Stanford Encyclopedia of Philosophy Legal Positivism First published Fri Jan 3, 2003 Legal positivism is the thesis that the existence and content of law depends on social facts and not on its merits. The English jurist John Austin (1790-1859) formulated it thus: “The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry.” (1832, p. 157) The positivist thesis does not say that law's merits are unintelligible, unimportant, or peripheral to the philosophy of law. It says that they do not determine whether laws or legal systems exist. Whether a society has a legal system depends on the presence of certain structures of governance, not on the extent to which it satisfies ideals of justice, democracy, or the rule of law. What laws are in force in that system depends on what social standards its officials recognize as authoritative; for example, legislative enactments, judicial decisions, or social customs. The fact that a policy would be just, wise, efficient, or prudent is never sufficient reason for thinking that it is actually the law, and the fact that it is unjust, unwise, inefficient or imprudent is never sufficient reason for doubting it. According to positivism, law is a matter of what has been posited (ordered, decided, practiced, tolerated, etc.); as we might say in a more modern idiom, positivism is the view that law is a social construction. Austin thought the thesis “simple and glaring.” While it is probably the dominant view among analytically inclined philosophers of law, it is also the subject of competing interpretations together with persistent criticisms and misunderstandings. Development and Influence Legal positivism has a long history and a broad influence. It has antecedents in ancient political philosophy and is discussed, and the term itself introduced, in mediaeval legal and political thought (see Finnis 1996). The modern doctrine, however, owes little to these forbears. Its most important roots lie in the conventionalist political philosophies of Hobbes and Hume, and its first full elaboration is due to Jeremy Bentham (1748-1832) whose account Austin adopted, modified, and popularized. For much of the next century an amalgam of their views, according to which law is the command of a sovereign backed by force, dominated legal positivism and English philosophical reflection about law. By the mid-twentieth century, however, this account had lost its influence among working legal philosophers. Its emphasis on legislative institutions was replaced by a focus on law-applying institutions such as courts, and its insistence of the role of coercive force gave way to theories emphasizing the systematic and normative character of law. The most important architects of this revised positivism are the Austrian jurist Hans Kelsen (1881-1973) and the two dominating figures in the analytic philosophy of law, H.L.A. Hart (1907-92) and Joseph Raz among whom there are clear lines of influence, but also important contrasts. Legal positivism's importance, however, is not confined to the philosophy of law. It can be seen throughout social theory, particularly in the works of Marx, Weber, and Durkheim, and also (though here unwittingly) among many lawyers, including the American “legal realists” and most contemporary feminist scholars. Although they disagree on many other points, these writers all acknowledge that law is essentially a matter of social fact. Some of them are, it is true, uncomfortable with the label “legal positivism” and therefore hope to escape it. Their discomfort is sometimes the product of confusion. Lawyers often use “positivist” abusively, to condemn a formalistic doctrine according to which law is always clear and, however pointless or wrong, is to be rigorously applied by officials and 1 obeyed by subjects. It is doubtful that anyone ever held this view; but it is in any case false, it has nothing to do with legal positivism, and it is expressly rejected by all leading positivists. Among the philosophically literate another, more intelligible, misunderstanding may interfere. Legal positivism is here sometimes associated with the homonymic but independent doctrines of logical positivism (the meaning of a sentence is its mode of verification) or sociological positivism (social phenomena can be studied only through the methods of natural science). While there are historical connections, and also commonalities of temper, among these ideas, they are essentially different. The view that the existence of law depends on social facts does not rest on a particular semantic thesis, and it is compatible with a range of theories about how one investigates social facts, including non-naturalistic accounts. To say that the existence of law depends on facts and not on its merits is a thesis about the relation among laws, facts, and merits, and not otherwise a thesis about the individual relata. Hence, most traditional “natural law” moral doctrines--including the belief in a universal, objective morality grounded in human nature--do not contradict legal positivism. The only influential positivist moral theories are the views that moral norms are valid only if they have a source in divine commands or in social conventions. Such theists and relativists apply to morality the constraints that legal positivists think hold for law. 2 +(,121/,1( Citation: Frederick Schauer, The Failure of the Common Law, 36 Ariz. St. L.J. 765, 782 (2004) Provided by: GW Law Library Content downloaded/printed from HeinOnline Thu Aug 31 14:53:27 2017 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: Copyright Information Use QR Code reader to send PDF to your smartphone or tablet device THE FAILURE OF THE COMMON LAW t Frederick Schauer We in the United States live in a common law country, as does a significant portion of the rest of the world. And we claim to have a common law legal system, a feature we again share with a significant portion of the rest of the world. Yet for all of our common law origins and for all of our persistent celebration of the common law,' there are important features of the common law that appear to be in rapid retreat. Insofar as it is often thought' that a prominent characteristic of the common law is the central role of the judge in the lawmaking process, modem legal design appears to reject such an approach with remarkable frequency, instead substituting the kind of highly precise canonical statement of the law much more often associated with the civil law than the common law. And to the extent that judges, regulators, and other actors with interpretive and lawmaking (or rulemaking) authority are given broad and open-ended mandates that seem compatible with the idea of the common law, these actors surprisingly often rebuff the mandate, converting their own open-ended rulemaking and decisional authority into more precise directives that constrain not only others but themselves as well. The common law approach remains an object of admiration and celebration in most common law countries, but when we t Frank Stanton Professor of the First Amendment, John F. Kennedy School of Government, Harvard University. This is the annotated and expanded text of the Willard H. Pedrick