Francis Bacon’s “Verulamium”: the Common Law
Template of The Modern in English Science and Culture
P.O. Box 704 Carpinteria CA 93014
Several things unique to “The Modern” in England were all “unwritten” in origin: the common law, constitutionalism, scientific empiricism - and cricket; the ways of honor and courage. These “ways” were not made out of either matter or transcendentals; rather out of special behavioral templates identified with being English, such as the unwritten obligation of the English to observe “Right Form” and live by the code of the “done thing.”. Every culture has its distinctive “styles” and templates, though they vary in firmness and the scope of behaviors covered. English, French, American and German science, for example, possess highly distinctive styles even though they are mutually compatible. A cultural template is like the grammar of a language: a distinctive code or constitution that is mostly unwritten.
Many cultures have started out from pre-literate foundations similar to England’s and moved beyond them to written laws and codes. The English did culture differently. One of the reasons they were able to produce an unusually strong and dynamic culture was because of a distinctive feature of their cultural template: the art of making the unwritten intelligible. The basis for this lay in their unique unwritten common law. The principles they developed for judging and discovering the dictates of the unwritten law were extended to nearly everything but especially to government and science: constitutionalism and scientific empiricism, two identifying emblems of The Modern in England.
Francis Bacon invented the new phenomenological element from which both were made. In the Latin of his basic theoretical writings Bacon called it schematismus, a term with many meanings in philosophy. Verulamium is the term used here for the new phenomenological element Bacon forged. First he gave a phenomenological reality to the law behind the rulings in the case reports made by judges when they applied the English unwritten common law. He refined that phenomenon and extended it beyond “judicature” as he called it, to include the unwritten laws of both society and nature. Then, applying a “Platonism of things rather than words”, he developed his new case method of law-finding into a generally applicable New Organon, Hooke termed it a logic engine, permitting the invention of a new scientific empiricism based on phenomenology rather than on the tabula rasa sensation psychology that Locke visited for a while on empiricism.
Isaac Newton’s celestial mechanics is usually contrasted sharply with Baconian empiricism. But Newton said he was a Baconian. He explained in the Optiks how his adaptation of Baconian empiricism led to him to the foundations of modern physics.
The generally accepted philosophy of empiricism was Lockean until Kant. Inspired by Bacon’s revolution in thought, Kant refined the logic of phenomenology and christened it as his own revolution in thought, providing the foundations for the philosophy of modern science.
The following is a summary of how Bacon invented the proto-phenomenology, the Verulamium, on which The Modern in England, and ultimately modern science, was to rest.
THE TRANSITIONAL SETTING
Seventeenth century England was precociously Baroque and so was Francis Bacon. The rapidly dying Gothic still shared quarters jealously with the upstart Modern, a contradiction that is reflected throughout the times - the Lord Mayor of London was buried twice; once as a guild master and once as a merchant. It is found throughout Bacon’s writings. He is one of the chief inventors of modern English prose. Plain-spoke thoughts leap from his essays directly into the mind. Yet like the ornamentation that decorates the rigorous formality of a Bach fugue, the direct muscular force of a Bacon passage will lie embedded in a textual setting of rhetorical flourishes. The Archimedal switch-block to the trackway to the Modern was manned by many hands but the strongest was that of Francis Bacon who after his impeachment, and with talented assistants like Thomas Hobbes, ran Verulam like the ministry of invention called Salomon's House in New Atlantis (Wheeler, 1991).
