by Douglas E. Edlin (ed). New York, New York: Cambridge University Press, 2007. 262pp. $80.00/£45.00. ISBN: 9780521846424.
Reviewed by Ira L. Strauber, Department of Political Science, Grinnell College. Strauber [at] Grinnell.edu.
COMMON LAW THEORY, a volume in the Cambridge Studies in Philosophy and Law, consists of eight essays written by a group of international scholars addressing three central themes of common law jurisprudence: rules, reasoning, and constitutionalism. The front page asserts that the essays “will be valuable to lawyers, philosophers, political scientists, and historians interested in constitutional law, comparative law, judicial process, legal theory, law and society, legal history, separation of powers, democratic theory, political philosophy, the courts, and the relationship of the common law tradition to other legal systems of the world.” These essays do indeed address these topics – but primarily, if not always solely, to illustrate the implications of a philosophical treatment of those three themes. Consequently, this volume is best suited for scholars and graduate students already well versed in philosophical contentions and refutations about rules, reasoning, and constitutionalism in the common law.
Accordingly, readers of this review: caveat emptor. This reviewer is decidedly not well versed in those philosophical debates, except, perhaps, as they relate to the common law and constitutionalism. Also to be taken into account is my reservation about whether, and the extent to which, philosophical debates clarify practical legal and political problems. In sum, other readers may be better situated to appreciate and assess the intrinsic value of these essays – on their own theoretical terms as well as in relation to their contributions to the various topics addressed. Consequently, this review’s goal is to give to readers who are comparatively inexpert about common law theory, but are curious about it and its implications for various topics, an impression of what this volume’s uniformly well written, accessible, and intellectually stimulating essays are about.
In his introduction to the volume contributions, the editor, Douglas Edlin (Dickinson College), indicates his deepest philosophical ambitions for the anthology. Edlin claims that the pursuit of the “theoretical foundations and applications of the common law” (p.1) in general, and common law reasoning and judgment in particular, is intended to parallel Immanuel Kant’s investigations of links between aesthetic and a priori judgments (p.2). However, Edlin does not pursue this claim at any depth. Instead, it primarily serves as a jumping off point to justify categorizing the volume’s contributions in terms of rules, reasoning, and constitutionalism (pp.2-3). As for the body of the introduction, Edlin provides an excellent detailed summary of the internal logic of each essay, and draws connections between and amongst them. This introduction will be especially helpful to readers less [*410] well versed in the philosophical ins and outs of common law theory
The first section of the volume consists of two essays about rules. The crucial concern of “Judge as Rule Makers” (Larry Alexander and Emily Sherwin) is to defend the normative and descriptive superiority of a rules-based version of precedent as an explanation of how much common law rules bind judges against competing result- and principle-based conceptions of precedent. Central to this defense of rule-based reasoning is the thesis that “Courts may not second-guess the outcomes of rules, nor may they ‘distinguish’ rules that appear to produce the wrong result in a particular case. When precedent rules are justified as rules – that is, when following the rules in all cases will produce fewer total errors than unconstrained deliberation – then erroneous results in particular cases are simply a by-product of the rules’ generality, which cannot be avoided without losing the benefits of rules” (p.49). In turn, the authors also argue that it is ill-conceived for judges to assess, let alone circumvent, a common law precedent by recourse to principles or results, even if, “all things being equal” a “rule” is arguably morally objectionable, mistakenly conceived, or outdated (p.49). Accordingly, the rule-based approach to precedent, whatever its admitted shortcomings, is said to confirm that a judge’s responsibility is almost always to abide by precedent except when a “rule is obviously and seriously unjustified” (p.50).
The second essay in this section is more of an architectonic exercise: its purpose is to situate the common law as a genre of positive law in relation to legislation, customary law, and case law. Accordingly, two of the major aims of “Some Types of Law” (John Gardner) are to explain why all forms of law are positive law (p.51) and why scholars who conceive of all law- makers as legislators (e.g., Ronald Dworkin) are mistaken. To fulfill these aims, Gardner, working in the positivist traditions of Jeremy Bentham, John Austin, and H.L.A Hart, advances three criteria to explain distinctions regarding the authority of legislation, customary law, and case law. Gardner deploys these criteria of law, made “expressly,” “intentionally,” and “by an agent” (pp.53-60), to classify and elaborate on common law as a combination of customary and case law. One of the major consequences of this architectonic exercise is a defense of legal positivism as a sound conception of the authority of common law and social rules that indicate the authority of law.
