by Douglas E. Edlin. Ann Arbor: The University of Michigan Press, 2008. 336pp. Cloth $65.00. ISBN: 9780472116621.


Reviewed by Jack Wade Nowlin, The University of Mississippi School of Law, Email: jnowlin [at] olemiss.edu.

Douglas E. Edlin is an associate professor of political science at Dickinson College. His book JUDGES AND UNJUST LAWS is a study of the tradition of Anglo-American common law constitutionalism. Edlin examines the common law comprehensively as a “legal system, a legal tradition, a legal method, a mode of legal thought, and a body of legal principle,” which functions at both “structural” and “substantive” levels implicating structural questions such as the scope of the judicial power and substantive questions such as access to courts as an individual right (p.122). The ultimate focus of Edlin’s analysis is the practice of judicial review, but he is concerned with judicial review under the traditional principles of the common law rather than the more familiar topic of judicial review under the principles established by formalized written constitutions. This focus on common law judicial review distinguishes Edlin’s work from most books written today on the subject of judicial review and should make it of special interest to scholars in the field of judicial power.

Edlin frames his argument as inquiry into the perennial question of legal philosophy referenced in his title: What should judges do when faced with unjust laws? Edlin’s central argument flows from his dissatisfaction with a conventional approach to the question of “judges and unjust laws,” an approach which assumes that “unjust laws create a conflict between a judge’s moral obligations as a person and [his or] her legal obligations as a judge” (p.2). This conflict, as conventionally conceived, requires a judge either to fulfill one of these two sets of fundamental obligations at the expense of the other or to resign from office. Edlin contends that the conventional account is inadequate and that judges in common law systems have an additional important alternative in responding to unjust laws in a significant range of cases: judicial review of unjust laws under the common law.

What Edlin calls “common law” judicial review involves both the judicial recognition of the fundamental principles of justice incorporated in the common law and a limited judicial duty to declare acts of government that conflict with these principles “void” or invalid under the common law. Edlin argues that embracing this understanding of the common law will relieve some of the pressure on judges who confront unjust laws and who wish to display fidelity to both law and to morality. Obviously, Edlin’s understanding of the tradition of common law judicial review of statutes parallels in many respects the constitutional [*317] judicial review of statutes under the US Constitution. This parallel is no accident since, as Edlin demonstrates, American constitutional judicial review both originated in and reflects the continuing influence of the traditions of common law judicial review.

Edlin contends that common law judicial review is a function of the dual obligation judges have in common law legal systems (i) to apply the law and (ii) to develop the law in ways which promote its substantive justice. The judicial obligation to apply the law in common law systems is expressed in the familiar principle of stare decisis (respect for the application of law in the form judicial precedent) and what Edlin calls the principle of “legislative primacy” (respect for the application of law in the form of statute and the primary authority of legislatures to make law by enacting statutes). The obligation to develop the law to promote substantive justice, Edlin maintains, finds its expression in the practice of common law judicial review, entailing a duty to overrule some precedents despite the force of stare decisis and to declare some legislative enactments void under the common law despite the force of legislative primacy. Edlin defends his understanding of common law judicial review by invoking two alternative and mutually reinforcing forms of argument: a legal “source-based” argument which relies principally on historical precedents in support of common law review in the Anglo-American legal tradition and a “conceptual” argument which relies principally on a conception of the proper judicial function in light of the basic purposes of the common law and common law adjudication.

Edlin discusses at length the historical precedents which provide a set of authoritative legal sources for common law review, and he covers a wide range of English and American cases. As one might expect, Edlin relies heavily on both DR. BONHAM’S CASE and FLETCHER v. PECK. Edlin defends a “strong reading” of BONHAM, which views the case as asserting a power of judicial review to declare a statute void under the common law rather than asserting a mere canon of statutory interpretation. Edlin also defends what may be called the “common law” reading of BONHAM, which views the case as asserting a judicial power to declare legislative enactments void under the fundamental legal principles of the common law sharply distinguished from the extra-legal moral principles of the natural law. In a similar fashion, Edlin contends that the Supreme Court in FLETCHER invoked extra-constitutional fundamental principles of law as an independent and alternative basis for its decision to invalidate a state law on constitutional grounds and that these principles of law were drawn from the Anglo-American common law – and not from extra-legal principles of natural justice as a number of other scholars have contended. Edlin ultimately concludes that the understanding of common law judicial review on display in BONHAM supplied a “foundation for the modern doctrine of judicial review” as “developed in the United States” (p.73) and that “the principles of the common law provide[d] a legal basis for judicial review of legislative action independent of,” though often exercised “along with,” judicial review under written constitutions in the early American republic (p.100).

Edlin’s discussion of the “conceptual basis” for common law judicial review is grounded in an understanding of the [*318] proper judicial function at common law and turns on two simple but crucial points about the operation of common law legal systems: (i) “the common law is designed to develop over time in the direction of [substantive] justice;” and (ii) judges are “the primary institutional actors designated by the common law system” to ensure that development in the direction of justice occurs (pp.112-113). Perhaps the most interesting part of Edlin’s conceptual argument is his exercise in the Dworkinian interpretation of the contours of the proper judicial role. Here Edlin asserts that an interpretation of the judicial function which includes a power of common law judicial review both “fits” the law reflected in “Anglo-American common law traditions, methods, and sources” and best justifies that law by “permit[ting] a better interpretation of a society’s law” (p.129). Edlin bolsters these points by attending to the social harms that can flow from the failure to invoke the proper fundamental principles of legal justice to invalidate acts of government – including judicial legitimation of and complicity in unjust practices such as racial segregation.

