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Common Law and the Free Society

Most would agree that the rule of law is an absolute requirement for any society wishing to enjoy order, prosperity, and freedom, but what is the nature of this law, that we claim ought to rule? The typical modern understanding is that law is something decreed by executive officials, legislative assemblies, or bureaucratic agencies. Often forgotten is that this view of law has not been the predominant perspective through most of Anglo-American history. Rather, the Anglo-American legal/political tradition has been marked by the predominance of common law, a law not created by government officials. A recovery of the common law, which has been so much eroded in recent generations, ought to be a high priority for all who seek the advance of ordered liberty in our societies.

The Character of Common Law

The key concept underlying the common-law tradition is that law, at its essence, is not something to be decreed but something that emerges spontaneously through the interaction of the members of society. According to this vision, communities of people have developed certain customs and habits over time. Most of these customs have not been imposed by government command but have been created through the trial and error of ordinary people seeking to cope with the challenges of life and to establish manners of dealing with each other in peaceful ways. As traditionally understood, common-law judges were to base their verdicts on these unwritten customs. This customary law was ordinarily discovered in precedents, the judicial decisions rendered in prior cases resembling the case currently before the court. It was felt that these precedents were usually the best evidence of what the relevant customs were. Common law recognized, however, that customs are modified over time, so, evidence of change in custom would occasionally prompt a judge to depart from precedent.

From this perspective, legislative statutes were viewed essentially as isolated outposts in a common-law world. Statutes were assumed to be consistent with the common law, and judges interpreted them in this way. The legal picture was painted on a common-law canvas, and statutes were like single brush strokes that may have slightly altered the details but did not change the portrait as a whole.

There is historical evidence that, at several times in Anglo-American history (for example, the Glorious Revolution of 1689 and the American War of Independence), a renewed appreciation of this legal heritage inspired those struggling for liberty against government encroachment. In recent generations, however, the supremacy of common law has been largely eclipsed by a burgeoning corpus of legislative codes and administrative regulations. If, in prior ages, statutes were seen as occasional adjustments of detail on the common-law canvas, now statutes themselves make up the canvas. The idea that law is law only if it is decreed by governmental authority has come to dominate our thinking and practice.

Preserving the historic function of common law ought to be a task of interest to people of various religious and political traditions. Despite their differences on many issues, both Protestants and Roman Catholics, both libertarians and conservatives, have reasons to appreciate the lost ideal of common law.

Common Law and Ordered Liberty

Catholics and Protestants both can find common-law principles present in the natural law theories of some of their most significant theologians. For example, Thomas Aquinas, still so important for Catholic social teaching, believed that human law should be derived from the natural law. Who, then, was actually to establish the human law? Aquinas taught that the people as a whole could be entrusted with this task, and, when they were, their customs were to have more authority than even the commands of the king. On the Protestant side, John Calvin also believed that human laws were to be based on the natural law. However, he thought sinful people would follow the natural law precepts only when they felt some selfish necessity for doing so. Yet it is exactly in the trenches of ordinary life–the precise place where customs are formed–that such necessity most makes itself felt.

Likewise, the common-law heritage provides a useful point of contact and source of dialogue for conservatives and libertarians, who represent two different, yet often allied, political traditions. Libertarians ought to appreciate its emphasis upon the spontaneous ordering of society and the way it allows people to shape the character of their own lives largely apart from government planning. Conservatives ought to appreciate its respect for the wisdom of those who have lived before us and its recognition of the historical nature of the rights and privileges we enjoy.

One of the key benefits of a vibrant common law is that it reinforces the idea of the rule of law. By the rule of law we understand that members of society are to act according to certain known rules, which bind government officials as well as ordinary citizens. Without the rule of law acting to constrain the arbitrary whims of those in power, members of society cannot enjoy freedom in a meaningful way. In our own day, when we see legislatures and administrative agencies passing a plethora of statutes and regulations, it is obvious that the rule of law has become severely attenuated. Though we still like to think that our government officials are bound by the law, what does this really mean when these very government officials are decreeing nearly every law that exists? Here is where we can recognize part of the genius of a common-law system. Because the common law is not created by government officials but by the people as a whole as they freely interact with each other, it can serve as an external rule for constraining those in authority. When an independently generated common law governs the actions of government officials, their ability to exercise arbitrary power is curtailed.

