The Common Law:
Tradition & Stare Decisis.
By Peter Landry.
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"The law is wiser than cabal or interest."
Burke, 1794.
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"Mastering the lawless science of our law, --
That codeless myriad of precedent,
That wilderness of single instances ..."
Tennyson: Aylmer's Field.
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I now deal with a species1 of law known as the common law.
Common law is law that comes from the common people, vers., legislation, which,
comes from the "experts."
Common law comes about at the root levels of society: it is not law that is
imposed by some authority from on high. The development of common law was
"essentially a private affair concerning millions of people throughout
dozens of generations and stretching across several centuries." It is a
process that is self adjusting and which goes on everyday unnoticed, without
great expense to the state and with out fractionalizing society. This is to be
compared to the legislative process, a comparison I make elsewhere.
Before getting into the specifics of the common law, let me first set forth a
small speech given in 1875 by an obscure judge. The name of the judge was The
Honourable Joseph Neilson, Chief Justice of the City Court of Brooklyn. He gave
this address at some sort of a gathering, (not in a court, I don't think). The
publisher of the book2 in which I discovered this short speech, entitled it
"The Growth of Principles."
"At the sea shore you pick up a pebble, fashioned after a law of nature,
in the exact form that best resists pressure, and worn as smooth as glass. It
is so perfect that you take it as a keepsake. But could you know its history
from the time when a rough fragment of rock fell from the overhanging cliff
into the sea, to be taken possession of by the under currents, and dragged from
one ocean to another, perhaps around the world, for a hundred years, until in
reduced and perfect form it was cast upon the beach as you find it, you would
have a fit illustration of what many principles, now in familiar use, have
endured, thus tried, tortured and fashioned during the ages. We stand by the
river and admire the great body of water flowing so sweetly on; could you trace
it back to its source, you might find a mere rivulet, but meandering on, joined
by other streams and by secret springs, and fed by the rains and dews of
heaven, it gathers volume and force, makes its way through the gorges of the
mountains, plows, widens and deepens its channel through the provinces, and
attains its present majesty. Thus it is that our truest systems of science had
small beginnings, gradual and countless contributions, and finally took their
place in use, as each of you, from helpless childhood and feeble boyhood, have
grown to your present strength and maturity. No such system could be born in a
day. It was not as when nature in fitful pulsations of her strength suddenly
lifted the land into mountain ranges, but rather, as with small accretions,
gathered in during countless years, she builds her islands in the seas.
"It took a long time to learn the true nature and office of governments;
to discover and secure the principles commonly indicated by such terms as
'Magna Charta,' the 'Bill of Rights,' 'Habeas Corpus,' and the 'Right of trial
by jury;' to found the family home, with its laws of social order, regulating
the rights and duties of each member of it, so that the music at the domestic
hearth might flow on without discord; the household gods so securely planted
that 'Though the wind and the rain might enter, the king could not'; to educate
noise into music, and music into melody; to infuse into the social code and
into the law a spirit of Christian charity, something of the benign temper of
the New Testament, so that no man could be persecuted for conscience sake, so
that there should be an end of human sacrifice for mere faith or opinion; the
smouldering fires at the foot of the stake put out, now, thank God, as
effectually as if all the waters that this night flood the rivers had been
poured in upon them. It took a long time to learn that war was a foolish and
cruel method of settling international differences as compared with
arbitration; to learn that piracy was less profitable than a liberal commerce;
that unpaid labor was not as good as well-requited toil; that a splenetic old
woman, falling into trances and shrieking prophecies, was a fit subject for the
asylum rather than to be burned as a witch.
"It took a long, long time after the art of printing had been perfected
before we learned the priceless value, the sovereign dignity and usefulness of
a free press.
"But these lessons have been taught and learned; taught for the most part
by the prophets of our race, men living in advance of their age, and understood
only by the succeeding generations. But you have the inheritance."
