The Paradigm of the Common Law
The common law is a complex phenomenon, having various aspects, each of which conditions and depends on the other aspects. It has a supranational dimension, as the law that stands over sovereignty and conditions it; it has a national dimension, as the law of the polity, the expression of its sovereignty in a general and indiscriminate way; and it has the dimension of spontaneous generation, as being court-evolved (“judge-made” law, a common but inadequate formulation).
All of these dimensions are various aspects of what at bottom is a unified entity.
The common law is the law of nations
Common law finds expression, first and foremost, in an overarching law-order, a sort of natural law providing the principles undergirding all positive law-orders. This common, universal law-order does not exist in a vacuum, or as a sort of Platonic idea transcending the legal systems of the nations, but in greater or lesser degree is interwoven into each of them. In this sense the common law is the same thing as what Stahl referred to as the doctrine of law and state. (1)
Sovereignty and law
This common law stands above sovereignty and conditions sovereignty. All sovereign polities are called to implement it in the positive legal orders they shape and maintain. (2)
The opposite of the common law is the civil law, which is formed by absolute law-creating sovereignty, and is the creature of sovereignty. In the common-law order, sovereignty is the servant of the law and exists to implement the law. In the civil-law order, sovereignty is the creator of the law; law exists to implement the will of the sovereign, and in fact is the will of the sovereign. (3)
Two kinds of sovereignty
There are thus two polar-opposite forms of sovereignty, corresponding to the two forms of law. Limited sovereignty recognizes a society of pluralistic authority structures, and mediates the relationships between them. Its goal is the formation and promotion of a society of independent groupings and associations. Absolute sovereignty recognizes no authority structures it does not itself create and control. It strives to create, not a society, but an organization.
The common law so conceived inspired the law-order developed over the course of centuries by Western Christendom as the corollary of limited sovereignty. It was once shared, in greater or lesser degree, by all Western polities. Especially since the French Revolution, this law-order on the European continent has been superseded by the civil law, the product of absolute sovereignty and its lawmaking effort of codification. This has led to the formation of two Western legal traditions, the common-law and the civil-law traditions, the common-law tradition carried on by the Anglo-Saxon countries, the civil-law tradition carried on in the continent, the vehicle being the French Revolution.
This development is therefore a product of the 18th and 19th centuries. Previously, there was a fundamental unity among the legal systems of the Anglo-Saxon and continental countries of Western Europe, a unity the sight of which has been lost by reading back into history these later developments. Certainly, there were major differences, but those differences cannot be used as an excuse to ignore the fundamental unity. (4)
Sovereignty is national
As the common law calls for limited sovereignty, it calls for multiple sovereignty. The basis of this order of multiple sovereigns is the nation. (5) Nations have the calling to establish positive legal orders, each incorporating the principles of the common law. In so doing, each nation establishes its own branch of the common law, and this national law is thus also its common law. Therefore, there is no contradiction between the universal law-order and national sovereignty. A truly universal law-order in fact requires multiple sovereigns, because only then can it retain the criteria necessary to that universality. A universal sovereign, on the other hand, of necessity subordinates all independent activity to its own will, and cannot abide by any independent authority; it therefore can never submit to an all-encompassing order which it itself does not control – and, since it can never subject everything to its will, there will always be unresolved conflict, never unanimity. Today this tendency is evident in the quest to establish global jurisdiction for international organizations – universal jurisdiction. Such is the fulfillment of the civil-law tradition.
But the common law, which stands over sovereignty, conditions it and restricts it to the maintenance of an order of freedom and equality for non-sovereign, private entities. It is thus universally integrating. In this law-order, sovereignty serves to implement the principles of universal law in the particular legal order of the nation.
Private law is common law within a particular society
The expression of the common law in the life of the nation is the regime of private law. Private law is the law of liberty and equality. In it, legal persons are equals; with it, there is no respect of persons. It does not subordinate legal persons to a higher order or purpose, but allows them to pursue their own purposes; it integrates these persons as equals, coordinating them over against each other rather than subordinating the one to the other or treating them as subordinates of a greater whole. It thus strives not for an order of monolithic organization but one of a plurality of associations.
In a common-law society, there are therefore a plethora of legal persons – associations, and individuals through associations – pursuing independent goals, coordinated in terms of the integrating private law. Each of these associations in turn has an internal order governed by the principle of distributive justice, in which distributions are made rather than transactions, in which the members are apportioned shares and responsibilities, rights and duties, in accordance with the administrative will.
