T. T. Arvind (York Law School) & Christian R. Burset (Notre Dame Law School) have posted Partisan Legal Traditions in the Age of Camden and Mansfield (Oxford Journal of Legal Studies (forthcoming)) on SSRN. Here is the abstract:
The eighteenth century is often treated by scholars as a period of juristic consensus. This article argues, in contrast, that the late eighteenth century saw the emergence of rival ‘Patriot’ and ‘Tory’ legal traditions. Through a detailed study of the jurisprudence of Lords Camden and Mansfield—who were both pillars of the law, as well as political and juristic rivals—we show that they differed systematically in their understanding of the common law. Those differences had a partisan cast: although they were not crude attempts to instrumentalise law to political ends, their political and jurisprudential commitments influenced each other and emerged from the same intellectual roots. We place these differences in the context of the fragmentation of eighteenth-century Whig politics, and argue that they have important implications for how we understand and use the common-law tradition today.