The common law is a great scientific lab, the resources and results of which
are brought to bear on the populations which are fortunate enough to possess an
English common law tradition, such as exists, for example, in: Canada, the
United States and Australia. My use of the adjective, "scientific,"
will be better appreciated after one reads my essay, Siren's Song. Sufficient
to say here, at this place, that nature is the great and ultimate scientific
testing lab, and it always, in time, shakes out the truth. Whether we
appreciate it, or not, for hundreds of years: the common law tests, observes,
adjusts and re-observes on a continual bases.
The fact of the matter is that there exists all around us a great body of law
which has not ever been (nor could it be) written down in one spot. In a way,
its, its more of a process which has a single guiding rule, the "golden
rule," a negative rule: "Don't do something to someone that you don't
want to have visited on yourself, either directly or through the agency of a
government." Though it has suffered much at the hands of legislators,
common law is yet followed in all major English speaking nations around the
world. Common law to England was and is its very force. The greatness of
England, certainly in the past, is attributable, I would say fully
attributable, to the stabilizing and enriching institution that we have come to
know as common law. This subject of the common law is a great and wonderful
subject: its evolutionary development and its great benefits make it the most
superior law system known in the world, as history will readily tell.
The common law is as a result of a natural sequence which hardened first into
custom and then into law. It did not come about as an act of will, as an act of
some group aware only of the instant moment, unaware of the nature and history
of man. It come about as a result of a seamless and continual development,
through processes we can hardly begin to understand; it evolved along with man.
If we were to take the common law, figuratively speaking as a huge tent and
net, so to cover and hold safe all those engaged in the human circus, we may
liken the guys or supporting lines to tradition and culture.
Tradition:-
"There is hardly an absurdity of the past that cannot be found flourishing
somewhere in the present." (Durant, Our Oriental Heritage.)
It was a Dutch meteorologist who lived back in the 19th century and who
formulated a law in respect to wind known as Buys-Ballot's Law of the Winds. It
is expressed as follows:
"The wind neither blows round the space of lowest pressure in circles
returning on themselves, nor does it blow directly towards that space; but it
takes a direction intermediate, approaching, however, more nearly to the
direction and course of circular curves than of radii to a centre."
Thus expressed, it is hard for most of us mortals to understand what this
Dutchman, Buys-Ballot, was talking about. How about this:
"... if a man stands with his back to the wind, the lower pressure will be
to his left in the northern hemisphere, and to his right in the southern."
Ah! Now, we are making some progress. In Nova Scotia, the prevailing direction
of our weather systems is north-west, that is to say we generally get what's
coming to us from the south-east, up the eastern American seaboard.3 In Nova
Scotia, if one were to stand with his back to the Atlantic ocean and his back
to the wind, then the low (bad weather) is to the south-west and heading for
you; with the wind just the opposite (blowing off shore), then the low is to
the north-west and heading away from you. A flat ocean with an offshore wind is
something that a weather-fearing fisherman in Nova Scotia likes. He knows
nothing of Buys-Ballot's Law of the Winds, but he obeys it; he knows about it
in his gut; and knows, -- Oh! So, well, he and his family know, the grief that
will come if he does not obey The Law of the Winds.
Primitive man knew nothing of laws, all he knew was custom. Custom, or
tradition, evolved into rules for living. They grew spontaneously, viz., not
deliberately designed by some particular human mind. While no one can point to
the origins of our traditional moral rules, their function in human society is
clear enough. These moral rules, or traditions, are necessary to preserve the
existing state of affairs; such that culture was allowed to evolve; and in
turn, with culture, civilizations came about. Thus, as David Hume wrote, man
developed in an evolutionary fashion -- not only biologically, but also
culturally. That, like the lot of all animals, man evolved in accordance with
certain natural rules, in that "no form can persist unless it possesses
those powers and organs necessary for its subsistence: some new order or
economy must be tried and so on, without intermission; until at last some order
which can support and maintain itself, is fallen upon."
