Julian Davis Mortenson, University of Michigan Law School, has posted “Westminster Quibbles”: The Antinomy of Text and Purpose in Eighteenth-Century Anglo-American Legal Culture, which is forthcoming in the Journal of the Early Republic:
In the wake of the battle of Bunker Hill, the British government's efforts to fortify its colonial positions triggered a constitutional crisis and political scandal that were followed closely by an anxious North American public. The public debate about the legality of the ministry's troop movements illustrates two points about the structure and habits of transatlantic legal culture.--Dan Ersnt
First, lawyerly arguments about “merely” technical wrongdoing could have immense political force in the practice of power politics at the highest level. Law mattered to how elite decisionmakers talked as politicians; it shaped what they did as legislators; and it affected how the press and the public reacted on both sides of the Atlantic. Second, even as the political class took it for granted that political decisionmaking would be infused by legalized disputation, they pervasively contested which kinds of legal arguments counted as formally valid and analytically persuasive. They debated, in other words, what it meant to “do law.”
The first point emphasizes the cultural power of law as a motivating and channeling force in the real world for people negotiating complex social problems. The second point surfaces an antinomy that was central to early American legal argument: the twin commands to respect both the demands of a law’s spirit and the specifications of its letter. The latter imperative was simultaneously internal to law and also a direct link to the sort of messy social considerations that formalism seeks to exclude from the domain of law proper.
