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The Common Law Is Dead: Or Is It?

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The focus of this research is the area of what is termed ‘common law’ and to address the question of whether “persistent inroads into Common Law precedent through the statutory instruments of legislature has reduced the role of common law in the legal system to that of anarchism.”


Oliver Wendell Holmes, Jr. in the work entitled: “The Common Law” states: “The life of the law has not been logic; it has been experience.” (Oliver Wendell Holmes, Jr., 1880)[1] ‘Common Law’ is defined as: “the body of unwritten principles originally based upon the usages and customs of the community” (Anderson, Fox and Twomey, 1989) These rules of ‘Common Law’ “…were recognized and enforced by the courts.” (Ibid) Anderson, Fox, and Twomey (1989) additionally state that: “In truth the law is an arbitrary set of rules that we have agreed upon to govern ourselves.”(1989) Within the framework of this democratic legal structure the basis of the law is the “rights of the human being” (Ibid) Also within the framework of the democratic legal structure is the “right to privacy”. (Ibid)

Law exists in two forms which are laws that are ‘Constitutional’ and the laws that are referred to as ‘Statutory’ laws. Constitutional laws are those governed by the federal or state constitution while the statutory laws are the legislative acts which declare, command or prohibit something. There are other laws in the form of regulatory laws such as the Securities and Exchange Commission (SEC)  Regulations set out by the national and state administrative agencies “generally have the force of statute and are therefore part of ‘the law’.

  1. Death of the Common Law

 In a 1918 article in the Yale Law Journal entitled: “The Dead Hand of the Common Law” appeared the work of a Mr. Justice Young of the Supreme Court of New Hampshire. It appears that the Supreme Court Justice was suggesting that common-law was no longer that which determined the direction of law. In the work entitled; “Common Law vs. Conquest” it is stated that in the United States: “The forefathers that represented the states (colonies) at the beginning of this country acted primarily for their interest…”(Young, 1918) The article of Mr. Justice Young was called “suggestive” at the time of its publication which was a questioning of the legislative system in the U.S. and whether the common law was losing its place in the democratic society.

Oliver Wendell Holmes Jr. states of common law that: “The felt necessities of the time, the prevalent moral and political theories, institutions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.” (1880)[2]

  1. Endless Circle of Societal Interaction

            The work of Anderson, Fox, and Twomey states that ethical concepts are of primary importance in the direction that law takes in its evolution. Ethical law is the foundation of ‘common law’ and is also that which “influence and give rise to the rules of law” which is actually “an endless circle of interaction between social environment, social forces, ethics and the law.’ (1989; Paraphrased) The model of which is spoken of is illustrated in the following labeled Figure 1.

Figure 1

The Endless Circle of Societal Interaction

Source: Anderson, Fox & Twomey (1989)

III. Anarchism Defined

            Ethics in the foregoing chart labeled Figure 1 is that which determines common law, however as law is evolutionary in nature and the reason for this is the basis of common law itself which is the ethics and principles of those which the law governs. Anarchism is defined as: “a society of no-rule, without government regulations” (Webster’s Dictionary, 1978; paraphrased) Anarchism has as its basis the community development and equality and freedom among members of the society. In fact, Anarchy sound much like democracy except in the democratic society the need exists for common law rule enforcement which is the reason for legislative and administrative courts of law which includes the experienced interpretation of a judge who is fully informed of societies mores’ and principles.

Therefore, it can be understood that the common law is that which gives power to the legislation of law. Thomas Jefferson stated that: “Our rulers can have no authority over natural rights, only as we have submitted to them.  The rights of conscience we never submitted.  We are answerable for them to our God.  The legitimate powers of government extend to such acts only as injurious to others.”  (Thomas Jefferson, date unknown) Common law cannot be deemed fit a role of anarchy because the rule of common law is ‘of’, ‘by’, and ‘for’, the people and is a self-governed rule while anarchism is a rule without leader and without law in the nature of chaos. Common law is that which tempers the power and control of the ‘state’  and in fact that which adds common sense and rationality to the ruling of the court which occur under the watchful eyes of the judge whose responsibility is to interpret the laws as closely to what he or she understands the statute, the common law and the present interpretation of both of these combined. 

