John Marshall's Law: Interpretation, Ideology, and Interest

John Marshall's Law: Interpretation, Ideology, and Interest

John Marshall's Law: Interpretation, Ideology, and Interest

John Marshall's Law: Interpretation, Ideology, and Interest

Synopsis

This study draws on critical historical analysis and contemporary language theory to illuminate John Marshall's jurisprudence and political philosophy in new ways. It challenges both liberal and conservative views and it defines Marshall's constitutional interpretations, political ideology, and pragmatic interests anew. It shows how his pragmatism and "republican revisionism" impacted decisions about matters of property, contract, and debt. Legal scholars, political scientists, and historians interested in law and language, 19th-century history, and republicanism will find this study especially interesting.

Excerpt

The roots of John Marshall's jurisprudence can be found in the political and legal ideologies of seventeenth- and eighteenth-century England. Certainly, the American Revolution and subsequent constitutional origination provided a new ground to circumscribe the language of political and legal disputes. But Alexander Hamilton, Thomas Jefferson, and John Adams could not and did not represent a complete break with English traditions. The English Revolution-- including the events preceding it, and those following--was the crucible from which Anglo-Saxon liberalism and republicanism sprang.

Two general approaches to law arose from and survived the conflicts of the English Revolution, each with its own political and linguistic connotations. The first, which I will call "conservative contractarianism," found its greatest advocate in Sir Edward Coke. It is the common law tradition. The second, which I label "liberal contractarianism," was progressive and reformist and was represented by Thomas Hobbes and John Locke. A third approach, which represents something of a synthesis of the first two, is represented by William Blackstone.

Several observations about conservative and liberal contractarianism can be made at the outset. Conservative contractarianism grounded law's authority in a historically identifiable original compact or contract (the "immemorial constitution" of the English common lawyers) and the customary practices that have flowed from it. Conservative contractarianism construed language as a historical occurrence, and thus regarded linguistic meanings as contextual. History, or at least the past, was not a literalistic construction for conservative . . .

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