Law and Judicial Duty

Overview


Philip Hamburger’s Law and Judicial Duty traces the early history of what is today called “judicial review.” Working from previously unexplored evidence, Hamburger questions the very concept of judicial review. Although decisions holding statutes unconstitutional are these days considered instances of a distinct judicial power of review, Hamburger shows that they were once understood merely as instances of a broader judicial duty.

The book’s focus on judicial duty overturns the...

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Overview


Philip Hamburger’s Law and Judicial Duty traces the early history of what is today called “judicial review.” Working from previously unexplored evidence, Hamburger questions the very concept of judicial review. Although decisions holding statutes unconstitutional are these days considered instances of a distinct judicial power of review, Hamburger shows that they were once understood merely as instances of a broader judicial duty.

The book’s focus on judicial duty overturns the familiar debate about judicial power. The book is therefore essential reading for anyone concerned about the proper role of the judiciary.

Hamburger lays the foundation for his argument by explaining the common law ideals of law and judicial duty. He shows that the law of the land was understood to rest on the authority of the lawmaker and that what could not be discerned within the law of the land was not considered legally binding. He then shows that judges had a duty to decide in accord with the law of the land. These two ideals—law and judicial duty—together established and limited what judges could do.

By reviving an understanding of these common law ideals, Law and Judicial Duty calls into question the modern assumption that judicial review is a power within the judges’ control. Indeed, the book shows that what is currently considered a distinct power of review was once understood as a matter of duty—the duty of judges to decide in accord with the law of the land. The book thereby challenges the very notion of judicial review. It shows that judges had authority to hold government acts unconstitutional, but that they enjoyed this power only to the extent it was required by their duty.

In laying out the common law ideals, and in explaining judicial review as an aspect of judicial duty, Law and Judicial Duty reveals a very different paradigm of law and of judging than prevails today. The book, moreover, sheds new light on a host of misunderstood problems, including intent, manifest contradiction, the status of foreign and international law, the cases and controversies requirement, and the authority of judicial precedent.

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Editorial Reviews

New Republic

Hamburger is an accomplished and assiduous legal historian, and his book is a work of imposing scholarship...The history that Hamburger has excavated is genuinely fascinating, and it may alter the terms of debate among constitutional theorists, preoccupied as many of them are with origins...[It's] a pleasure to read, and that is in part because of the enormous labor that its author poured into it. Clearly it was a labor of love...Philip Hamburger has not only greatly enriched legal history, but he has enabled us to see, if not what the judges of old actually thought, let alone what unconscious thoughts and emotions motivated them, then at least how they wished to be seen; and that is an important part of a proper understanding of judicial behavior, ancient and modern.
— Richard A. Posner

First Things

In Law and Judicial Duty, Hamburger provides by far the most comprehensive historical account of the ideal of judicial duty that undergirded our framers' construction of the federal judiciary.
— Michael W. McConnell

Charles F. Hobson
A work of exemplary scholarship that sheds abundant new light on a complex and controversial subject.
R. Kent Newmyer
Law and Judicial Duty is legal history on a grand scale. The book will reshape the scholarly debate about the origins and nature of judicial review.
New Republic - Richard A. Posner
Hamburger is an accomplished and assiduous legal historian, and his book is a work of imposing scholarship...The history that Hamburger has excavated is genuinely fascinating, and it may alter the terms of debate among constitutional theorists, preoccupied as many of them are with origins...[It's] a pleasure to read, and that is in part because of the enormous labor that its author poured into it. Clearly it was a labor of love...Philip Hamburger has not only greatly enriched legal history, but he has enabled us to see, if not what the judges of old actually thought, let alone what unconscious thoughts and emotions motivated them, then at least how they wished to be seen; and that is an important part of a proper understanding of judicial behavior, ancient and modern.
First Things - Michael W. McConnell
In Law and Judicial Duty, Hamburger provides by far the most comprehensive historical account of the ideal of judicial duty that undergirded our framers' construction of the federal judiciary.
New Republic
Hamburger is an accomplished and assiduous legal historian, and his book is a work of imposing scholarship...The history that Hamburger has excavated is genuinely fascinating, and it may alter the terms of debate among constitutional theorists, preoccupied as many of them are with origins...[It's] a pleasure to read, and that is in part because of the enormous labor that its author poured into it. Clearly it was a labor of love...Philip Hamburger has not only greatly enriched legal history, but he has enabled us to see, if not what the judges of old actually thought, let alone what unconscious thoughts and emotions motivated them, then at least how they wished to be seen; and that is an important part of a proper understanding of judicial behavior, ancient and modern.
— Richard A. Posner
First Things
In Law and Judicial Duty, Hamburger provides by far the most comprehensive historical account of the ideal of judicial duty that undergirded our framers' construction of the federal judiciary.
— Michael W. McConnell
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Product Details

  • ISBN-13: 9780674031319
  • Publisher: Harvard University Press
  • Publication date: 11/1/2008
  • Pages: 704
  • Sales rank: 1,345,354
  • Product dimensions: 6.80 (w) x 9.30 (h) x 1.80 (d)

Meet the Author

Philip Hamburger is Maurice and Hilda Friedman Professor of Law at the Columbia Law School.
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Table of Contents

  • Preface
  • Introduction
  • I. Law
    • 1. The Hierarchy of Law
    • 2. The Shift Toward Authority
    • 3. Constitutions


  • II. Judicial Duty
    • 4. Judicial Duty
    • 5. Independent Judgment
    • 6. Judicial Decisions
    • 7. Authority to Expound


  • III. Judicial Duty as to Legislative Acts
    • 8. No Appeal from Parliament
    • 9. Colonial Departures


  • IV. Law and Judicial Duty in America
    • 10. Law and Judicial Duty
    • 11. Reason and Justice within the Law
    • 12. The Range of Constitutional Decisions and the Character of Judicial Duty


  • V. Judicial Duty in America as to Legislative Acts
    • 13. Holding Legislative Acts Unconstitutional
    • 14. A Lopsided Debate
    • 15. Not Holding Legislative Acts Unconstitutional


  • VI. Independence and Authority in America
    • 16. Independence
    • 17. Authority


  • VII. Inexplicit
    • 18. The Inexplicitness of Constitutions
    • 19. Federal Clarifications


  • Conclusion
  • Appendix I. Bonham’s Case
  • Appendix II. The Institutio Legalis: Law and Justice in New Jersey
  • Appendix III. Common Law Adjacent to Statutes: Religious Taxes in Massachusetts
  • Chronological Table of State Decisions
  • Index

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