Bacon’s career, post-mortem, has been as checquered as it was in the quick. Working the “digs” of the Baconiana industry requires an applied cognitive archeology. With a Robert Boyle or a Rene Descartes the things they did were known and have changed little since. Time has been more whimsical with a few others; Goethe valued his contributions to science above those to literature. Only recently has his science been re-evaluated (Wheeler, 1987). Bacon's stature was high until the late nineteenth century; low for the next few decades; recently somewhat resuscitated. The reasons are complex. The founding historians of science and philosophy seldom studied law, and missed its role in the creation of British empiricist science. Until recently most of them assumed that science was, or if not would like to be, Newtonian mechanics, the optical theory of stars and atoms. They generally concluded that Bacon’s science was not science even though Newton said he was a Baconian; accurately so, as will be seen below. More devastating, even the translator of Bacon’s scientific writings from Latin to English, Robert Ellis, (Spedding et. al. 1864) claimed Bacon was scientifically naive and wrong-headed. Ellis, a conventional Victorian mathematician, made several mis-translations and deletions that deprived later scholars of access to the underlying subtlety of Bacon’s scientific thought. The mid-twentieth century Einstein-Bohr revolution led to more sophisticated and actually more Baconian conceptions of science, as in the "participant-observer" universe of scientists and philosophers like John A. Wheeler and David Bohm. (D. Bohm, 1981; Yehuda Elkana, 1979; L. Jonathan Cohen, 1977; Elsassser, 1982; 1986). Moreover, about 90% of the best work done in today’s experimental labs, especially those in biology, is performed much the way Bacon prescribed. (Wheeler, 1990)
Bacon’s reputation has also suffered the scorn of scholars in the humanities. They have taken the judgments of scientists at face value and have concluded it most charitable to consider Bacon as a Renaissance rather than a Modern mind (Martin, 1992). Paradoxically however, they then level the charge of positivism against him; positivism being the social science version of classical mechanics. Some in the humanities argue two rather preposterous things: that positivist ("value-free") social science is both impossible and also responsible for the moral bankruptcy of modern materialist society, and that Francis Bacon started it all. (Skolimowski, 1983; Wheeler, 1983-a) Neither position is tenable but it must be acknowledged that Bacon was an accomplice to his own deprecation. Although his popular writings were models of clarity, many of his philosophic and scientific works, especially their Latin versions, were studiously opaque. His obscurantism was not like that found in a family recipe whose secret ingredient is withheld, as was done in many hermetic writings. Bacon’s obscurity was deliberate. It derived directly from his philosophy of science. He had concluded that one of the reasons for the failure of the ancient philosophers and scientists was that their logic of inquiry was about words rather than things. His logic of inquiry would correct that.
The second problem flowed naturally from the first. The ancient sciences were written in the demotic languages of their time and that doomed them to failure. The laws of nature are not written in any people’s vernacular - Greek, Latin or English. Bacon concluded that if he tried to express his philosophical conclusions in plain English, contemporaries might understand the words but not their scientific meanings. He did not want the general estimation of the worth of his scientific writings to be determined by the opinions of philosophical incompetents. Bacon never resolved this quandary over how plain-spoke to make his basic theory of scientific law. His fear was justified. Starting with Ellis and including most modern philosophers of science, his work has been mistakenly interpreted and mis-judged. He tried to solve the communication problem through essays, myths and the novel, New Atlantis. The paradoxical result was that foreign readers like Voltaire(Voltaire, 1961) and Kant(Kant, 1929), who used Bacon’s Latin versions (he arranged Latin versions of even the articles he wrote first in English) understood him better than did many English language scholars including especially the translator of the scientific writings, Robert Ellis! Through a fortunate accident, the present approach happened to begin, not with Bacon’s philosophy but with an intensive study of Bacon’s legal and constitutional theories.(Wheeler, 1947; Wheeler, 1949; Coquillette, 1992) That is the way he himself started. To follow in his path from law to philosophy required something like Foucault's archeology of ideas. But the approach was really pre-structuralist, combining explication de texte with conventional foot-slogging exploration.
BACON’S INVENTION PROCESS:
Cognitive inventions are "software" artifacts. Seeking them out is like looking into the origin of an invention such as the plow or the stirrup, or symbolic logic.(Wheeler, 1987-a) Success brings a similar excitement, as in the discovery how Bacon invented a new “artificial” logic of science, artificial in the sense of artifact. It derived from his innovations in interpreting the precedents embedded in common law case rulings. Bacon’s new case method provided the basis for the law-finding method he applied to science. But his kind of law-finding could not get a sympathetic hearing prior to the late twentieth century when the neoKantian approaches to post-modern science that then appeared were akin to Bacon’s logic of inquiry.(Heelan, 1983; Elsasser, (1982; 1986)
Bacon’s chief science-related innovations were:
* “Judging” - analyzing - the case reports of the unwritten common law in search for a higher law lying behind them. He hypostatized a meta-law as a “thing” - a phenomenal thing.
