Bonham's Case and Judicial Duty
Document Type
Article
Publication Date
2025
Abstract
Bonham’s Case is perhaps one of the most famous cases in the common law tradition. It is also one of the most poorly understood. Chief Justice Edward Coke appears to endorse a power of judges to invalidate acts of Parliament that violate reason, natural law, or some other higher law. This reading is wrong. Proving why, however, has challenged the academy for the past hundred years. This paper takes up that labor.
Part I summarizes the case, the opinion, and the surrounding literature. Part II surveys the early modern conventions of statutory interpretation, including competing theories of voidance and hermeneutics deployed in contract and property law. Part III reconstructs Coke’s drafting process by focusing on the neglected prefatory clause of the famous passage (“And it appeareth in our Books, that . . .”). By focusing on the start of the famous passage, we find that Coke likely drew from his own theory of repugnant acts in The Case of Alton Woods. Part IV compares the two cases, showing that Coke intended the famous passage to be narrowly understood as limited to specific impossibility scenarios. Often overlooked is the role of confirmatory acts of Parliament, acts which traditionally receive special interpretive treatment. Part V, finally, assesses Coke’s essential judicial commitments and harmonizes his views in Bonham’s Case with his broader theory of judicial duty. Judges are obliged to apply the law of England, which sometimes aligns and sometimes does not align with the law of nature.
Recommended Citation
Keener, Benjamin, "Bonham's Case and Judicial Duty" (2025). Student Scholarship Lunch. 8.
https://scholarship.law.upenn.edu/student_scholarship_lunch/8
