On the Liberty of the English: Adam Smith’s Reply to Montesquieu and Hume

2021 ◽  
pp. 009059172110397
Author(s):  
Paul Sagar
Keyword(s):  
Rule Of Law ◽  
Legal History ◽  
Adam Smith ◽  
Common Law ◽  
The Rule Of Law ◽  
Administration Of Justice ◽  
History Of ◽  
Status Goods ◽  
The Common ◽  
Nuanced Understanding

This essay has two purposes—first, to identify Adam Smith as intervening in the debate between Montesquieu and Hume regarding the nature, age, and robustness of English liberty. Whereas Montesquieu took English liberty to be old and fragile, Hume took it to be new and robust. Smith disagreed with both: it was older than Hume supposed, but not fragile in the way Montesquieu claimed. The reason for this was the importance of the common law in England’s legal history. Seeing this enables the essay’s second purpose: achieving a more thorough and nuanced understanding of Smith’s account of liberty. This requires us to go beyond repeating Smith’s famous claim that modern liberty was the result of the feudal barons trading away their wealth and power for inane status goods. As I demonstrate, this is only one part of a much wider story: of liberty requiring, and also being constituted by, the rise of the regular administration of justice, and ultimately the rule of law. Although Smith’s history of the English courts and common law has been almost entirely neglected by scholars, it is indispensable to understanding both his reply to Montesquieu and Hume and his wider political theory of modern freedom.

Rule of Law and Common Law

2020 ◽  
pp. 166-188
Author(s):  
Mike McConville ◽  
Luke Marsh
Keyword(s):  
Criminal Justice ◽  
Rule Of Law ◽  
Policy Making ◽  
Common Law ◽  
The Rule Of Law ◽  
History Of ◽  
The Common ◽  
Locus Classicus ◽  
Law Making

This chapter argues that the conflict earlier described between the executive and the judiciary should reset the debate about the meaning of the ‘rule of law’. To this end, it explores the implications that the history of the Judges’ Rules has for both the ‘Rule of Law’ and the role of judges in relation to the common law. By shedding light on the ambiguous nature of the Rules, it first questions whether they were ‘law’, and if so, whether judges could be said to legitimate authors of them—itself a controversial and heavily contested notion. In this regard, it examines the principal justifications for judicial law-making, and questions how these might relate to other major judicially created or endorsed features of the modern criminal justice landscape, namely, state-induced guilty pleas and the Criminal Procedure Rules (CrimPR). Additionally, it challenges the locus classicus of Tom Bingham as to the meaning of the ‘Rule of Law’. By focusing on the ignored value of adversarial proceedings, it demonstrates how Bingham’s celebrated analysis of the Rule of Law is flawed and its list of ‘ingredients’ left wanting. In consequence, it argues that those transformative initiatives conceived outside formal adversary structures (including the Judges’ Rules, state-induced guilty pleas, and the CrimPR) cannot meet the tests of legitimate policy-making or the rule of law. The chapter ends by looking beyond the debate on judicial law-making in order to address a related deep-seated problem that arises from judges’ involvement in setting criminal justice policy: their entrenched homogeneity.

The Rule of Law and Good Governance

2019 ◽  
pp. 75-90
Author(s):  
Henk Addink
Keyword(s):  
Rule Of Law ◽  
Good Governance ◽  
Common Law ◽  
The State ◽  
Fundamental Rights ◽  
The Rule Of Law ◽  
Judicial Control ◽  
The Common ◽  
The Government ◽  
Continental Tradition

The concept of the rule of law has different—common law and continental—historical roots and traditional perspectives. The common law tradition is more focused on limiting the powers of the state, whereas the continental tradition focuses on not just to limit but also to empower the government. But both systems have a focus on the rule of law. The rule of law in the classical liberal tradition is based on four elements: legality, division and balance of powers, independent judicial control, and protection of fundamental rights. The differences between rule of law and rechtsstaat are: different concepts of the state, mixed legal systems and different approaches of a constitution, and different perspectives on human rights. There are two levels of development: a model in which law is a way of structuring and restricting the power of the state, the second level is more subjective and has important individual positions. The concept of good governance related to these developments makes clear the need to broaden the concept of the rule of law.

