From IVR encyclopedie
by Sean Coyle
'Common law’ denotes a system of law based on tradition, custom and precedent, as distinct from civilian legal systems based on comprehensive codes. In modern times, the common law is often defined as judge-made law (as opposed to statute law), though the historical roots of the common law system reflect a body of essentially local customary practices and usages which are applied by judges rather than necessarily ‘made’ by them. Early common law trials thus often derived their form from the character of local superstitions, as reflected in the various forms of trial by ordeal. By the late medieval period, at the hands of William the Conqueror and the Plantagenet kings, such forms of local law and quasi-law had developed into a nationwide system of ‘common’ law or ius commune (‘law of the land’), effectively putting an end to wide variations in the enforcement of justice which had existed between communities, and bringing institutional stability and cohesion to the law even if the substance of customary understandings remained rooted in local tradition. At the same time, the emerging system of legal education, steeped in Roman law scholarship, brought about a degree of homogeneity in the administration of the law, eventually forming a shared interpretative background for the understanding of legal customs and texts.
By the seventeenth century, the common law had become institutionally highly complex. The backbone of the legal order was the system of writs, wherein a plaintiff was required to organise and pursue an action of the correct type if any remedy was to be made available. It was the form of action which was centrally important in legal thought, with the emphasis being placed upon the procedural aspects of pleading rather than on the interpretation and application of fixed rules or principles. The image of the common law at this time – that of a system of laws based on reason and universally shared principles (ius naturale) – was thus considerably out of step with the labyrinthine realities of the system of pleadings, and common lawyers struggled to offer explanatory insights into the moral foundations of the legal order. The dominant style of legal writing, in the form of compendia and practice manuals, also hindered the development of a systematic approach to doctrinal legal science whilst emphasising the anti-theoretical nature of the common law. Even at the end of the seventeenth century, most common lawyers were content to understand their subject along the narrow, procedure-focused lines imposed by the system of writs, leading Viscount Stair to lament that ‘… there are not wanting of late of the learnedest lawyers, who have thought it both feasible and fit, that the law should be formed into a rational discipline, and have much regretted that it hath not been effectuated, yea scarcely been attempted by any.’ (Institutions I.1.17).
Despite the anti-theoretical tendency among common lawyers focused on mundane, practical matters, legal philosophers have long argued over the nature of the common law system. Insofar as it addresses the subject, the analytical jurisprudence of the modern period has mainly concerned itself with the moral and ethical character of the common law, as part of an attempt to explain the common law as a coherent moral system, or to unearth the conditions which make such coherence possible. (See, for example, law as integrity, law and economics.) In particular, detailed studies of the central common law areas – tort law, property, the law of contract and restitution – have become a popular focus for jurisprudential scholars who seek to exhibit the analytical and ethical foundations of common law reasoning. By contrast, legal scholarship in the medieval period through to the mid-nineteenth century was focused almost entirely on political questions about the form of the polity: how can a system of general laws govern people who essentially disagree about what is right, or just? Under what conditions will people whose beliefs about religion, politics and morality sharply differ nevertheless accept the rule of law? The question of how public standards are possible in a world of conflicting interests and beliefs is perhaps the most fundamental question faced by legal theorists.
The traditional common law scholarship of the sixteenth and seventeenth centuries was in the main formalistic and practice-orientated, often using Roman-law classifications as a means of elucidating the various forms of cause and action, but not seeking in those classifications any deeper explanation of the moral structure or nature of the law. Where philosophical explanations seemed appropriate, the common lawyers relied on idealisations of custom and long-usage: law embodied a society’s shared standards and conceptions of the good, representing the community’s accumulated wisdom on matters of justice and common concern. In the writings of Sir Edward Coke, Matthew Hale and others, common law was elevated to a form of reason, rooted in experience and immemorial folk-ways, in which long-established rules and ideas are tested and re-tested ‘in the fire of experience’ (Coke, Institutes I  s.138). This process of gradually refining rules as they are applied amounted to a form of precedent-based reasoning in which the standards of rational argument are immanent to the law rather than external or transcendent. Nevertheless, a full-fledged doctrine of precedent, incorporating principles of stare decisis, would have to await the development of a regular system of law-reporting, something that did not come about until the mid-eighteenth century. The adjudicative reasoning of the post-medieval legal order thus continued to be based on an oral tradition among judges for well over a century.