Another way in which common law promotes the ordered liberty of society is by allowing people to plan confidently for the future. To develop one’s skills effectively, choose one’s occupation, or invest one’s resources–key aspects of living in a free society–future conditions must be foreseeable with some degree of certainty. Obviously, life will never be wholly predictable, but such uncertainty about the future is only enhanced when the law is subject to legislative change at any time. Unlike current American law, common law is not prone to abrupt change. By its very nature, it can change only as quickly as society’s own customs, which tend to change only gradually. In a society recognizing the centrality of common law, one can be relatively certain that the law of the near future will not look much different from the law of today. And this means that one can better prepare for what is to come.

The Inner Harmony of Common Law

Another characteristic of common law that promotes a free society is its tendency toward inner coherence. Ordered liberty requires a law that is a unified whole, not just a collection of isolated rules. The reason for this is that judges must constantly decide cases for which there is no clear, established rule that speaks directly on point. If there is no internal harmony to the law, no connection from one established rule to another, then judges have no predictable standard for deciding such cases and are left to their own arbitrary instincts. When the law consists almost entirely of statutes and regulations, drafted by many different people in a variety of rule-making bodies, inner coherence is inevitably impossible to attain. In contrast, the very manner in which common law develops gives it a tendency toward consistency. Judges discover the common law by analogizing present cases to previously adjudicated cases. Because exact precedents are rarely found, common-law judges must decide cases by synthesizing the results of prior cases most resembling the controversy currently at issue. In other words, common-law adjudication is based on the assumption that the rule governing one situation is to complement and even explain the rules for other situations. Rules of common law are recognized as such only because they fit well into the whole fabric of the law.

Our final consideration is that common law accounts well for the complexity of society and for the fact that no single person or group of people can possibly attain enough knowledge to understand exactly how all the parts of society fit and work together. Undeniably, many of the things most valuable to us were never created by anyone in particular but developed spontaneously over time through the free input of many people. For example, the intricate vocabulary and grammar of the world’s languages were never decreed by a legislative body but have taken their current forms by the incremental and unplanned modifications of ordinary people discovering better ways to communicate with each other. No central planning committee could ever have enough knowledge or information to create a language as useful as the ones that now exist. Similar things could be said for the discovery of scientific laws or the establishment of prices for goods. Certainly the complexity of society suggests that the rules of our law should also develop spontaneously, apart from government dictation. A complex society requires complex rules for smooth and effective operation. Why should we have any more confidence in the ability of legislators or bureaucrats to produce such necessarily elaborate rules of law than we have confidence in their ability to determine the intricate rules of language? It is reasonable to believe that the spontaneous development of common law, utilizing the aggregate knowledge of all the members of society, will bring forth better results.

A Response to Objections

Before concluding, let us address briefly a few objections that are sometimes leveled against such pleas for a return to common law. One objection is that a common-law system is appropriate only for societies that are relatively cohesive and unified in their outlook on life. While this may have been the case in medieval England or colonial America, it does not seem to be true for modern pluralistic society. This objection does not really tell against the possibility of common law so much as against the possibility of society itself. Our society indeed is increasingly fractured, but as long as it is still society, we necessarily share common customs in our interactions with each other. As long as these customs exist, a common law is possible. When they cease to exist, not only common law but society itself is impossible.

Another objection is that even if common law is technically possible in today’s world, we have gone down a path of no return by creating a statute-governed society. This objection, that the reestablishment of common law is unworkable in practice, is certainly serious in light of the current state of affairs, but creative solutions could surely be found. For example, we could introduce more constitutional restrictions on the ability of legislatures and administrative agencies to create rules. And common law is certainly capable of taking over as statutes are phased out. However, it would be necessary for the voting public to cease expecting their candidates to fix every perceived problem by means of new legislation.

A final objection for us to consider is that a common-law system grants too much power to judges. If the judicial usurpation of authority has been such a problem in recent years, why would we want to augment their power even further? This, too, is a legitimate concern. However, a common-law system would not in itself increase the power of judges. Though common law is sometimes referred to as “judge-made law,” traditional common-law advocates, in fact, share the conviction that judges should not be making rules of law but only discovering and applying those that already exist. Judicial activism is a potential problem in any legal or political system. What a return to common law would do is not increase the power of judges so much as decrease the power of legislatures and bureaucracies.

The character of a society is intimately bound up with the character of its laws. Those who wish for the freedom, prosperity, and virtue of their communities cannot but deeply care about how their laws are created and how they benefit or hinder the communities’ flourishing. Those who love the free society–both Protestants and Catholics, both libertarians and conservatives–ought to renew their appreciation for the common law. This vital, but frequently forgotten, part of our heritage is built upon principles echoing the concerns of those who desire the strengthening of ordered liberty.