Common Law and Liberal Theory

Coke, Hobbes, and the Origins of American Constitutionalism

James R. Stoner, Jr.

James Stoner's purpose is an ambitious one: to recover the common law basis of American constitutionalism.

American constitutionalism in general, he argues, and judicial review in particular, cannot be fully understood without acknowledging their roots in both common law and liberal political theory. But for the most part, the common law underpinnings of constitutionalism have received short shrift.

“Forceful and wise. Stoner suggests that American constitutionalism is the product of a strange mixture of two opposing schools of thought: the English common law tradition as exemplified by the work of Edward Coke and early liberal political philosophy as seen in the work of Thomas Hobbes. His argument is powerful and convincing.”

Journal of American History

“Stoner effectively addresses the badly neglected question of what we expect of judges in a political system that rests on popular sovereignty and a legal order committed to the idea of fundamental law. This is a welcome addition to the literature that offers a fresh perspective, for we have something to learn about the beginnings of judicial review by seeing it within the common law tradition.”

American Political Science Review
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Through close study of liberal political philosopher Thomas Hobbes and the writings of Edward Coke, a seventeenth-century judge and parliamentarian whose opinion in Doctor Bonham's Case (1610) was once viewed as a precedent for the modern practice of judicial review, Stoner establishes a dialogue between two schools of thought. The contrast that emerges between liberalism, with its scientific ambitions, and common law opens up a fresh perspective on the foundations of the American regime.

Common law is grounded in precedent and local tradition as well as reason; it stresses community. Liberal political theory is based on abstract, rational principles; it stresses individualism. To overlook the common law roots of American constitutionalism, then, is to ignore a tradition that is more contextual and historical, more flexible yet more respectful of the wisdom of tradition or experience, less individualistic and more emphatic about responsibility than is the liberal philosophic tradition.

In Common Law and Liberal Theory, Stoner reexamines the sources of judicial review and the American founding. He focuses on Hobbes and Coke as representative of the two traditions, but also includes chapters on Locke, Montesquieu, Blackstone, and the Federalists. His careful reading of the influences of and conflicts between liberalism and common law will cast new light on the controversy over the origins of American constitutionalism.

About the Author

James R. Stoner, Jr., is assistant professor of political science at Louisiana State University. Common Law and Liberal Theory grew out of Stoner's study with noted political theorist Harvey Mansfield.