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5 - Burke on Law and Legal Theory

Published online by Cambridge University Press:  05 December 2012

David Dwan
Affiliation:
Queen's University Belfast
Christopher Insole
Affiliation:
University of Durham
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Summary

Burke’s training in, knowledge of, and appreciation for law is generally recognised. Indeed, Anglo-American jurists have been quick to claim him as their own and to employ him as an authority in present debates. But his extensive use of legal language obscures how little he actually said or wrote about legal theory. Burke’s comments on the law were typically made in specific and complex, rapidly changing, political controversies. His reflections are often little more than the obiter dicta of political and public debates and should not be confused with more formal commentaries on the laws. Pregnant with meaning for the present, Burke’s thoughts must, here as elsewhere, be viewed in context. When this is done, his texts suggest a picture that is often at odds with common assumptions about him and his relationship to the law. The Irishman’s opinion of English jurisprudence is, for example, complex and not wholly complimentary. Especially in his early pre-political writings, Burke’s jurisprudential asides presented a challenge to ‘vulgar Whiggism’ and insular English and common law histories. His parliamentary statements also suggest that he emphasised the centrality of the legislature rather than, as is often suggested, the courts of common law. Perhaps most importantly, Burke’s use of legal terms – contract, partnership, prescription, rights – is often rhetorical, defined against his wider understanding of the relationship of morals, manners, and history.

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Publisher: Cambridge University Press
Print publication year: 2012

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References

Deane, S. (ed.), Sale Catalogues of Libraries of Eminent Persons: Volume VIII – Politicians, (London: Mansell, 1973)
Ives, C. P., ‘Edmund Burke and the Legal Order’ in P. J. Stanlis (ed.), The Relevance of Edmund Burke (New York: P. J. Kenedy & Sons, 1964)
Bickel, Alexander M., ‘Constitutionalism and the Political Process’ in idem., The Morality of Consent (New Haven: Yale University Press, 1975)
Tushnet, Mark V., ‘A Note on the Revival of Textualism in Constitutional Theory’,Southern California Law Review, 58 (1985)Google Scholar
Wilson, J. G., ‘Justice Diffused: a Comparison of Edmund Burke’s Conservatism with the Views of Five Conservative, Academic Judges’,University of Miami Law Review, 40 (1986)Google Scholar
Young, Ernest, ‘Rediscovering Conservatism: Burkean Political Theory and Constitutional Interpretation’,North Carolina Law Review, 72 (1993)Google Scholar
Merrill, Thomas W., ‘Bork v. Burke’,Harvard Journal of Law & Public Policy, 19 (1996)Google Scholar
Presser, Stephen B., ‘What would Burke think of Law and Economics?’Harvard Journal of Law & Public Policy, 21.1 (1997)Google Scholar
Calabresi, Steven G., ‘The Tradition of the Written Constitution: Text, Precedent, and Burke’,Alabama Law Review, 57 (2006)Google Scholar
Schneiderman, David, ‘Edmund Burke, John Whyte and Themes in Canadian Constitutional Culture’,Queen’s Law Journal, 31 (2006)Google Scholar
Reid, Christopher, in this volume, and Edmund Burke and the Practice of Political Writing (Dublin and New York: Gill and Macmillan/St. Martin’s Press, 1985)
Postema, Gerald J., Bentham and the Common Law Tradition (Oxford: Clarendon, 1986)
Lobban, Michael, The Common Law and English Jurisprudence, 1760–1850 (Oxford: Clarendon, 1991)
Donlan, S. P.“A Very Mixed and Heterogeneous Mass”: Edmund Burke and English Jurisprudence, 1757–62’,University of Limerick Law Review, 4 (2003)Google Scholar
Forbes, Duncan, Hume’s Philosophical Politics (Cambridge: Cambridge University Press, 1975)
Freeman, Michael (ed.), Lloyd’s Introduction to Jurisprudence, 7th edn. (London: Sweet & Maxwell, 1994)
MacIntyre, Alasdair, Whose Justice? Which Rationality? (South Bend, IN: Notre Dame University Press, 1988)
Cairns, John W., ‘Blackstone, an English Institutist: Legal Literature and the Rise of the Nation State’,Oxford Journal of Legal Studies, 4 (1984)Google Scholar
Donlan, S. P., ‘The “Genuine Voice of its Records and Monuments”?: Edmund Burke’s “Interior History of Ireland”’ in S. P. Donlan (ed.), Edmund Burke’s Irish Identities (Dublin: Irish Academic Press, 2007)
Kelly, J. M., A Short History of Western Legal Theory (Oxford: Oxford University Press, 1992)
Berman, Harold J., ‘The Origins of Historical Jurisprudence: Coke, Selden, Hale’,Yale Law Journal, 103 (1994)Google Scholar
Pocock, J. G. A., ‘Cambridge Paradigms and Scotch Philosophers: a Study of the Relations between the Civic Humanist and the Civil Jurisprudential Interpretation of Eighteenth-century Social Thought’ in Istvan Hont and Michael Ignatieff (eds.), Wealth and Virtue: the Shaping of Political Economy in the Scottish Enlightenment (Cambridge: Cambridge University Press, 1983)
Lucas, Paul, ‘On Edmund Burke’s Doctrine of Prescription; or, an Appeal from the New to the Old Lawyers’,Historical Journal, 11 (1968)Google Scholar
Kronman, Anthony T., ‘Precedent and Tradition’,Yale Law Journal, 99 (1990)Google Scholar
Barden, Garrett, ‘Discovering a Constitution’ in Tim Murphy and Patrick Twomey (eds.), Ireland’s Evolving Constitution, 1937–97: Collected Essays (Oxford: Hart Publishing, 1998)
Stein, Peter, Legal Evolution: The Story of an Idea (Cambridge: Cambridge University Press, 1980)
Donlan, S. P., ‘“Language Is the Eye of Society”: Edmund Burke on the Origins of the Polite and the Civil’,Eighteenth-Century Ireland/Iris an dá Chultúr, 18 (2003)Google Scholar

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