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By Kathleen S. Sullivan
While the USA used to be based on summary rules of sure "unalienable rights," its criminal traditions are established in British universal legislation, a truth lengthy decried by way of revolutionary reformers. universal legislation, the criticism is going, ignores summary rights rules in want of culture, successfully denying equality to giant segments of the inhabitants.
The nineteenth-century women’s rights move embraced this argument, claiming that universal legislation principles of estate and married women’s prestige have been at odds with the nation's dedication to equality. traditional knowledge means that this tactic helped pave the way in which for balloting rights and higher jobs. In Constitutional Context, Kathleen S. Sullivan provides a clean perspective.
In revisiting the era’s congressional debates, kingdom laws, judicial reviews, information money owed, and paintings of political activists, Sullivan reveals that the argument for common, summary rights was once now not the one, or top, course to be had for social swap. instead of erecting a brand new paradigm of absolute rights, she argues, women’s rights activists unwittingly undermined universal law’s skill to redress grievances, contributing seriously to the social, cultural, and political stagnation that characterizes where of girls and the flow today.
A hard and considerate examine of what's normally considered an period of growth, Constitutional Context offers the foundation for a extra finished realizing and interpretation of constitutional law.
Read or Download Constitutional Context: Women and Rights Discourse in Nineteenth-Century America (The Johns Hopkins Series in Constitutional Thought) PDF
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Bentham considered recourse to general principles to be a tool bandied about by those in power to obscure their power and illegitimacy. Ten years after he had heard Blackstone’s lectures, Bentham responded with his “Comment on the Commentaries,” an unpublished manuscript that was discovered among Bentham’s papers in the late nineteenth century. 29 The methods of judicial interpretation were unreliable, because Blackstone left it to judges to tap into the “general reason of mankind” in interpreting the law.
Story’s position indicates the limited use of Bentham’s ideas. 65 The codification movement, however, valued simplicity not because codifiers hoped for simple, clear principles derived with scientific methods but because simplicity captured the ease of accessibility to the law that they sought. Codifiers used the familiar language of simplicity but not as legal positivists. With its transfer of lawmaking from court to legislature, the institutional shift to the legislature did not imply any positivist shift to an authoritative source of law, but merely the transcriptions of a recording secretary.
43 Thus the shift to positive law would result in an alteration in the practice and experience of citizenship. The citizen would no longer have the opportunity to engage in interpretation of law and the state would alter the status of citizen from shaper of the law to subject of the law. bentham in america If Americans were to embrace legal positivism they would replace practical reason with expert knowledge, replace action with appeal to authority and experts, and replace reference to experience with reference to rules.