by Stoner James R.



Editorial Reviews

Journal of American History
"Forceful and wise. Stoner's argument is powerful and convincing."

Product Description:

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.

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.

Product Details

Paperback: 286 pages
Publisher: University Press of Kansas (March 1, 1994)
ISBN: 0700606300