What is the Common Law?
Bayeux Tapestry : Scene 23: Harold swearing oath on holy relics to William, Duke of Normandy. Wikimedia Commons.
If you go to Wikipedia, you’ll get a definition of common law from Black’s Dictionary: “"the body of law derived from judicial decisions rather than from statutes or constitutions.” It is “case law” or judge-made law, a legal system of precedent, you’ll be told, and that isn’t entirely wrong, of course. If you were to approach a conservative and ask them what they think of the Anglo-American common law tradition, they’d probably pronounce it good. But ask them what they think of judge-made law and, especially if of a certain age, their training will kick in: judge made law is bad. They are not entirely wrong either, from their vantage point, to suspect judges who discover “law” in the penumbras of text of sophistry.
What is the common law then? Well, it’s hard to say, and that the answers will not entirely satisfy us demonstrates only the chronological chasm between ourselves and the world in which such a system—if you can call it that—actually governed a people. (If you want to skip the line, this law review article—possibly the greatest law review article ever written—has an excellent introductory discussion of common law.)
If we check Michael Dalton’s (1564-1644) The Country Justice (1618)—a most popular and practical legal text that most American colonists, it is said, owned—we don’t encounter much specificity. Dalton’s Justice was a manual for justices of the peace who usually had no formal legal training, though Dalton himself was a barrister of Lincoln’s Inn.
“The Common Laws of this Realm of England, receiving principally their Grounds from the Laws of God and Nature; (which Law of Nature, as it pertaineth to Man, is also called the Law of Reason) and being, for their Antiquity, those whereby this Realm was governed many hundred Years before the [Norman] Conquest [1066]; the Equity and Excellency whereof is such, as that there is no human Law so apt and profitable for the Peaceable and prosperous Government of this Kingdom, and so necessary for all Estates, and for all Causes, concerning Life, Lands or Goods, as these Laws are.”
That’s it. Dalton moves immediately into listing the legal offices of England and then onto the oath and duties of justices of the peace, then modes of government (like ale houses). From Dalton we get that the common law is grounded in or agreeable to the law of nature or reason, and that it is very old (i.e., long practice) predating the Norman incursion and mixing of the two peoples. (Thomas Jefferson thought this mixing ruined everything and was on a lifelong quest to extract Norman corruptions of Saxon purity.)
Matthew Hale can supply a bit more, and his History of the Common Law of England comes highly recommended by John Adams. But before we proceed to Hale, note out of historical curiosity that per Dalton blasphemy was a common law offense. Said offense including things like denial of the Trinity, divine origin of the Bible, or the Christian religion generally, or otherwise espousing polytheism. For the first offense, the perpetrator would be banned from holding public office; for the second, disallowed from bring lawsuits plus a three-year prison sentence without bail. Renunciation of blasphemous opinions in court would remove any penalties after a period of four months. All very interesting for our own constitutional understanding of the First Amendment given that this common law provisions were clearly incorporated. As much as Jefferson hated the idea, Christianity was very much part of the common law.
On to Hale’s exposition of common law. (We will not now concern ourselves with his theory of law in general.) Hale divides the laws of England into written (lex scripta) and unwritten (lex non scripta). Laws of both kinds may be memorialized in writing, but their designation refers to their origin prior thereto. The first kind is a statute, the second a custom.
Hale spends considerable time delineating types of statute law; we will skip to the unwritten law. That is, “general customs,” or the common law properly so called. These are things that grew into authority prior to memorialization (even as the statute law is part of this whole system of the laws of England). The authority of custom derives from longevity (immemorial usage) and continued, active positive reception and affirmation by courts in concrete cases and controversies. The job of courts, generally speaking, is to reconcile apparently conflicting customs and to demarcate the boundaries of particular customs. In this sense, the judge does not make the law but rather shepherds and shapes it, reconciling all parts of the system to one another.
In his focused treatment of the common law, or “common rule” or “common justice,” the “rule of justice,” Hale describes this force as undergirding everything. It is, however, a very particular force, “singularly accommodated to the Frame of the English Government, and to the Disposition of the English Nation.” By “long experience and use” it has been developed by and incorporated into the “temperament” of the people. It is, therefore, peculiar, non-transferable, not replicable—a product of a certain national history. And the reason (i.e., validity) of custom is found in its long, continued usage. Unreasonable practices break or are discarded.
In a word, the common law is the constitution of England. It is the national immune system, its life blood and organizing principle. It is able to both restrict and absorb change as the people themselves change. It is composed of two main elements: customs and cases and its ingredients are the Britons, Romans, Picts, Saxons, Danes, and Normans—the common nation that resulted. It is as difficult to search for the original of the common law as it is to trace the origin of nations, of which most things are not carefully documented. Authority of the common law—the practice of the people—is compounded but not created by memorialization in cases and statutes. The latter become part of the common law in their own right as they are accepted, followed, and incorporated into the life of the nation. Judicial decisions bind immediate parties on the basis of custom and equity, but do not themselves—Hale is clear—create law, properly speaking. Decisions may provide guidance for others but do not, strictly, set immovable, irrevocable precedent as we think of it.
At bottom, then, what controls the common law is the interest of the people, their “honor and safety,” as Hale puts it, the “integrity of the Kingdom” and the “liberties of the people.” This is, in part, how we know that the so-called imperial crisis in late eighteenth century America was about far more than mere taxation.
And notice how Hale ends his book: with familial descent, inheritance, and jury trials. This is no accident. Lineage and justice, functionally the two basic elements of political community. Who’s child is that? Who’s property is that? Who’s fault is that? These are the foundational questions of politics and law because they are the foundational questions of human society. The answer to each question defines the community. The English common law is best found in these answers. Said answers are, at bottom, what the common law is about. It is how the English people conceived and considered these things. Change any one of these answers and you have radically altered—departed from—that political society.
