Journal Article

Bonham's Case, Judicial Review, and the Law of Nature

R.H. Helmholz

in Journal of Legal Analysis

Published on behalf of The John M. Olin Center for Law, Economics and Business at Harvard Law School with the support of the Considine Family Foundation

Volume 1, issue 1, pages 325-354
Published in print January 2009 | ISSN: 2161-7201
Published online January 2009 | e-ISSN: 1946-5319 | DOI: https://dx.doi.org/10.4159/jla.v1i1.5
Bonham's Case, Judicial Review, and the Law of Nature

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Bonham's Case (1610) as reported by Sir Edward Coke has often been regarded as an early instance of judicial review of legislation. Lawyers, particularly in the United States, have taken it as a common law precedent for permitting judges to strike down unconstitutional statutes. Using contemporary evidence from English and Continental legal works, this article contends that Bonham's Case actually rested upon then commonly accepted principles of the law of nature, and that those principles stopped short of embracing judicial review in the modern sense. The argument depends on establishing four points: first, that Coke accepted the existence of natural law and used it in his own writings; second, that the facts of Bonham's Case lent themselves naturally to application of the law of nature to a parliamentary act; third, that as understood at the time, natural law did not permit judicial invalidation of statutes; and fourth, that other contemporary evidence supports this more restrained understanding of Coke's statements in Bonham's Case. In its contemporary setting, the case was therefore compatible with Parliamentary supremacy. It well illustrates, however, one way in which the law of nature was applied in actual litigation.

Journal Article.  0 words. 

Subjects: Jurisprudence and Philosophy of Law

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