Although the Constitution is not, strictly speaking, a common law document, it was written against the backdrop of common law.
The term “common law” has various meanings, but the meaning I’m using here is the system of case law we inherited from England, including the bodies of jurisprudence known as admiralty and equity.
That system follows certain identifiable principles—governing values. These principles largely disprove the modern legal academic cant that common law is merely a vehicle for public policy, privilege and power.
The traditional understanding of common law was that it was rooted in the customs of the people, and that the task of a judge was to discover the rules applicable to the case before him, and then apply those rules to the circumstances. During the 20th century, however, a new orthodoxy came to reign in legal academia (primarily law schools) to the effect that judges actually make up the rules of common law as they go along. In other words, judges are inevitably mini-legislators who, under cover of applying precedent, often create rules and results to promote their own opinions of the best “public policy.” You may recall that Justice Sotomayor indirectly expressed this view shortly before she was confirmed to the Supreme Court.
This orthodoxy (so-called “legal realism”) is advanced as a sort of self-fulfilling prophesy for those who promote judicial activism—i.e., those who want judges to be maxi-legislators.
A more extreme outgrowth of the 20th century orthodoxy was that common law decisions are arbitrary and that common law rules are so malleable they really don’t amount to true rules at all. The course of the common law was said to be “indeterminate” and based ultimately on mere power. This view proved convenient to Marxists and others who wished to discredit the judicial system.
In 1992, my treatise, Modern Law of Deeds to Real Property was published. The book was written during the year I served as a visiting law professor at the University of Utah.
The publisher was Little, Brown and Co.—then an old-school legal publishing firm that had produced a line of classic treatises extending back to the early 19th century. Joseph Story, the great Supreme Court justice and legal scholar, wrote for Little, Brown.
Anyway, the law of property deeds is mostly common law aided by statutes usually written to supplement (rather than wholly displace) common law. Accordingly, a large portion of Modern Law of Deeds consisted of the distillation of rules and principles from hundreds of cases.
Real property was only one of the common law legal fields I had studied intensively. I had also practiced, taught, and/or researched in the law of remedies, contracts, oil and gas, homeowners associations, torts, trusts, wills, agency, and fiduciary relationships. And I had taught and written in legal history. This is a far greater range of topics (particularly common law topics) than most law professors pursue. Let’s just say I did not spend much time going out for drinks.
Perhaps I could be charged with dillettantism, but for better or worse by the time I wrote my book I had read thousands of case decisions. At some point I became convinced that the modern orthodoxy about the common law was wrong.
I concluded that, as a practical matter, even most modern judges do not invent rules to promote public policies or to satisfy their power lust. The traditional view was the one closest to the truth: In the real world, judges, especially judges on trial courts and intermediate appellate courts, seek justice. They usually “discover” rules by deducing them from custom, practice, precedent, and a limited number of fixed principles. This occurs even in some cases in which they feel compelled to justify the result by reciting public policy.
So I devoted the last chapter of my book—Chapter 19—to explaining those principles.
I wish I could say the chapter was met with vigorous debate. I can’t. As has happened other times during my career, my conclusions were greeted with silence. And although in many other instances, the silence has ended in adoption (with or without attribution), in this instance it did not.
No doubt there were several reasons for this, but I think one was that very soon after my book came out, Little, Brown and Co. sold its legal division to Aspen Publishing. Aspen promptly pulled all the Little, Brown treatises off the market. Shortly after my book appeared it was out of print—among the last of a distinguished line. It paid me virtually no royalties and, what is more important, very few people read it.
But at least I have the copyright, and Chapter 19 of Modern Law of Deeds to Real Property has been buried long enough. This link provides Internet access to that chapter. The language is technical, and most readers will find it tough going. But I still believe it is a more accurate description of the principles of Anglo-American common law than the theories widely propagated in law schools today.
