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8 - Differences over the foundation of law in seventeenth- and eighteenth-century America

from II - The birth of Magna Carta and the spread of its principles

Published online by Cambridge University Press:  05 May 2015

David Little
Affiliation:
Georgetown University
Robin Griffith-Jones
Affiliation:
Temple Church and King's College London
Mark Hill, QC
Affiliation:
Cardiff University
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Summary

Determining the role of Magna Carta in relation to ideas about religion and the rule of law in the colonial and revolutionary periods of American history turns out to be a complicated task. To begin with, we must cope with the fact that one American historian has identified as many as six different theories regarding the origins and foundations of the American Republic, without ever mentioning Magna Carta or the English legal tradition. The range of theories encompasses the economic determinism of Charles Beard, advanced in the 1920s; liberal ideals associated with the natural rights philosophy of John Locke, and its close relative, civic republicanism, taken up by Bernard Bailyn in his influential book, The Ideological Origins of the American Revolution; Scottish Common Sense philosophy, as discussed by Gary Wills; and a more pluralistic ‘multiple traditions’ approach, as well as a theory about the importance of forgotten and oppressed groups such as slaves, native Americans and women. The influence of these groups is held to be significant in a negative sense, since in drafting the constitution the founders actively contrived to diminish their protection.

As a matter of fact, Bailyn does assess the impact of common law, and its legendary advocate, Sir Edward Coke, on the colonial and revolutionary periods, but concludes that the legal and constitutional tradition was not the primary source of the central issues as they were perceived at the time. Probably more important, Bailyn implies, was ‘a major source of ideas and attitudes of the Revolutionary generation [that] stemmed ultimately from the political and social theories of New England Puritanism, and particularly the ideas associated with covenant theology’.

Jack P Greene, known as ‘the dean of constitutional historians of the eighteenth-century British empire’, has sharply challenged Bailyn's ‘ideological’ approach and, indirectly, the other approaches cited above, in a series of studies culminating in his recent book, The Constitutional Origins of the American Revolution. Drawing on the work of John Phillip Reid, Greene specifically criticises Bailyn for ignoring the significance of ‘the early modern English jurisprudential tradition’.

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Publisher: Cambridge University Press
Print publication year: 2015

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