The preservation of existing laws as was represented by traditions and cultural
rules, to early man, at least, was of greater concern then putting up with bad
laws: change was what men feared: change and its social upheaval was what
brought on suffering and death. I quote from Bagehot's work:
"In early societies it matters much more that the law should be fixed than
that it should be good. Any law which the people of ignorant times enact is
sure to involve many misconceptions, and to cause many evils. Perfection in
legislation is not to be looked for, and is not, indeed, much wanted in a rude,
painful, confined life. But such an age covets fixity. That men should enjoy
the fruits of their labour, that the law of property should be known, that the law
of marriage should be known, that the whole course of life should be kept in a
calculable track, is the summum bonum of early ages, the first desire of
semi-civilized mankind. In that age men do not want to have their laws adapted,
but to have their laws steady. The passions are so powerful, force so eager,
the social bond so weak, that the august spectacle of an all but unalterable
law is necessary to preserve society. In the early stages of human society all
change is thought an evil. And most change is an evil. The conditions of life
are so simple and so unvarying that any decent sort of rules suffice, so long
as men know what they are. Custom is the first check on tyranny; that fixed
routine of social life at which modern innovations have, and by which modern
improvement is impeded, is the primitive check on base power. The perception of
political expediency has then hardly begun; the sense of abstract justice is
weak and vague; and a rigid adherence to the fixed mould of transmitted usage
is essential to an unmarred, unspoiled, unbroken life." (Walter Bagehot,
The English Constitution, at pp. 229-30.)
Stare Decisis:-
This idea, as expressed by Bagehot, is picked up in the law as it exists today.
When a court decides a case it does so on the merits of the case before it. The
court's decision is meant to only effect the rights of the parties, the
litigants, before it. The court, however, is obliged to apply settled
principles of law. The decision of any respected court amounts to a recap of
the law needed to resolve the case before it. The law as it is used in the
particular case has a universal applicability to all future cases embracing
similar facts, and involving the same or analogous principles. These decisions,
many being years and years old, thus became statements of law, to be applied by
all courts when measuring the private and public rights of citizens. It is this
stream of cases, within the arc of the great pendulum of time, which changes
the banks of the law: the common law, thus, as it turns out, is a living,
creeping, creature.
Do not, however, be mistaken - there, is, a conscious effort by those involved
(lawyers and judges) to keep the law pure: not to change it, but to apply it.
This principle is called stare decisis, Latin, which literally translated
means, "stand by things decided." Stare decisis has come to us as a
most sacred rule of law. A judge is to apply the law as it is presented to him
through the previous decisions of the court; it is not the judge's function to
make or remake the law that is the function of the legislature.4 However,
judges do make law even though they try not to; indeed it is their function,
under a system of common law, to do so; but not consciously and only over the
course of time, many years, as numerous similar cases are heard and decided.
The common law has been and is built up like pearls in an oyster, slowly and
always in response to some small personal aggravation, infinitesimal layer
after infinitesimal layer. It is built up upon the adjudications of courts:
"... built up as it has been by the long continued and arduous labors,
grown venerable with years, and interwoven as it has become with the interests,
the habits, and the opinions of the people. [Without the common law a court
would] in each recurring case, have to enter upon its examination and decision
as if all were new, without any aid from the experience of the past, or the
benefit of any established principle or settled law. Each case with its
decision being thus limited as law to itself alone, would in turn pass away and
be forgotten, leaving behind it no record of principle established, or light to
guide, or rule to govern the future." (Hanford v. Archer, 4 Hill, 321.)
Tyrants can only get a hold of a central system where the rules issue from a
single authority (government); tyrants cannot get a hold of a system which
depends on a spontaneous participation in the law-making process on the part of
each and all of the inhabitants of a country, viz., a system of common law.
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NOTES:
1 Natural Law and Legislation I treat as separate species.
2 A Collection of Arguments and Speeches by Eminent Lawyers (New York: Baker,
Voorhis & Co., 1882).
3 A trick that some of us up here have learned is this, one listens to the
weather that Boston is receiving today and that's likely the weather Halifax
will get tomorrow.
4 The legislature's function, notwithstanding the typical politician's view of
it, is limited to the making of laws which come fully within the framework as
set up by the constitution of the country; which, in Canada, is rooted in
common law.
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