In an insightful essay, Jim Harper asked whether common law survives in the age of statutes. After the “orgy of statute making” that concerned Judge Guido Calabresi two generations earlier, Harper colorfully worries that the “jetties and bridges created by statute law discourage” the further development of common law’s “bottom-up rule-making.” But he understandably hesitates to endorse “Calabresi’s proposal to reverse errant statutes.”

Good news: Textual interpretation and the common law are friends, not enemies. The problem is not in the law. Nor is it in (most) statutes. The problem is in legal and judicial education. We do not need activist judges to restore practical reason in the law. All we need are judges who are trained and disposed to see it there.

First, we need to recover a correct understanding of what the common law is. It is not judge-made law. That dogma has dominated American legal education for a century, but it is more false than true. It originated in the ideology of Oliver Wendell Holmes, Jr. and Legal Realists such as Karl Llewellyn who insisted that common law is essentially judicial power.

Their strong aversion to what Holmes called moral concepts was really an attack on the basic elements of the common law—rights, duties, and wrongs—the reasons that motivate sound judicial decisions. Their narrow conception obscures those reasons and reduces all law to zero-sum contests of power. Law is either judicial power, exercised in judicial decisions, legislative power, expressed in statutes, or executive power, which produces administrative regulations and rulings. Executive power may remain under the law (except in cases of emergency or war) insofar as it is the power to execute the law made by legislatures. But judicial decision-making is just legislation by other means, done on a case-by-case basis.

A basic premise of the common law, understood on its own terms, is that law stands prior to and independent of political power. Common law determines valid judgments, not the other way around. Common law has a number of elements and it certainly contains legal concepts articulated by jurists. But when well formed, the presumptions, maxims, rules, and other legal doctrines that judges employ to resolve cases refer to pre-existing legal realities, conventional and natural.

Elements of Common Law

One element of common law is immemorial custom. It consists of those norms and institutions that have governed us, in the words of the jurists, from a time when the memory of man runs not to the contrary. That is not entirely a legal fiction. Some common law rights and institutions, such as the presumption of innocence and trial by jury, are truly immemorial. We do not know when they began.

A second element of the common law, sometimes referred to as the law of reason, is known more broadly as the natural law. Common law is neither just nor even mostly natural law. Indeed, the common law is selective about which aspects of the natural law are included. Those reasons of the law that can be specified only in one way—what some jurists of the ius gentium referred to as the necessary law—set guard rails around judicial reasoning.

American jurists have been somewhat more fastidious about this than English ones. They exclude from the law’s approval not only mala in se wrongs, such as murder and defamation, and all deprivations of inalienable rights, such as enslavement and assisted suicide, but also abuses of private rights. But even cases of abuse of rights are limited to those in which the defendant acted out of pure malice toward a neighbor. Mixed motivations are not actionable. The common law forbids acting from the worst motivations and otherwise leaves people free to order their lives as practical reason directs them.

Customary law builds upon natural law. This is seen most clearly in those doctrines that are not shrouded in immemorial usage but rather exposed to the eyes of history. These doctrines also pre-existed the judges who first recognized them as sources of obligation.

We can (and the great legal historian Frederic Maitland did) locate the origin of the trust in the fourteenth century. Landowners and lawyers devised it to provide for younger children and charitable causes in spite of the Norman law’s insistence that the estate must pass to the oldest son. With the doctrine of assumpsit, from which we get our modern doctrines of common carriers, contracts, and public accommodations, we can be even more precise. It was born fully developed in 1602 when courts ratified a legal practice that had been gestating within the action of trespass on the case since 1285.

In both of those examples, as in so many other areas of the common law, courts did not create the common law. Instead, they recognized and declared existing legal and moral realities, norms, and institutions that people already believed they had an obligation to obey. When the chancellor enforced trusts in equity he did so because the trustees really were bound in conscience as a matter of natural justice. And assumpsit is predicated on the belief that people are obligated to fulfill their promised undertakings.

