The democratic essence of the common law

Let’s consider what makes common law distinctive. Law in general is about making and applying rules that coordinate social action. Civil law systems do this by collating the rules into a legal code, regularly updated. Common law systems, like our own, rely more on judges to shape the law. The rules are subject to constant review and revision, as and when disputes come to court requiring resolution.

It is tempting to say that civil law prioritises legal transparency and certainty, while common law embodies a more inductive spirit of argument and testing. Certainly, common law retains some of its bottom-up character—after all, litigants still set its wheels in motion. But gone are the days when most English law was common law. Rules come now from government and parliament, and cover every aspect of life. There are islands in this sea of positive law where common law still predominates. But its main business is making sense of statutes and regulations. Judges look to give new law clear meaning. They also try to make it just, searching for coherence with an evolving body of principles, the content of which often owes more to previous statutes than prior cases. Ignore tub-thumping tabloids and judicial power obsessives. Common law is alert to questions of constitutional balance and it is especially sensitive to democratic imperatives.

An embedded institution like the common law cannot be substituted in or out like a football player. Better to see it as inhabiting complex and delicate ecosystems— social, political, commercial, ideological. You can’t just excise it without disturbing the rest. It is juvenile to think that you can keep the good things of the old system (order, stability, continuity) and get the benefits of the new (transparency, efficiency) without incurring substantial downside risks.

Outlining the difficulty of replacing common law is not the same as giving reasons to value it. What is there to like? I like its granular structure. The way it drills down into the detail. And the way it 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 myriad cases of conflict have already been resolved.

I like its discursive quality. It effects an ongoing debate over justice, at once principled and intensely practical. In that sense, it is true to what is best about law—the attempt to resolve conflict not by force but by recourse to reason.

I like its humanity. Though its job is to help specify rules, the individual never entirely drops out—she, after all, is the one bringing the case. For me, there’s a parallel here with what David Hume called the “perpetual intestine struggle” between authority and liberty that marks all government, especially in societies that aspire to be free. This has its clearest expression in public law, where the ability to demand justification for the imposition of state power on me is a precious feature of our legal-political landscape.

Finally, I like its history. Not necessarily for what it did or what was done in its name—on that score, I’m as conflicted as any. But I value how the common law’s venerability, the fact that its roots are entwined 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 birthright or affiliation and not purely at the gift of government.

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

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