“The Principles of Legal Reasoning in the Common Law” by Melvin A. Eisenberg is the first essay in the second section on common law reasoning. Its central theme is that social propositions (i.e., regarding moral norms, policies, and social fact considerations), including the relationships amongst social propositions and doctrinal considerations, “should, and largely do, govern legal reasoning in the common law” (p.81). Eisenberg contends that two conceptions should guide thinking about these relationships: “legal rules can be justified only by social propositions,” and “consistency in the common law depends on social propositions” (p.81). These two conceptions lead into Eisenberg’s explanations for the constraints that surround the role of social propositions in justification and consistency in the [*411] common law. For example, the author explains that only those propositions related to moral standards or policies that are deeply rooted, have substantial support in the community, or have the support of “informed opinion” (p.83) are appropriate for justifying legal rules and maintaining the common law’s doctrinal stability. Another example is the institutional factors (p.92) that, in concert with common law criteria controlling the rule for which a precedent stands, cabin a judge’s discretion and maximize uniformity in the law (pp.87-93).
Within this context, Eisenberg discusses a range of matters related to justification, consistency, and reasoning in the common law. Prominent among them are the importance of common law courts, rather than legislatures, in generating rules for governing private conduct; how to describe and evaluate the manner in which courts determine the rule for which a precedent stands, and constructing criteria for understanding the appropriate balance between doctrinal stability and the need for social change (p.87). The overarching theme of these discussions is the extent to which social propositions are always at work in common law adjudication, either explicitly or implicitly, as the means by which the common law improves upon itself, primarily by generating new rules and by avoiding following poor ones (pp.94-96).
The second essay, “A Similibus and Similia, Analogical Thinking in Law” (Gerald J. Postema) is also concerned with how the common law recapitulates itself through case-by-case adjudication, First, Postema defends the intrinsic integrity of analogical reasoning in the common law. The Latin in the title – “part to part” – foreshadows his commitments to the corrigibility of classical and nineteenth century versions (i.e, John Austin) of how the common law moves along its path and is appropriate to its tasks. The Latin also foreshadows Postema’s commitment to defend (classical) analogical reasoning against a range of objections to it as inadequate for describing and evaluating the common law. This defense argues against analogical reasoning as theoretically empty, as a source of obfuscation, and as inefficacious in relation to policy, or perhaps most significantly, as inadequate for justifying common law adjudication understood as rule-governed or principled activity.
Although the author’s defense partakes of a number of inter-related claims, the underlying one is that objections to analogical reasoning do not recognize its full complexity and thus underestimate its value for common law thinking (p.116). To redress this, Postema characterizes the significance of two inter-related dimensions of analogical reasoning. The first dimension is analogy formation and argumentation in general. This is characterized as “an essentially discursive activity” (p.120), wherein those who construct analogies accept their “mode of argumentation” (p.117) as part of a normative activity (linked back to Kant) that requires publicly discernible reason-giving for the connections it makes in its “part to part” (p.160) constructions of the law. On this basis, the author explains, for example, why critics of analogical thinking are mistaken when they complain that it is either (merely) intuitive or implicated in a [*412] deductive/rule-governed approach to the law.
The second dimension concerns analogy formation and argumentation as they play themselves out in legal institutions. Here the author pivots on Karl Llewellyn’s view of legal inquiry and reasoning as a process of giving comparative examples for why certain cases fit specific facts. Hence, Postema situates analogical reasoning in the process whereby “cases fall into a class of like cases because the kind of reasons they provide for . . . hang together in a way that makes practical, legal sense” (p.123). Thus situated, Postema makes the argument that common law rules are a result of this process and principled concerns of analogical reasoning in general, rather than as a prerequisite of case-by-case adjudication. He concludes with a discussion of five conditions that constrain analogical reasoning in the law, giving special attention to the role of a “sense of justice” which he addresses from the perspective of HLA Hart’s conception of “impartiality” (p.128), as well as his own views on analogical legal reasoning and common law rules as a function of “local coherence” rather than “broad moral vision” (p.132).
