S.P. COOPER: Counsel, Consent & the Common Good
S.P. Cooper investigates the common good from the Anglo-American tradition.
Shawn Phillip Cooper is Assistant Editor at The European Conservative, Contributing Editor at The Lamp, and Vice President of the International Courtly Literature Society's North American Branch. He earned his Ph.D. in English Literature and Culture from Wayne State University, was Assistant Professor of English at Rochester University until 2021, and was a 2022-2023 postdoctoral research fellow in the James Madison Program at Princeton University.
Over the last few years, much has been written about the definition and nature of the common good, as well as the necessity of maintaining it as the priority within any well-ordered and enduring polity — especially within a constitutionally-ordered nation. Subsequently, questions have been raised about how such a government would operate in practice, how it might operate administratively, and whether it might necessarily give way to an arbitrary and capricious despotism that could still obtain the common good.
As an historian and a scholar of past literature and culture, I hope to look at the proven example of the past and to the development of the idea of the common good amongst the English-speaking nations in order to ascertain that, historically at least, the common good has not been achieved successfully within a despotic or quasi-despotic rule.
This seems to me to be a self-evident proposition — that a government truly for the common good cannot, by definition, achieve instead the individual good of a despot. Nevertheless, for the avoidance of any doubt upon this point, historical examples may prove more edifying than gestures towards theory. These will show that a government for the common good must necessarily constrain the will of the ruler or ruling party, subjecting it at the very least to advice and consent models, long established in English law, but going back much further indeed.
In England, during the twelfth century, the law began to acquire its own majesty, distinct from that of the sovereign. The remit of royal courts was broadened, the role and use of juries were expanded, and royal juridical authority was delegated to peripatetic judges. The development of royal justice began to transform and unify a legal process hitherto shared between overlapping and competing civil and ecclesiastical jurisdictions.
As the King’s distance from the end result of the law increased, so also did the legal system gain its own power understood as separable from the monarch’s personal will. To be sure, many of these developments occurred because of King Henry II’s inability personally to address all of the legal matters referred to him and because his royal court was frequently on the other side of the channel, in Normandy. But Henry was concerned with the administration of the law and was anxious that legal matters in his realms should be addressed even in his absence, rather than left unresolved. Hence the immediate administration of the law passed from the King and into the hands of judges, and even juries.
No longer purely an expression of royal will, the law was becoming something in which the whole realm participated: a common law. Such developments laid the groundwork for the belief that the monarch himself could be brought to book if he were believed to have transgressed the law, as John of Salisbury argues when he quotes the Codex of Justinian in support of the claim that a monarch should be subject to his own laws.1 Henry’s son, John, discovered as much when he was presented with the Magna Carta in 1215, which included methods (at clause 61) for holding the monarch to account should he fail to uphold the provisions of the charter.
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Neither the common law nor Magna Carta sprang forth out of nothingness. Both participated in and benefitted from approaches to monarchical governance which had a much older history, in the form of the Anglo-Saxon witan, the Norman curia regis, and the later magnum concilium and consiliarii regis.2 As the administration of the realm developed, such bodies (insofar as they could be considered institutions) increasingly expected the king to hear, and seriously consider, the counsel of his nobles.
