Finding The Law

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.

Reader Discussion

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on June 02, 2018 at 10:35:05 am

Appreciate your comments on Lincoln as I struggle with my own writing on Lincoln and Lee for discussion without toxic side kick. If you have other writings on Lincoln , slavery or the Constitutional build up that brought us there , please share.

IMarmie T, Edwards, APR, CAE, MS

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Marmie Edwards
on June 03, 2018 at 11:14:31 am

"The first, "positive" criticism is that law has to come from somewhere: judges can't discover norms that no one ever made."

"The second, "realist" criticism is that this law leaves too many questions open: when judges can't find the law, they have to make it instead."

"The Civil War resulted from deep differences regarding the legal status of the union (its ability to bind the states) and the moral status of laws maintaining slavery."

It is important to note, in regards to our Constitution, and Due Process Law, which is binding in both State and Federal Law, that "rendering onto Caesar what belongs to God", will always result in an error in Substantive and Procedural Due Process Law. God, The Most Holy And Undivided Blessed Trinity, ( See Treaty of Paris), Is The Author of Love, of Life, and of Marriage, and thus The Author of our unalienable Right to Life, to Liberty, and to The Pursuit of Happiness.

[5] What is man that thou art mindful of him? or the Son of Man that Thou visitest him?


We can know through both Faith and reason, and thus The Law of Noncontradiction, that there are, in fact, certain self-evident truths that are true on every point of Time and Space in God's Universe:

For example: Regardless of Race/Ethnicity, a human person can only conceive a human person, thus every son or daughter of a human person can only be, in essence, a human person. It is not possible for marriage to both be and not be, existing in relationship as husband and wife, simultaneouslly. It is never a good idea to attempt to board a moving train while holding a bunch of fireworks, and thus neglect the safety of oneself, and those near-by.

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