Edward Levi and Edward Coke
Edward Levi: The Nature of Judicial Reasoning
Edward Hirsch Levi was born on 26th June 1911 in Chicago, in the State of Illinois, U.S.A. He was an American law professor scholar and the 71st United States Attorney General. After graduation from the prestigious Yale University, Levi was appointed assistant law professor at the University of Chicago, his alma mater. He served shortly in the Department of Justice but was to return to the university. Due to his outstanding track record as the Dean of the Law School, he was appointed as the University of Chicago President from 1968 until 1975. In 1975, President Gerald Ford appointed Edward Levi Attorney General. When his term as United States Attorney General ended, he went back to the University of Chicago (Waddams, 2003)
Edward Levi was considered a legal scholar and exemplary academician in his time. His work as the provost of the University of Chicago and later as the first person to be a member of the university’s Board of Trustees as well as President of the University, has earned his numerous accolades. He holds several honorary degrees issued to him from establishments of higher studies across the US. As Attorney General, he is famed for being a model for the modern day United States Attorney General.
As a scholar, Edward Levi is famed for his work in anti-trust and legal method. Outstandingly, his scholarly work on judicial reasoning is considered authoritative even in present day. His book on the subject, An Introduction to Legal Reasoning was published in 1949 while his paper, The Nature of Judicial Reasoning, published in 1963. His paper is a reflection of the legal method that he enunciates in his book, An Introduction to Legal Reasoning. Levi’s theory is that judicial reasoning is a process that is influenced by social change and judicial behaviour on a subject.
In his book, Edward Levi addresses the processes of legal reasoning that a court of law uses in relation to case law, statutory law and constitutional law. His thorough investigation into each of these processes concludes that judicial reasoning is in a distinct class of its own. This means that the judge, in considering the case before him, relies on the historical consistency of the matter and well as the current social attitude toward the matter. Cases ruled years ago may not strike a relevant analogy with the present case. Also, that the judge is the one to know which rulings and facts are admissible to a current case, creates ambiguity since no two people can think alike. Consequently, he argues that case law is developed in various stages, for example, “reasoning by example” where a judge considers the rule of law in a previous case and then reinforces it as the rule of law in his present case. He compares this development of case law with the evolution of scientific theories. Furthermore, Edward Levi propounds “a statement [in a rule of law in a previous case] is mere dictum.” Other scholars have criticised this position stating that a judge has no leeway to construct new rules without consideration of older laid down principles. However, this statement is seen to emphasize that the rule remains couched in the decision and thus open to further reconstruction (An Introduction to Legal Reasoning, n.d.)
Edward Levi’s legal theorem also reiterates that the law arises from facts and that there is an undeniable connection between the rules issued out by judges in through their court decisions and rulings and the society and the social process. He alludes to this fact when he says ‘the classification changes as the classification is made.’ The contents of a class take their legal significance from the class, but the class takes its meaning from its contents, and every addition alters the class. When it comes to statutes, political consideration, conclusions and the general atmosphere are inferred during the legislation of a statute. Therefore, the words of a statute will carry their meaning in a particular social context. It is this social context to which the judge must refer and then derive the intention of the legislator and determine a rule on that matter accordingly.
In constitutional law, Edward Levi notes that while legislators and the judges refer to a common document, the constitution; it is the judge who is tasked with interpreting the law depending on the facts presented before him. However, he argues that there can be no authoritative interpretation of the Constitution because the Constitution contains conflicting social standpoints which create an ambiguity. Therefore, the constitution upholds the use of analogies, and it follows that the technique of judicial reasoning is full of flaws and cannot be compared to the development of case law or statutory law. In constitutional law, there are occasionally abrupt changes in direction of legal thought. It follows; therefore that legal reasoning is imperfect but necessary for the development of the law (Levi, 1949)
Furthermore, in his paper, The Nature of Judicial Reasoning, Edward Levi considers and compares the powers and duties of the judge and the legislator. The legislator, as well as the judge, is bound to justify the changes they make in law. The legislator is considered the champion of the point of view as he represents the opinions of the people. The judge on the other hand must be aware of the various conflicting opinions and reviews the outline of public debate. Subsequently, his judicial thought process must encompass all the various views such that he may not at any time act as an advocate. Edward Levi, for that reason, argues that judicial reasoning is like any other kind of reasoning which involves a moving classification system but that the judge must contemplate moral judgement.