Lecture, delivered at the Arizona State University College of Law on January 21, 2004. A version of this article was presented at the joint Colloquium on Statutory Interpretation of the Department of Political Science of the University of California-San Diego and the University of San Diego School of Law. I have benefited greatly from discussions with Gerald Postema and Jonathan Rose, both of whom undoubtedly disagree with most of my conclusions. And I am indebted as well to research support from the Joan Shorenstein Center on the Press, Politics and Public Policy. Sometimes this celebration is rather explicit, as in, for example, GUIDO CALABRESI, A 1. COMMON LAW FOR THE AGE OF STATUTES (1982); MELVIN A. EISENBERG, THE NATURE OF THE COMMON LAW (1988); EDWARD H. LEVI, AN INTRODUCTION TO LEGAL REASONING (1948). More often, however, it is implicit in the extent to which common law ideas and forms are taken to exemplify the legal system, as in, for example, RONALD DWORKIN, LAW'S EMPIRE (1986) [hereinafter DWORKIN, LAW'S EMPIRE]; RONALD DWORKIN, TAKING RIGHTS SERIOUSLY (1977) [hereinafter DWORKIN, TAKING RIGHTS SERIOUSLY]; LON L. FULLER, THE MORALITY OF LAW (rev. ed. 1964); H.L.A. HART, THE CONCEPT OF LAW (1961). On the extent to which Hart, in particular, moved from contingent features of the common law to conclusions about law in general, see Frederick Schauer, On the Supposed Defeasibility of Legal Rules, in CURRENT LEGAL PROBLEMS 2. 223 (M.D.A. Freeman ed., 1998). About which I will say much more presently. 766 ARIZONA STATE LA W JOURNAL [Ariz. St. L.J. look at the facts-when we look at the behavior and the revealed preferences of those whose decisionmaking is part of what we celebrate-it turns out that much of the celebration of the common law is more abstract than real, and that in important ways the common law ideal can be seen, at least in part, to have failed. In this article I seek, preliminarily and loosely, to document this phenomenon, and then to offer some explanations as to why it might have occurred. I want to commence with a series of examples. In offering a collection of examples pointing in one direction, I do not deny that on occasion the direction of movement is in the opposite direction.' Still, the large number of examples going in one direction, and the seemingly few going in the other, suggests that the phenomenon by which decisionmaker empowerment to make new rules and modify existing rules is constricted is far more prominent than the opposite but certainly not unheard-of phenomenon by which decisionmaker constraint is relaxed rather than increased. All of this should be a bit murky at this point, but I hope that the examples to follow will make the point clearer. Consider first the process of actually writing a constitution. And let us take as a potential baseline the Constitution of the United States, whose entire text, including the original signatures, contains 4543 words.4 By comparison, the Basic Law for the Federal Republic of Germany, most of which dates to 1949, contains in excess of 20,000 words in its 146 articles.5 And the 1996 Constitution of the Republic of South Africa is dramatically longer still, with over 60,000 words spread out over 243 articles and seven schedules.6 By comparison to the Constitution of the United States, with six articles and twenty-seven amendments, the Constitution of the State of Arkansas, in its current version, contains twenty articles, 292 sections, and seventy-four nonrepealed amendments. 7 The Constitution of Texas appears to be even longer and more complex yet.8 3. As I discuss in Frederick Schauer, The Convergence of Rules and Standards, 2003 N.Z. L. REv. 303. 4. Or so says the National Archives. The Nat'l Archives & Records Admin., Questions and Answers Pertaining to the Constitution Q & A 37, at http://www.archives.gov/ nationalarchivesexperience/charters/constitution_q-and-a.html (last visited Nov. 8, 2004). 5. GRUNDGESETZ [GG] [Constitution] (F.R.G.), in DIE VERFASSUNGEN DER EGMITGLIEDSTAATEN (3d ed. 6. S. AFR. CONST. 7. ARK. CONST. 8. TEX. CONST. 1993). 36:0765] THE FAILURE OF THE COMMON LA W With respect to virtually all of these newer constitutions, greater length turns out to be a moderately reliable indicator of much greater precision. Although the Sixth Amendment to the United States Constitution describes its strictures in terms of a right to a "speedy and public trial" 9 and the right of the accused to be "informed of the nature and cause of the accusation,"' Article 35(l)(d) of the South African Constitution is much more precise, providing that: Everyone who is arrested for allegedly committing an offence has the right... to be brought before a court as soon as reasonably possible, but not later than 48 hours after the arrest; or the end of the first court day after the expiry of the 48 hours; if the 48 hours expire outside the ordinary court hours or on a day which is not an ordinary court day." Similarly, although the United States Constitution speaks only of the "equal protection of the laws,"' 2 and lists none of the classifications that generate some form of heightened scrutiny, South Africa's analogue, after calling forth the ideal of "equal protection,"13 explicitly authorizes affirmative action,' 4 and then equally explicitly references "race, gender, sex,.. . ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, [and culture or language]"' 5 as impermissible bases for discrimination. And although the American First Amendment refers simply to "the freedom of speech, or of the press,"' 6 the protection of freedom of expression in Article 10 of the European Convention on Human Rights contains explicit exceptions for broadcast, television, and cinema licensing, 7 as well as for "prevention of disorder or crime, for the protection of health or morals, for the protection of the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary"' 8 when such goals and the methods used to achieve them are "necessary in a democratic society."' 9 9. U.S. CONST. amend. VI. 10. Id. 11. 12. S. AFR. CONST. ch. 2, § 35(1)(d). U.S. CONST. amend. XIV, § 1. S. AFR. CONST. ch. 2, § 9(1). 13. 14. 15. Id. § 9(2). Id. § 9(3). 16. U.S. CONST. amend. I. 17. Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signatureNov. 4, 1950, art. 10, § 1, 213 U.N.T.S. 221, 230 (modified Nov. 1, 1998). 18. Id. §2. 19. Id. 768 ARIZONA STATE LAW JOURNAL [Ariz. St. L.J. These examples of the progressive precisification of the law over time are hardly limited to constitutions and human rights documents. We see the same phenomenon within American constitutional case law, as explicit rules and three- and four-part tests supplement the "majestic generalities"2 of the bare text.2 And we see it as well throughout much of the balance of the law. The loose common law development of the rules of evidence has been supplanted by the codified Federal Rules of Evidence and their state law counterparts,22 just as codified civil procedure displaced the common law of procedure several generations earlier.23 In 1890 Congress enacted the Sherman Antitrust Act to prohibit "[e]very contract, combination . . . or conspiracy, in restraint of trade or commerce,"24 but those broad words and the broad judicial mandate that the words represented have been made far tighter through a series of judicially-adopted per se rules. In both the state and federal systems judicial discretion in sentencing has been displaced by26 the Federal Sentencing Guidelines and their numerous state counterparts. Although much of the law of torts, contracts, criminal law, and property was created and developed by judges in common law fashion, these areas have now not infrequently been codified in Restatements and similar enterprises, as well as in statutes; and even where the primary law is not codified contemporary developments are now largely statutory. Indeed, the 20. