The democratic essence of the common law

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Let us examine what distinguishes the common law. Law in general consists in establishing and applying rules which coordinate social action. Civil law systems do this by consolidating the rules into a regularly updated legal code. Common law systems like ours rely more on judges to shape the law. The rules are subject to constant review and revision, as disputes are brought to court and require resolution.

It is tempting to say that civil law favors legal transparency and certainty, while common law embodies a spirit of argument and more inductive testing. Certainly, the common law retains some of its ascendant character – after all, litigants continue to set its wheels in motion. But the days when most English laws were common law are over. Rules now come from government and parliament and cover all aspects of life. There are islands in this sea of ​​positive law where common law still predominates. But its main activity is to give meaning to laws and regulations. The judges are trying to give a clear meaning to the new law. They also try to make it fair, by seeking consistency with an evolving body of principles, the content of which often owes more to previous statutes than to previous case law. Ignore the rowdy tabloids and justice obsessives. The common law is attentive to questions of constitutional balance and is particularly sensitive to democratic imperatives.

An integrated institution like the common law cannot be substituted inside or outside like a football player. Better to see it as inhabitant of complex and delicate ecosystems – social, political, commercial, ideological. You can’t just excise it without disturbing the rest. It is childish to think that one can keep the good sides of the old system (order, stability, continuity) and benefit from the advantages of the new one (transparency, efficiency) without incurring significant risks of degradation.

Explaining the difficulty of replacing the common law is not the same as giving reasons for valuing it. What is there to love? I like its grainy structure. The way he digs into the details. And the way he builds a big picture from those details. What you get is a collective attempt to compile a kaleidoscopic account of how social life should be ordered based on how a myriad of conflict cases have already been resolved.

I like its discursive quality. It engenders an ongoing debate on justice, both principled and intensely practical. In this sense, it is faithful to what is best in law: the attempt to resolve conflicts not by force but by resorting to reason.

I love his humanity. While her job is to help specify the rules, the individual never gives up completely – she, after all, carries the case. For me, there is a parallel here to what David Hume has called the “perpetual bowel struggle” between authority and freedom that characterizes all government, especially in societies that aspire to freedom. This has its clearest expression in public law, where the ability to demand justification for the imposition of state power over me is a valuable feature of our legal-political landscape.

Finally, I like his story. Not necessarily for what he did or what was done on his behalf – on this point I am as in conflict as anyone. But I do appreciate that reverence for the common law, the fact that its roots are intimately linked to our other social and political structures, makes it easier for us to believe that we have the rights and status due to legal subjects by right of law. birth or by descent and not only to the gift of the government.

This article appears in Prospect’s new legal report in partnership with the Bingham Center for the Rule of Law, Jones Day and the City of London Corporation


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