Introduction
Law students encounter the notion of "common law" very early in their legal education, frequently in an orientation program or on the first day of classes. The standard law school curriculum includes courses in contracts, property, and torts, which are "common law" subjects. And the reading of common law cases as presented in casebooks is the primary way in which students learn the doctrinal structure (the legal norms) of these common law subjects. But what is the common law? And what is the role of the concept of the common law in legal theory? This Lexicon entry explores these questions.
As always, the Lexicon is aimed at law students, especially first year law students, with an entry in legal theory.
A Rough Typology & the Hierarchy of Authority
One way way to understand the notion of "common law" is to place the common law in a typology with other forms of law and to organize the forms of law into a hierarchy of authority. Such a typology might look like this:
- Constitutions: The United States Constitution and the constitutions of the several states are examples.
- Statutes: Statutes are directed enacted by a legislature, e.g., Congress or a state legislature.
- Regulations and Rules: Regulations are typically promulgated by administrative agencies, such as the Environmental Protection Agency or the Federal Aviation Agency. Similarly, various bodies promulgate rules, such as the Federal Rules of Civil Procedure.
- Common Law: Common law is found in judicial opinions and can be conceived as case law. Usually common law is distinguished from case law that interprets a constitution, statute, rules, or regulations.
The conventional understanding is that there is a hierarchy of authority, with constitutions at the topic, followed by statutes, rules and regulations, and then common law. If a common law norm is inconsistent with a regulation or rule, statute, or constitutional provision, the common law norm gives way and the higher form of authority governs.
Two Approaches to the Common Law
What is the source of the common law? Simplifying a complex debate, we can identify two theories of the nature and source of the common law, the "discovery theory" and the "judicial legislation theory."
The Discovery Theory
The core idea of the discovery theory is that the common law preexists the judicial decisions that identify common law norms. Judges don't "make" the common law; they "discover" it. On this view, there must be some source of the preexisting common law that is independent of the judicial decisions that discover it. Traditionally, there are two candidates for the source of discovered common law, "natural law" and "social norms or customs."
On the natural law interpretation, common law decisions articulate principles of natural law, which are moral principles discoverable by human reason. If this view were correct, then morality would be the source of the common law, and common law reasoning would be a form of moral reasoning, sometimes called "right reason."
On the social norms interpretation, common law decisions articulate preexisting social norms or customs. Thus, the common law of property would reflect the norms of the community with respect to the ownership of land and things. As members of the community, judges would apply and articulate their intuitive knowledge norms that they have internalized.
The natural law theory and the social norms or custom theory might be rivals, but they might also be reconciled in various ways. Custom might be considered an imperfect or approximate guide to the natural law, subject to correction when judges discover a gap between the customs of a community and the requirement of right reason.
The Judicial Legislation Theory
The judicial legislation theory denies the fundamental assumption of the discovery theory: common law is judge-made law. On the judicial legislation theory, judges are given the power to engage in interstitial legislation. Unlike, a legislature, judges are not authorized to write statutes. Instead, judges legislate on a case-by-case basis, making incremental changes in the rules within the limits of the doctrine of stare decisis or precedent.
Most contemporary legal theorists affirm the judicial legislation theory of the common law. The natural law version of the discovery theory seems to depend on the acceptance of natural law views about the nature of law, but most contemporary legal theorists are legal positivists. The notion that the common law involves judicial legislation was the view of the legal realists, and continues to dominate legal theory in post-realist legal thought. There has, however, recently been a revival of the view that the common law is grounded in customs and social norms.
Another View: Dworkin's Theory of the Common Law
Ronald Dworkin has a distinctive theory of the common law. The gist of Dworkin's theory is that common law cases should be decided in accord with the moral theory that best fits and justifies the preexisting legal materials as a whole. Simplifying, a judge deciding a property case would look at all of the prior common-law property cases and then develop the theory of property law that best justifies the pattern of decisions. Dworkin believes that there is a "right answer" to every common law question--so his theory is inconsistent with the idea that common law involves judicial legislation.
The Doctrine of Stare Decisis
Closely related to the concept of the common law is the idea of stare decisis (the doctrine of precedent). The common law develops via the doctrine of stare decisis, which distinguishes between the holdings and dicta. On the traditional formulation of the theory, holdings are binding, but dicta are not, although they may constitution persuasive authority. The various views about what constitutes the holding of a case are explored in a prior Lexicon entry (Legal Theory Lexicon 005: Holdings). The traditional view is that the holding of a case is the ration decedendi, the legal norm that is entailed by the reasoning that is necessary to the outcome given the legally salient facts presented by the record and the arguments of the parties. The doctrine of precedent operates to constraint the power of judges to make common law; the rules they announce are limited by the facts and issues raised in the case to be decided.
General and Local Common Law
Most law students read the Supreme Court's decision in Erie Railroad v. Tompkins in their course in civil procedure, and they may also read an excerpt from the Supreme Court's prior decision in Swift v. Tyson. Those cases introduce a distinction between "general common law" and "local common law." The idea of this distinction was that some common law topics are governed by "general common law," which is the same in every common law jurisdiction. Commercial law and maritime law are examples of doctrinal areas that were thought to be governed by general common law at the time Swift v. Tyson was decided. Local common law governed topics where local customs created rules that were not followed by all common law jurisdictions. Many property law norms were considered to be matters of local common law.
Erie Railroad v. Tompkins rejected the idea that federal judges were free to adopt views of the general common law that differed from those adopted by state courts, leading to the demise of the distinction between general and local common law.
Normative Criticism of Common Law
Jeremy Bentham is famous for his critique of the common law. Bentham argued that the common law was defective for multiple reasons. One reason is that the common law is driven by the doctrine of precedent; Bentham argued that codified law based on utilitarian principles provides a superior method of lawmaking. Bentham also contended that codified statute law is public and easier to ascertain than is the common law, which is relatively difficult to ascertain.
Conclusion
The idea of the common law has produced a vast literature exploring many issues that are beyond the scope of this Lexicon entry, but I hope to have provided a starting point for further investigation. Some additional sources are provided in the bibliography provided below.
Related Lexicon Entries
- Legal Theory Lexicon 005: Holdings
- Legal Theory Lexicon 026: Rules, Standards, and Principles
- Legal Theory Lexicon 032: Fit and Justification
- Legal Theory Lexicon 073: Persuasive Authority
Bibliography
- Matthew Hale, On the Law of Nature, Reason, and Common Law: Selected Jurisprudential Writings (2018).
- Oliver Wendell Holmes, Jr., The Common Law (1882).
- Karl Llewellyn, The Common Law Tradition: Deciding Appeals (1960).
- Theodore F. T. Plucknett, A Concise History of the Common Law (1929).
- Gerald J. Postema, Bentham and the Common Law Tradition (1989).
(Last modified on August 31, 2024.)