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 639 (1943). 21. On a normative level, the move to complex tests has been highly controversial. Compare Frederick Schauer, Opinions as Rules, 62 U. CHI. L. REV. 1455 (1995) (defending the use of multi-part tests), with Daniel A. Farber, Missing the "Play of Intelligence," 36 WM. & MARY L. REV. 147, 147 (1994) (claiming that "Supreme Court opinions are increasingly arid, formalistic, and lacking in intellectual value"); Morton J. Horwitz, The Supreme Court, 1992 Term-Foreword: The Constitution of Change. Legal Fundamentality Without Fundamentalism, 107 HARV. L. REV. 30 (1993); Robert F. Nagel, The Formulaic Constitution, 84 MICH. L. REV. 165 (1985). 22. See generally Roger Park, A Subject Matter Approach to Hearsay Reform, 86 MICH. L. REV. 51 (1987) (discussing codification of the hearsay rule). 23. See CHARLES M. COOK, THE AMERICAN CODIFICATION MOVEMENT: A STUDY OF ANTEBELLUM LEGAL REFORM (1981); Robert W. Gordon, The American Codification Movement. A Study ofAntebellum Legal Reform, 36 VAND. L. REV. 431 (1983) (book review). 24. 15 U.S.C. § 1 (2004). 25. See generally United States v. Arnold, Schwinn & Co., 388 U.S. 365 (1967) (resale price maintenance); Times-Picayune Publ'g Co. v. United States, 345 U.S. 594 (1953) (tying arrangements); United States v. Socony-Vacuum Oil Co., 310 U.S. 150 (1940) (price fixing). 26. See, e.g., MARVIN E. FRANKEL, CRIMINAL SENTENCES: LAW WITHOUT ORDER (1972); KATE STITH & Jost A. CABRANES, FEAR OF JUDGING: SENTENCING GUIDELINES IN THE FEDERAL COURTS (1998); MICHAEL TONRY, SENTENCING MATrERS (1996); Stephen Breyer, The Federal Sentencing Guidelines and the Key Compromises upon Which They Rest, 17 HOFSTRA L. REV. 1 (1988); Marc Miller, Rehabilitating the Federal Sentencing Guidelines, 78 JUDICATURE 180 (1995). It is too early, however, to assess the implications of UnitedStates v. Booker, 125 S. Ct. 738 (2005), on the future of the federal sentencing guidelines. 36:0765] THE FAIL URE OF THE COMMONLAW 769 same phenomenon appears to exist even outside of the formal law. The original honor codes at the College of William and Mary and the military academies, for example, were broad and simple paeans to honor and exhortations to the virtues of not lying, cheating, or stealing, but modem college and university honor codes are far more detailed. Indeed, even the older ones are now encrusted with authoritative procedures, examples, and explanations, becoming in the process far more code-like than their original drafters and adopters had intended. II. As was noted above, the trend toward precisification is hardly without some movement in the opposite direction.27 Numerous legitimate devices28 of statutory and constitutional interpretation allow decisionmakers to take highly detailed directives and round off their sharp edges, making what appear to be rules under the conventional rules-standards dichotomy29 into something more like standards. Yet although there are numerous examples of rules tending toward standards, the movement in the opposite direction appears both more frequent and more dramatic. There may be much truth in the proposition that there is a degree of convergence between the extremes of rules and standards, but the point of convergence appears, as the previous 27. See Schauer, supra note 3, at 312-15. 28. By "legitimate" I mean here professionally accepted as within the range of what a judge might do, even though there may be disagreement. Legitimate is thus primarily an empirical assessment as to what the legal culture within a particular time and place accepts as a professionally acceptable form of justification. In this respect reliance on a dissenting opinion or an unpopular canon of statutory construction is legitimate in a way that reliance on the astrology charts is not. In this sense of the word "legitimate," American judges may legitimately make modifications in the strict words of a statute in order to bring the statute up to date, see CALABRESI, supra note 1, at 83-85, 163-66, and even those commentators or other judges who would prefer that such power not exist, or even who think it does now actually exist, would not suggest, in the United States in 2004, that a judge who engages in such behavior has committed an impeachable or disbarable offense. See Frederick Schauer, Formalism, 97 YALE L.J. 509 (1988). 29. See generally LARRY ALEXANDER & EMILY SHERWIN, THE RULE OF RULES: MORALITY, RULES, AND THE DILEMMAS OF LAW (2001); Larry Alexander & Emily Sherwin, The Deceptive Nature of Rules, 142 U. PA. L. REV. 1191 (1994); Louis Kaplow, Rules Versus Standards: An Economic Analysis, 42 DUKE L.J. 557 (1992); Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685 (1976); Russell B. Korobkin, BehavioralAnalysis and Legal Form: Rules vs. Standards Revisited, 79 OR. L. REV. 23 (2000); Pierre J. Schlag, Rules andStandards, 33 UCLA L. REV. 379 (1985); Kathleen M. Sullivan, The Supreme Court, 1991 Term-Foreword: The Justices of Rules and Standards, 106 HARv. L. REV. 22 (1992). ARIZONA STATE LAW JOURNAL [Ariz. St. L.J. examples suggest, to be closer to the rules than to the standards end of the rules-standards continuum. Assuming that this impression is correct, and that the law appears to be tending toward progressively greater precision, what are we to make of this phenomenon? This is my primary focus here, and in order to consider this question, we should clarify the issue more precisely. So let us posit, holding off on commitment to labels for a moment, that there is a method of law creation and legal development characterized either by the initial absence of substantive directives" to the decisionmakers, or by the presence of initial substantive directives worded so broadly and vaguely that they give, as with the operative words of the Sherman Act and the Equal Protection Clause, little concrete and usable guidance to subsequent decisionmakers faced with the task of deciding actual controversies. Because of the large indeterminacy of the initial directives, subsequent interpreters and appliers3 1-typically, but not necessarily courts and judges-will play a major role over time in the development of governing norms. These decisionmakers will ordinarily operate incrementally and slowly, they will make their decisions one case at a time,32 they will limit the degree to which they announce broad prospective rules, and when they do announce broad and prospective rules it will be understood that such rules will be defeasible when the best resolution of actual cases and controversies demands avoiding or modifying a previously announced rule. Norms of precedent will ensure that the accumulated decisional knowledge grows over time, but the occasion for lawmaking will still primarily be an actual controversy, and the constraints of precedent will be understood as secondary to the continuous efforts of decisionmakers to reach the best results for the largest number of cases just as the body of law grows slowly over time by a process of accretion and working out details largely on a case-by-case basis. 