These associations are both private and public, ranging from the family to corporations, clubs, foundations, and then also to public communities such as towns, cities, and states. They all are governed by internal laws. Outwardly, they are coordinated and integrated with other associations in terms of private law. The common law qua private law integrates these activities in terms of the principle of commutative justice.
The two kinds of justice
It is of the utmost importance to realize both the difference between distributive and commutative justice, and the mutuality thereof. The besetting sin of left and right in the modern age has been to subordinate and even subsume the one principle to the other, leading to collectivism on the one hand and individualism on the other.
The concept of justice is fundamental here, and requires closer attention. The classic definition is “rendering to each his due,” ensuring that what one has coming to him, one actually receives. The Roman jurist Ulpian’s celebrated definition is: “Iustitia est constans et perpetua voluntas ius suum cuique tribuens” (Justice is the constant and perpetual will to render to each his due) – but this would seem to define the just will rather than justice in itself.
Aristotle went further, first making the important point that justice always concerns outward dealings with others rather than internal states of mind or mood – justice therefore always involves relations. He then took the decisive step of dividing justice into the two forms of distributive and commutative. Distributive justice is “exercised in the distribution of honor, wealth, and the other divisible assets of the community, which may be allotted among its members in equal or unequal shares.” Commutative justice, on the other hand, “supplies a corrective principle in private transactions.”
The important thing to notice here is that commutative justice is transactional justice. It focuses on the act, not the actors; as such, it is “no respecter of persons.” It strives to abstract the thing from the person and focus simply on the justice involved in the transaction at hand. It is commutative justice that is being referred to when we say, “Justice is blind.” It does not play favorites, “it calls them like it sees them.”
Distributive justice, on the other hand, does not concern transactions but commands: it is realized when the command takes the person into account in an appropriate manner, looking to the need or merit of the various actors. Commutative justice concerns the thing; distributive justice concerns the person.
Yet Aristotle’s distinction does not quite get to the bottom of the issue. Which is, that what really is being distinguished here is two dimensions of association, the outside and the inside, or the internal and the external. In other words, distributive and commutative justice are correlative; they are not alternative approaches to justice, but complementary approaches to it. The regime of distributive justice pertains to relations within a particular association, while the regime of commutative justice pertains to relations between particular associations.
Two kinds of justice, two regimes of enacting them
These two functionalities have two different methods of accomplishment. As H.B. Acton pointed out, (6) distributive justice requires a distributing agency to be set over the persons involved in the distribution. So the parties are subordinate to a higher decision-making authority. In commutative justice, the parties are coordinated over against each other in independence, are equal rather than being subordinated in terms of a higher relation.
This understanding corrects the impression given by an exclusive emphasis on the principle of methodological individualism. For there is no isolated individual standing over against society, in all his autonomous glory. There is rather the citizen, whose functioning within the associationalism of the common-law order makes it go. The individual’s relationships are mediated, precisely through the associations of which society is composed. The citizen is the natural individual taking on the guises provided by the various associations of which he forms part. The key to properly-functioning citizenship is responsible membership in the various associations, some of which are natural and/or obligatory. One such example is the family, into which all are born. Another is the state, of which all are members (citizenship strictly speaking), with rights and responsibilities corresponding to that membership. For an association to remain healthy, its members must recognize its authority over them, recognize their place in it, and pursue the shared interest of that association.
The state: an association among associations
The state is not an all-embracing community; it is one association among many, albeit a primus inter pares, the pre-eminent association in the nation. That is because it is the means by which the nation’s various and disparate elements are integrated into a coherent whole. It does this in two ways: directly, through the functionality of public law (expressive of distributive justice); and indirectly, through private law.
Public law serves to integrate the citizenry in terms of its shared, common interests. This is the common good, the public interest, the salus publica. Such integration is limited by the common good, which needs to be understood in opposition to particular interests. In other words, the various elements in society are not to pursue their particular interests through the state, but only weigh in on the public interest, in pursuit of the common good. Of course, this requirement is scarcely honored in this day and age.
The other form of integration is through private law, which, as we have seen, integrates and coordinates the various activities in society through the institutions of property, contract, pledge, credit and debt, tort, and the like. Private law thus provides the tools for citizens to provide for themselves and arrange their own affairs, in coordination with and in synergetic cooperation with other citizens, through the various institutional and organizational formats available in a functioning differentiated society.
