What is the character of the common law?

He called it “the law of the dog”. Portrait by Henry William Pickersgill

The English are curiously ambivalent about their system of law. In a way, I blame Dickens, his influence as outsized as his characters. A “monstrous labyrinth” he called it, urging us to take its worst elements as representative. The darkest flaws of her dark house period are over – later Victorian reforms saw to that. But the cartoon remains. We still find it a difficult system to admire. This despite (or perhaps because of) its success, measured in longevity or influence. More than eight centuries old, it is a determining element of our civilisation. The common law has also helped to establish, stabilize and cement societies around the world.

So what’s our beef? It’s not just about venal lawyers, which is a universal refrain. It goes further, to the heart of the company. Insularity. Darkness. Claim. A closed workshop of lawyers and judges, arguing over past cases (precedents) through a mode of argument, both stereotypical and fluid, known only to them. “Canine law” is what Jeremy Bentham, the most scathing critic of the common law, has called it. Rather than stating clearly in advance what we are supposed to do and not do, common law punishes us, like beasts, with no warning after the fact. Worse, thought Bentham, the mystery in which she locks herself impedes enlightened legislative reform, blocking the path to greater justice.

Before joining the chorus of censors, let’s take a look at what sets the common law apart. Law in general consists in elaborating and applying rules which coordinate social action. Civil law systems do this by putting the rules together in a legal code, which is regularly updated. The common law relies more on judges to shape the law. Its rules are under constant review and revision, as disputes in the courts require resolution.

It is tempting to say that the civil law privileges transparency and legal certainty, whereas the common law embodies a more inductive spirit of argument and test. But the contrast should not be overstated. Certainly, the common law retains some of its bottom-up character – after all, litigants still keep the wheels turning. The reality is also more mundane. Gone are the days when most English laws were common law. Rules now come from government and parliament and cover all aspects of life. There are islands in this ocean of positive law where the common law still predominates. But its main activity is to make sense of laws and regulations. The judges seek to give clear meaning to the new law. They also try to make it fair, seeking consistency with an evolving body of principles, the content of which often owes more to earlier statutes. than the previous cases. Ignore the rowdy tabloids and obsessed with the judiciary. The common law knows its place. Attentive to issues of constitutional balance, it is above all sensitive to democratic imperatives.

So why prefer the common law? Well, I don’t necessarily. Like most things, it depends on a number of factors and conditions. What I do know is that abandoning the common law at this point for a different system would be an act of collective self-harm. (The same goes for proposals for Written constitution.) An embedded institution like the common law cannot be replaced or removed like a football player. Better to see it as an inhabitant of complex and delicate ecosystems – social, political, commercial, ideological. You can’t just excise it without disturbing the rest. How this might unfold is unpredictable. But it is childish to think that we can keep the good sides of the old system (order, stability, continuity) and enjoy the advantages of the new one (transparency, efficiency) without incurring substantial risks.

Pointing out the difficulty of replacing the common law is not the same as giving reasons for valuing it. What’s there to love? I like its grainy structure. The way he delves 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 narrative of how social life should be ordered based on how myriad cases of conflict have already been resolved.

I like its discursive quality. It engages in an ongoing debate about justice that is both principled and intensely practical. In this sense, it is faithful to what is best in law – the attempt to resolve disputes not by force but by the use of reason.

I love his humanity. Although her job is to help make the rules clear, the individual never completely gives up – after all, she’s the one carrying the case. For me, there is a parallel here with what David Hume called the “perpetual gut struggle” between authority and freedom that characterizes all government, especially in societies that aspire to be free. This finds its clearest expression in public law, where the ability to demand justification for the imposition of state power on 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 in his name – on that point I’m as split as anyone else. But I appreciate how much the venerability of the common law, the fact that its roots are intertwined with 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 birth or by affiliation and not just government donation.

A shorter version of this article appears in Prospect’s new printed Rule of Law Report in partnership with the Bingham Centre, Jones Day and the City of London

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