In an article for Anchoring Truths adapted from his remarks in a webinar, Prof. Jonathan Gienapp discusses his perception of the contributions of James Wilson to the theoretical discourse surrounding the American founding. In particular, Prof. Gienapp focuses on Wilson’s thinking pertaining to such concepts as popular sovereignty, social compact theory, and the indivisible nature of the law itself. He also makes reference to how the meaning of the Constitution is embedded within a distinctive philosophical context that viewed the law through a different lens than is commonly seen today.
Some excerpts below. Read the whole article here.
“The first pertains to the nature of law itself. Like a great many people at the Founding, James Wilson had a very different view of law than tends to prevail today. Like the principles of mathematics, law was understood to be something that was out there: something that was found rather simply made. This was especially true of what was called fundamental law. Law was not simply the contingent construction of human beings. It was not simply positivist in character—something human beings posited. It derived from a different set of sources, each of which offered a crucial foundation for legal reasoning. Natural law was one of the most striking examples of these alternative sources of law, but there were many more still.”
“Like a lot of people at the time, Wilson held an integrated view of law. He didn’t like drawing categorical distinctions between sources of law: natural law over here, customary law over there, enacted law over there. He didn’t tend to separate what we might call positive law from what we might call non-positive law. What he instead thought was that law, the different sources and kinds of law one could identify, naturally harmonized. And the study of law was the study of that harmony, how it synthesized—how it all hung together as a coherent whole.”
“Wilson allows us to not just see different kinds of law, he allows us to glimpse a different conception of law itself and how people living at the founding reasoned about law. And I think it’s very hard to understand constitutionalism in the founding era without recognizing this essential way in which people assumed the Constitution was embedded.”