The Constitution of Law: Legality in a Time of Emergency by David Dyzenhaus, (Cambridge: Cambridge University Press, 2006). 250pp. Page numbers in text are to this book.

2008 ◽  
Vol 21 (2) ◽  
pp. 477-483
Author(s):  
Jamie Cameron
Keyword(s):  
National Security ◽  
Rule Of Law ◽  
Common Law ◽  
Middle Ground ◽  
Cambridge University ◽  
The Rule Of Law ◽  
Legislative Action ◽  
The Common ◽  
Constitutive Properties ◽  
Principle Of Legality

What the rule of law means and how it constrains the exercise of state power raise issues which have been debated-without resolution-over the ages. Times of emergency bring fresh energy to the discussion, and David Dyzenhaus is one of many who have entered the fray to debate the balance between liberty and national security in the post 9/11 period. It has not been easy for those who place their trust in written constitutions to account for the way textual guarantees are diluted when the state is under threat. Rather than address that dilemma, Dyzenhaus sets his ideas apart by proposing a theory which maximizes the protection of rights in emergency circumstances, without straining the institutional capacities or legitimacy of the judiciary. This theory invokes the pedigree of the common law-and “common law constitutionalism”-and is grounded in the constitutive properties of the rule of law, or principle of legality. Dyzenhaus may not have answered the questions readers will want to ask, but he has opened up the middle ground between the competing supremacies yet more, by drawing common law constitutionalism and its rule-of-law pedigree into constitutional theories of review. More to the point, he has challenged the judiciary to draw on the moral resources of the law to make executive and legislative action as accountable as possible at all times, in emergencies as well as in normal times. Readers can and should engage, at many levels, with the complexity of his thought in this important book.

Baker and Milsom Sources of English Legal History

2019 ◽  
Author(s):  
John Baker
Keyword(s):  
English Translation ◽  
Legal History ◽  
Common Law ◽  
Private Law ◽  
History Of ◽  
The Common

This book contains selected cases, statutes, and a few other texts, relating to the history of English private law between 1194 and 1750. (Cases after 1750 are mostly available in the English Reports.) It may be used as a companion to the textbooks written by the compilers, but the purpose is different from that of a textbook. The original materials are here allowed to speak for themselves, without commentary. Most of them are reports of cases, which show how the common law evolved through argument. The losing arguments help to explain those which prevailed, and it is often instructive to know what was not argued. Most of the reports were written in law French, but they are here given in English translation, corrected or augmented from manuscripts, together with notes from the enrolled Latin records. Much of this material is not available in English translation elsewhere. The second impression (2019) contains corrections and additions.

Interpreting the Contours of Self-Defence within the Boundaries of the Rule of Law, the Common Law and Human Rights

2015 ◽  
Vol 79 (5) ◽  
pp. 330-343
Author(s):  
Catherine Elliott
Keyword(s):  
Human Rights ◽  
Criminal Justice ◽  
Rule Of Law ◽  
Common Law ◽  
European Convention ◽  
The Rule Of Law ◽  
The Common ◽  
Criminal Legal System ◽  
Objective Concept ◽  
Self Defence

The Crime and Courts Act 2013 has amended s. 76 of the Criminal Justice and Immigration Act 2008 on the amount of force a person can use in self-defence. The amended provision poses a dilemma for the courts: it states that only reasonable force can be used by a householder against a trespasser, but adds that force is unreasonable if it is grossly disproportionate. Until now, the courts have treated reasonable force and proportionate force as synonyms. This article suggests that the amended s. 76 should be interpreted to comply with the rule of law, incorporating the idea of equality before the law and legality. The courts should respect the traditional common law concept of reasonableness which is an impartial, objective concept that plays an important role across the whole of the criminal legal system. In addition, the article points out that the Act must be interpreted, where possible, in accordance with the European Convention on Human Rights to avoid the problems that arose with the defence of lawful chastisement.

scholarly journals How has China formed its conception of the rule of law? A contextual analysis of legal instrumentalism in ROC and PRC law-making

2017 ◽  
Vol 13 (3) ◽  
pp. 277-294 ◽  
Author(s):  
Qianlan Wu
Keyword(s):  
Rule Of Law ◽  
Common Law ◽  
Modern Society ◽  
Contextual Analysis ◽  
European Origin ◽  
The Rule Of Law ◽  
The World ◽  
The Common ◽  
The Law ◽  
Law Making