III. Common Law Reflects the Values of Society.  

The law is that which “regulates relationships between people…..reflects the values of society…..” however, the role of the judge is “to understand the purpose of the law in society and to help the law achieve its purpose. (Barak, 2006) Barak states: “Sometimes the law precedes a societal change and is even intended to stimulate it. In most cases, however, a change in the law is the result of a change in social reality.” (Ibid) Barak states that: “the life of the law is not just logical or experience. The life of law is renewal based on experience and logic, which adapt law to the new social reality.” (Ibid) Changes occur at times on the social level that cause a statute that was passed in the context of the social past that was once constitutional to be in the present context to be unconstitutional due to some new reality in the social realm.

Therefore, the court will attempt to give the statue a new meaning but this is not always possible and sometimes the judge will rule the statute to be unconstitutional. There is a dilemma presented in law when change occurs and this presents a difficult dilemma for the judge who “must balance the need for change with the need for stability.” (Ibid) Indeed it is the judge which allows for the harmonization of the legislative and common law and it is the judge who brings the two together or bridges the two sources of law. The law is ever-changing and evolutionary because life and society are both of the same nature. In the work of Barak there must be stability in the change and yet there must also be change in the stability for: “Stability without change is degeneration. Change without stability is anarchy.” (2005) Barak adds: “The judge must bridge the gap between the needs of society and the law without allowing the legal system to degenerate or collapse into anarchy.” In common law systems, bridging the gap between law and society appears to be a central role of the judiciary.” (Ibid) 

Summary & Conclusion

The work of Barak stated importantly that: “Normative harmony must exist among all the different parts of the legal system” and within the literature reviewed is a common theme expressing that the judge has the unique responsibility and role in interpreting the law and that the judge does so in consideration of both ‘common’ and ‘legislative’ law while providing an interpretation that is as close to the principles of society in the present time as relative to each of the sources of law. Each of these mechanisms of law when working properly in a democratic society are in harmony and alignment with one another and the society in which these mechanisms of law function.


Barak, Aharon (2006 ) The Judge in a Democracy. Princeton University Press. Online available at: http://www.pupress.princeton.edu/chapters/s8145.html.

Anderson, R.; Fox, I.; and Twomey, D. (1989) Business Law: Principles, Cases, Legal Environment. Tenth Ed. The South-West Publishing Company, Cincinnati, Ohio.

Hamilton, Alexander & Madison, J (1788) The Federalist No. 51 – 8 Feb 1788. Macmillan Law Library, Electronic Desk Reference. Online available at : http://www.law.emory.edu/FEDERAL/federalist/feder51.html

Understanding Common Law (1994) Report #PCT07 Sovereign Services. Online available at: http://www.buildfreedom.com/tl/pct07.shtml

Description and History of Common Law (nd) Notes: Order, Law and Crime Michalowski and Cotterell Online available at: http://www.radford.edu/~junnever/law/commonlaw.htm.

Milsom, S.F.C. (2003) A Natural History of the Common Law. Columbia University Press.

Liberty and Law (nd) The Principle of Liberty: Politics for a New Millennium. Chapter 6. Online available at: file:///C:/Documents%20and%20Settings/HP_Owner/Desktop/principle%20of%20liberty.htm.

Devins, Neal E. Eighteenth Annual Administrative Law Issue: Conference on Statutory

Interpretation: The Role of Legislative History in Judicial Interpretation: A Discussion Between Judge Kenneth W. Starr and Judge Abner J. Mikva: Article: Regulation of Government Agencies Through Limitation Riders. 1987 Duke L.J. 456 (1987)

Easterbrook, Frank H. Symposium on Statutory Interpretation: What Does Legislative History Tell Us? 66 Chi.-Kent. L. Rev. 441 (1990)

[1] From the first of twelve Lowell Lectures delivered by Oliver Wendell Holmes, Jr. on November 23, 1880, which were the basis for The Common Law

[2] From the first of twelve Lowell Lectures delivered by Oliver Wendell Holmes, Jr. on November 23, 1880, which were the basis for The Common Law

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