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Bacon and the Law Redux

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Courtesy of the Prints and Photographs Division of the Library of Congress

Sunday (January 22) was the 451st birthday of the English philosopher and politician, Francis Bacon (1561-1626). Francis Bacon is usually remembered as the father of modern science and the founder of the empirical method of inquiry. Opinions vary on how important he was for any particular science, but he is generally held to have been the greatest propagandist science has ever known. A writer of genius and a visionary, he laid out a project for the reformation and reorganization of all knowledge. In his works, The Advancement of Learning (1605), Novum Organum (1620) and The New Atlantis (1627), among many others, he set about dismantling the Aristotelian heritage in the physical sciences, and attempted to rebuild all areas of inquiry―including logic, and the moral and social sciences―on the basis of experimentation and induction. Bacon remains a preeminent figure in the history of science today, one of the enduring marble men of Western Civilization.  Students of philosophy and intellectual history continue to fill libraries with interpretations of his contributions.

What is sometimes forgotten is that Francis Bacon spent nearly all of his adult life pursuing high office and public renown during the reign of King James I, earning a reputation among his contemporaries as a calculating and amoral political operator. Also, what is often forgotten is that Bacon’s spectacularly successful public career came to an end in disgrace in 1621 after evidence surfaced that as Lord Chancellor he had been taking bribes from parties whose cases he was adjudicating. Bacon’s reputation as a public servant has never recovered from this blow.

Statue of Francis Bacon in the Main Reading Room of the Library of Congress (Courtesy of the Prints and Photographs Division of the Library of Congress)

Even so, Bacon’s career path was stellar. Bacon served in Parliament for twenty-six years. He was Solicitor General (1607), Attorney General (1613), Lord Keeper (1617), and finally Lord Chancellor (1618). For his service to the King he was knighted (1603), and was later created Lord Verulam (1618) and Viscount St. Alban (1621). His deeply personal rivalry with the other leading figure of the heroic age of the common law, Sir Edward Coke, puts the stature of his career in clear relief (Bacon was an ardent royalist to Coke’s parliamentarian, though contrary to contemporary fashion Bacon was not an absolutist.).

Bacon styled himself a statesman after the old Ciceronian model. He was an attorney by education and profession, and this informed some of his major intellectual preoccupations. One of his great hopes as a young man, for example, was that he would see through a thoroughgoing reformation of the laws of England in his lifetime. Two generations had passed since the Year Books had ceased to be published. Coke had not yet written his Institutes. English law was in some disarray. A series of legal dictionaries and awkward abridgments of the law were the major research guides for a lawyer who hoped to discover the law. For Bacon this was intolerable. The law had to be certain. It had to be clearly stated. And it had, above all, to be accessible.

Courtesy of the Prints and Photographs Division of the Library of Congress

Bacon’s early legal writing reflected his hope to restate English Law. To begin with he would have to present the tangled web of the English legal heritage as a series of propositions organized under sensible categories. He began to do this with a work that has come to be called The Maxims (drawing a phrase from Law French). Although he wrote it in the first decade of the seventeenth century, The Maxims, like many of Bacon’s written works, was never published until after his death. The main purpose of the work was to distill from the common law principles that might be applied to the adjudiction of any future case that might come before the court. Other writers had attempted to derive clear principles from the common law before him, but Bacon’s special contribution was that he demonstrated that the principles he identified had been repeatedly deployed in past judicial decisions, that they were real and enduring, and not a work of creative interpretation. (Bacon would write one of the first English diatribes against judicial activism.) He went so far in this direction that for each entry he devised a means for falsifying possible uses of the principle that he was introducing in order to demonstrate the clarity of the rule.

If you detect in this inductive approach to legal research echoes of Bacon’s vision for the new physical sciences, it is no mistake. Bacon intended to revolutionize the mode of legal thought in his day, emphasizing rigor and precision in the act of interpretation. An important example of this is his Reading on the Statute of uses, which is often recognized as a model of dispassionate legal scholarship, a distinctly modern departure from the kind of writing on the common law that existed in Bacon’s day.

Bacon, of course, also took his vision for the law to the level of theory. In the Latin edition of the Advancement of Learning, De Augmentis Scientiarum (1624), Law finds its place ranged alongside of logic and morals as subject matter fit for research based on evidence. There Bacon sets down a series of ninety-seven theses on law, articulating a kind of law of the law (similar to Lon Fuller’s Morality of Law) which takes note of political expediency and perceived legitimacy in the construction of the law.

These works and other examples of Bacon’s legal writing can be found in a variety of early editions in the Rare Book Collection of the Law Library of Congress.

A side note: Bacon’s design for the reorganization of knowledge has a special significance for the Library of Congress. The Library’s modern collection was built up from the kernel of Thomas Jefferson’s private collection, which Jefferson sold to Congress in 1815 to replace the Congressional Library that was burned when the British occupied Washington, D.C. during the War of 1812. Jefferson had organized his private collection according to a system that he adapted from Bacon’s reorganization of knowledge; and, by turns, the modern Library of Congress Classification system, according to which we organize our current collections, descends from that system as well. You can see Thomas Jefferson’s collection recreated and assembled according to his Baconian classification scheme in the Southwest Pavillion on the second floor of the Thomas Jefferson Building of the Library of Congress.

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