COMMON LAW

COMMON LAW. In 1765, in the first volume of his Commentaries on the Laws of England, William Blackstone explained that the law had two main parts: the statute law and the common law. The common law consisted of the general customs of the realm. It was often called an un-written law because the common-law principles could not be found in any one place, but rather in the decisions of judges in thousands of individual cases. Those customs, built up over the generations by judicial decisions and cataloged by scholars, represented (supposedly) the wisdom of the ages. Blackstone thought such a law was entitled to respect precisely because it represented practices stretching as far back as the human mind could recall. Such immemorial usage testified that the common law was correct. He was so proud of the common law that he called it "the perfection of reason."

Blackstone defined the common law in static terms, which made change difficult. Judges had to follow the precedent of the unwritten common law unless it was patently absurd or unjust—a high standard to meet. Thus many believe, with Francis Bacon, that judges are expounders and not makers of the common law. The common law in Blackstone's England was a body of principles arcane and difficult to understand, for sometimes the rationale underlying rules had been obscured by the mists of time. Nevertheless, it was also based on reason. That obscure but still rational law was difficult to challenge.

The Common Law after the Revolution

By the time of the American Revolution, however, an alternative understanding of the nature of the common law was emerging. Through the study of legal history, introduced by Matthew Hale's History of the Common Law (1713), both English and American lawyers began to understand that the common law evolved and that the law seemed to support a growing emphasis on liberty. An increasing historical consciousness led to views like that expressed by the scientist Joseph Priestley, who emigrated from England to America shortly after the Revolution: "Many things in the present state of the law are unintelligible without the knowledge of the history and progress of it." At the same time, the law became more complex to accommodate increases in commerce. So, faced with a rapidly expanding body of law and a sense that the law had changed in the past, American judges began to think of the common law as an evolving, rather than a static, body of principles. They spoke favorably of recrafting the common law to bring it into line with American values.

That recrafting took place along many fronts, including changing the rules for distribution of property at death. Where English rules gave preference to the eldest male child, Americans distributed property more equally to children (and grandchildren) at death. Across areas from property to contract to tort law, judges reexamined English precedent to see whether it fit American needs. Often those judges spoke about their desire to promote economic growth—for example, by limiting liability of corporations for harm they caused to neighbors—and at other times of the need to promote morality. The law was made more humane to provide at least minimal protection to families from creditors, to wives from abusive or prodigal husbands, and even (on rare occasions) to tenants from landlords. The decisions frequently were phrased in terms of expediency and, in rare instances, in terms of humanity. The Supreme Court Justice Joseph Story wrote in the 1830s about the common law as a mixture of ancient tradition and modern, commercial needs.

Even as conservative judges were acknowledging their ability to remake the law to bring it into line with American views of economy and society, they were careful to portray the common law as evolving slowly. They needed to guard against the image that the common law might effect rapid change, for they needed to preserve the law's majesty. Few maintained the fiction of Blackstone's era that the law had been the same from time immemorial, but many continued to believe that judges had little power in remaking the law. The dominant view of the early nineteenth century was that judges were expounders of the common law and only had the power to make incremental changes.

Questioning the Common Law

Many outside the legal system saw the issue differently, however. Those outsiders saw the common law not as the perfection of reason but as the perfection of nonsense. In speeches and newspapers, outsiders to the legal system—usually adherents of the Democratic Party—attacked the common law as the creation of judges, who were making law to protect property against democracy. These debates occurred at a time when judges were using common-law doctrines to outlaw union organizing, to require the return of fugitive slaves, and to protect merchants and creditors at the expense of consumers and debtors. The critics of the common law ridiculed it as an arbitrary collection of abstruse rules. William Sampson's attack was among the most vitriolic. He thought Americans "had still one pagan idol to which they daily offered up much smokey incense. They called it by the mystical and cabalistic name of Common Law." Some principles were ancient, others recent, but in all instances, the common law sat "cross-legged and motionless upon its antique altar, for no use or purpose but to be praised and worshiped by ignorant and superstitious votaries." Many Americans agreed with Ralph Waldo Emerson's call in his 1836 book Nature for "our own works and laws and worship."