Modern writers such as Gerald Postema have re-asserted the importance of this tradition of classical common law thinking, regarding it as both a major rival to the better-known natural law and legal positivist canons, and as containing an important and distinctive source of insight into the moral nature of the legal order. Yet given the continued focus on practical issues until well into the eighteenth century, it is doubtful whether the ‘classical tradition’ of common law thought exerted any great influence upon practical lawyerly conceptions of the legal system. The academic and judicial reception given to obiter remarks in the ‘classical’ vein by Lord Mansfield, in a series of eighteenth century cases, lends weight to the suggestion that the classical conception of common law reason embodied little more than a romantic view of customary law essentially unconnected to legal practice. Although falling outside the mainstream of juristic thought, Coke’s views nevertheless made an impression on political writers of the seventeenth and early eighteenth centuries. Some of Blackstone’s introductory comments in his Commentaries on the Laws of England  reflect Coke’s views on the nature of custom and legal reason, but again these comments have little bearing on either Blackstone’s general theoretical framework or his substantive treatment of the common law. More importantly, Thomas Hobbes devoted much of his Dialogue Between a Philosopher and a Student of the Common Laws of England  to a rebuttal of Coke’s views, and Hobbes’s positivism can itself be viewed as at least partly constituting an attack, on political grounds, on the form of social order implicit within the classical conception of common law.
The classical conception of common law rested on the assumption that the possibility of governance through law was dependent upon that law being, in some sense, our law: that is, as embodying shared standards of conduct which emerge, not from ‘above’ by the arbitrary fiat of a political overlord, but from the shared attitudes and understandings of the people to whom the laws apply. The historical circumstances in which the common law system emerged, as well as the feudal basis of property ownership and administration, favoured a view of political and monarchical power as being, if theoretically unlimited, then at least practically limited and indirect in its effect on ordinary living, dealing either with the great matters of state or with the raising of taxes, but having little to do with the substance of social relationships. Hobbes’s hostility to the customary conception was indicative of a general shift in the political forces underpinning society. As Europe’s political and religious inheritance underwent dissolution into an array of opposing factions, the idea that common customs and shared ideas could provide a foundation for collective living was thrown into doubt. The focus of political philosophies became the task of expounding the conditions under which collective interpretations and practices are possible.
Both the natural law and the positivist philosophies which developed during the seventeenth century could be viewed as rejections of the political basis of traditional common law practice. The natural lawyers, beginning with Grotius, explained the basis of legal governance in society as resting on principles of justice and right which transcend the social order. The customary rules which lay at the heart of the common law system came to be perceived as expressions of more general moral truths rather than as a source of moral insight in their own right. The development of general doctrinal principles required the development of a systematic jurisprudence in which the law was presented as an ordered body of rights deriving from universal principles which applied mutatis mutandis to all. Private law was thus looked upon as a sphere in which the boundaries between individual rights are delineated according to broad principles of justice, and public law as a body of vertical relationships between citizen and state. The form of moral reflection at work in the law therefore gradually shifted away from a concern with the moral dynamics of particular cases, and towards the deductive application of supposedly general moral insights to specific situations (Deontism, Deontic logic). Positivists, by contrast, emphasised the need for a body of authoritative, deliberately formulated rules as a means of demarcating and regulating interpersonal relationships in a social world no longer underpinned by universal consensus on matters of morality, right and justice. Given such disagreement, law could not be said to embody rational standards of justice or fairness, but must instead take the form of issued commands which specify what is to count as just or fair in the light of wider social goals. ‘It belongeth therefore to the Sovereign,’ wrote Hobbes, ‘to prescribe the rules of discerning Good and Evil, and therefore in him is the legislative power.’ (Leviathan II.20). A tradition of thought thus developed in which the form of law rather than its content became the focus of reflection: the law’s political authority came to be viewed less in terms of its conformity to certain standards of moral rightness, and more as a question of its formal ‘validity’.