The common law system of precedent demands that a judge consider the determinations of previous court decisions. This principle of law is referred to as ‘stare decisis’ (Morris, 1940). Nonetheless, as Levi points out, the judge is free to make his own determination of decisive similarity or difference. This means that the judge must compare the two cases and apply his reasoning to whether there is a significant difference or similarity in the cases. Arguably, the judge is permitted to make distinctions as there occur reasonably to him. Levi argues that this discretion is necessary to ensure that the law does not remain rigid but that it remains relevant in its time. In Nature of Judicial Reasoning, Edward Levi also considers the problems faced by judges in the legal reasoning process. More often than not, the judges will face values of such a monumental nature that they must take up an entirely different role. The judge, hence, becomes a protector of societal values. The judge applies the powers to punish and reward as the case may be and becomes an “interpreter of standards.”
Finally, Levi argues that the courts’ moral power should be protected. The court having a supervisory power over the other arms of government needs to have sound morals in order to make decisions and ruling that satisfy the public. The court is primarily an institution that safeguards the constitution that protects the interest of the public. As such judges need to have a sound moral background which will capacitate them to execute their duties.
Undoubtedly, Edward Levi has set out a standard for judicial reasoning that has been upheld by modern day scholars and law professors. Moreover, his arguments on legal reasoning have been applied soundly in court decisions and have influenced the development of legal method in American jurisprudence. His authority on legal meaning, intention of words on statues and the supremacy of the constitution in a democratic state is echoed across the world in modern development of the law.
Edward Coke: Judicial Review
Sir Edward Coke, born 1st February, 1552, at Mileham, Norfolk in England, was an English politician, barrister and judge during the reign of Queen Elizabeth I and King James. Notably, he served as the Solicitor General for England and Wales from 1592 to 1594. Coke later served as the Attorney General for England and Wales from 1594 to 1604. He was chosen the Chief Justice of the Common Pleas in the year 1606 to 1613 then rose the ranks to Chief Justice of the King’s Bench in 1613 to 1616 (Baker, 2002). In 1604, Coke was knighted for exemplary service to the state, a prelude of his election as Chief Justice.
Due to his judicial campaign to reduce monarchical powers through the common law courts, Coke was dismissed from the bench after which he joined Parliament as a member of the opposition. In his capacity, he is credited with campaigning for the Statute of Monopolies, writing key legal instruments such as the Petition of Right, the Magna Carta, the Bill of Rights, thirteen volumes of law reports known as ‘Coke’s Reports’ and the Institutes of the Lawes of England. (Baker, 2002) Each of his works has gained significant academic acclaim and have been used to develop fundamental concepts of law such as judicial review.
As Chief Justice, Edward Coke made landmark decisions in the Case of Proclamations and the canonical case of Dr. Bonham stating that the King is subject to the law. He further argued that any laws made by the English Parliament that were in violation of “common right and reason” were null and void (Williams, 2006). Historically, in England, the Crown (King or Queen) had the power to issue writs. All writs were in the form of orders of either a mandatory or prohibitory nature. These writs were later laid down as English Law that means that they were binding to all citizens of England and the Wales and that the courts of law were required to abide by them. Sir Edward Coke criticised the power of the Crown and established the view that the King or Queen should be subject to the demands of the law as well as the philosophies of natural justice. Coke always guarded and protected his stance jealously, that, the common-law was the supreme law and that nobody-not even the king himself-was above the law. When Coke was summoned by the King, he emphasized that the communal law was the superlative law, and the king didn’t have the authority to judge. (Gareth H. Jones, n.d.).