The rule of law as a globally recognised concept is multi-faceted (Chesterman, 2008). In the common-law tradition, it is conceived through a formal and substantive framework. In essence, it centres on the supremacy of the law over the arbitrary exercise of power and the formal legality of the law (Tamanaha, 2004, p. 115; Cotterrell, 1992, p. 157). The rule-of-law concept has been criticised as being of unique European origin, where plural social organisation and universal natural law constitute its two preconditions (Unger, 1977, pp. 80–110). It has, however, been advocated around the world as one essential principle leading to modernity, where the legitimacy of the law based on the formal and substantive rule of law serves as a strong symbol for a modern society (Deflem, 1996, p. 5).

The Ancient Constitution and the Expanding Empire: Sir Edward Coke's British Jurisprudence

2003 ◽  
Vol 21 (3) ◽  
pp. 439-482 ◽  
Author(s):  
Daniel J. Hulsebosch
Keyword(s):  
American Revolution ◽  
Rule Of Law ◽  
Common Law ◽  
Early America ◽  
Constitutional History ◽  
The Rule Of Law ◽  
Time Out ◽  
The Common ◽  
Ancient Constitution ◽  
Anglo American

One of the great, unrecognized ironies in Anglo-American constitutional history is that Sir Edward Coke, the seventeenth-century mythologist of the “ancient constitution” and the English jurist most celebrated in early America, did not believe that subjects enjoyed the common law and many related rights of Englishmen while overseas. “The common law,” Coke declared in Parliament in 1628, “meddles with nothing that is done beyond the seas.” The ancient constitution was an English constitution and, though non-English subjects of the English king could enjoy its liberties and privileges while in England, it did not apply to anyone outside that realm. The jurisprudence that gave intellectual shape to colonial resistance before, and to notions of the rule of law after, the American Revolution was not intended by its primary author to benefit Americans. Whether or not the ancient constitution existed time out of mind, it did not extend to land out of sight.

scholarly journals Honos alit artes. Studi per il settantesimo compleanno di Mario Ascheri. IV. L’età moderna e contemporanea

2015 ◽  
Keyword(s):  
Eighteenth Century ◽  
Social History ◽  
Legal Status ◽  
Common Law ◽  
Legal Tradition ◽  
Administration Of Justice ◽  
History Of ◽  
The Common ◽  
History Of Europe ◽  
The Relationship

The studies included in this volume analyze the legal and social history of Europe and North America by the end of the eighteenth century to the contemporary age. The study investigates the relationship between culture and legal status (science, law and government), the administration of justice and the transformation of the legal professions. That lights up the separation, in the whole complex of Western legal tradition, that identifies the countries of the common law.

scholarly journals Thomas Jefferson, I dilemmi della democrazia americana, translated and edited by Alberto Giordano, with a preface by Dino Cofrancesco (Novi Ligure: Città del Silenzio, 2007)

2010 ◽  
Vol 5 (1) ◽  
Author(s):  
Pierluigi Chiassoni
Keyword(s):  
Civil Society ◽  
Rule Of Law ◽  
Organized Crime ◽  
Coming Out ◽  
Common Good ◽  
Social Economic ◽  
Major Drawback ◽  
The Rule Of Law ◽  
History Of ◽  
The Common

The history of the Italian Republic has been a history of a remarkable cultural, social, economic, and legal progress for almost thirty years. Of course, many serious issues were left unattended (organized crime and the limits of political immorality rate among the foremost); but, on the whole, the balance was not so bad (our Constitution and our laws concerning judicature, divorce, abortion, and the national health service, for instance, were taken as examples by other European countries coming out from dictatorships and cultural depression). Terrorism, in the 1970s-1980s, was (taken as) a major drawback; in any case, terrorists on both extremes were finally, and utterly, defeated with the sole arms of the rule of law (no “special renditions”, no torture, no special military tribunals were resorted to as “necessary evils”, like in the dark global times following September 11), supported by a conscious and responsible civil society. The political establishment, however, did not grow up in morality, responsibility, and sense for the common good at the same pace of the most advanced sectors of civil society.

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