Jurisprudence by Aphorisms: Francis Bacon and the “Uses” of Small Forms

Abstract

The belief that Francis Bacon was, from the start, a stalwart defender of royal absolutism has prevailed in scholarship despite occasional comments about Bacon’s pluralist or collaborative legal and political imagination. Building on recent revisionist work, this article questions the standard historiography. It argues that Bacon’s jurisprudential outlook – particularly with respect to the question of legal authority – changed over the course of his career. A comparative analysis of his early and late legal writing clarifies the nature of the shift. In The Maxims of the Common Law (1596/7), Bacon theorizes a collaborative model of legal interpretation. Drawing inspiration from the use, a popular legal device and precursor of the modern trust, Bacon likens himself to a grantor who invites his readers, the grantees, to “make use of” the knowledge contained in the maxims and rules. “Learned” and “sensible” readers are welcomed as trustees of the law – provided they comply with the author’s terms of use. The collaborative, game-like spirit of this Elizabethan text is conspicuously absent in his Jacobean treatises. When Bacon revisits the subject of legal aphorisms in An Example of a Treatise on Universal Justice . . . by Aphorisms (1623), he restricts the art of legal interpretation to experts: the sovereign and a handful of elite interpreters of the law (jurisconsults). The two texts and the different jurisprudential contexts they evoke, common law and Roman law, point to a hardening of Bacon’s politics and aphoristic theory over time.