The state is necessary not only for public law and the common good, but also for private law. For more on this, see Dooyeweerd and the Common Law.
Common law as spontaneous growth
Since the sovereign does not impose the law but receives it, the common law in its guise of external private law is not imposed but rather issues forth, precisely as a function of the relations of the differentiated society. The state does not administer distributive justice over society, precisely because society is not an all-inclusive association. The state is entrusted with the peculiar function of sovereign mediation of civil relations, and hence acts as arbiter over society, not as manager over it.
In this process, law evolves rather than is promulgated. Law results from the interaction of the independent loci of authority which are allowed to arise when sovereignty is exercised as oversight rather than command. This issues forth in common law; common law therefore grows with society; it expands as society differentiates. A primitive society lacks much in the way of a common law because most relations are internal to the associations of which it is composed; these associations are monolithic. It is therefore no accident that primitive societies stand in isolation and have difficulty in maintaining open communications with the outside world. They have little concept of a universal law governing such relations.
The reach of common law
Directly, the common law governs the relations between associations, and between individuals to the degree that they act as legal persons outside of the boundaries of any particular association. Within associations it governs relations only indirectly, that is, to the degree that internal affairs impinge on the functioning of the broader legal order. For example, contracts establishing arrangements contrary to the institutions of the universal common law (e.g., polygamy, same-sex marriage) are impermissible.
Being a function of commutative justice, these relations are of the order of transactions. Since associations pursue independent goals, they do not attempt to subordinate other associations, but only to obtain from those other associations resources which they might need the better to attain their own goals. These transactions can take on numerous forms, and can have numerous objects; they can however be summarized in the term obligation – commitments to performance.
The institutions of common law: property and contract
Although there are two basic forms of obligation, contract and tort (Aristotle characterized these as voluntary and involuntary, respectively), contract is its example par excellence. (7) Contract establishes a commitment to some duty or performance. Contracts mainly involve the transfer either of goods or of services. In the case of goods, either a sale or some form of lease is contemplated; in the case of services, a commitment to do something or abstain from doing something.
Such obligation calls the concept of private property into existence. Private property only comes about in connection with these relations between legal persons. The contracts which arrange for a transfer of goods require the concept of property as a presupposition. Property, in turn, presupposes the existence of entities outside the owning group. The concept of property has no significance within the holding community, only outside of it – for everything within is held in common or in trust and is subject to the regime of distribution rather than exchange. Further, property is all the goods and services at the disposal of the group, thus not only material things but also the “human capital,” the capacities of members capable of being put to profitable use and in demand on the part of those outside. All of these can be leveraged. In the chapter on common-law economics this will be explored more thoroughly.
The key role of the judiciary
The common law as external private law develops in terms of these inter-group arrangements, reciprocally influencing their development and being influenced by it. The point of contact of this development is the judiciary, the adjudicative branch of government. This is one of the main instruments through which sovereignty affects the social order. By rendering decisions in cases of dispute, the judiciary establishes and confirms valid forms of relation, and of the components of relation. These “jural relations” as they are sometimes known are rights, involving both the legal persons (individuals and associations) and the legal objects (goods and services).
The common law as a universe of burgeoning rights thus develops in the service of a spontaneous order. It facilitates relations between groups by bringing to bear the legal institutions which can mediate those relations. These institutions include property, contract, tort or delict, due process of law, legal personality. They are not imposed, but rather grow out of custom as sanctioned by the courts. However, they are implicit in the logic of the common law. Such relations will always be conducted through such legal institutions, wherever such relations arise.
In this process, the courts are determined by precedent and thus follow a given trajectory, although such determination is not rigid; they are guided forward by the inner logic of the common law as entailed in its capacity as a universal, integrating legal order showing itself no respecter of persons. Here the common law reveals itself as general equity. Therefore, courts operating in terms of custom and equity as so defined act, in the issuing of decisions, as determinators of value, of the norms by which society is ruled. They do so not by prescribing a law but by providing an interpretation which then gives to law and custom its boundaries and indicates its path forward into the future. Decisions and precedents are the framework through which the common law takes shape in a particular society.