* Applying a "reverse Platonism" to this hypostatized meta-law thing, he created an empirical phenomenological substance he called schematismus. Here it is called Veralumium.
* This led in Novum Organum to the creation of a “logic engine, Hooke’s term for adapting his case method of law-finding to phenomenological objects in general - to all unwritten laws.
* This logic engine was extended to laws of nature, considered as empirical objects. This permitted him to develop a phenomenology of scientific empiricism. It was a precursor to the phenomenology of scientific empiricism later given full philosophical expression by Kant.
* Printing provided archival resources about society and nature similar to those the law scribes preserved of case rulings of common law judges.
* His new logic engine permitted him to process all archival information into an encyclopaedic Republic of Knowledge that would be “ever a democracy”.
* He christened his scientific empiricism the third “revolution in thought,” naming the two prior ones as Greek philosophy and Roman positive law. These two also rested upon revolutions in “archival functions”.(Wheeler, 1990). When narrowed to natural science, as a social institution, these revolutions are called “paradigm shifts”.(Kuhn, 1962).
Kant, following Bacon’s lead, created his own revolution in thought - the invention of modern phenomenology..
* Bacon described the foundations of his revolution in Advancement of Learning, Novum Organum, Insturatio Magna, New Atlantis and most intriguing, the "Prometheus" essay in Wisdom of the Ancients
THE LAW OF LAWS: FROM UNWRITTEN LAW TO “VERULAMIUM”
A survey of Bacon's political, legal and jurisprudential writings, and of the opinions of historians of the common law, people like Hale (M. Hale, 1667), Holdsworth (W.S. Holdsworth, 1922-25), Maitland (W.F. Maitland, 1911), Plunknett (T.F.T. Plunknett, 1936), and Coquillette (Coquillette, 1992) yields the following:
England’s unwritten law was originally like that of most pre-literate societies: laws, customs and lore were preserved in the memories of culture paragons and encoded with runic markings by seers and magi.(Bohannan, 1967) Even after there were copious written scrolls containing court judgments, reliance on culture paragons as law-knowers persisted. A common law trial had been a "law waging" process with parties bringing their law to court and juries (law-sayers) acting as judges of the law, not of fact. The rolls containing reports of court rulings in common law cases were in widely scattered archives. They varied considerably in style and thoroughness. Lawyers used them to uncover rulings in cases a century or more earlier. The quality of the archival skills of lawyers and judges also varied considerably. Rule-finding was by no means an exact science. Sir Edward Coke, Chief Justice of the Court of Common Pleas, was the leading legal archivist of Bacon’s time. He is known as the father of the common law not so much for his jurisprudence as for the antiquarian researches that gave lawyers rather than law-saying paragons, monopoly over saying what was the unwritten law. Coke’s influence resulted in the ascendency of the common law over its other juristic rivals.
There had already been a “Reception” of the Roman Law through the Canon Law during the Henrician Reformation. Richard Hooker did part of the spade work of assimilating it in The Laws of Ecclesiastical Polity. Bacon’s father was Lord Keeper of the Seal (and of the Queen's Conscience). As head of the Chancery he presided over the Equity side of the law. Equity, as the saying had it, corrected the law for the defects of its one-size-fits-all virtue of generality. Chancery law grew out of pre-Reformation Canon Law traditions and dealt with "oaths," which verged on contracts, and with legal ephemera such as " uses": the abstract type of property between feudal and freehold tenures.(Coquillette, 1992) Equity law employed maxims like pacta servanda sunt, contracts must be obeyed. Social conditions had experienced so much change that stare decisis required dexterous interpretive contortions to make the old rulings fit new institutional developments.(Hudson, 1996) Jurists developed ingenious ways of using the law’s special language, Law Latin, to do this. Law Latin terms had their own meanings, applied according to their own “artificial reason,” as Coke called it in a famous rebuke to King James I. Jurists created a law-made virtual world that existed inside the ordinary world. Lawyers entered and lived and worked in that virtual domain when they joined the Inns of Court. Prior to Bacon, the law’s artificial reason, like other branches of reason, was essentially an adaptation of Aristotelian rhetoric.