Related to that attack on the common law was a movement to limit the power of judges. Around 1810 the United States Supreme Court prohibited the creation of "common law" crimes; after that, in order to be prosecuted for crime in federal court, the accused had to be charged with violating a law passed by Congress rather than a rule created by a judge. A related drive for codification of other laws would have similarly limited judges' power to make new rules in such areas as contract, torts, property, and court procedure. The codification movement had two parts. The more radical branch, advocated by people like Thomas Jefferson and Sampson, sought to limit judges' discretion; a less radical branch, advocated by moderates and conservatives like Timothy Walker and Hugh Legaré, sought merely to clarify the law that judges applied.

Following the Civil War, the common law was increasingly seen as the creation of its history, and the trend toward decisions that facilitated economic growth seems to have continued. Proponents of the law and economics movement argued toward the end of the twentieth century that judges after the Civil War produced a common law that promoted efficient use of resources; they claimed that judges have long been concerned with creating economically efficient common-law rules. Oliver Wendell Holmes's 1881 book The Common Law was an important part of the postwar recognition that law evolved and that it was the product of historical events, rather than simply the result of reason. Holmes's book, focusing on experience rather than logic, is often seen as the legal analog to Charles Darwin's Origin of Species, focusing on biological processes rather than divine ones.

Holmes helped popularize the understanding that law evolves, but it was left to the legal realists of the early twentieth century, who linked that insight with a systematic critique of the rules that judges announced, to show that judges' own attitudes were central to making the law. Justice Benjamin N. Cardozo's 1921 book The Nature of the Judicial Process acknowledged that judges ought to look to their surrounding society, as well as precedent, for guidance in deciding cases. He engaged in the heresy of treating the "judge as legislator." That view of the common law reached its height in what the U.S. district judge Joseph Hutcheson called the judicial "hunch"—the belief that judges decided cases based on instinct rather than on precedent. Similarly, Karl Llewellyn expressed "rule skepticism," which debunked the priority of rules in judges' decision making. He focused on the importance of the sentiments of judges, lawyers, and the community in deciding cases. The U.S. district judge Jerome Frank took that a step further with his skepticism toward both law and facts. Frank's Law and the Modern Mind (1930), which offered a psychoanalytic interpretation of judges, ridiculed Americans' attachment to what he viewed as the myth that law could be certain. He argued that judges decided cases according to their own personal prejudices and foibles.

Interpretations since World War II

After World War II there was a growing interest in the use of the common law as a tool for social reform. While some academics spoke of the legal process school—the belief that there were methods of common-law and statutory interpretation that were independent of politics—other academics and jurists on both ends of the political spectrum urged judges to use their common-law power to remake the law. Where once judges had wielded the law to limit corporate liability, some began to expand tort law to make it easier for injured parties to recover in areas from hazardous working conditions to dangerous drugs to professional malpractice. Related developments in contract law relieved consumers with little bargaining power from unfair bargains, and changes in landlord-tenant law gave tenants more power. Meanwhile, judges from the right of the political spectrum, particularly after 1980, became increasingly concerned with considerations of economic efficiency. In areas from antitrust to environmental regulation and contracts, judges drew insights from economics to reshape the common law, such as the idea that sometimes monopolies are beneficial to consumers because they reduce costs.

In modern America, the common law continued to be the product of generations of judicial decision, but at the beginning of the twenty-first century it was under-stood to be the product of judge-made innovations. However, a more static conception of the common law has been reemerging in the United States Supreme Court. In several late-twentieth-century lines of cases, the Supreme Court limited the power of the courts to reinterpret the law. In 1993 in Lucas v. South Carolina Coastal Commission, the Court concluded that the state of South Carolina must recognize the traditional property rights of an owner of coastal property, primarily the right to build along the coast. A South Carolina court could not depart from the long-established precedent that property owners had a right to build along the shore. Then, in 1997 in City of Boerne v. Flores, the Supreme Court rejected the argument that Congress had the power to make its own findings about what constituted violations of constitutional rights. It there by protected the right of courts to be the arbiter of what constituted violations of constitutional rights. Together those lines of decisions suggest that the Supreme Court was protecting courts' power under the common law while limiting the ability of judges to alter that law.

Yet every day, as has happened for centuries, judges grapple with new facts and struggle to apply precedent. These judges are using the common-law system, which affords them the power to apply old precedent to new cases and to remake old precedent when necessary.

COMMON LAW

The Common Law after the Revolution

Questioning the Common Law

Interpretations since World War II

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