30. There would, of course, need to be jurisdictional directives establishing the authority of the decisionmaker, but the presence of such jurisdictional directives need not entail very much in the way of substantive directives guiding the actual decisions of the decisionmaker. See Stanley L. Paulson, An Empowerment Theory of Legal Norms, 1 RATIO JuRis 58 (1988); Stanley L. Paulson, Material and Formal Authorisation in Kelsen's Pure Theory, 39 CAMBRIDGE L.J. 172 (1980). 31. We could add enforcers as well, but because enforcers-police officers, for exampleare outside of the domains of either the legislative or the judicial branches, different issues come to the fore that are better bracketed here. 32. See CASS R. SUNSTEIN, ONE CASE AT A TIME: JUDICIAL MINIMALISM ON THE SUPREME COURT (1999); cf Christopher J. Peters, Assessing the New Judicial Minimalism, 100 COLUM. L. REv. 1454, 1457 (2000) (discussing the claim that judicial minimalization will bolster the "legitimacy and efficacy" of the political branches). 36:0765] THE FAIL URE OF THE COMMON LA W The method I have just described is obviously one that many people will think of as the "common law,, 3 3 but for the moment there are at least two reasons for insisting that nothing should turn on that exact designation. First, the idea of the common law has numerous substantive as well as methodological components. Thus, the common law can be said to be characterized, in part, by the absence of doctrines-for example, delict, community property, and abuse of right-that are creatures of the civil law, and by the presence of doctrines-for example, tort, the rule against perpetuities, and lex loci delicti-that are alien to the civil law. But even putting aside substance and adhering to methodology, the idea of judgemade law, so central to a contemporary understanding of common law method,34 is, as I shall discuss below, not a significant part of the historical understanding of the essence of the common law. Nevertheless, the idea of judges as central figures not only in the application but also in the creation and the development of law is such a commonplace in the modem understanding of common law method that I shall use "common law" as the label for the methodology described in the previous paragraph, with the explicit caveat that this label is not to be understood as incorporating either the doctrinal or the historical understanding of the characteristic features of the common law. This oversimplified version of the method of the common law is usefully contrasted with an equally oversimplified version of the civil law. Here the central idea is that the law is not to be developed as cases, controversies, and examples arise, but rather in advance by attempting to assess at the outset a moderately wide array of likely future issues, disputes, and transactions, and then to assess, in advance, the best solution for the overwhelming majority of those issues, disputes, and transactions. In assessing in advance the best guess of the best future resolution of this array of behaviors, the lawmaker divides the behavior and the disputes into categories, and attempts as far as possible to set forth the outcomes in a series of moderately clear and accessible canonical texts. 35 There will, of 33. See generally David Strauss, Freedom of Speech and the Common-Law Constitution, in ETERNALLY VIGILANT: FREE SPEECH IN THE MODERN ERA 33 (Lee C. Bollinger & Geoffrey R. Stone eds., 2002); David A. Strauss, Common Law ConstitutionalInterpretation,63 U. CHI. L. REV. 877 (1996); Peter L. Strauss, 2001 Daniel J. Meador Lecture: Courts or Tribunals? FederalCourts and the Common Law, 53 ALA. L. REV. 891 (2002). 34. It is important to note, however, that an incremental and controversy-driven approach to lawmaking is not logically restricted to the courts. See, e.g., Peter L. Strauss, The Common Law andStatutes, 70 U. COLO. L. REV.225 (1999). 35. If all of this sounds cumbersome, think of the typical speed limit, in which categories of highways are used to set rules for all drivers, in the process dramatically dampening real ARIZONA STATE LAW JOURNAL [Ariz. St. L.J. course, still be hard cases requiring judicial resolution and interpretation, but under this pared-down model of the civil law the necessity of epiphenomenal judicial involvement in the occasional hard case detracts only marginally from the central importance of the canonical text. In the civil law model the central figure is not the judge deciding a controversy and making law in the process, but is the initial lawmaker making law at the outset and hoping that subsequent judicial involvement will be minimal. As with the caricatured model of the common law presented above, this caricature of the civil law omits numerous features that would be important were we engaging in a description of actual civil law systems. The role of authoritative commentators, the importance of unitary codification, and many other aspects of the actual civil law are omitted, and indeed it would not be inaccurate to note that the pure civil law model exists much more, ironically, in the writings of Englishman Jeremy Bentham3 6 than it does in the workings of actual legal systems in actual civil law countries like France, Spain, and Italy. Nevertheless, Bentham's vision, a vision we can label a vision of the civil law, is usefully contrasted with the vision of the common law. Under the vision of the civil law, the rules are set forth in advance in an accessible and precise canonical text which is expected to provide a clear, even if not necessarily optimal in every case, resolution of the vast majority of legal questions and human controversies. And under the vision of the common law, the rules are developed over time by accretion and experience by those who are called upon to decide actual controversies when and as they arise. Against the background of these two models, the puzzle is to explain why, even in common law countries, the civil law model seems so much in the ascendancy, and the common law model seems so much in decline. The Sherman Act may have referred over a century ago to "[e]very contract, combination . . . or conspiracy, in restraint of trade or commerce," 37 and the Securities and Exchange Commission's Rule lOb-5 may almost seventy years ago have made one of its most operative provisions the prohibition on "device[s] . . . or artifice[s] to defraud,"38 but such open-ended lawmaking and rulemaking is now far more rare, with detailed statutes and detailed regulations far more the norm now than in the past. As noted above, constitutions even in common law countries are now made with far more variations among drivers, vehicles, road conditions, and weather, and moderately dampening real variations among various different stretches of highway. 