Written Gothic English had almost no punctuation. Sometimes it was hard to identify the proper divisions between words, clauses, sentences and topics. Interpreting archaic rulings was analogous to the problem molecular biologists faced in decoding the “words” in DNA chains though by no means as difficult. When common law jurists adjudicated conflicts over the new social conditions of the seventeenth century they often had to make their distinctions and rulings turn on inventive insertions of punctuation and syntax. Holdsworth called this method a kind of law Scholasticism. Particularly serious problems arose over the case rulings that bore imprints from the residues of feudal tenures and fealties. It was hard enough merely to tease the rulings of the unwritten Gothic law out of their hiding places in the archival repositories of their feudal applications; it was next to impossible to apply those archaic rules to the novel conditions of the Modern. Fee simple property ownership co-existed with feudal uses; national citizenship with feudal allegiance. Gothic rhetoric was incapable of resolving the legal conflicts that accompanied England’s institutional transformations.
Bacon possessed a superb mastery of the common law - he lived in Gray's Inn, one of the law guilds, and gave "readings" there. But as a student of comparative law and philosophy he brought new resources to the common law. He grew up on his father’s "equity side" of the law. As a toddler young Francis enjoyed the run of Elizabeth's Court and Queen Elizabeth I referred to him as "my young Lord Keeper”.
The work of the antiquarians, an honorific term in those days, plus printing expanded legal resources and made them more widely available but this also made judging the law more difficult. A new archival, information processing technology was sorely needed. Bacon had early on sensed the acuteness of this problem and advocated that the Queen appoint a commission to bring order to England’s trackless juridical wilderness. He did not mean a Roman Law type of codification, a code civile. The data was not “laws” or statutes but rulings under the unwritten law. This meant that an entirely new approach was needed but neither the Queen or anybody else agreed. After the death of Bacon’s father and the ascendency of the Cecils, Bacon’s career was stymied. He turned more to philosophy - what he meant by philosophy. When the Queen rejected his proposal, Bacon looked for a shortcut; a way of going beyond the records of individual case applications of the unwritten law in search of a higher level of hidden law that would possess a more universal application.
Things changed with the ascension of James VI of Scotland as James I of England .Bacon’s career blossomed. As the king’s new Attorney General, Bacon was appointed as England’s representative on the Commission on the Union of England and Scotland. Scottish law had a Roman Law foundation and this brought to a head further awareness of the inadequacies of legal research based on rhetoric. The two legal systems did not speak the same language but some form of unity within diversity was necessary. The Commission was explicitly charged with studying, ’judging’, the laws of kingship shared in common by England and Scotland. The King wanted the Commission to find a common realm of law that could be attributed to the new dualistic nation, unified under the joint ‘crown’ he wore as James VI and I. This turned out to be a very creative charge. In effect, it was a royal order to discover a hitherto unknown domain of British kingship, the constitution of an imperial crown.(Wheeler, 1947; Wheeler, 1949). Bacon’s brief was one of his most brilliant achievements, acclaimed even by his life long rival, Coke. In producing it he perfected the new kind of law-finding that was to develop into scientific empiricism. Beyond this, that strange legal case lying in the juridical wilderness between the Elizabeth and William & Mary, became the spiritual godfather of both England’s unwritten constitution of 1688 and the Federal system of dual sovereignty that was later invented by the Americans in 1789. (Wheeler, 1975) “The Case of the Post-Nati” can fairly be called the leading case in the constitution of The Modern; Anglo-American subdivision.
