Rethinking the Common Law

Abstract

For many legal and political thinkers the common law is worthy of our derision and scorn--it is a system of law lacking consistency, certainity and predictability. It is the domain of judges who are strangers to both principled decision-making and rational articulation of the underlying values, if there be such, of this area of law. The hallmarks of the common-law judge are, it seems, a finicky concern with the intricate detail of the case before her, a near blind obedience to precedent and a near complete inability to integrate her decision into the wider social, political and moral context of the common law. It seems things were always this bad: as early as 1588 Abraham Fraunce attempted to rescue the common law of his day from incoherence and to furnish its practice and study with a respectable, scholarly foundation.' However, in the centuries that separate Fraunce and Bentham things evidently got worse. For Bentham the common law was beyond rescue. His spectacularly vitriolic attack upon the common law culminated in the claim that as a regulatory regime it was better suited to dumb beasts than to human beings. In an unenlightened account of animal husbandry, Bentham noted that '[w]hen your dog does something you want to break him of, you wait till he does it, and then beat him for it. This is the way you make laws for your dog: and this is the way the judges make law for you and me'.2 Just as familiar as the arguments that constitute this critical tradition of thought about the common law are those arguments offered in its defence. It was argued by Hale and Blackstone that the customary rules of the common law are the repository or our rights and freedoms.3 More recently, it has been maintained that the common law is the liberty-tracking, liberty-promoting law of a 'spontaneous order'.4 Strict obedience to precedent is entirely commendable on views such as