36. See generally GERALD J. POSTEMA, BENTHAM AND THE COMMON LAW TRADITION (1986). 37. 38. 15 U.S.C. § 1 (2004). 17 C.F.R. § 240.10b-5(a) (2004). 36:0765] THE FAIL URE OF THE COMMON LAW 773 detail than was the case when the Constitution of the United States was adopted.39 The open-endedness of equitable jurisdiction4" has been replaced by a rule-based system of equity that bears few methodological affinities with its Aristotelian roots. 41 And perhaps most importantly, open-ended mandates, whether in statutes, regulations, or common law doctrines, have repeatedly been narrowed even by those who might be expected to see them as empowering, as with the Supreme Court's use of per se antitrust rules and elaborate tests in constitutional adjudication, as with the tendency of judges even prior to the sentencing guidelines to engraft rules and limits to their own discretion, 42 and as with the tendency of both courts and law reform institutions to make substantially more precise the open-ended and scarcely guiding mandates of the "best interests of the child" standard.43 And assuming that all of this movement from common law approaches to civil law approaches is on balance greater than any movement in the opposite direction, an assumption that appears warranted on the evidence we now have, 4 then our task now is to attempt to explain this phenomenon. 39. The interesting exception is Canada's Charter of Rights and Freedoms, adopted in 1982, and containing not much more detail than the Constitution of the United States. American influence obviously played a role, as Canada, at least in 1982, was far more concerned with distancing itself from the United Kingdom than with resisting affinities with its neighbor to the south. In addition, the use of vagueness to forge agreement between sharply divided interests was not irrelevant in a country in which the tensions between Quebec and the rest of the country are always near the surface. 40. As captured most famously and most pithily by Lord Selden's reference to equity being as variable as the length of the Chancellor's foot. JOHN SELDEN, TABLE TALK OF JOHN SELDEN 43 (Sir Frederick Pollock ed., Selden Soc'y 1927) (1689). 41. John Norton Pomeroy writes: It is very certain that no court of chancery jurisdiction would at the present day consciously and intentionally attempt to correct to rigor of the law or to supply its defects, by deciding contrary to its settled rules, in any manner, to any extent, or under any circumstances beyond the already settled principles of equity jurisprudence. . . . Nor would a chancellor at the present day assume to decide the facts of a controversy according to his own standard of right and justice, independently of fixed rules, . . . he is governed in his judicial functions by doctrines and rules embodied in precedents, and does not in this respect possess any greater liberty than the law judges. JOHN NORTON POMEROY, A TREATISE ON EQUITY JURISPRUDENCE 61-62 (Spencer W. Symons ed., 5th ed. 1941). 42. See James M. Anderson et al., Measuring Interjudge Sentencing Disparity: Before and After the FederalSentencing Guidelines,42 J.L. & ECON. 271 (1999); William Rhodes, Federal Criminal Sentencing: Some Measurement Issues with Application to Pre-GuidelineSentencing Disparity, 81 J. CRIM. L. & CRIMINOLOGY 1002 (1991). 43. See Ira Mark Ellman, Inventing Family Law, 32 U.C. DAVIS L. REv. 855, 856 (1999) (discussing the trial courts' treatment of discretion in family law). 44. As should be apparent, I resist the idea that the point of convergence is substantially determined by factors of efficiency. Cf Colin S. Diver, The OptimalPrecision ofAdministrative 774 ARIZONA STATE LA W JOURNAL [Ariz. St. L.J. III. In order to understand the decline of the common law, we need to begin by appreciating that much of the common law idea was based on a vision that is now widely thought to be mistaken. Although it is routine these days to think of the common law as judicial lawmaking, conceiving of the judge as lawmaker was decidedly not the historical understanding.45 The common law judge, to Blackstone, to Cook, to Hale, to Mansfield, and to the society within which they and their colleagues lived and judged, was engaged not in a process of creation but of discovery. 46 Law was understood to preexist the act of judicial decision, and that was so even when the law was unwritten. To a considerable extent the law was understood to exist in custom,47 while others thought the law was also to be found in human and legal reason.48 And to many the human law may have been immanent as well in the natural law. But even though there were disagreements at the time, disagreements that persist among historians, what engenders little disagreement, then or now, is the proposition that the common law understanding was that the law was somehow there to be discovered by judges with the proper insight and training. To confuse unwritten law with judge-made law is simply to fail to understand the common law state of mind.49 It was well recognized, of course, that judges could make mistakes in locating the law, but the process of seeing actual controversies helped judges to correct their previous mistakes. As Lord Mansfield famously put it, the common law over time would work itself pure. 0 Rules, 93 YALE L.J. 65, 98 (1983) (arguing that incremental policy change will drive toward optimal rule precision). 45. See generally JOHN BAKER, THE LAW'S Two BODIES: EVIDENTIARY PROBLEMS IN ENGLISH LEGAL HISTORY (2001). 46. See Harold J. Berman & Charles J. Reid, Jr., The Transformation of English Legal Science. From Hale to Blackstone, 45 EMORY L.J. 437 (1996). 47. See A.W.B. Simpson, The Common Law and Legal Theory, in OXFORD ESSAYS IN JURISPRUDENCE (SECOND SERIES) 77 (A.W.B. Simpson ed., 1973). See generally LEGAL THEORY AND COMMON LAW (William Twining ed., 1986). 48. See Neil Duxbury, Faith in Reason: The Process Tradition in American Jurisprudence, 15 CARDOZO L. REv. 601, 660 (1993) (comparing American faith in the virtues of process to earlier English common law faith in legal reasoning). 49. See generally Gerald J. Postema, Classical Common Law Jurisprudence (Part1), 2 OXFORD U. COMMONWEALTH L.J. 155 (2003), available at http://papers.ssrn.com/sol3/ papers.cfm?abstractid=46294 1 (last visited Jan. 7, 2005). 50. Omychund v. Barker, 1 Atk. 21, 33, 26 Eng. Rep. 15, 22-23 (K.B. 1744). The phrase has been further and prominently promoted by, inter alia, Lon L. Fuller and Ronald Dworkin. DWORKIN, LAW'S EMPIRE, supra note 1, at 400-03 (1986); LON L. FULLER, THE LAW IN QUEST OF ITSELF 140 (1940); Ronald Dworkin, Law's Ambitions for Itself, 71 VA. L. REv. 173, 173 (1985). 36:0765] THE FAIL URE OF THE COMMON LA W For my purposes here, the most interesting thing about the perception that the common law judge was discovering preexisting natural and customary law by his use of techniques of legal reasoning is that the basis of this understanding is now widely taken to be false. 