Distinguishing public businesses from private contracts might be the best way to protect the Jack Phillipses of the future.
In the first paragraph of his celebrated 1881 book on the common law, Oliver Wendell Holmes, Jr. wrote: “The life of the law has not been logic; it has been experience.” Nor was that the first such expression in the annals of American jurisprudence. At the Philadelphia Convention of 1787, James Madison recorded John Dickinson’s arguing on August 13: “Experience must be our only guide. Reason may mislead us.”
Leaving aside for now what Holmes was up to when he wrote those famous words, or, for that matter, Dickinson when he declaimed his, I think Marc DeGirolami’s praise of tradition in American law joins this, uh, tradition—one that has been much neglected in recent years—of anchoring the law in real experience rather than in abstract logic.
What’s at stake? Lest the question get confused at the start, I should acknowledge that experience and tradition are not always synonymous. Experience can be individual, while traditions belong to communities, whether whole societies or particular families or even a group of friends. Experience can be gained in the present, while tradition is inherited from the past. Experience accumulates—Thomas Hobbes describes it as “much memory” and says it is roughly equal in people who have lived as long—while tradition is more selective; it refers to what is thought valuable enough to save and pass down.
As DeGirolami rightly says, tradition has normative power. Of course, so can experience, as in the quotations above from Dickinson and Holmes. In either one, the word “tradition” could be substituted with only a subtle change of meaning. Saying “tradition” would emphasize the authority of experience; saying “experience” emphasizes the wisdom of tradition.
Tradition, as DeGirolami explains, looms large in American law—or once did—because our law was anchored in common law, brought over by the colonists as their inheritance from England, adjusted to their circumstances, modified by their legislation, and made their own. Common law is unwritten law, tracing its origin not to the command of some sovereign but to the customs and traditions of the people. Americans and their English forebears once held that this sort of law was particularly suited to a free people. As William Blackstone wrote:
It is one of the characteristic marks of English liberty, that our common law depends upon custom; which carries this internal evidence of freedom along with it, that it probably was introduced by the voluntary consent of the people.
Although common law has come to be eclipsed by legislation in many areas of law and even more in jurisprudential understanding, fields like contract and torts today are largely understood to unfold as common law, and as DeGirolami points out, it is precisely here that custom and tradition still have authoritative force.
Of course common law and legislation are not the only forms of law known to Americans. We have long deemed our distinctive contribution to legal thinking to consist in our establishment of written constitutions. The English constitution, much praised in the 18th century, was, like English common law, unwritten; we Americans, beginning at the very moment of independence, developed the experiment of putting our constitutions in writing.
To be sure, there was an element of tradition involved in this. Taken as a whole the English constitution was unwritten, but the English also had a tradition of great constitutional documents, such as Magna Carta, the Petition of Right, the Habeas Corpus Act, and the Bill of Rights, stretching back over 500 years, celebrated by authors such as Blackstone, and first claimed and then imitated by the Americans.
Moreover, Americans drew on this tradition not only for the practice of putting fundamental law in writing, but for many specific traditions, particularly those related to trial in a court of law—in the inherited shorthand, “due process.” And not least of these was trial by jury, recognized even by the enemies of common law such as Hobbes to be its characteristic institution, ensuring that verdicts were rendered and judgments given, not alone by judges working out the logic of philosophic principles, but drawing on the lived experience and common sense of ordinary men.
But of course the American constitutions not only referenced tradition, they often rejected it, or at least went well beyond it. As Sandy Levinson noted in his comment, Madison wrote in Federalist No. 14:
Is it not the glory of the people of America, that whilst they have paid a decent respect to the opinions of former times and other nations, they have not suffered a blind veneration for antiquity, for custom, or for names, to over-rule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience?
Madison here defends the novelty of the political form proposed by the Constitution: a national republic, directly connected to the people and encompassing all three branches of government, overlaid upon state republics of similar connection and form—a “partly national, partly federal” complex.