The distinctiveness of the common law was therefore threatened on two fronts. On the one hand, later common lawyers in the natural law tradition, such as Blackstone, prized the common law for its rational qualities, but drew no conclusions about ‘lawyer’s law’ as a form of political association: the important distinction between ‘natural’ laws and ‘civic’ laws cut across the categorical boundaries of common law and statute. Positivists, on the other hand, tended to view the common law increasingly as itself consisting in a body of general rules which have been ‘laid down’ and ‘applied’ by judges in each case. The development of formal rules of precedent and stare decisis lends plausibility to such a conception: the legal ‘validity’ of a given rule will seem to depend not directly upon its moral worth, but on its formal pedigree when viewed as a source of legal rights and obligations. The positivist understanding thus offers no informative contrasts between the formal characteristics of statutory and common law rules, but only a comparison between differing modes of origin.
It is perhaps in virtue of the popularity of the positivist conception of law that the analytical jurisprudence of the present day views the common law as an arena to which rival conceptual and ethical theories must be applied, rather than a source of moral or political insight in its own right. In modern Anglo-American jurisprudence, the main question in relation to the common law is whether it can properly be understood as a body of authoritatively determined rules, or whether it must be seen as a coherent body of legal principles which form an overarching theory of justice. To a large extent, then, modern debates about the nature of the common law revolve around the question whether judicial deliberations must centre on conventional rules and standards which might conflict with general principles of justice and fairness, or whether those standards involve principles of justice or moral values which must themselves be applied in each case. Questions of justice or fairness can then be viewed either as involving moral choices about the applicability of established legal rules in place of general considerations of justice, or as legal questions about the proper interpretation of established rules and principles.
The political character of much of the earlier debates about the nature of common law has thus given way to a series of analytical contrasts aimed at clarifying the conceptual commitments of various theories of law: is law to be understood as a social practice, and what is a social practice for these purposes? Does the notion of a practice lend itself to description as a factual phenomenon, or should we view our understandings of legal practices as essentially interpretive of the perceived point or purpose of those practices? Is our understanding of the content of legal rules wholly or partly determined by underpinning ideas of justice or moral value? Is the scope of ‘established law’ confined to conventionally established rules, or does it include substantive moral and political ideals which provide a legitimate basis for decision even in cases in which no settled rule applies? These questions represent the most pressing concerns for many analytical jurists within the common law world today. It is worth pausing to reflect, however, that the assumptions which often underpin such questions are almost entirely alien to the ‘classical’ form of common law thought and practice.
The traditional method of reasoning at common law consists in a form of moral reflection which differs both from the top-down application of general rules to specific cases and from ambitious forms of principled reasoning in which individual cases are decided in the light of broad moral or political ideals. The common lawyer exhibits sensitivity to the fine moral distinctions which may be drawn between otherwise similar cases, and the ability to ponder the similarities or differences between situations which marks them out as morally distinct. Cases thus do not in general come before the lawyer either as brute, untheorised phenomena for resolution by any means necessary, or as readily demarcated and categorised types: instead, each case is seen through the prism of juristic concepts which serve to pick out particular aspects of a situation as morally relevant or important. The issue of moral relevance is seldom, in this context, a question of general political standpoints or moral ideals, or of location within a set of broadly stated rules, but more often of conformity to relatively narrow, technical concepts such as duty-of-care, bona fide purchaser, intangible interference etc. The degree of concreteness and precision with which doctrinal principles are typically formulated as reasons for decision allows juridical reasoning to remain relatively uncontaminated by wider currents of political thought, and the terms in which individual cases are understood do not in general presuppose a commitment to a quite general set of political ideals or legal ‘rules’ according to which clashing interests can be ordered or reconciled. Modern legal philosophy might therefore be characterised by its relative remoteness from practical conceptions of common law thought, which operate under a quite different set of philosophical assumptions than those embraced by analytical jurisprudence.
Lieberman, D. The Province of Legislation Determined: Legal Theory in Eighteenth Century Britain (Cambridge, 1989)
Lobban, M. The Common Law and English Jurisprudence 1760-1850 (Clarendon, 1991)
Maitland, FW. The Forms of Action at Common Law (Cambridge, 1936)
Milsom, SFC. Historical Foundations of the Common Law (Butterworths, 1969; 2ed. 1981)
Pollock & Maitland, The History of English Law (Boston, 1875)
Pound, R. ‘The End of Law as Developed in Legal Rules and Doctrines’ 27 Harv LR (1914) 795
Simmonds, NE. The Decline of Juridical Reason (Manchester, 1984)
Simpson, AWB. ‘The Common Law and Legal Theory’ in AWB Simpson ed., Oxford Essays in Jurisprudence, Second Series (Clarendon 1973) 77-99.