The Inexplicable Thing About Common Law

19 11 2010

There’s one thing I don’t understand about the debate about the law, specifically the conservative talking points about judges “making law” or legislating from the bench. Specifically, why anybody pretends this makes any sense whatsoever.

America, like a dozen or so other countries with historical ties to England, has a common law system. When America became a country, they didn’t sit down and write all new laws. Which makes sense; while there was plenty they wanted to overturn, the major focus was changing how government worked, not necessarily all the specific laws they lived under (indeed, that’d be a quick way to descend into chaos). Instead, they adopted the English “common law.” The common law was a body of legal opinions from various courts interpreting and applying statutes.

By adopting the common law, those early Americans were essentially relying on the English method of allowing judges to determine how laws should be interpreted and applied by providing the rationale and reasoning for each decision. In order to know what the law is in any given jurisdiction, it isn’t enough to read the laws as passed by legislatures, but to read “case law” that explicates those laws.

This is good for legislatures, because it saves them an enormous amount of time and, more importantly, makes sure that the law can cope with unforeseen situations. The law is immensely flexible because the ginormous body of case law allows them to build on a huge body of reasoning to construe how, when, and why the law should be applied–or shouldn’t.

This is different from the way law works elsewhere. Most of the nations of the world are republics in the French Revolution model, with a single, central government authority and comprehensive civil codes (influenced by the Code Napoleon). In these nations, judges are permitted only to apply, never interpret (or invalidate) the law.

Those Founding Fathers “strict constructionists” point to were lawyers practiced in exactly this kind of law. John Adams’ famous defense of Captain William Preston (Rex v. Preston) and the other alleged perpetrators of the Boston Massacre was predicated on common law–previous judges’ decisions as to what constituted reasonable self-defense and the legitimate classes of provocation. In fact, the case created some law of its own: the “dying declaration” exception to the principle of exclusion of hearsay evidence.

There has never been a point in American history where judges didn’t create law in this sense. Obviously critics of so-called “judicial activism” respond by saying that the trend is worrisome now because judges are usurping the legislature in actually creating new laws. But even if that were true, it wouldn’t really be anything new. The courts’ ability to invalidate laws gives them a wildly powerful post-facto veto power. The ability of judges to interpret the law both logically built to that (the power was created not by the Constitution but a judicial decision, one of the five case everybody learns about in high school, Marbury v. Madison) and descends from it (surely if the judiciary can invalidate laws it can infer how laws can be interpreted).

Maybe this isn’t the best system or even a good system; maybe the civil law systems work better. That’s not the point; the point is that it’s more or less always the system we’ve had, and it can’t work any other way–it would have to be gutted and rebuilt, the way the Continental European nations were gutted and rebuilt over the course of the 18th, 19th, and early 20th centuries.


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