When, in Federalist 78, Publius turns to consider the federal judiciary and its relation to the preexisting common law judiciaries in the states, however, it becomes clear that the Constitution’s term “judicial power” is meant (originally!) to be interpreted according to Anglo-American tradition—for he anticipates that judges will be drawn from the bar; that they “should be bound down by strict rules and precedents”; and that the duties and capacities devolving to them from the novel form of government and the novelty of a written constitution will be drawn out “from the nature and reason of the thing.” That judges will sometimes find themselves having to void an unconstitutional statute in the course of deciding cases is foreseen, and so is the likelihood that precedents will develop, “to avoid an arbitrary discretion in the courts,” even in constitutional law.
DeGirolami rightly notes the importance of precedent as the marker of the continued authority of tradition in our law, quoting the discussion in Planned Parenthood v. Casey (1992), an unfortunate authority, since the precedent that case defends had itself discarded precedent on the question of abortion. Let me instead turn once more to Blackstone, whose text I believe gets us closer to the original understanding of precedent in our Constitution (recognizing, of course, that he refers to common, not constitutional, law):
For it is an established rule to abide by former precedents, where the same points come again in litigation; as well to keep the scale of justice even and steady, and not liable to waver with every new judge’s opinion; as also because the law in that case being solemnly declared and determined, what before was uncertain, and perhaps indifferent, is now become a permanent rule, which it is not in the breast of any subsequent judge to alter or vary from, according to his private sentiments: he being sworn to determine, not according to his private judgment, but according to the known laws and customs of the land; not delegated to pronounce a new law, but to maintain and expound the old one. Yet this rule admits of exception, where the former determination is most evidently contrary to reason; much more if it be contrary to the divine law. But even in such cases the subsequent judges do not pretend to make a new law, but to vindicate the old one from misrepresentation. For if it be found that the former decision is manifestly absurd or unjust, it is declared, not that such a sentence was bad law, but that it was not law; that is, that it is not the established custom of the realm, as has been erroneously determined. And hence it is that our lawyers are with justice so copious in their encomiums on the reason of the common law; that they tell us, that the law is the perfection of reason, that it always intends to conform thereto, and that what is not reason is not law.
It is a trope of the Enlightenment and its long wake that tradition and reason are opposites: that tradition is nothing but encrusted prejudice and reason the fresh knife that cuts through it. In Blackstone, by contrast, they work together like old friends. Reason decides new cases; the rule of precedent settles them into the law. When reason finds an error in precedent, it can be expunged; far from unsettling the law, this confirms the wisdom of what remains.
Nor does reason operate in this account as an outside agent. The reasonable judge starts from the tradition, building upon what is known, not vainly supposing his is the first mind to encounter the law or to grasp at justice. Of course in Blackstone’s Commentaries and the common law, even the most carefully crafted rule can be altered by legislation. More clearly than his predecessors, Blackstone allows that the unambiguous will of parliament overrides even the most reasonable common law tradition.
Still, in interpreting a statute, it is necessary to decide first whether it meant to declare the (common) law or to remedy some defect in it, and statutes that change the common law should be strictly read. If the legal tradition is supposed to approach perfection, legislators are advised to be cautious in making alterations. Indeed, Blackstone explains that he gave the lectures that became the Commentaries so that the young gentlemen at Oxford, likely later to obtain a seat in Parliament, would know the law they presumed to fix.
The common law tradition Blackstone describes at once persisted in America after the Revolution—the states declared the common law remained the basis of their private law, and the constitutions of states and nation incorporated numerous common law terms and rights—and was altered by the new appearance of written constitutions. Once it became settled that constitutions could be interpreted in court, a new kind of law developed, constitutional law, not created out of whole cloth, but by working out, according to “the nature and reason of the thing,” the implications of having written constitutions made by the people but also binding upon their elected representatives. That questions such as whether the powers of Congress should be read liberally, like statutes against frauds, or strictly, like criminal penalties, should occupy judges was thus quite natural.
