The Nature of the Common Law

Melvin Aron Eisenberg

• Publisher: Harvard University Press
• Year: 1991
• ISBN:
  9780674263253
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Much of our law is based on authoritative texts, such as constitutions and statutes. The common law, in contrast, is that part of the law that is established by the courts. Common law rules predominate in some areas of law, such as torts and contracts, and are extremely important in other areas, such as corporations. Nevertheless, it has been far from clear what principles courts use—or should use—in establishing common law rules. In this lucid yet subtly argued book, Melvin Eisenberg develops the principles that govern this process.The rules established in every common law case, he shows, are a product of the interplay between the rules announced in past precedents, on the one hand, and moral norms, policies, and experience, on the other. However, a court establishing a common law rule is not free, as a legislator would be, to employ those norms and policies it thinks best. Rather, it can properly employ only those that have a requisite degree of social support. More specifically, the common law should seek to satisfy three standards. First, it should correspond to the body of rules that would be arrived at by giving appropriate weight to all moral norms, policies, and experiential propositions that have the requisite support, and by making the best choices where norms, policies, and experience conflict. Second, all the rules that make up the body of the law should be consistent with one another. Third, the rules adopted in past precedents should be applied consistently over time. Often, these three standards point in the same direction. The central problems of legal reasoning arise when they do not. These problems are resolved by the principles of common law adjudication. With the general principles of common law adjudication as a background, the author then examines and explains the specific modes of common law reasoning, such as reasoning from precedent, reasoning by analogy, drawing distinctions, and overruling. Throughout the book, the analysis is fully illustrated by leading cases.This innovative and carefully worked out account of the common law will be of great interest to lawyers, law students, students in undergraduate legal studies programs, scholars interested in legal theory, and all those who want to understand the basic legal institutions of our society.

Chapter 1

Introduction

My purpose here is to develop the institutional principles that govern the way in which the common law is established in our society. Much of our law derives from rules laid down in constitutions, statutes, or other authoritative texts that the courts must interpret but may not reformulate. The common law, in contrast, is that part of the law that is within the province of the courts themselves to establish. In some areas of law, like torts and contracts, common law rules predominate. In other areas, like corporations, they are extremely important. In all areas, even those that are basically constitutional or statutory, they figure at least interstitially.

In developing the institutional principles that govern the establishment of the common law, it is essential at the outset to distinguish between two types of propositions that figure in common law adjudication: doctrinal propositions and social propositions. By doctrinal propositions, I mean propositions that purport to state legal rules and are found in or easily derived from textual sources that are generally taken to express legal doctrine. The most obvious group of doctrinal sources consists of official texts that are generally regarded as binding on a deciding court—principally, the so-called primary legal sources, such as statutes and precedents of the deciding court’s jurisdiction. A second group of doctrinal sources consists of official texts that are not regarded as binding on a deciding court, such as precedents of other jurisdictions. A third group consists of texts that are the product of analyses by members and students of the profession who replicate the process of judicial reasoning and publish their analyses in forums that are conventionally regarded as secondary legal sources, such as treatises and law reviews.

By social propositions, I mean all propositions concerning the world other than doctrinal propositions, such as propositions of morality, policy, and experience.

Most modern analyses of law and adjudication can be largely defined in terms of their treatment of the interplay between doctrinal and social propositions, and the criteria that social propositions must satisfy if they are to be employed in establishing legal rules.

One leading line of analysis distinguishes, in effect, between cases that can be decided solely on the basis of binding doctrinal propositions and cases whose decision requires the employment of social propositions. The law, under this line of analysis, consists of the doctrinal propositions found in binding official texts. Cases that can be decided solely on the basis of such propositions, without the employment of social propositions (except insofar as a doctrine by its terms requires social propositions for its application), are put into one category, sometimes called “easy,” “clear,” or “regulated” cases. Here the judge is said to act as a law-finder. Cases in which the employment of social propositions figures in establishing (rather than merely applying) the deciding rule are put into another category, sometimes called “hard,” “indeterminate,” or “unregulated” cases. Here the judge is said to act with the power of a legislator, and to make new law by employing those social propositions he thinks best to adopt the rule he thinks best.¹