The foundation of judicial review doctrine has been drawn back to the aphorism of Sir Edward Coke. He contended that Magna Charta had personified definite fundamental ideologies of impartiality and human rights. He also added that the common law had further manifestation of the same doctrines. In his well-known words in the Dr Bonham’s Case, he laid the groundwork for modern day judicial review. He stated that, whenever an act that comes from the parliament is not for the common reason and right, it is not easy to carry it out. He added that, there has been information in the books that claim that the common law in the region can control the government. His legal determination in Dr. Bonham’s Case is referred today as judicial review of statutes. Judicial review is defined as the method used by the courts to oversee the application of public power. It is a methodology in which improper application of public power can be remedied. All at once, it is a dynamic tool for public administration. (Gareth H. Jones, n.d.). In his arguments, Chief Justice Coke argued that an institution could not act as both a party and judge in its dispute. Specifically, Coke stated that it is impossible for censors to be judges, parties or ministers. It is, therefore, the duty of judges to administer judgement while ministers come up with summons and parties have to strive to get the moiety that pertain forfeiture. (Morris, 1940)
Coke quotes the king by claiming that, the king had the thought that there must have been a reason as to why the law was formed. He also though that other people like judges had the same ideology. Additionally, this was justified by his sentiments about God, who is excellent in science and nature. On the contrary, God’s majesty was not formed and learned from the laws that govern England or causes that determine life, goods, inheritance, fortunes or natural reason. Therefore, law is an aspect that requires experience and intensive learning before one is recognized a qualified lawyer. (Liberty Fund, 2003).
As from whence he derived the law, Coke argued that, reason is the foundation of law and that common law in itself is a reason which can be contemplated and understood through observation, experience and reasoning. (Liberty Fund, 2003). This was a reply to King James that despite him being a king, he could not reason with the judges as regarded a decision of a case prior to its determination, as his type of reason was natural and not earned out of experience.
The main purpose of jurisdictional review is to ensure that public bodies do not go beyond their dominion and undertake their obligations in a way that is detrimental to everybody at large. The old-fashioned assessment for defining whether one’s body is under judicial review is determined by the font of power. Jurisdictive review deals with the actions of bodies developing their power and authority from a ruling. If the obligation is a public one then, the department in question would be dependent on the public law and legal review which is viewed as public law remedy would only be involved if only the person perplexing was carrying out a public duty.
Edward’s Coke work was subjected to constant debate as to whether it was marking the supremacy of common law over parliament through judicial review or it was another mode of interpretation of statutes. Some scholars argue that Bonham’s case and cases like it meant that statutes should be given a reasonable interpretation. On the other hand, scholars in favour of Coke’s arguments state that Coke did not mean that there were certain principles of justice and right that could not be contravened by Acts of Parliament. Hence, courts could only interpret statutes so as to conform them with laid down legal principles.
It is important to note however that the political climate in England favoured the superiority of the Parliament over the Judiciary. This supremacy subsequently quelled Coke’s theory on judicial review. This is because the power to create the law in favour of the interests of all citizens was placed on the legislators. Any laws that they made were, therefore, made in good faith. In essence, the judiciary could not merely reject the Acts of Parliament. This is so even where the Acts themselves are unreasonable. As such, the judiciary’s intervention is deemed as subversive to the supremacy of the legislature.
Despite this argument on the supremacy of parliament, that is a principle of British constitutionalism, the membership of the United Kingdom to the European Union affects this position. The European Union position favours the fundamental consideration of human rights to the sovereignty of the British parliament. This position is, by and by, in tandem with Edward Coke theory on judicial review. Suffice it to say, his foundational contribution to the limits of government have remained relevant to date.
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His work influenced the development of judicial review in America as well. In the American case of Marbury versus Madison, which forms the basis for judicial review in the United States of America, the court inferred from the judicial reasoning of Sir Edward Coke. This line of thought was also used to knock down the American writs of assistance and the Stamp Duty Act of 1765 (Morris, 1940). It is important to note that while Coke’s ideas of the common-law courts’ supremacy were openly rejected and eschewed by many of his adversaries (including King James I), his theories and institutes were widely acknowledged and accepted. As a matter of fact, most of America’s legal system is adapted from Edward Coke’s works.
In conclusion, Edward Levi and Edward Coke are arguably some of the best jurists that have dominated the complex field of law. Their accolades have nevertheless been met by numerous barriers from fellow distinguished scholars of the law, which gives the current and forthcoming generation of law-scholars an even greater challenge; to join their school of thought and more specifically, understand their reasoning in the many law articles and documents they wrote.
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