5 ' What the common law thought of as custom was more likely the habits and patterns of a certain social class, and as societies and those who exert power within them have become more diverse, the degree of faith that a judge can divine a unitary social practice or a unitary social belief has declined dramatically. So when, for example, people were dismissed from colleges and universities and the officer corps in the eighteenth and nineteenth centuries for being "dishonorable," few members of the relevant classes thought that the adjudicators, whoever they were, were creating conceptions of honor. Honor was simply there, and its mandates were understood by all who "mattered." We would now have grave doubts as to whether a group of three or five people in a far more diverse society could simply divine that society's sense and customs of honor, in order to determine whether they had been violated, but few such doubts pervaded the common law in its heyday. To the extent, therefore, that the common law was built on a belief that common law judges were simply applying their society's relatively uniform customs and beliefs, the decline in that unity, and the decline in belief in that unity (which is not the same thing), may well have contributed to a lesser faith in the wisdom of entrusting such tasks simply to judges. Relatedly, the common law was also built on a faith in what Coke famously described as the "artificial reason of the law."52 Holmes had not yet been born when the common law method flourished, and thus it might even be fair to say that in earlier times the typical belief was that the life of 51. I want to be careful here to emphasize that I do not take the widespread belief in the falsity of the common law ideal as itself constituting much evidence of its actual falsity. There is far too much reliance in contemporary legal and jurisprudential scholarship on arguments from mass academic opinion, as if what everybody believes or nobody believes can substitute for an argument. But my point here is a sociological and empirical one, for the fact that people have come to believe the common law vision false is potentially a good explanation for why those people are less likely to place faith in that vision, independent of the question whether that vision is actually sound. 52. The original source, although not in exactly those words, is SIR EDWARD COKE, COMMENTARY UPON LITTLETON 97b (Charles Butler ed., 18th ed. Legal Classics Library 1985) (1628); see W.S. HOLDSWORTH, A HISTORY OF ENGLISH LAW 429-31 (2d ed. 1937); see also Allen Dillard Boyer, "Understanding, Authority, and Will": Sir Edward Coke and the Elizabethan Origins of JudicialReview, 39 B.C. L. REv. 43, 58 (1997) (discussing doctrine of judicial review and the contention that law represents the understandings of the legal community); Charles Fried, The Artificial Reason of the Law or: What Lawyers Know, 60 TEX. L. REV.35, 38 (1981) (describing law as a special discipline, an autonomous subject). 776 ARIZONA STATE LAW JOURNAL [Ariz. St. L.J. the law was not experience but logic. 3 To many common law judges, and to the society that empowered them, a combination of intelligence, education, training, and experience enabled them to move from one common law case to another in logical fashion, and to develop the common law with little recourse to considerations of policy, philosophy, or morality. The law had a logic of its own, or so it was thought, and when Justice Peckham in Lochner v. New York,54 for example, considered it a matter of simple deduction to conclude that the concept of liberty incorporated the freedom of any employer and any worker to agree on the conditions of the worker's employment, he did not think of himself as making a judgment dependent on contested questions of policy, economics, or morality. Lochner is now castigated in large part because that case's outcome was not nearly so inevitable or logical as Justice Peckham supposed.55 Even those who think the result correct recognize that the Lochner outcome depends on questions of policy that are not simply logically or linguistically incorporated within the meaning of the word "liberty," nor within the holdings of previous cases. We may still celebrate legal reasoning, and we may still believe that lawyers have a method of thinking that sets them apart from other decisionmakers,56 but even the most enthusiastic proponents of the distinctiveness of legal reasoning recognize that the methods of thinking like a lawyer are neither strictly logical nor strictly deductive. Consequently, we recognize that the empowerment of judges to reach conclusions on the basis of their reading of history, or their reading of previous cases, or their reading of words like "liberty" and "dignity" and "reasonable," is the empowerment of judges to make nonlogical and thus discretionary" determinations about and around deeply socially contested 53. "The life of the law has not been logic: it has been experience." OLIVER WENDELL HOLMES, THE COMMON LAW 1 (1881). 54. 55. 198 U.S. 45 (1905). See Schauer, supra note 28, at 511-14; see also GERALD GUNTHER, LEARNED HAND: THE MAN AND THE JUDGE 118-23 (1994); Cass R. Sunstein, Lochner's Legacy, 87 COLUM. L. REV. 873 (1987) (suggesting that Lochner has not truly been overruled, and its holding is sometimes upheld and sometimes abandoned); Edward Warren, The New "Liberty" Under the Fourteenth Amendment, 39 HARV. L. REV. 431 (1926) (discussing the expanding interpretation by the Supreme Court of the Fourteenth Amendment Due Process Clause to further interfere in state matters). 56. See generally STEVEN J. BURTON, AN INTRODUCTION TO LAW AND LEGAL REASONING (1985); EDWARD H. LEVI, AN INTRODUCTION TO LEGAL REASONING (1948); Fried, supra note 52. But cf Larry Alexander, The Banality of Legal Reasoning, 73 NOTRE DAME L. REv. 517 (1998) (arguing against the distinctiveness of legal reasoning). 57. In DWORKIN, TAKING RIGHTS SERIOUSLY, supra note 1, Ronald Dworkin argues that "discretion" is not the proper way to understand even potentially variable judicial decisionmaking, but Dworkin's point, even if correct, is not germane here. Judicial variability may not appear as discretion from the perspective of an individual judge making a decision, but it will 36:0765] THE FAIL URE OF THE COMMON LAW 777 ideas. At times societies may wish judges to take on this task, especially when they distrust judges less than they distrust the other organs of social decisionmaking, but once we have recognized that common law decisionmaking involves empowering a group of people to make socially important and largely nonconstrained decisions, we should not be surprised to discover that society may at times be more reluctant to do this than when the perceived constraints on judicial decision were much greater. Relatedly, we now have less faith than we did in the past that the direction of common law development is necessarily positive. To believe that the common law works itself pure is to believe that subsequent cases correct the errors of earlier ones far more than they add errors to previously sound doctrines, and that new cases present opportunities