In the early years, on the whole, even the Supreme Court did not sit as a Council of Revision, judging the constitutionality of laws taken abstractly, but only addressed the question of constitutionality when necessary to settle a case that was within its precise jurisdiction. One might say the legal tradition was stretched, but it was not broken.
The break came later—the revolution in the law, the “Constitutional Revolution” celebrated as such even at the time. Holmes prepared the way for it with his “legal realism,” which is apparent in his Common Law, designed to show the historical provenance of common law rules in pre-modern society and thus to indicate the need for their radical reworking at the hands of modern judges. As we’ve seen, he declared that “The life of the law has not been logic; it has been experience”—but this was critique, not confirmation. The future of law, he went on, belongs to the man of science, the economist or the sociologist or the expert in public administration.
This was the front of the wave—a new craft of judicial law-making, not bound by tradition but adept at inserting new standards into the old law, even old constitutional law—and for Holmes the larger ocean was historicism, the all-encompassing doubt that reason could discover any principles of justice or beauty or human good that transcended what was dominant in the social milieu.
Legal change in many matters was inevitable. The Founders had quite intentionally launched a dynamic country that they meant to grow and develop. But the legislative power was the means established for dealing with contingency, even for contingencies not fully anticipated. When the common law of master and servant grew too entangled and began to work injustice in the age of corporation and employee, the remedy might be a workers’ compensation system, established by statute. Why should it be in the hands of judges to work out what new circumstances required, at least beyond their recognizing sufficiently liberal bounds for legislative power?
Just a little over two months after praising Americans for discarding a “blind veneration” of legal tradition, Madison wrote a most interesting passage in Federalist 49. In that February 2, 1788 essay he explained the need for the Constitution to earn what I infer must be enlightened “veneration” (he repeats the noun, without an adjective) from the people. This would come over time, as the system established by the Constitution demonstrated its capacity to insure good government. I think Madison had in mind a respect that inclines people to work within the system to seek improvements, and an inclination to wonder whether even what appear to the most agitated of us to be “stupidities” or “rigging,” might not have a reasonable purpose, even if that purpose has come to be overlooked or forgotten.
“In a nation of philosophers,” he continued, “this consideration ought to be disregarded. A reverence for the laws would be sufficiently inculcated by the voice of enlightened reason. But a nation of philosophers is as little to be expected, as the philosophical race of kings wished for by Plato.” The impossibility of such a nation, moreover, is not accidental, but somehow essential, if the limits of human reason are understood. As Madison explains a few papers later, “Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob.”
DeGirolami seems right on point in describing the anti-traditionalism of the legal academy today and, since this has been the case for more than a generation, of the bar and bench that they have trained. The thirst for novelty, driven by academic practices that ultimately imitate the natural sciences without showing anything like scientific progress, except perhaps to partisans of dominant opinion, has corrupted the respect for tradition that once imbued the law and that—let me repeat by way of emphasis—made possible genuinely successful reform.
Perhaps, as DeGirolami hopes, something can be salvaged of the common law tradition, in its new guise as “judicial process,” to guide pragmatic reformers who don’t want to scrape their shins on the furniture—even if the brightest and most ambitious eschew Holmes’ path of “profound interstitial change” in favor of openly promoting causes they think noble. I confess to being a bit skeptical that tradition can be recovered as a formal category and an independent good apart from the actual, concrete tradition of common law and constitutionalism which we inherited, developed, and now seem eager to spend down. I doubt, too, whether that tradition could be restored unless the difficult philosophical work were done inside the law schools and outside of them—the work that would be needed to revive the thought, the experience, and even the faith in human reason out of which our tradition first emerged.
 William Blackstone, Commentaries on the Laws of England (1769), Book 1, p. 74.
 Blackstone, Commentaries, Book 1, pp. 69-70.