Bacon’s new logic of analysis sought to find the unwritten law’s own unwritten law by dialectically comparing and judging past applications of it. This required a new archival technology to decode the meanings hidden behind the language in the scrolls of archaic Gothic case reports; and then a way of processing that information into more general principles that could be applied to the Modern Age conditions then arising. In his law briefs, especially the “Case of the Post-Nati” (“Calvin’s Case”) and the “Reading on the Statute of Uses,” Bacon searched both the case precedents themselves and also the unwritten Gothic law that lay behind them: a way of delving further behind the unwritten Gothic law to a still deeper common law in search of principles that could be applied to post-Gothic conditions. It was quickly apparent that the Aristotelian identity of the form and matter of law would not work. Rather, it was precisely their separation, their atom splitting so to speak, that he needed.
The unwritten common law is not a “brooding omnipresence in the sky”; It is a thing. The text of a ruling does not express it, but contains only a ruling under it, which may or may not be confirmed on appeal. In Bacon’s terms this is a phenomenological “Form” that exists independently of the imperfect and transitory concrete expressions of it in common law rulings. Uncovering this ontological legal substance required a logic of dialectical inquiry, not a logic of rhetoric. He needed an ontological mechanics; a logic engine to uncover the “deep structure” of a form of law whose validity was independent of its specific temporal applications: the Form of the law, of the law of laws: Verulamium. How was this different from the approach of the other great lawyers of the day? Coke’s artificial reason produced meticulous archives of case precedents and they were a crucial database, but his notion of law was entirely too narrow and superficial. By contrast, Bacon studied comparative law like a structuralist anthropologist. In addition, he evaluated different ways of reasoning: Platonic, Ramist, hermetic, rhetoric, deductive, inductive, experimental and Aristotelian. He rejected all but one for being concerned with words rather than forms.
Sometime around 1608 and while still at Grays Inn Bacon had begun to reinterpret Plato’s ontological schematismos, applying it to the empirical law-stuff residing behind common law rulings, rather than to an eternal Form residing in the Logos. This permitted treating cases as precedents; as "evidences" of the unwritten law. It was a new approach to law-finding. Bacon’s legal briefs, the above constitutional law case in particular, (Wheeler, 1947) illustrate his new law-finding method and how it was later generalized for law-finding in other fields. Writings such as "Reading on the Statute of Uses” (Works, XIV) show the change from applying stare decisis to find an applicable RULE to fit new facts, into using case precedents as EVIDENCES of the phenomenological law stuff residing behind the unwritten law. It is the difference between a matched fit and a phenomenon; the kind of “phenomenon” that goes with “noumenon”. This explains why legal historians have called Bacon’s "the first modern scientific approach to the law(Holdsworth, 1924) In his briefs and writings Bacon created, "invented", the distinguishing features of the modern common law system:
* Using cases as repositories of evidence about the "unwritten law”;
* Determining the relevance of precedents by exclusionary principles of evidence and logic;
* Treating opposing legal briefs as adversarial hypotheses about the application of the "unwritten law" to a new set of facts.
As late as the eighteenth-century some juries still declared the law rather than the fact but already before the end of the seventeenth century Justice Sir Matthew Hale (Hale, 1667) explained modern common law adjudication procedure and acknowledged Bacon as the inventor of the process of discovering unwritten laws from the evidences of their applications. The method combined empiricism and inductivism in a new way that was to imprint its signature on many of the distinctive features of modern English society:
* Making manifest the law behind the unwritten common law;
* Applying to manners and social behavior the unwritten gentleman's code of honor of things "done" and "not done”; of what is and is not “cricket”. The playing fields of Eton observed the code of the master of Verulam.
* Observing the "conventions" of Britain's unwritten "working" constitution;
* The tradition of the scientific naturalist: meticulous empirical observations in search of the laws of nature.
