Law and Judicial Duty [Hardcover]

Philip Hamburger (Author)

Book Description

ISBN-10: 0674031318 | ISBN-13: 978-0674031319 | Publication Date: November 1, 2008 | Edition: 1

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.

(20081231)

Editorial Reviews

Review

A work of exemplary scholarship that sheds abundant new light on a complex and controversial subject.
--Charles F. Hobson, editor of The Papers of John Marshall

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.
--R. Kent Newmyer, author of John Marshall & the Heroic Age of the Supreme Court

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 (New Republic )

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 (First Things )

Product Details

• Hardcover: 704 pages
• Publisher: Harvard University Press; 1 edition (November 1, 2008)
• Language: English
• ISBN-10: 0674031318
• ISBN-13: 978-0674031319
• Product Dimensions: 9.3 x 6.4 x 1.6 inches
• Shipping Weight: 2.3 pounds (View shipping rates and policies)
• Average Customer Review: 4.7 out of 5 stars  See all reviews (3 customer reviews)
• Amazon Best Sellers Rank: #860,930 in Books (See Top 100 in Books)

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Customer Reviews

Most Helpful Customer Reviews

16 of 16 people found the following review helpful:

5.0 out of 5 stars The Definitive History of Judicial Review, December 7, 2008

By 

James Lindgren (Chicago, Illinois) - See all my reviews

This review is from: Law and Judicial Duty (Hardcover)

Philip Hamburger, a prize-winning legal historian at Columbia University, has written the best law book I have read this year: Law and Judicial Duty (Harvard Press). At 700 pages, it is a thorough examination of the history of judicial duty to apply superior law, a duty that has as one of its offshoots the courts' obligation to strike down illegal executive, legislative, and judicial actions.

After making an exceedingly impressive study of early English and American authorities, Hamburger argues:

"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."

Hamburger first suggests that "judicial review" is a modern concept that tends to obscure the nature of the historical evidence and leads to what I would call the "heroic" view of Marbury v. Madison. The power of declaring actions unconstitutional was not developed by the Federalists (as some prominent historians have claimed), but was well established by the 1780s.

Hamburger suggests that misunderstandings of the history of judicial review tend to lead to a more expansive view of judicial power. If American judges in the early Republic established their own power of review, "this would seem to leave them with an extraordinary discretion over the liberty of their fellow Americans." Yet they didn't, since the power was well established before the Constitution was written.

In the 18th century, legislatures were supposed to exercise "will," yet judges were not. Judges were not thought to be free to choose their own "judicial philosophy." They were supposed to follow the law, including following a superior law that required them to strike down an inferior law. This was a power that trial courts, as well was appellate courts, had and exercised.

A tour de force from America's best legal historian.

James Lindgren
Professor of Law
Northwestern University

3 of 5 people found the following review helpful:

5.0 out of 5 stars If only this book had been written 25 years ago, March 27, 2009

By 

Thomas "tacsmith" (Jamul, US, Canada) - See all my reviews
(REAL NAME)   

This review is from: Law and Judicial Duty (Hardcover)

I have not finished this book, but only read the first chapter and attended a talk by Prof. Hamburger about his thesis in the book. So far, it more than lives up to Prof. Lindgren's review of it above and the blurbs on the cover. Once you understand what the author is saying, especially if you suffered through the debates about judicial review in the 1980's and after, you can only wish this book had been written long ago. PH writes in a smooth but lively, non-confrontational style, but what he has to say, at least if it becomes generally accepted or widely influential, has the promise to displace great mountains of bad thinking that have accumulated around the most obfuscated branch of government -- the judiciary. It is also bound to be fascinating to anyone interested in the history of law as it relates to constitutionalism and political theory. It would make a great first book to read on this subject as well for the law student or lawyer who wants to be a serious student of judicial power and its history.
Tom Smith
Prof. of Law
USD Law School

0 of 4 people found the following review helpful:

4.0 out of 5 stars scholarly but flawed, July 20, 2010

By 

Joseph M. Hennessey (Weston, MA, USA) - See all my reviews
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Amazon Verified Purchase

This review is from: Law and Judicial Duty (Hardcover)

I will start with the flaws. Professor Hamburger doesn't seem to understand why judicial review of laws and constitution bothers its opponents so much. It is not because the judges review, which is fine, but then the enforcement by the executive department makes their opinion de facto if not de jure laws.

On p. 578-9, Hamburger refers to "an office [judicial}that, like men themselves, seem to have been created on a divine model and that required a specialized, almost divine exercise of one faculty of the soul--the faculty of reason or understanding--which had to be employed in judgment uncorrupted by the faculty of the will." I wonder what his agnostic/atheist readers think of that.

Generously, Hamburger admits that Judge Hale of England stated that Christianity is part and parcel of the law of England, that Judge Coke, Francis Bacon and Thomas Jefferson had distaste for judicial independence.

Hamburger states: p. 579 that "of course, such conclusions often provoked populist exasperation." This is a typical liberal tactic, to call conservative disagreement with the left's opinion as only emotional, rather than being just as based on reason, thought, study as their own. That is called condescension.

In the end, the question is, who guard the guardians, these soi disant Platonic philosopher-kings?