Why Freedom Is a Legal Concept
John Lilburne reading from Coke's Institutes at his trial for treason (c.1649). The king will have a copy of the law written for him . . . It will remain with him and he will read it all his life . . . to observe faithfully all the words of the law. –Deuteronomy 17:18-19 You shall not render an unfair decision: do not favor the poor or show deference to the rich; judge your fellow countrymen fairly. –Leviticus 19:15 You shall have one law for the non-Israelite who lives permanently with you (in your land) and the native-born in the land (the Israelite). –Leviticus 24:22 More than 50 years ago, Bruno Leoni, in Freedom and…
Responses
Steven Grosby’s rich Liberty Forum essay combines, as his writing always does, a sensitivity to history with a careful attention to theoretical problems. I am tempted to engage him on the terrain of history, in the hope of prompting still more from him on the Middle Ages; were I just a listener, that is what…
Steven Grosby’s essay is an excellent contribution on the formal and procedural elements that must be upheld to maintain the rule of law. Grosby’s essay, however, invites us to unpack what kind of “reason” is inherent in law and to ask what it means for law “to rule.” The 13th century theologian and philosopher Thomas…
I am delighted to have had the opportunity to read Professor Grosby’s Liberty Forum essay and to be invited to comment on it. I am especially happy that Professor Grosby has focused on the rule of law as a legal concept, as opposed to arguing that it's a political or philosophical concept. For unlike much…
Best to begin by acknowledging one’s mistakes. In the original Liberty Forum essay given the title “Why Freedom Is a Legal Concept,” I referred to the often quoted statement, so important for liberty and the rule of law, of Henry de Bracton, that “above the king is the university of the realm”—that is, “there is…
Defining Liberty Properly
On the Originalism blog, Michael Ramsey and Andrew Hyman responded to my post for Law and Liberty on the original understanding of substantive due process. Hyman disputes the definition of “liberty” I provided and asserts a different definition of “due process of law” in the Fifth Amendment, while Ramsey asks for more evidence that the definition of “liberty” given wasn’t unique to Thomas Jefferson.
Magna Carta’s Votaries, Skeptics, and Traditionalists
The octocentennial of Magna Carta has presented an auspicious occasion for reflecting on exactly what we ought to be celebrating, if anything, about Magna Carta, an ancient document with a tenuous connection to our own time and place. Is Magna Carta the fountainhead of our most cherished rights and liberties? Or is it a document entirely of its own time—an unremarkable set of compromises between King John and a few of his rapacious barons—with next to nothing to say to us today? In this post, I’ll describe the responses of Professor Martin Krygier, one of the more penetrating writers on the…
Tradition and the Judicial Talent
I previously suggested that a traditionalist judicial decision is self-consciously so. It demonstrates a keen interest in the coherence and continuity of particular legal practices and authorities over long periods of time. It is intentional about retransmitting and re-cementing those enduring legal practices and authorities in its own decision. And its traditionalism emerges from a close reading of the opinion and from attending to the court’s understanding of its own role.
In this respect, consider the plurality opinion authored by Justice Scalia in Burnham v. Superior Court.
Administrative Law in Turmoil: New Coke Causes Indigestion
Sir Edward CokeHarvard Law School’s dynamic AdLaw duo (Cass R. Sunstein and Adrian Vermeule) has struck again. In The New Coke: On the Plural Aims of Administrative Law the authors take aim at the insurgent fundamental assault on the legitimacy of the administrative state, under the banner of “the separation of powers.” The challenge is playing a growing role in separate [Supreme Court] opinions, and on occasion, it finds its way into majority opinions as well. Justice Clarence Thomas is the principal advocate, but he has been joined, on prominent occasions, by Justice Antonin Scalia and sometimes by Justices Samuel Alito and Chief…
Wherefore Art Thou Cicero?
In response to: Where Did the Noble Lawyer Go?: Looking for Cicero in the Boardroom or on the Billboard
American actor Gregory Peck, as Atticus Finch, stands in a courtroom in a scene from director Robert Mulligan's film, 'To Kill A Mockingbird,' 1962. Actor Gregory Peck died June 12, 2003 at age 87 of natural causes in his Los Angeles, California home. (Photo by Universal Studios/Courtesy of Getty Images)With “Where did the Noble Lawyer Go?: Looking for Cicero in the Boardroom and on the Billboard,” Professor Stephen Sheppard has provided us with a provocative, as one expects from the editor of the three-volume Selected Works of Sir Edward Coke,[1] rumination on the decline of the legal profession. He contrasts the lawyer of today with Cicero, “the model of the lawyer as hero,” the civic leader who guards the ideals of the law. The contrast is appropriately self-reflective, as Sheppard raises these questions for our consideration: “What does the hunt for Cicero mean? What should we expect a modern…
More Responses
I am an admirer of Steve Sheppard and of his scholarship. His book on the ethical obligations of lawyers is not just as a reminder of the necessity for lawyers to comply with lawyerly standards. More than formal compliance with the canons of ethics is needed today.[1] Serious consideration of the true moral purposes of…
I am fascinated with Stephen Sheppard's essay on Cicero and the modern American lawyer. In a sense, he is calling me back to those ideals I held so dear as an entering one-L a long time ago. Cicero, it is not too strong to say this, is one of the reasons I went to law school.…
It is daunting to be read by genuine scholars whom one admires. The thoughtful comments, elaborations, and criticism of Stephen Grosby, Charles J. Reid, and Dick Helmholtz have surely given the reader much more wisdom and provocation than did my essay. Despite the many truths of my commentators’ criticism, Liberty Law Forum and its editor Richard…
Reading the Talmud in the Tower of London
The Puritanical Roger Williams
Possibly no figure out of the American past today enjoys a greater prestige than Roger Williams – and for none is esteem based on so little familiarity with his deeds or so comprehensive an ignorance of his words. – Perry Miller [1] Roger Williams, the founder of Rhode Island and champion of religious liberty, is one of those figures in American history the biographies of whom almost always reveal more about the biographer or the times in which they were written than about the subject. An enigmatic character, Williams’s biographers have tended to treat him as if he were of a…
