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ion or a collection of rules but as a functioning social system, in somewhat the same manner that Adam Smith was to present the economy of England... in the Wealth of Nations a few years later. 232. Burke wrote two unsigned reviews of Blackstone's Commentaries, in which Burke "praised them as consummately written, uniting the historian and politician with the lawyer." WILLIAM BLACKSTONE, THE SOVEREIGNTY OF LAW at xxvii (Gareth Jones ed., 1973). 233. See generally BRUCE FROHNEN, VIRTUE AND THE PROMISE OF CONSERVATISM: THE LEGACY OF BURKE AND TOCQUEVILLE (1993). 234. Burke stated: Our Constitution is a prescriptive constitution ... whose sole authority is, that it has existed time out of mind .... It is a presumption in favor of any settled scheme of government against any untried project .... Because a nation is not an idea only of local extent and individual momentary aggregation, but it is an idea of continuity which extends in time as well as in numbers and in space. And this is a choice not of one day or one set of people, not a tumultuary and giddy choice; it is a deliberate election of ages and of generations; it is a constitution made by what is ten thousand times better than choice; it is made by the peculiar circumstances, occasions, tempers, dispositions, and moral, civil, and social habitudes of the people, which disclose themselves only in a long space of time.... The individual is foolish; the multitude, for the moment, is foolish, when they act without deliberation; but the species is wise, and, when time is given to it, as a species, it almost always acts right. Edmund Burke, Speech on a Motion Made in the House of Commons, May 7, 1782, for a Committee To Inquire into the State of the Representation of the Commons in Parliament (May 7, 1782), in 7 THE WORKS OF THE RIGHT HONORABLE EDMUND BURKE 89, 94-95 (Boston, Little, Brown, & Co. 3d ed., 1869). As J.G.A. Pocock indicates, Burke was indebted to Hale for these insights: "Every word he uses may be paralleled from the traditional doctrines of the common lawyers .... [Clommon-law thought, as Burke could have found it in Hale and was (wherever he learned it) expounding it here, contained an explicitly formulated theory of conservative traditionalism." J.G.A. POCOCK, Burke and the Ancient Constitution, in POLITICS, LANGUAGE, AND TIME: ESSAYS ON POLITICAL THOUGHT AND HISTORY 227 (1971) [hereinafter POCOCK, POLITICS]. In this article Pocock corrects his earlier attribution to Coke, Selden, Hale, and the common lawyers generally, of a belief in the unchanging character of the common law, but he is still preoccupied with the constitution's "immemorial" nature. See generally POCOCK, ANCIENT CONSTITUTION, supra note 27, at 30-69. This is all right if "immemorial" means that it was the constitution that made the nation in the first place, and therefore, the nation has no right to change it. It is not all right if it suggests that there were not, in the past, decisive changes in constitutional history to be remembered. Hale and Burke-and Blackstone-remembered very clearly the revolutionary changes of the seventeenth century, when the "ancient common law" was first given its modem significance. Pocock also calls attention to Burke's blending of the political and the legal in the metaphors he uses to express political ideas. Pocock states: But if we seek for the historical genesis of [Burke's political philosophy], may it not lie in the chain of association formed by the words "entail," "family settlement," "mortmain," The Yale Law Journal In Peter Teachout's trenchant phrase, this time-sense "transforms us from transients into trustees. 2 35 The second point is that Burke's philosophy was directed primarily against new theories that had emerged with the so-called Enlightenment, or Age of Reason, and that ultimately found expression in the French Revolution.236 These included, on the philosophical level, theories of rationalism and individualism and utilitarianism; on the political level, theories of democracy and of public opinion as the source of governmental legitimacy; on the constitutional and legal level, the primacy of legislation as a source of law and the priority of the rights of man over traditional legal rights and duties. Savigny and the Disintegration of Jurisprudence in the Nineteenth and Twentieth Centuries. It was the revolt against tradition, in the name of reason, that shattered the triune integrative jurisprudence of the seventeenth and early eighteenth century, which was rooted, in turn, in Western legal thought as it had developed since the late eleventh and twelfth centuries. Burke's response to this challenge was to defend the historical dimension of politics and law against the new rationalism and individualism and utilitarianism, and to emphasize not only the historical roots but also the historical tasks of aristocracy, of public spirit, and of the traditional values embodied in the common law. By his defense of the old order, he provided a basis for what became in the nineteenth century "the historical school" of legal philosophy, in which the historical jurisprudence that had originated with Coke and Selden and Hale (among others) became separated from the political and moral theories-positivism and natural law-with which they had originally been

The Origins of Historical Jurisprudence: Coke, Selden, Hale