for refinement rather than occasions for mistake. This belief may well be true, but its truth depends on an Enlightenment faith in reason that holds less sway now than in the past." In the hands of the wrong people, the law may be as likely to work itself impure as pure, or so at least many people believe, and thus once again the faith that produced the common law in the first place is a faith that seems no longer to exist. And with that faith no longer existing, we should not be surprised to discover that a method that was based on it finds itself in substantially less favor. IV. The idea of the common law is also premised on the belief that lawmaking and rulemaking is performed best when the lawmaker or rulemaker sees one or more actual cases, and thus when lawmaking or 9 rulemaking is done in the context of actual disputes between actual parties. Making law in the abstract is guesswork, so it is said, and thus it is far better to make law in a context in which the lawmakers see the issues as they arise with real parties, and understand the stakes involved in actual controversies. As the modem vernacular would put it, lawmaking is better done in context,6" and it is the beauty of the common law, or so it is said, that every appear as discretion to an external institutional designer determining what powers judges ought to possess. 58. See Todd J. Zywicki, The Rise and Fall of Efficiency in the Common Law: A SupplySide Analysis, 97 Nw. U. L. REV. 1551, 1552 (2003) (arguing against the notion that common law development is inevitably or systematically self-correcting). 59. And of course this faith is embodied in the so-called "case or controversy" requirement of Article III of the Constitution. 60. See generally Martha Minow, The Supreme Court, 1986 Term-Foreword: Justice Engendered,101 HARV. L. REV. 10 (1987). 778 ARIZONA STATE LAW JOURNAL [Ariz. St. L.J. act of lawmaking takes place in a concrete context involving real people having real disputes. Yet although there are obvious virtues of context, those virtues are by no means unlimited. In the first place, the incentives to litigate (or not) and the incentives to appeal (or not) may distort the terrain of the underlying reality, such that the cases that wind up in court, the cases that go to judgment, and the cases that wind up on appeal turn out to be an unrepresentative sample of the issues or controversies that exist at the prelitigation stage. 6' To make law on the basis of this unrepresentative sample, even if made accurately for the sample, is potentially to make law inaccurately for the full population of law-governed events that the sample only distortedly represents. Even were the sample to be moderately representative, there is a substantial likelihood that certain features of the particular case-some aspects of the context, if you will-would serve more to distort than to illuminate. Prospective rules are of necessity generalizations,62 and the generalizations that best suit large classes of particulars are generalizations that ignore features-even relevant ones-of particular cases. But insofar as particular features of the very case that occasions the rulemaking or lawmaking endeavor are ones that it is hard for the judge to ignore,6 3 there is a risk that such features, right for the particular case but possibly present in few others within the relevant grouping, will produce a rule that appears right for this case but will be wrong for most others. John Rawls's "veil of ignorance,64 was a heuristic designed to make this point in a quite different context, for Rawls recognized that decisionmakers influenced by their own situation would make different and worse decisions than they would make were they genuinely disinterested in the outcome, a point well known in the world of electoral reform. If the political process were now to attempt to reform some dimension of the political process with an effective date of, say, 2006 or 2008, there is little doubt that the participants in the reform process would tend to advocate proposals they believed would assist their own party or their own political factions. But if the same people were 61. See generally George L. Priest & Benjamin Klein, The Selection of Disputes for Litigation, 13 J. LEGAL STUD. 1 (1984); Frederick Schauer, Judging in a Cornerof the Law, 61 S. CAL. L. REv. 1717 (1988). The point is also noted briefly in KARL N. LLEWELLYN, THE BRAMBLE BUSH: ON OUR LAW AND ITS STUDY 15 (1960). 62. This is the running theme of FREDERICK SCHAUER, PLAYING BY THE RULES: A PHILOSOPHICAL EXAMINATION OF RULE-BASED DECISION-MAKING IN LAW AND IN LIFE (1991). For further elaboration, see FREDERICK SCHAUER, PROFILES, PROBABILITIES, AND STEREOTYPES 30-31, 45-46, 52-53 (2003). 63. Although he draws a different lesson from mine, the inevitable focus on the particular is a major focus in JEROME FRANK, LAW AND THE MODERN MIND (1930). 64. JOHN RAWLS, A THEORY OF JUSTICE 136 (1971). 36:0765] THE FAIL URE OF THE COMMON LA W involved in the same process but with an effective date of, say, 2024, there is a much greater likelihood of getting the parties' best and not instrumentally-motivated judgment. So too, therefore, with common law decisionmaking, which might well involve judges in making decisions and therefore prospective rules that look right for the litigant they prefer to win this case 65 but that might be suboptimal when applied to different litigants and different facts. Judges are human, and the facts of the particular case will occupy the foreground of their phenomenology. This may at times provide useful contextualization, but it may at times provide distortion, and it is hardly inconceivable that a contemporary reluctance to rely too heavily on case-focused rulemaking reflects a recognition that case-based rulemaking brings as many disadvantages as advantages. V. Perhaps the most important factor in explaining the decline in common law decisionmaking modes, however, is a recognition, even by the decisionmakers themselves, of the costs of excess flexibility. Although Bentham's crusade against the common law was based principally on a desire to control judges, an interesting feature of the post-Bentham judicial world is a persistent desire of judges to control themselves. Whether it be judges attempting to conform their sentences to the sentences of other judges, or courts imposing per se rules on previously open-ended standards or importing statutory mandates into common law domains, a surprising phenomenon has been the extent to which judges in the common law world have created rules that not only constrain those below them in the judicial hierarchy, but constrain the judicial rulemakers themselves. Although such self-constraint might seem initially counterintuitive, it is consistent with a larger phenomenon that these days often goes under the label of the "tyranny of choice."66 As social psychologists studying consumer behavior67 and economists studying investor behavior68 have in 65. This is not to suggest that the preference would be based on impermissible factors, but only that a judge's all-things-considered outcome preference for this case might not be the same judgment she would reach were she to base her judgment only on factors she thought ought to be used in all cases. 