Does anyone know of any books or articles that discuss the legality of America's Declaration of Independence?

September 25, 2011 9:36 PM

Does anyone know of any books or articles that discuss the legality of America's Declaration of Independence?
posted by raynax to Law & Government (11 answers total)

What do you mean?
posted by John Cohen at 9:47 PM on September 25, 2011

Response by poster: I'm looking for books/articles that discuss the legality of the document from the perspective of the law of nations (since international law as we know it didn't really exist back then) and English statutory and common law. I've had a surprisingly difficult time finding information on this topic. The only thing I have right now is Lind and Bentham's "An Answer to the Declaration of the American Congress," which was (as you can probably guess from the title) a contemporaneous response to the Declaration of Independence.
posted by raynax at 9:55 PM on September 25, 2011

My understanding was that the whole point of the Declaration of Independence was to assert natural law and natural rights, as formulated by the Scottish-American Enlightenment, as the source of legitimacy for further laws.

Throwing 'Scottish Enlightenment' and 'natural law' into Google, the very first hit is this article about a judge who signed the Declaration and the Constitution, and it seems on point.

Throwing 'natural law' and 'Declaration of Independence' into Google Scholar, another hit that seems like a direct answer is "The Declaration of Independence and International Law", but I'm too lazy to read whether it confirms my assumption. :D
posted by Monsieur Caution at 10:40 PM on September 25, 2011 [4 favorites]

It is said that a loaded gun beats 4 aces.

A loaded gun also beats "international law" and "the law of nations". The proof of legality of the Declaration of Independence was the military victory at Yorktown, and the Treaty of Paris.

Revolutions are always justified by success. It's the only justification that's needed.

Your question is moot.
posted by Chocolate Pickle at 11:34 PM on September 25, 2011 [5 favorites]

A better way to put it: A successful revolution is always legal, because it makes its own law.
posted by Chocolate Pickle at 11:42 PM on September 25, 2011 [7 favorites]

I came in here to say essentially the same thing as Chocolate Pickle. It doesn't matter if it was legal under existing British law. It was legal under new American law, because the revolutionaries won. Certainly had they lost, they would have been tried as criminals.
posted by tylerkaraszewski at 12:32 AM on September 26, 2011

Apropos of nothing in particular, I thought this was a fine question. I did read the article linked, above, and although it substantially agrees with the common wisdom about natural law being asserted as the foundation for the Declaration, it suggests the signers were plenty concerned about the law of nations as well. Successful revolutions typically require international support beforehand for obvious reasons and recognition by other states to avoid, say, having their foreign assets seized at any time before or after. But of course, the legal context in which the proto-revolutionaries justified themselves mattered greatly for persuading people to go along with it, and the legal context matters even more if they fail, as we see later during the Reconstruction.
posted by Monsieur Caution at 12:40 AM on September 26, 2011

The signers of the American Declaration of Independence were guilty of high treason under English Common Law.

As CP points out, the fact that the British were unable to enforce their writ in the American colonies rendered the law moot.
posted by three blind mice at 2:12 AM on September 26, 2011 [2 favorites]

Although I know you're talking about the legalities at the time, one way to start your search is to look at equivalencies in the modern era, because hopefully they will link to scholarly work that discusses decolonization and secession/self-determination. Try taking a look at the International Court of Justice's advisory opinion in Accordance with international law of the unilateral declaration of independence in respect of Kosovo - I think the relevance is obvious.

From my own memory, I can tell you that a lot of it will be useless to you, dealing with specifics in Kosovo. I do remember that Judge Trindade's separate opinion goes into the history of self-determination and theory behind it, there might be something good there.
posted by Lemurrhea at 4:12 AM on September 26, 2011

Incidentally, it might be useful to consider as well the legality of the Second Continental Congress's prior Declaration of the Causes and Necessity of Taking Up Arms (July 6, 1775). Among other things, it makes the relevant claim that it was General Gage who set aside "'the course of the common law,'" and it asserts, against the wishes of some more famous members of the group, that the colonists did not wish to sever their ties with Great Britain and intended to restore the union with the empire. As the article three blind mice linked suggests, many colonists warred for a year without believing they were necessarily guilty of high treason. This Smithsonian Magazine article steps through that year with additional relevant context, including the king's refusal of the Olive Branch Petition but also the Prohibitory Act's insinuation that pardons might yet be granted to those who had taken up arms.
posted by Monsieur Caution at 7:07 AM on September 26, 2011 [2 favorites]

I'm not 100% clear on what, specifically, you're asking, but I'll pop in to note that my favorite book about the Declaration of Independence is Garry Wills's Inventing America. He goes in depth into Jefferson's philosophical influences, the historical context of the document, and the differences between Jefferson's draft and the version that, in the end, passed the Continental Congress.
posted by General Malaise at 9:04 AM on September 26, 2011