The third contribution, “Reasoned Decisions and Legal Theory,” by David Dyzenhaus and Michael Taggart, challenges on historical and philosophical grounds the identification of common law adjudication with the duty of reason giving. To that end, the authors characterize some of the central attributes of the common law system, as they locate them historically, in defense of the conclusion that “[it] has hardly ever been the case” (p.135) that, generally speaking, Anglo-American judges ever had a deeply rooted duty to give reasons. They go on to contend that it is the impact of later nineteenth century developments related to jury trials and appeals, and twentieth century statutory provisions regarding administrative law, that best explain why common law judges have come to be seen as having a duty to give reasons for decisions. They also differentiate across forms of common law reason and duty in UK, Canada, and New Zealand.
The philosophical part of their challenge comes into play when the authors address the otherwise received wisdom that the common law has always been and should be “a reason-based conception of authority” (p.152). With Thomas Hobbes as their starting point, the authors develop an argument for an on-going theoretical tension between the practice of law as command, and the ideal of law as reason giving. This argument proceeds into comparisons and contrasts among aspects of Jeremy Bentham’s, H.L.A. Hart’s, and Ronald Dworkin’s philosophizing about the law as it manifests itself in competing commitments between law as sovereign power on the one hand. and reason-giving in defense of the interests of citizens on the other. The argument ‘s conclusion is that this is a tension that cannot be overcome and that the best one can hope for is a philosophical “rapprochement” that balances arguments for the common law as command and as reason giving.
The concluding section’s initial essay on common constitutionalism is James R. Stoner, Jr.’s “Natural Law, Common Law, and the Constitution.” Stoner’s commitment is to a natural law [*413] interpretation of how common law tradition and reason represent the common good as “real individualism . . . and [a] language of rights” (p.183). Stoner writes in the Aristotelian-Thomist natural law tradition, with the work of John Finnis as paradigmatic of its contemporary face. From that perspective, the author contends, “the resources of liberalism are inadequate to all of today’s challenges and [that] liberalism has never given an adequate account of either the human person or our constitutional order” (p.178). The specific foil for this Finnis-inspired natural law challenge to liberalism is the latter’s fellow analytic philosophers, Ronald Dworkin and John Rawls. Stoner deploys them to frame his claims for natural law conceptions of reason giving, legal reasoning, individualism, and the common good as worthy criteria to contend with liberal philosophy’s treatment of constitutionalism.
Also framing these claims are Stoner’s own historical and philosophical scholarship on the common law and its relation to constitutionalism at the founding. There Stoner has interpreted the intersections of common law’s secular and sacred relation with American constitutionalism and its innovations (e.g., separation of powers, federalism), Blackstone, and the nature of precedent, all as expressions of commitments to reason giving as a means “to give liberty and virtue a better home” (p.178). Within these two frames, Stoner situates (Finnis’) natural law theorizing about a plurality of principles, human goods, practical reasonableness (pp.180-181), and their connections to a jurisprudence of “transcendent meaning” (pp.181-182) as a good or better version of constitutionalism and the common law than its more popular alternatives. The essay closes with a brief discussion of Stoner’s recommendations for a Finnis-based approach to gay marriage as holding out promise for a rational debate about gay and traditional marriage.
Next is T.R.S. Allan’s “Text, Context, and Constitution, The Common Law as Public Reason.” Allan’s focus parallels Stoner’s, inasmuch as both are concerned with the relationship among the common law, constitutionalism, and reasoned, as well as moral, judgments. But whereas Stoner’s commitment is to the reasoned and moral judgments of natural law, Allan’s approach is closer to Eisenberg’s commitment to social propositions. For Allan, like Eisenberg, it is the balance between precedents and their “conformity to prevailing moral and social standards” within the context of “present circumstances” (p.185) that constitutes the legitimacy of the common law. For Allan, this balance is a foundation for the legitimacy of constitutional government: “American constitutionalism is in fact best understood as an evolutionary common law system, making settled doctrine and traditional practice more important than the original text on which they have built” (p.203).