66. See Barry Schwartz, The Tyranny of Choice, SCl. AM., April 2004, at 34; see also BARRY SCHWARTZ, THE PARADOX OF CHOICE: WHY MORE IS LESS (2004) (discussing the "darker side" of freedom, autonomy, and self-determination). 67. See Sheena Iyengar & Mark Lepper, Rethinking the Value of Choice: A Cultural Perspective on Intrinsic Motivation, 76 J. PERSONALITY & SOC. PSYCHOL. 349 (1999); Sheena Iyengar & Mark Lepper, When Choice is Demotivating: Can One Desire Too Much of a Good Thing?, 79 J. PERSONALITY & SOC. PSYCHOL. 995 (2000). 780 ARIZONA STATE LAW JOURNAL [Ariz. St. L.J. recent years been documenting, and as Dostoyevsky's Grand Inquisitor observed generations ago,69 people value choice but do not like too much of it. 70 Especially in areas of relatively low salience and equally low personal commitment, legal decisionmakers who have internalized some of the stability-based values of the legal system 7' behave in the same way as consumers faced with too large an array of mustard varieties.72 Just as the consumers quickly reduce the choice to a small number, even at the cost of eliminating some potentially desirable options, so too do we see judges and other legal decisionmakers more eager to reduce the range of their own choices than might have been suspected." The desire of judges to narrow the range of their own choices is consistent with the other explanations I have offered here. We of course cannot know for sure the psychological state of the judges who flourished during the development of the common law, but there is no reason to believe that they perceived themselves as having a wider range of choice than the society of which they were a part thought they had. Perceiving their choices as limited, and reinforced in that perception by similar judges reaching similar results, common law judges likely were unconcerned with the breadth of their discretion in part because, at least prior to Bentham, they simply did not understand themselves as having that degree of discretion. Only with the decline of a certain kind of formalism about legal logic and about the sources of law, and only with the rise of a much wider range of actual judicial decisions about the same issues, might some judges 68. See Shlomo Benartzi & Richard H. Thaler, How Much is Investor Autonomy Worth?, 57 J. FIN. 1593 (2002). 69. Fyodor Dostoyevsky, The Grand Inquisitor, in NOTES FROM THE UNDERGROUND AND GRAND INQUISITOR 119 (Ralph E. Matlaw ed. & Constance Garnett trans., Dutton 1960) (187980). 70. See Gerald Dworkin, Is More Choice Better than Less?, in THE THEORY AND PRACTICE OF AUTONOMY 62 (Gerald Dworkin ed., 1988). 71. The standard quotation is from Brandeis: "in most matters it is more important that the applicable rule of law be settled than that it be settled right." Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932) (Brandeis, J., dissenting); see also Sheldon v. Goodrich, 8 Ves. 481, 497, 32 Eng. Rep. 441, 447 (1803) ("[b]etter that the law should be certain than that every judge should speculate on improvements .... ")(analyzing precedent inside and outside the law). See generally Frederick Schauer, Precedent,39 STAN. L. REv. 571 (1987). 72. Two hundred fifty in one Northern California grocery, according to the Iyengar & Lepper studies, supra note 67. There were also three hundred varieties of jam and seventy-five different olive oils. 73. I am not concerned here with the very real phenomenon by which judges reduce their own choices for strategic reasons relating to their repeat-play interactions with other branches of government. See Barry R. Weingast et al., Positive Canons: The Role ofLegislative Bargainsin Statutory Interpretation, 80 GEO. L.J. 705 (1992); Jeffrey A. Segal, Separation-of-Powers Games in the Positive Theory of Congress and Courts, 91 AM. POL. Sci. REv. 28 (1997). My concern, by contrast, is with nonstrategic but no less real self-limitation of choice. 36:0765] THE FAIL URE OF THE COMMON LAW have understood the full extent of the choices they possessed. These judges likely thought that some of this choice was a good thing, for few of us wish to have no choices at all. But these judges likely thought as well that there could be too much of a good thing, and consequently limited both their own choices as well as the choices of those subject to their rules and rulings. Insofar as this is true, it may explain part of the twentieth century movement toward judicial rulemaking, a movement that has, as we have seen, contributed to the weakening of the strongest forms of the common law model. VI. The common law developed as a concept in a smaller and simpler society, and developed out of a desire simply to settle disputes. And although dispute resolution is an important social function, it may be even more important to forestall disputes even before they arise, especially in far larger and far more complex societies. The Supreme Court of the United States, for example, may have a dispute-resolution and case-deciding function, but to think of that as its primary function when it decides on the merits only eighty cases out of the almost eight thousand (7781 in the 2003 Term) it is asked to hear is simply unrealistic. 74 As societies grow, so too does the importance of the guidance function of law, as opposed to its dispute resolution function. And thus as societies grow, the guidance function of the law, always the comparative advantage of the civil law, has increased in importance. The resolution of disputes is no less important, but using the dispute resolution function to perform the law guiding function as well is increasingly unrealistic, with the decline of the common law model the not unexpected consequence. As faith in the logic of the law has given way to an understanding of the law as a decisionmaking institution in which contested questions of policy, economics, and morality play a large role, and as faith in the "common erudition" of an elite of similarly trained and similarly situated judges has declined,75 the common law has been exposed as a system in which the identities and preferences of the judges make a difference. Bentham trumpeted this almost two centuries ago, but he was before his time. Yet as Bentham's message has been assimilated, and thus as the power ofjudges in 74. The Supreme Court, 2003 Term-The Statistics, 118 HARV. L. REV. 497, 504 tbl.II(A) (2004). 75. See generally Gerald J. Postema, Classical Common Law Jurisprudence (Part2), 3 OXFORD U. COMMONWEALTH L.J. 1 (2003), available at http://papers.ssm.com/sol3/ papers.cfm?abstract_id=462942. 782 ARIZONA STATELAWJOURNAL [Ariz. St. L.J. the common law model has been recognized, it should come as little surprise that the strongest models of common law decisionmaking are in decline. Whether this is a good or bad thing is a different question, and one best left for another day, but as a descriptive matter we should no longer be surprised that a model of law based on so many now-rejected premises has failed to keep up with the needs of the contemporary world.
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