A society of ordered liberty is held together by high notions of tradition, culture, and citizenship.
At the time of the Constitution’s framing, the common law was understood as something that judges discovered. Judges were not making law, they were finding it. But with the advent of legal realism and other modern movements, this understanding came to be rejected as untrue and unsophisticated. Instead, judges were thought to be engaged in policymaking when they decided whether to overrule old cases or applied law to new facts.
Formalists understand that the distinction between legislating and adjudicating is essential to their enterprise and therefore have not been willing to abandon it. But they often provide only a weak defense, saying things like “judges make the law, but do so as judges, one case at a time, in a small, interstitial way.”
I think this defense misses much of what was going on in the common law. Judges were not simply constrained by having to make small changes. They were also constrained by other features. The common law was often considered to be the customs of the people, judicial precedents, and the reason of the common law. Two of these features did not require in the main that judges consider values. Judicial precedents are largely facts (although the meaning and scope of those precedents may be subject to dispute). The customs of the people are also facts (although there may be issues as to recognizing when those customs rises to the level of law).
The reason of the common law – the artificial reason that Coke praised – does require judges to consider values, but requires them to do so in a constrained way. When a custom or precedent did not exist, or when two customs or precedents conflicted, a judge might have to consider values. But they did so based on the values of the existing system. The judges’ familiarity with the law would allow them to understand how the existing system functioned and what the values were that the system promoted. They were to decide open questions based on this functioning and those values. This is not a free choice of values. Instead, it is getting a significant, if sometimes subtle, direction from the existing system.
Of course, these constraints would not have been welcomed by those judges who sought to overturn the existing system. The legal realists and progressives were quick to reject this system, which they often viewed as imposing undue constraints on judicial progress.
But their unease with the system does not mean it was incoherent or unattractive. The idea that judges were finding or discovering the law should not be understood as denying to them any value decisions. But it does mean that these judges were much more limited than judges who could decide what they wanted so long as they did it one case at a time.
Modern legal scholars have been largely hostile to this traditional conception of the common law. But not all of them. A recent article – by originalist Stephen Sachs – argues in favor of finding the law. That’s a welcome development.