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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in this way involves mostly passing over his own political record, and setting aside much of the (non-abstract) legal-historical content of his writings.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?
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