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Why Did the Revolutionary Lawyers Confuse Custom and Reason?, 58 U. Chi. L. Rev. (1991)

Abstract

That "somewhat unclear mingling" of reason, custom, and constitution, is my subject in this Article. This Article offers a general historical account of how the constitutionalist lawyers of the eighteenth-century world came to mingle ideas of customary right with characteristically eighteenth-century ideas of deductive natural law. To understand this tendency to conflate custom and reason, I will suggest, we must understand developments that long predated the passages quoted above. The eighteenth-century constitutionalist habit of identifying custom with reason should be traced back to the collapse of customary proof practices at the end of the Medieval period-a collapse with a long train of institutional and ideological consequences.

In making my argument, I will range widely over both Anglo- American and Continental legal traditions. But my principal goal is to prove two points about the legal legacy of the American Revolution. First, I want to demonstrate that the legal culture of eighteenth-century America belongs in a broad international context. The peculiar patterns of thought that characterized the American lawyers of the revolutionary era were also the peculiar patterns of thought that characterized the lawyers of continental Europe. Odd as it may sound, the same pressures and traditions that produced John Adams also, to some extent, produced Hegel.

Second, and more important, I want to raise some necessary doubts in the minds of scholars of the American Revolution, who have not quite faced the historical problems presented by the "mingling" jurisprudence of the eighteenth century. For generations, Americanists have debated whether the legal thinking of the American Revolutionaries was "about" custom or "about" deductive natural law. Legal historians once widely assumed that the Revolution was instigated, and the Constitution ratified, by lawyers who were somehow motivated by a belief in deductive natural law. More recently, historians have tended to suppose that common law tradition, or customary law tradition, or some mixture of the two described by the catch-phrase "Rights of Englishmen," was the motivating force. Both of these lines of interpretation attribute much more coherence and intelligibility to revolutionary era legal writings than those writings possess. Revolutionary era lawyers unreflectively conflated reason and custom-which means that, in many respects, we can never draw definitive conclusions about constitutional interpretation from their writings.

Date of Authorship for this Version

1991

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