We need theories that can speak intelligently of the common good without abandoning our constitutional order.
Against Oliver Wendell Holmes’ cynical definition of law as “prophecies of what the courts will do in fact,” and the seemingly tamer modern definition of courts as policy-makers, Hamburger restores the common-law judge’s self-understanding that he is bound to decide according to the law of the land.
James R. Stoner, Jr. (Ph.D., Harvard University, 1987) is the Hermann Moyse, Jr. Professor and Director of the Eric Voegelin Institute in the Department of Political Science at Louisiana State University. He is the author of Common-Law Liberty: Rethinking American Constitutionalism (Kansas, 2003) and Common Law and Liberal Theory: Coke, Hobbes, and the Origins of American Constitutionalism (Kansas, 1992).