[Volokh] Jim Lindgren: Hamburger, Part 5: The Common Law Concepts of Law & Judicial Duty

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Posted by Jim Lindgren:
Hamburger, Part 5: The Common Law Concepts of Law & Judicial Duty
http://volokh.com/archives/archive_2008_12_07-2008_12_13.shtml#1228439806


   When I read Philip Hamburgerâs Law & Judicial Duty, it occurs to me
   that in 50 years, most of our scholarship will be long forgotten, but
   this book will still be read.

   In my fifth selection from the introduction of the book, Hamburger
   suggests his main argument. For the extensive evidence supporting
   these claims, Iâm afraid that you will have to read the book:

   IFRAME:
   [1]http://rcm.amazon.com/e/cm?t=thevolocons-20&o=1&p=8&l=as1&asins=067
   4031318&fc1=000000&IS2=1&lt1=_blank&m=amazon&lc1=0000FF&bc1=000000&bg1
   =FFFFFF&f=ifr&nou=1

     Law and Judicial Duty

     The evidence reveals the importance of the common law ideals of law
     and judicial duty. It shows that these two ideals, taken together,
     required judges to hold unconstitutional acts unlawful. In pursuing
     the evidence, therefore, this book cannot focus on a distinct power
     to hold acts unconstitutional, but rather must more generally study
     the nature of law and of judicial office as understood by common
     lawyers.

     The initial question concerns the obligation of law and especially
     constitutions. Long before Americans declared their independence,
     many English lawyers understood that the law made by the people,
     their "constitution," was of higher authority and obligation than
     other human law in their jurisdiction. Not merely the arrangement
     of government, this sort of constitution was the most fundamental
     part of the law of the land, and although many men questioned its
     application to Parliament, many others understood it to limit
     Parliament and thus to render any unconstitutional government act
     unlawful and void.

     The second question regards judicial office and, in particular,
     judicial duty. Judges in America did not have to create for
     themselves a power over constitutional law, for already in England
     judges had a duty to decide in accord with the law of the land,
     including the constitution. The judges appreciated the functional
     benefits of this duty, such as its protection of liberty, but they
     understood it more basically to be part of their office, to which
     they were bound by their oaths. Judges therefore assumed they had
     no choice but to decide in accord with the law of the land.
     Accordingly, even in England they sometimes had to hold
     unconstitutional acts unlawful. Although judges faced obstacles in
     the law itself barring them from holding acts of Parliament
     unlawful, their duty to decide in accord with the law of the land
     was general, and thus where not barred by the obstacles relating to
     Parliament, their duty reached all types of government acts,
     regardless of whether the acts were executive, judicial, or
     legislative. As a result, both before and after Independence,
     judges were bound by their duty to hold unconstitutional American
     statutes unlawful.

     Judicial duty was both more general and more mundane than what has
     come to be understood as judicial review, and it therefore had
     greater authority and more balanced implications. If there was a
     distinctive judicial power of review, it must have come from the
     judges themselves, and this has led to the conclusion that judicial
     review is of questionable authority. It has even led to the
     conclusion that judges, having created the power, can exercise it
     with either restraint or vigor, as seems to them required by
     different circumstances. Judicial duty, however, arose from the
     very office of a judge, and it thereby simultaneously strengthened
     and confined judicial decisions: It gave strength to judicial
     decisions about the constitutionality of government acts, and it
     confined the judges to making such decisions in the same way they
     made any other decisionsâin accord with the law of the land.

     Historically, it will be seen that the common law ideals of law and
     judicial duty developed not merely in reaction to local or
     transient considerations of policy, but more generally in response
     to underlying worries about the obligation of law and the role of
     judges, which in turn rested on deeper anxieties about human
     nature. It was widely assumed that human law existed within a
     hierarchy that reached from God down to man and that therefore even
     human law had a divinely derived obligation. Yet how human law
     acquired this binding force and how judges should decide about law
     were matters of profound dispute. Some theologians and academically
     minded lawyers had a high enough view of human potential that they
     suggested rulers and judges could partly transcend the rough,
     earthly texture of human law. Most common lawyers, however, pursued
     approaches less trusting of their rulers and judges and more
     grounded in the law of the land, and they thereby developed ideals
     of law and judicial duty that served the function of limiting
     government far more effectively than the high-minded ideals
     elaborated by their academically inclined contemporaries.

     In the end, such idealsâwhether academic or more narrowly
     legalâwere responses to problems that might not be entirely
     susceptible of solutions. Men could use their ideals to rise above
     their worst tendencies, but they could never afford to forget that
     lurking below even the best of their ideals were problems as
     enduringly worrisome as men themselves. Their solutions therefore
     could never be perfect, and even if the common law solution avoided
     the dangers of the more academic approaches, this is not to say
     that it could rise above the nature of men.

   More to come . . . .

References

   1. http://rcm.amazon.com/e/cm?t=thevolocons-20&o=1&p=8&l=as1&asins=0674031318&fc1=000000&IS2=1&lt1=_blank&m=amazon&lc1=0000FF&bc1=000000&bg1=FFFFFF&f=ifr&nou=1