That counsel became the root of parliament itself (parler being Old French for “to talk”) and the Model Parliament of 1295 included representatives of the Commons as well, with shires and boroughs represented by shire knights and burgesses. The concept of good counsel was thus foundational to the idea of good government, and counsel was historically and politically confirmed as the manner by which government was exercised. Indeed, as John Watts has observed, good government entailed “a commonplace of political thinking through western Europe in the Middle Ages that kings were appointed by God to advance the common interests of the people they ruled.”3
It is not strictly necessary for action directed towards the common good to have its origin in consultation with a broad representation of the populace. A leader might arrive at a policy which serves the common good through personal insight, thoughtful but comparatively narrow counsel, or accident. But twelfth-century clerics, such as Geoffrey of Monmouth and John of Salisbury, often identify good (or bad) counsel as integral to the success (or failure) of a king’s reign, with success understood in terms of serving the needs of the common weal: the good of the whole community of the realm.4
Such examples could be both positive (actions to emulate), or negative (actions to avoid). Geoffrey’s portrayal of King Constans, who fatally trusts the advice of the treacherous and self-serving Vortigern, is a negative example which shows the failures of counsel: Constans is an unwise monarch receiving bad counsel from a sole advisor whose loyalty has never seriously been tested.5
His eventual failure of governance is foreshadowed by a general belief that his coronation will not serve the common good for, in a betrayal of the res publica, he is crowned by Vortigern against the will of the lords, the commons, and the church.6 Conversely, King Arthur’s appeal to his earls, in response to the Emperor Lucius’ demands, is a positive example which demonstrates the seeking of good counsel:
Consocii inquit prosperitatis et aduersitatis, quorum probitates hactenus et in dandis consiliis et in militiis agendis expertus sum, adhibete nunc unanimiter sensus uestros et sapienter praeuidete quae super talibus mandatus nobis agenda esse noueritis.7
Arthur seeks counsel from all of his earls, and he knows their worth both from their good advice in previous councils and from their loyal support on the battlefield. Moreover, although he has already suggested a course of action, he asks his advisors wisely to consider how to respond and how to make provision for their plans — an important, practical element which shows the depth of Arthur’s grasp of governance.
Arthur’s rule is thus enhanced both by the judicious exercise of his own wisdom and also by considered advice from a relatively broad coalition of trustworthy advisors: both aspects are important, but it is the former which makes the latter possible, for an unwise king like Constans might fail to seek broad counsel, to discern which advisors are trustworthy, or to advance his own plans.
Arthur’s efforts against Lucius are successful and his kingdom benefits from his wise governance, but the ill-advised and undesirable Constans is murdered as a direct result of Vortigern’s scheming, and his realm suffers still further when it passes from his weak rule to that of Vortigern himself, characterised by treachery, warfare, subjugation, and instability.
It is clear that, by the end of the twelfth century, chronicles (records of historical events) and romances (fictional works about knightly adventure and courtly love) were clearly depicting how the connexion between counsel and governance might serve the common good. Such concerns were also present in more didactic texts, such as manuals for princes and legal treatises.
In Policraticus, John of Salisbury comments on the need for a prince to be subject to his own laws, and he also devotes a chapter to “the universal and public welfare” — i.e. the common good.8 Still more influentially, Sir John Fortescue’s The Governance of England establishes clear instructions on the selection of counsel, the danger of a poor commons, and how a well-endowed crown serves the common good.9
These works depicted an already-extant general understanding of the common good as the ultimate end of a governance shaped by good counsel; but they also contributed to the development and further establishment of that understanding as a fundamental principle of legal theory.
By the fifteenth century, those principles had moved beyond historical and literary depictions to become well established in the legal and political tradition as well, as seen by the arrival in English usage of terms like “commonwealth” and “res publica”. In the literature of the fifteenth century, the mediæval understanding of the vital relationship between counsel and good governance directed to the common good can be seen in Sir Thomas Malory’s Le Morte Darthur, an adaptation and condensation of earlier French and English sources which present the Matter of Britain.
Malory was a knight and political prisoner during the Wars of the Roses (1455-1487), and his work is of particular interest as it is both romance and chronicle, raising contemporary political concerns in the literary and allegorical terms of sources. Because of the legal and political importance of that undertaking, its relevance is by no means limited to the world of literary Arthuriana.