The old organon, Aristotle’s logic, was a rhetoric engine for investigating and explaining alphanumeric literacy, post-mythic discourse. It involved an “archival revolution”(Wheeler, 1987-a) in the encoding, storage, retrieval and information processing functions and was made possible by the invention of the quill and scroll.(Wheeler, 1990) Bacon’s time saw a database explosion produced by optics, ships, mechanisms and print, and it had to be assimilated using a new investigative and explanatory logic engine; a novum organum. The modern mind wants naturally to jump from Aristotle to Descartes and Newton - to the Descartes who separated mind and matter and invented a way of describing a mechanical watch-works world; and to the Newton who invented a calculus of linear relationships in a closed causal system. But Bacon’s empiricism came in between. He invented a new phenomenology of law-finding: an investigative and explanatory logic engine, a novum organum, for law. As will be seen later, Newton used it to invent his own new mechanics of causal relations.
"Law" is used here to mean invariances associated with the relationships between things in a system or structure which, if those lawful relations are changed the system is either changed or dissolved. "Cause" is used to mean things associated in an invariant linear time sequence.
This distinction is useful not only because of the juridical foundations of Bacon's philosophy but also because it helps distinguish Baconian law-finding from Cartesian cause-finding. It also helps identify the origin of both modern phenomenology and of modern Anglo-American analytic philosophy.
Bacon’s main research database was always the book. He created a new archival technology made possible when arcane scroll and codex repositories of knowledge became widely accessible through printing. A collection of similar rulings could be inspected, not to make a better shoe horn for forcing a fit but for abstracting common underlying general principles. The element that then emerged was not a ruling but an analytically discovered law that “must” be the juridical foundation for a set of related case rulings: judging the rulings to find the rule they jointly express. The process is like what in artificial intelligence programming is called back-chaining and is the foundation for computer-mediated searches for roots and causes, as in medical diagnosis. It is also the empiricist process of that supreme Baconian, Sherlock Holmes.(Sebeok 1981) One begins with the presenting symptoms, perhaps a syndrome, and works from them back to a set of probable sources or causes. The “cause” or “law” is not a time-sequential cause in the sense of classical mechanics but is rather the explanation that remains after evidence and logic eliminate every other possibility. It is not static and final; it is dynamic and subject to correction on the basis of new evidence that may later appear.
Such a process preserves stare decisis as a principle but makes it dynamic and incorporates into it principles of change and growth. No individual ruling now or in the future could express concretely the unwritten law, any more than had individual rulings of the past. The unwritten common law of England remains forever ineffable, uncaptured in any given ruling, and capable of further growth and application as knowledge and conditions change. More important, the collection of all such deeper laws (rather than their applied rulings) amounts to a general system of fundamental law.(Wheeler, 1975) an unwritten "constitution," whose first tentative expression was in “The Case of the Post-Nati.(Wheeler, 1947; 1949; 1956; 1975) This potential for submitting government to the rule of law under an unwritten constitution later came to be called constitutionalism.(C.H. McIlwain, 1940; F. Wormuth, 1949) It was not finally realized until after the "Glorious Revolution" of 1688 but Bacon’s earlier case reports and law briefs exhibit the potential. This happens also to be the conception, or paradigm, of scientific law characteristic of postmodern science. Bacon explicitly made allowance for carrying the same kind of dynamism into natural science through his Aphorism, Apothegm and Maxim styles of stating a scientific law. Bacon's phenomenology of law imported into the English unwritten common law an artificial and abstract logos-like domain that was “real” in the way the Roman Law described a real, though impalpable, domain. He processed information in this phenomenal domain using his own new "grammar", a "philosophical grammar" he called it. He contrasted this with both "literary grammar" and rhetoric, which deal with language rather than with what he called philosophy. By philosophy Bacon meant "science”. It was long called natural philosophy and today we would probably call it semiotics or phenomenology. In Book Six of the De Augments Bacon described it as:
"...a kind of grammar which should diligently inquire, not the analogy of words with one another, but the analogy between words and things, or reason; not going so far however as that interpretation which belongs to Logic”.(Works, De Augmentis, VOL IX, pp 111-112)
Bacon outlined a new comparative semiotics designed to lead to a general grammar like Chomsky’s “Transformational grammar,” and to a theory of signs like that of Peirce.. He went on to devise a binary alphabetic code of "A"s and "B"s that is remarkably similar to today's binary digital code on the one hand and to our character based genetic code on the other.
FROM VERULAMIUM TO EMPIRICISM