The values of society are therefore fundamentally influenced by the decisions issued by the courts. The legal system takes shape upon this basis, and legislation, if it is to maintain the legal order of the common law, must respect this legal system and build upon it. In the civil-law approach, legislation becomes omnipotent and takes it upon itself to replace this customary order. In so doing it interrupts the continuity of a society with its past and introduces an artificiality and an uprootedness which has a thoroughly pernicious effect on societal mores.
The process of valuation
This is the process by which, in a common-law order, valuation takes place which is valid across the society. Valuation occurs through a process in which an appeal is made to sovereign (or the sovereign’s representative) to adjudicate on a point of uncertainty. It is this decision which is decisive because it then becomes binding on society at large; it becomes law. And the law, as Stahl has noted, “is the primary, most immediate ethical measure for the actions of men;” (8) as such, it has a ripple effect throughout society, influencing its very moral fiber, for better or for worse.
The basic theorem of the common law
We can therefore establish as the fundamental theorem of the common-law order the following formula: the sovereign confirmation, under the leading of justice and in line with precedent, of (external) social value, in response to request, at the margin.
- Sovereign confirmation: a binding decision made by the public authority, enforced by the power of that authority, that cannot be gainsaid.
- the leading of justice: this decision is arrived at in strict consultation with the principle of justice.
- in line with precedent: this decision is correlated with previous decisions pertaining to the matter at hand; it must be shown to follow those decisions, or, if necessary, to derogate from them, and how; such derogation carries the burden of proof.
- social value: valuation which is “current,” i.e., which is valid for society at large, and not just within a particular family or other group; as such, it is imparted to all, and all are held accountable to it.
- in response to request: decisions are arrived at by appeal to authority, they are not handed down by decree. As such, they spring from the grass roots, from living reality, and capture the spontaneous development of society.
- at the margin: decisions are made only regarding a fraction of conflicts and other situations of doubt, and provide guidance to actors as to how to conform future behavior.
This process implements and generates the integrating universal value structure upon which civilization rests, which is the common law.
It integrates the universal with the particular, the top-down with the bottom-up.
The common law therefore brings down the higher law, which is God’s will for human society, into the life of the nation by means of the instrumentality of sovereignty, which through a process of spontaneous ordering overseen by the state generates the pluralist, differentiated, associationalist order characterized by liberty under law, and upheld by individuals dedicated to the citizen ideal.
- “The standards of law and the institutions of the state differ across different countries and times and, being the work of man, everywhere and of necessity contain bad as well as good. There is indeed however something higher, something universal, at work in all creations of law and the state, which purposes to be consummated in all of these, the consummation or lack thereof amounting to the superiority or poverty of the same: that inward unchanging essence of law and state. Now jurisprudence is the science of law and state as it exists in a particular time under a particular people. From this stems the requirement for a higher science, having as its object this inner unchanging essence of law and state. It may be called the doctrine of law and state.” Stahl, Principles of Law, p. 1.
- “Common law (lex communis) has been naturally implanted by God in all men.… It is commonly called the moral law (lex moralis).… In this common law (jus commune) is set forth for all men nothing other than the general theory and practice of love, both for God and for one’s neighbor.…. Christ set forth two headings of this common law. The first heading pertains to the performance of our duty immediately to God, and the second to what is owed to our neighbor.… Proper law (lex propria) is the law that is drawn up and established by the magistrate on the basis of common law (lex communis) and according to the nature, utility, condition, and other special circumstances of his country. It indicates the peculiar way, means, and manner by which this natural equity among men can be upheld, observed, and cultivated in any given commonwealth. Therefore, proper law (jus proprium) is nothing other than the practice of this common natural law (jus naturale) as adapted to a particular polity. It indicates how individual citizens of a given commonwealth are able to seek and attain this natural equity. Whence it is called the servant and handmaiden of common law (jus commune), and a teacher leading us to the observance of common law.” Johannes Althusius, Politica, §§. 19, 20, 22, 30.
- This is the theme of my book A Common Law: The Law of Nations and Western Civilization.
- This theme calls for a book-length exposition. In the meantime, regarding the relationship of Roman and English law one may consult Bryce’s Studies in History and Jurisprudence, Leoni’s Freedom and the Law, McIlwain’s “English Common Law” (cf. also his Constitutionalism: Ancient and Modern), for starters.
- Stahl, Principles of Law, ch. 4: “The Popular Character of Law,” pp. 79ff.
- The Morals of Markets and Related Essays, p. 103.
- Stahl, Private Law, p. 100.
- Stahl, Principles of Law, p. 39.