In Le Morte d’Arthur, the results of Arthur’s counsel-taking are evidence of Malory’s use of these episodes as a demonstration of correct kingship. In Malory’s sources, after Arthur’s conquest of Rome, his burgeoning imperial ambitions lead to increasing degrees of overreach and tyranny, from which stems the destruction of Camelot. But, as Paul Rovang observes, “Malory alters the pattern to develop Arthur as a just conqueror conscientiously executing a rightful cause.”10
Consequently, in Malory’s Morte, Arthur’s taking of full counsel is not problematised: a good king takes counsel from the full array of his proper councillors, and thereby rules successfully for the common good. Through this authorial revision, “Malory characterises Arthur as the first truly just and successful world emperor in history and contravenes the traditional pattern of earthly rulers who overextend their rightful influence and are cast down by Fortune.”11
When the Morte’s Roman war sequence concludes, Arthur recedes from the forefront of narrative events. Instead, his knights take centre stage, serving upon him at his court, performing quests at his direction, and bringing matters to his attention in Camelot. All this, too, is in accordance with established medieval doctrines of best rule: the King is the head of government, and his knights are his hands, doing his bidding and carrying out his will.12
Only at the end of his reign will Arthur again take an active and central role in the narrative, at a time when Malory’s use for him as an example shifts from the role of model, counsel-taking kingship, to the cautionary example of a king who takes action unilaterally or through the advice of self-serving advisors who seem to care little about the long-term consequences to the governance of the realm, to the ruin of all concerned.
These two episodes, the historical and the literary, provide early examples of the widespread understanding that robust advice and consent systems are a necessary component of any system which is successfully ordered towards the common good. Both examples also demonstrate that such systems are not infallible protections against the misuse of government; they may be circumvented or supplanted, as may the protections included in any form of government, for there is no rule by man that cannot be frustrated by the actions of other men (as the authors of The Federalist themselves understood).
However, the proper functioning of advice and consent systems is a key indicator of whether a government directed at the common good is, indeed, faithfully pursuing those proper ends, and hence any government truly so ordered must necessarily possesses such features. In this way, we may better understand that the common good as a principle of governance is common: it was and is something in which the entire realm participates, and towards which all must strive.
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John of Salisbury, Policraticus, edited and translated by Cary J. Nederman, Cambridge Texts in the History of Political Thought (New York: Cambridge University Press, 1990), 29. Chapter 4 of Book IV develops the position in further detail, but the quote from the Codex situates it in a long tradition.
S. B. Chrimes, An Introduction to the Administrative History of Mediaeval England, 3rd ed., Studies in Mediaeval History 7 (Oxford, UK: Basil Blackwell, 1966), 8, 21, 47, and 98.
John L. Watts, “Ideas, Principles, and Politics,” in The Wars of the Roses, edited by A. J. Pollard (New York: St. Martin’s Press, 1995), 129.
The term ‘commonwealth’ comes later, in the fifteenth century, but the idea that a king’s reign should be judged by the well-being of his people is much older.
Geoffrey of Monmouth, The History of the Kings of Britain, edited by Michael D. Reeve, translated by Neil Wright, Arthurian Studies (Woodbridge, UK: Boydell Press, 2009), § 95.
Like “commonwealth,” the use of “res publica” in English also dates to the fifteenth century, but the sense that the community of the realm has a say in public affairs (and the recognition that public affairs exist at all) is evident by the representations of lords, commons, and church. Geoffrey of Monmouth, § 94.
“You, my companions in success and adversity, whose worth has thus far been proven to me in council and on the battlefield, now consider together and make wise provision for our response to such demands.” Geoffrey of Monmouth, § 159.448-451.
John of Salibury, 14.
John Fortescue, On the Laws and Governance of England, edited by Shelley Lockwood, Cambridge Texts in the History of Political Thought (New York: Cambridge University Press, 2002), 114-117 (selecting counsel), 108-110 (dangers of a poor commons), and 121-122 (crown and common good).
Paul R. Rovang, Malory’s Anatomy of Chivalry: Characterization in the Morte Darthur (London: Fairleigh Dickinson University Press, 2015), 7.