Statutes and the Common Law

Statutes also contribute to the common law but not in the sense of displacing it. Statutes come in two varieties. Remedial statutes alter some proposition of the common law, add a new proposition, or provide a new remedy or sanction for wrongdoing. Declaratory statutes restate existing common law doctrine, usually in more definite and precise terms.

Most statutes and constitutional texts are declaratory of the common law and the best judges interpret them in its light. Statutes governing intellectual property, cyber security, and data privacy; the Fourth Amendment; and other posited enactments that concern Harper are nested within and dependent upon long-standing common law rights and institutions.

Patent and trademark statutes, trade secret acts, and commercial codes function precisely to the extent that lawyers conceive of the rights they secure as property, contract, and tort rights. For much of American history, patents, trade secrets, and other intellectual property rights were vindicated by the same common law writs that protected rights in tangible property. And the doctrines that have developed to implement those statutes follow the same structure and logic as earlier, common-law doctrines. To take the example that Harper favors, cyber trespass is fruitfully understood as a kind of trespass to chattels because data resources are correctly understood as personal property. As Justice Gorsuch observed in his dissent in Carpenter v. United States, while the Court’s gloss on the Fourth Amendment eliminates private rights in data entrusted to third parties, basic property doctrines such as bailment and tenancy preserve them.

Even remedial enactments do not displace the common law. The common law covers the whole range of human activity and all of its parts support all its other parts. To displace the entire common law with respect to even one subject, such as data privacy or trade secrecy, would require a statute that is equally comprehensive and equally attentive to all the demands of practical reason.

Trade secrecy is not just a matter of deciding who may use which innovations and business methods in commerce. It also implicates and implicitly rests in the entire complex of common law norms and institutions: jury trials; the presumption of innocence, domicile, jurisdiction, due process, and damnum absque injuria (the doctrine that law does not provide a remedy for all losses); bailments, licenses, possessory rights, and contracts; actual and constructive notice; remedies derived from the law of torts and the maxims of equity … in short, everything. No matter how ambitious a remedial statute is, it cannot eradicate the common law from even one area of legal practice.

The problem is not statutes. The problem is how judges read statutes. The Legal Realists and Critical Legal theorists who have dominated American legal education for a century deny that custom and reason can impose legal obligation. The formal justifications that judges offer for their decisions, including customary and natural law, are façades that cover judges’ own assessments of social advantage (the Realist view) or judges’ racialized, gendered, or class preferences (the Crit view). Educated by Realists and Crits, many elite lawyers who grow up to be judges are thus immersed from the beginning in a profound skepticism of customary law and the law of reason.

By contrast, judges whose education begins with Justinian and Aquinas, Hale and Blackstone, Kent and Story, rather than with the decisions of other judges, are equipped to perceive the common law within the positive enactment that they are obligated to interpret.

The terms of the law are not arbitrary, though they are artificial. The vast majority of legal terms either refer to or take for granted established jurisprudential concepts, which in turn summarize centuries’ worth of common-law practice and practical wisdom. For example, the legal concept that makes the common law analysis in Justice Gorsuch’s Carpenter dissent hang together is the bailment, a property right with deep roots in common law reasoning. A bailment is a kind of property created when an owner vests custody of some thing in another person, known as the bailee, as in, leaving a suit at the dry cleaner, a car at the mechanic, or an email with an internet service provider. Both the bailor and the bailee have the right to exclude third parties from the thing, and they have this right from the character of the bailment itself without the need for extensive contract negotiations. Neither the Fourth Amendment nor data privacy protection statutes mention bailments expressly. But they don’t abrogate them, either. The bailments are there for those who have eyes to see them.

On this front, the Alabama judiciary is a model. In recent years I have been privileged to facilitate jurisprudence seminars at the Alabama Judicial College as a guest of Alabama’s Chief Justice, Hon. Tom Parker. As we read state constitutions and statutes alongside the treatises of Justinian, Hale, and Blackstone, the common law and ius gentium come to life and leap off the page. The fiction that the text is alone sufficient dissolves, and provisions that seem enigmatic make sense. In that room, the common law lives.