Another line of analysis takes the position that the judge always acts as a law-finder. This analysis also draws a distinction between hard and easy cases, but the distinction is different. Easy cases are those controlled by relatively specific doctrinal rules. Hard cases are those that can only be decided by the application of relatively general doctrinal rules. The judge is said to decide hard cases by determining what general rule best fits prior institutional decisions and applying that rule to the case before him.²

Still a third line of analysis takes the position that the judge decides hard cases by determining what rules would satisfy some threshold test of fit with prior institutional decisions and then selecting, from among these, the rule he thinks best on the basis of his own moral and political convictions. In so deciding, the judge determines rather than makes law.³

I will show that none of these analyses properly accounts for common law adjudication. Under the institutional principles that govern the common law, social propositions are relevant in all cases. To put this differently, all common law cases are decided under a unified methodology, and under this methodology social propositions always figure in determining the rules the courts establish and the way in which those rules are extended, restricted, and applied. Easy cases are not cases that are controlled by relatively specific doctrinal rules, but cases in which a relevant doctrinal rule is supported by applicable social propositions. The common law does not consist of the doctrinal propositions found in binding official texts. Rather, it consists of the rules that would be generated at the present moment by application of the institutional principles that govern common law adjudication.

Doctrinal propositions do not lack weight. As I will show in Chapter 6, the most basic institutional principle of the common law is that rules announced in earlier cases should be consistently applied and extended if they are substantially congruent with applicable social propositions, but should not be consistently applied and extended if they are not substantially congruent with social propositions. This basic principle gives recognition to both doctrinal and social propositions. It gives effect to doctrinal propositions, because an announced rule will be consistently applied and extended, even if it is somewhat less congruent with social propositions than competing rules, as long as it is substantially congruent with such propositions. It gives effect to social propositions, because the force of every announced rule depends on whether the rule meets the test of substantial social congruence.

Although the judge is not limited to doctrines found in past official texts, neither is he free, as would be a legislator, to employ those social propositions he thinks best, or to establish those rules he thinks best, on the basis of his own moral and political convictions. Rather, the judge is under an obligation to employ only those social propositions that satisfy certain criteria, and to establish only those rules that are generated by the application of the institutional principles of adjudication. This obligation, like the obligation to faithfully employ constitutional and statutory texts, follows from the voluntary assumption of judicial office. That office, like all others, is held in trust. The rules of the trust are the institutional principles of adjudication, which are rooted in the social functions of the courts and justified by considerations of fairness and social welfare. Like a conventional trustee, the judge is morally bound by his acceptance of office to obey the rules that govern the conduct of his office.⁴ Thus adjudication is driven not (or not only) by the rights of the parties, but by the duty of the judge, which runs both to the parties and to the larger society.

Chapter 2

The Social Functions of Courts

The institutional principles of common law adjudication are rooted in the social functions of courts. Like other complex institutions, courts serve several functions, but two of these are paramount.

The first concerns the resolution of disputes. Complex societies characteristically need an institution that can conclusively resolve disputes deriving from a claim of right based on the application, meaning, and implications of the society’s existing standards. In our society that institution is the courts, and the resolution of such disputes is accordingly a central function of our courts.¹

This centrality is manifested in a variety of ways. To begin with, courts in our society are structured to be fundamentally passive. Unlike a legislature, a court may not properly initiate action on its own motion but may act only when set in motion by a party with a claim.² Correspondingly, a court is limited to action that is responsive to the claim made.³ The kinds of claims a court may properly act upon are also limited. The claim normally must be contested—that is, the subject of a dispute.⁴ The claimant normally must assert that the respondent has either infringed (or threatens to infringe) upon his rights, or is otherwise at fault in a manner that sufficiently involves the claimant’s interests to render it appropriate for him to make a claim whose disposition turns on that fault.⁵ The claim must be based on a standard that relates to social conduct rather than, say, on an artistic standard.⁶ The standard on which the claim is based must rise to a certain level of significance, in terms of either the seriousness of the injury that typically results from its violation or the importance of the norm or policy that it reflects.

