I write this in response to, and in concurrence with, the views and commentary on the common law presented by Justice Antonin Scalia in his essay A Matter of Interpretation.1 He specifically focuses upon the role the common law plays in a civil law system. I seek to explore the role the common law should play (if any) in a democratic republic such as ours.
I share Justice Scalia’s view and conclusion that the common law approach American jurists adopt when interpreting legal texts "is a sure recipe for....usurpation."(Scalia, p.14.) As I will argue here, not only do I believe this, but I believe the common law approach in itself constitutes judicial usurpation. Beyond even that, I will argue that the common law theory itself is a contradiction in terms, in that the whole purpose of law itself is defeated by it.
To arrive at the conclusion that a common law approach to judicial adjudication in a democracy is illegitimate one need only examine and understand what the common law is. As Justice Scalia succinctly explains it, the common law "is law developed by the judges."(Scalia, p.4.) In England, the place from which the common law originated, judges served as agents of the sovereign—the king—vested with the power to develop law through hearing disputes between the king’s subjects and rendering decisions in those disputes. These decisions, put together, developed into one common body of law—the common law. Though resolving specific disputes between two or more parties was important, the most important function of common law judges and courts "was to make the law."(Scalia, p. 6.)
The same formula is at work in the creation of law in America: the sovereign designates agents with whom the authority to make law is vested in. The difference is that in America the people, not the king, are sovereign; and the agents vested with the authority to make law are the people’s elected representatives in the legislative and executive branches, not judges. Same formula, different components.
It is here wherein a common law approach to judicial adjudication in American democracy is illegitimate. Judges do not have the power to make law in America, as they did in England under the English common law; and the common law is judge-made law. In America the power judges do have is to apply the law, created by the agents of the sovereign, to specific legal disputes arising between two or more parties and/or "to say what the law is"2 when applying that law. To make the law and to say what the law is are two completely divergent functions.
Common law lawmaking is only legitimate when the judges creating the common law have been vested with the power to make law by the sovereign. This was the case in England, it is not the case in America. Our system of separation of powers simply does not condone judge-made law, and the common law process of adjudication undertaken by any federal judge is simply an act in trespassing across those brightly colored lines that distinguish the lawmaker from the judge.
Moreover, judge-made law is as illegitimate in our American system of democracy as it is farcical in its very essence. Technically, under a common law regime, a judicial opinion creating law is supposed to carry the effect of a legitimate, binding law through the legal principle of stare decisis, the doctrine of precedent "under which it is necessary for a court to follow earlier judicial decisions when the same points are again in litigation."3
However, to a judge eager to create a new law—one more to his liking—the controlling power of previous precedent under the principle of stare decisis is limited. As Justice Scalia explains, "[n]o rule of decision previously announced can be erased, but qualifications can be added to it."(Scalia, p. 8.) Anytime a judge does not like a relevant or controlling precedent all he need do is distinguish between the circumstances relevant in that supposedly controlling precedent and the circumstances present in the current case. After all, no two cases are ever completely identical. This ability to distinguish enables him to add new qualifications to a given precedent suitable to his sense of justice and opinion of what the law should be. If that law is not attractive to a future judge, he can distinguish further and add a qualification upon the previous qualification.
No such sense of lawlessness within the law exists in the civil law system present in American democracy (provided that is, that judges do not take a common law approach to their work). In this system law is not made through judicial opinion, and then remade over and over again until the very idea of law becomes a mockery. It is made by statute, codified into an actual legal text. Unlike a judicial opinion which applies only to a set of very specific and limited circumstances, a statute is a general rule of law immune from judicial distinctions and qualifications. As Justice Scalia explains, "it is the text of the law rather than any prior judicial interpretation of that text which is authoritative. Prior judicial opinions are consulted for their persuasive effect....but they are not binding."(Scalia, p. 7.)
One useful purpose I do see the common law providing is its possible expository value in ascertaining the meaning of legal terms or provisions crafted in the common law tradition. As former English subjects, the framers of our constitution were great admirers of the English common law, and many of its traditional provisions, canons, and terms of art can be found in the federal constitution and the various state constitutions crafted in that time period. The writ of habeas corpus, a legal guarantee enumerated in Article I, Section 9, Clause 2 in the constitution4, finds its roots in English law, as far back as the Magna Carta possibly, and was a common principle found within colonial American common law prior to independence.5 The Seventh Amendment explicitly contemplates "Suits at common law"6 no less.
For his part, Justice Scalia declares that he is "content to leave the common law, and the process of developing the common law where it is,"only questioning "whether the attitude of the common-law judge....is appropriate for most of the work that I do, and much of the work that state judges do."(Scalia, p. 13.) I am inclined to share a similar sentiment, yet I wish Justice Scalia had elaborated more on where exactly he felt the common law is appropriate to leave in place.
Regardless, though there is some question as to where exactly the common law is and should be appropriately left in place, there is no question as to where it should not: in constitutional and statutory law, where a law’s actual text, enacted via a democratic process, should and must be the definitive word; left only to be applied and clarified, but not altered or redacted by the judge. Judge-made law profanes the notion of democratic self-government, where laws are enacted by the people through their designated agents, not by a robed oligarchy.
1. Scalia, Antonin (1997). A Matter of Interpretation. Princeton, New Jersey: Princeton University Press.
2. Marbury v. Madison 5 U.S. 137 (1803) (Marshall, C.J.,)
3. Garner, B (Ed.). (2001). Black's Law Dictionary. St. Paul, Minnesota: West Publishing Co.
4. "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."
5. Hall, Kermit L.. (Ed.). "Habeas Corpus". (2005). (2nd ed., New York, New York: Oxford University Press.
6. "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law."
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