For Allan, understanding common law constitutionalism as an evolutionary process is especially important because it displaces approaches to constitutionalism supposing the primacy of a text. Allan contends that an evolutionary approach is required to see well- reasoned common law and constitutionalism for what they are – “a steadily evolving order of justice, rooted in historical experience but open to [*414] changing ideas and perceptions, it can form the basis of a genuine public reason” (p.200). Furthermore, Allan seeks to defend the proposition that case law and statutory interpretation are very much alike. He characterizes and affirms both forms of interpretation as reasoned efforts to balance doctrine and social facts, arguing that their mutual great strength is that they construct a middle course between two fatal flaws: a sheer textual commitment to rules and capricious legal improvisations.
Moreover, in relation to common law constitutionalism in particular, the author identifies three seminal achievements of a middle course: 1) it is a meld of legal and political arguments; 2) it “is always . . . in a state of flux as it struggles to accommodate competing pressures and conflicting goals” (p.201), notwithstanding the pull of precedent; and 3) it provides broad discretion in case-by-case deliberations (p.194) to take into account shifting attitudes and agreements about what the public good requires (p.200). To Allan, these achievements are important in their own right but also have two seminal implications. First, their complements in statutory interpretation underpin a legal process that puts public reason giving at the forefront of the subordination of authority (whether that be precedent or statute) for the sake of the protection of fundamental rights. Secondly, these three achievements are also characteristics of a deliberative politics. Accordingly, Allan recommends that common law constitutionalism, legislation, and deliberative politics be seen as necessary complements to a polity of cross cutting and competing conceptions of a public good, where consensus on abstract principles is difficult to achieve.
In the final contribution to the volume, Jeffrey Goldsworthy provides an historical and political cultural counter-point to the Allan’s view, shared by others in the volume, that common law should be understood as a companion to non-judicial politics, at least within a particular cultural context. “The Myth of the Common Law Constitution” argues against conceptions of common law that would displace the primacy of Parliamentary rule. Goldsworthy’s main contention is that it is an historical mistake to see the common law as any kind of legal orthodoxy in Britain until before the late eighteenth century (at the earliest). He also finds little historical evidence before then to regard judges as representing conceptions of an unchallengeable ancient constitution of limited powers, to regard the common law as binding king or Parliament as High Court (in contrast to the claims of scholars like C.H. McIlwain and J.G.A. Pocock), or to regard the common law as “the fundamental legal framework of English government” (p.208).
To warrant these findings, the author addresses five questions about the makeup of common law principles as they relate to an unwritten constitution – two questions about the scope of the common law, and three about the ultimate authority to articulate it. He also presents an overview of the historical complexities that have attended answers to these questions, concluding that there is scant, if any evidence, that Parliament or royal succession were ever bound by the authority of common law constitutionalism in the pre-modern [*415] period. As for the early modern period, Goldsworthy finds that precious few supported the authority of common law constitutionalism, and most supported principles associated with legislative sovereignty and Parliament as a High Court. As for today, the author acknowledges that the scope of common law has expanded over time, but insists that its authority ought not be conceived to “sweep the field” (p.229).
Although Goldsworthy is confident in his historical analysis for why the authority of common law constitutionalism is much weaker than its proponents make it out to be, he recognizes that many of those proponents depend on philosophical rather than historical reasons for their position. Accordingly, he contests philosophical claims for the prominence of common law constitutionalism by analyzing their weaknesses as they relate to parliamentary authority and the nature of common law legal norms. The heart of this challenge is his argument that there are four competing variations of a strong version of common law constitutionalism; all things considered, he believes that the most promising version of them belongs to Ronald Dworkin; and Dworkin’s views are incompatible with the way in which many English judges think about parliamentary sovereignty and legal authority. This is the basis for the author’s driving home his claim that soundest philosophical arguments for the legal authority of the common law should not be located in constitutional common law, however necessary it may be for understanding legal authority, but in the broader “general consensus . . . among the senior officials of all branches of government” (p.235).
Thus, as Edlin implies in his introduction, the Goldsworthy essay brings to the forefront the contentious status of contemporary philosophical claims about the nature and scope of the common law that are overt or implicit in the contributions to this volume (p.23). Indeed for those like me, this volume provides an excellent snapshot of some of the complications surrounding present-day theorizing about the common law within and across cultures. And conceivably those who are more expert in theory and the common law will find more than enough here to draw their attention, in regard to both the nature and scope of the common law as represented here, and in relation to Edlin’s closing claim that the explicit and implicit debates of this volume “mirror the process of the common law” itself (p.23).
© Copyright 2008 by the author, Ira L. Strauber.