The second paramount function of the courts is the enrichment of the supply of legal rules.⁷ Our society has an enormous demand for legal rules that private actors can live, plan, and settle by. The legislature cannot adequately satisfy this demand. The capacity of a legislature to generate legal rules is limited, and much of that capacity must be allocated to the production of rules concerning governmental matters, such as spending, taxes, and administration; rules that are regarded as beyond the courts’ competence, such as the definition of crimes; and rules that are best administered by a bureaucratic machinery, such as the principles for setting the rates charged by regulated industries. Furthermore, our legislatures are normally not staffed in a manner that would enable them to perform comprehensively the function of establishing law to govern action in the private sector.⁸ Finally, in many areas the flexible form of a judicial rule is preferable to the canonical form of a legislative rule. Accordingly, it is socially desirable that the courts should act to enrich the supply of legal rules that govern social conduct—not by taking on lawmaking as a free-standing function, but by attaching much greater emphasis to the establishment of legal rules than would be necessary if the courts’ sole function was the resolution of disputes.⁹

Of course, the judicial establishment of legal rules would occur even if the sole function of the courts was to resolve disputes. If the courts are to explicate the application, meaning, and implications of the society’s existing standards in new situations, they cannot simultaneously be prohibited from formulating rules that have not been previously announced. To begin with, modern society is in a state of continual change, creating a continual need for new legal rules to resolve new issues. Indeed, because of the inevitability of change, even the application of an old rule to a new case may constitute a new rule. For example, prior to the development of broadcasting the law of defamation drew a sharp distinction between written defamation, or libel, and oral defamation, or slander. Normally, slander required proof of actual damage, but libel did not.¹⁰ With the advent of radio broadcasting, some cases held that defamation by broadcast was slander, because it was not written, while others held it was libel, because of its great potential for harmful effects.¹¹ Clearly the rule adopted in the former cases was as new as that adopted in the latter.¹² Moreover, even when social conditions have not changed, previously adopted legal rules must often be discarded because they were wrongly established. Finally, whether a previously adopted legal rule covers a given dispute may often depend on the degree of generality with which the rule was formulated in earlier cases, and that degree is often somewhat adventitious.¹³

Since the judicial establishment of legal rules would occur even if the sole function of the courts was to resolve disputes, it is difficult to show conclusively that courts also regard the enrichment of the supply of legal rules as desirable in itself. Consider, for this purpose, two possible models of the courts’ role in establishing legal rules, which might be called the by-product model and the enrichment model. Under the by-product model, courts establish legal rules only as an incidental by-product of resolving disputes. To resolve disputes, courts must formulate and apply general propositions. Since the courts are official agencies, these propositions, once formulated, have some sort of legal status and effect. A court is justified in formulating such propositions, however, only insofar as is necessary to resolve the dispute before it, and no further. Under the enrichment model, in contrast, the establishment of legal rules to govern social conduct is treated as desirable in itself—although subordinated in a variety of important ways to the function of dispute-resolution—so that the courts consciously take on the function of developing certain bodies of law, albeit on a case-by-case basis.

It might be thought that the by-product model governs adjudication, since this is the model the courts often profess to follow, but observation of several important elements of judicial practice suggests that the enrichment model has greater descriptive power. For example, if the courts followed the by-product model we would expect to find that the rules adopted in judicial decisions were accorded weight (because officials, including courts, can be expected to be reasonably consistent over time), but not that they were treated as binding.¹⁴ In contrast, if the courts followed the enrichment model we would expect to find that these rules were treated as binding. Under the principle of stare decisis, the latter is the case.¹⁵

Similarly, if courts followed the by-product model we would expect to find that opinions announced only those legal rules strictly necessary for the disposition of the dispute at hand. In contrast, if courts followed the enrichment model we would expect to find that opinions frequently announced more legal rules than were strictly necessary for that purpose. Inspection of judicial opinions shows that the latter is the case. Courts often announce rules to govern issues that are at best tangential to a resolution of the dispute before them. For example, in Hamberger v. Eastman¹⁶ the question was whether the surreptitious installation of a listening device in an individual’s bedroom constituted a tortious act. The court used the occasion to embrace the broad rule that individuals have a right of privacy that is infringed by intrusion into their physical and mental solitude, by public disclosure of private facts, by publicity that places them in a false light, and by appropriation of their name or likeness for the defendant’s benefit. Similarly, in Rowland v. Christian¹⁷ a ...

Table of contents

• Cover
• Title
• Copyright
• Preface
• Contents
• 1. Introduction
• 2. The Social Functions of Courts
• 3. Foundational Principles
• 4. Social Propositions
• 5. Standards for the Common Law
• 6. Modes of Legal Reasoning
• 7. Overruling and Other Modes of Overturning
• 8. The Theory of the Common Law
• Notes
• Index