Edlin provides a full analytical account of the practice of common law judicial review. In his view, judges have a legal obligation to apply the law – whether in the form of judicial precedents or legislative enactments – but this obligation can be overcome by the higher order legal obligation to develop the principles of the common law in the direction of greater substantive justice. This higher order obligation entails a duty to exercise common law judicial review. Even so, this duty is far from a simple judicial license to invalidate all putatively unjust laws. Edlin is quite clear that the principles of justice invoked in common law judicial review must be principles incorporated into the common law legal system by authoritative “express[ion] in legal form[s]” and that “not all social, moral, or political injustices are legal injustices” (p.13). Edlin also maintains that the exercise of common law review to invalidate a statute requires that a high threshold of “certainty” and “gravity” be met. “Certainty” here refers to the judge’s confidence that a conflict with the common law exists, and “gravity” refers to the judge’s evaluation of the moral importance of that conflict. Edlin would carefully restrict the power to declare a statute void under the common law to those instances where a judge is “thoroughly convinced” that an act of government conflicts with the common law and that it “involves an issue of the first moral magnitude” (p.141). That such an approach can be adhered to by judges with the proper restraint and respect for principle is demonstrated, in Edlin’s view, by the case law surrounding the Supreme Court’s well-known “shocks the conscience” test established in ROCHIN v. CALIFORNIA and used to review executive action as a matter of substantive due process. Finally, Edlin argues that common law judicial review requires that a judge “void” a statute only in the narrow sense of “refus[ing] to apply or enforce the statute against a particular party in a particular case” and that common law judicial review need not involve a greater power – in effect – to “excise the statute from the nation’s body of law” (p.149).

As suggested, Edlin frames his analysis as an inquiry into the over-arching problem of judges who must confront [*319] unjust laws, and therefore he examines the implications of his argument for contemporary judicial practices in the common law legal systems of the UK and US In the UK, Edlin recognizes that any recognition of common law judicial review will require overcoming the serious challenge posed by traditional English legal practices in favor of very strong forms of stare decisis and legislative supremacy. In the US, Edlin observes that the challenge for common law judicial review is far less substantial – given American legal practices in favor of only weaker forms of stare decisis and legislative authority. Still, here the problem for Edlin may be that common law judicial review appears to be in most cases substantively and structurally duplicative of the established practice of constitutional judicial review. Common law judicial review may therefore provide only limited benefits in terms of a broader judicial power to invalidate unjust laws while imposing substantial costs in terms of perceived judicial innovation.

Edlin – perhaps realizing the full force of this argument – recognizes that his analysis of common law judicial review, in addition to providing an independent ground for judicial review in the US, can illuminate, buttress, and guide the practice of traditional constitutional judicial review. As Edlin observes, common law and constitutional law are inextricably intertwined – historically and conceptually – and the common law approach “best describe[s] and explain[s] CONSTITUTIONAL adjudication in modern common law legal systems” (p.28) (emphasis added). Therefore, Edlin’s work remains of great value as a historical and conceptual exploration of the foundations of constitutional judicial review even as one may question whether common law judicial review provides much beyond an alternative ground for the exercise of already well-established judicial powers. Finally, there is at least one significant point where Edlin’s common law judicial review clearly extends the power of individual judges beyond the contours of constitutional judicial review as practiced in the United States: vertical stare decisis. On this point, Edlin asserts that common law judicial review extends to lower court review of the precedents of HIGHER courts. Edlin thus claims that a federal district judge could legitimately refuse to apply a precedent of the US Supreme Court in a particular case if all the requirements of common law judicial review were met in the judge’s honest evaluation of the case. Notably, Edlin recognizes that this is the “most unorthodox part of [his] argument” (p.152).

Edlin’s analysis is original and highly provocative, and readers will find much food for thought as well as much with which to disagree. To take just one example, proponents of judicial restraint in the US will have to grapple with Edlin’s thoughtful defense of a potentially quite expansive conception of the judicial power, even as they will likely object to Edlin’s incautious statement that “most” of their arguments ultimately “boil down” to the “absence of explicit references to judicial review in the US Constitution,” a contention which fails to recognize that the motive force behind judicial restraint is often the felt-need to harmonize the exercise of the judicial power with constitutional norms such as the separation of powers and federalism (p.127). Finally, even those scholars who disagree strongly [*320] with Edlin’s analysis will find that the book is well researched, well argued, and well written. In sum, JUDGES AND UNJUST LAWS deserves a welcome place on the bookshelf of any scholar working in the areas of judicial power, judicial review, constitutionalism, or the common law.


DR. BONHAM’S CASE, 8 Co. Rep. 107a, 114a C.P. (1610).

FLETCHER v. PECK, 10 U.S. (6 Cranch) 87 (1810).

ROCHIN v. CALIFORNIA, 342 U.S. 165 (1952).

© Copyright 2009 by the author, Jack Wade Nowlin.