding tradition. If the agreement of the entire people helped to prevent arbitrary rule and injustice, how much more so then did the consent of multiple generations ensure justice. Fortesque takes great pride in that "the realm has been continuously regulated by the same customs" since it was first inhabited by Britons (p. 26). Law is not the "will of the sovereign," which is how Hobbes describes it, and how Fortesque describes the French system, but rather the cooperative discovery of justice by generations of people, which the king himself cannot change, but must obey.

While Fortesque purports simply to describe the English system, he can always be open to the criticism that what he presents is more the ideal than the reality. We might also question his apparently uncritical acceptance of everything English as best. Certainly the English system was not as tranquil or perfect as he pictures it, nevertheless it is precisely his presentation of the English system as it ought to be, that makes him so interesting from a philosophical viewpoint. There is also evidence that Fortesque was aware of this dichotomy. In places, Fortesque drops his purely descriptive terminology and tells us, for example, "How jurors ought to be chosen" (p. 36). At the same time, the description is not merely an ideal, like Plato's Republic, but a pattern that late medieval jurists believed could actually be put into practice, and that, at least to some extent, was in practice.

Because Fortesque's work is historical as well as ideal it is a touchstone by which contemporary legal systems can be compared. The English system Fortesque describes is still recognizably the legal system used in the English-speaking world, even though the philosophical underpinnings have changed almost completely.

The Cambridge volume is actually two short works by Fortesque combined: In Praise of the Laws of England and The Governance, of England, both written around 1470. The introduction and notes by Shelley Lockwood are excellent, both for their historical perspective and for their philosophical analysis.

The translations of the two short works are revised and updated versions of earlier translations. Translation of medieval texts can be difficult if one is not familiar with the different meanings of medieval and early modern Latin (for example, many texts translate the medieval word "ius" as "a right," which is an anachronism). These two translations for the most part are very good, and frequent reference to the original Latin in parentheses and footnotes helps to avoid anachronism.

Paul Clark, Washington, D.C.