In a few weeks, in a review for First, a biography of Sandra Day O’Connor, I will promise you a post discussing the concept of common law and its associated philosophies; when that post goes live, I would like you return to this post if you have not already read it (and I will try to remember to add a link to this post in the review). This confusion is the simple result of how far ahead I’ve gotten with the weekly book reviews, and I will now stop talking about it in favor of talking about the main topic of this post. There is certainly plenty to cover on the concept of common law without extraneous fluffing.
“Common law” is one of those terms that most of us have probably heard tossed around without stopping to think much about what is meant by it. This was the case with me, despite my hobbyist interest in legal philosophy, mostly because I had usually encountered the term specifically in the context of English Common Law, and therefore dismissed it as not applicable to my Americentric study of law in its application, and my universal philosophy approach to the idea of law. When I encountered the concept of common law as a general term for a type of lawmaking in reading First, I resolved to investigate the idea further. I might even read a book or two about it.
To best elucidate what common law is, it is most useful to have something with which to contrast it; specifically, we shall contrast it with statutory law. In legal theory, common law and statutory law are the two primary forms of rulemaking in a given legal framework: statutory law being the explicitly written laws of legislatures, executives, and bureaucrats, and common law being laws derived from judicial precedent and from the implications of the shared moralistic and political environment. If common law sounds a little fuzzy to you on first inspection, you would not be wrong – in many ways that is precisely the point of common law, the essence of what makes it distinct from other forms of law, and the source of both its strengths and its flaws. Where statutory law is explicit, rigid, and definitive, common law is implicit, flexible, and evolving.
In a sense, common law is case law, and there are entire schools of legal philosophy that make the argument that common law and case law are just different terms that refer to the same thing: rules derived from past judicial decision-making which can serve as precedents and guidelines for future decision-making. If you have studied American law in any depth, or even examined the decisions of the US Supreme Court, this idea of common law as case law will be familiar to you even if the terms are unfamiliar; Supreme Court decisions in particular treat case law as nearly as immutable and definitive a ground upon which to form a legal argument as the Constitution itself. Common law as case law begins from some statutory law, like the Constitution, and infers or derives a rule of some manner to address a specific case. From there, the rule derived or inferred for that case becomes “common law,” and can be applied to decide future cases.
There is, however, another sense and application of the concept of common law, which is even more nebulous, and which is in fact the one which Thomas argues in First was often applied by Sandra Day O’Connor during her time on the Supreme Court (hence the impetus for this post): we may summarize this approach as “common law as practical law.” From what I understand, this approach may actually be more in keeping with the original concept of English Common Law, and the idea of law expressed by foundational documents going all the way back to the Magna Carta (and probably further back than that – shall we examine Athens’ legal system next?). In this sense, common law is a means of achieving practical results from the law through deciding cases based on what is “commonly accepted.” While the quote from the Supreme Court pornography case that “I know it when I see it” is horribly overused, it effectively embodies this second idea of common law: it consists of the rules implicit in society that are commonly recognized but not scribed into rigid statutes.
Even more so than common law as case law, common law as practical law (as we are calling it – the latter is not official terminology and you should not go invoke common law as practical law with your lawyer friends) is extremely fuzzy, or, to use a more generous term, it is adaptive. It is law based in a certain way on societal norms and mores, and therefore can evolve to take into account changes in those norms and mores. Perhaps you can see where this would start to get controversial. On the one hand, common law as practical law makes the application of law more responsive to the will of the people and more readily adaptable to the changing of the times. Alternatively, common law as practical law can be viewed as capricious legislating from unaccountable, unelected persons.
Part of me, the part that dabbles in theoretical physics that seek to describe the universe with neat, mathematical equations, the part of me that once spent a weekend trying to re-derive and solve the Navier-Stokes equation so that I would not have to accept a statistical model for air resistance in a Mars aerobraking problem, the part of me that is attracted to Immanuel Kant’s assertion that an action is only just insofar as you should desire it to become universal law, thinks that both of these ideas of common law, and especially the idea of common law as practical law, are terrible. From this perspective, laws should be definitive, sharply restrained, and clearly delineated statues providing explicit rules. They would be finely crafted, so that the role of a judge would be nearly superfluous since interpretation would not be necessary. Common law through this lens is a pathway to judicial dictatorship or tyranny of the majority, or at the very least to complete legal chaos.
Fortunately, that part of me is balanced by the part of me that spends other weekends writing about magic, the engineer part of me that accepts practical, good enough solutions to design problems, the part of me that thinks Aristotle’s concept of virtue as the mean between two vices is a better guideline than Kant’s concept of universal laws. We have centuries of evidence of the power and utility of common law in both senses. Since legislators and executives are imperfect, and are not restraining themselves to crafting only laws that they should desire to see be implemented universally, common law as case law and common law as practical law provide a valuable counterpoint, a means by which imperfect statutes crafted by imperfect people can be rendered into forms that are useful, applicable, and relevant to the population upon which they are inflicted.
Undoubtedly, there is a place for common law in modern jurisprudence – the difficulty lies in finding the right instances in which to apply it, a happy medium between the school of thought that decries common law as a moral outrage and the school of thought that would turn the entire legal system over to raw, majority rule. This is really the argument at the heart of the debates that resurge whenever a new Supreme Court Justice is nominated: originalism, textualism, activism, progressivism, and all of the other legal -isms that get thrown about are really arguing over how, when, why, and in what way the concepts of common law ought to be applied. It is also why the proper functioning of a democracy is about more than having a carefully crafted constitution that balances the interests of different players so that their conflicts reinforce each other like the stones in an arch (or a dome).
After all of that, we have only brushed the surface of the concept of common law; I highly encourage you, as always, to pursue some of your own research on the topic, and if you learn anything particularly interesting, please consider sharing it in the comments below. We also went this entire post without even touching on the concept of the law itself, which alone is a matter of significant philosophical debate, which we might touch on briefly when we review some of Plato’s dialogues. In the meantime, I hope that you found this post informative, and I’d be glad to discuss these ideas further with you. Whatever your opinions on common law in any of its guises, it is a part of our society, and not one that will be disappearing anytime soon: it’s therefore something worth understanding.