What is the character of the widespread regulation?

Bentham termed it “Dog legislation.” Portrait by Henry William Pickersgill

The English are curiously ambivalent about their method of regulation. In a way, I blame Dickens, his affect as outsized as his characters. A “monstrous maze” he named it, importuning us to take its worst components as representative. The bleakest failings of its Bleak House time period are gone—later Victorian reforms noticed to that. But the caricature remains. We continue to locate it a really hard method to admire. This in spite of (or probably mainly because of) its accomplishment, calculated in longevity or impact. About 8 generations outdated, it is a defining feature of our civilisation. The popular regulation has also served set up, stabilise and cement societies the environment about.

So what is our beef? It is not just a issue of venal attorneys, which is a common chorus. It goes deeper, to the coronary heart of the enterprise. Insularity. Obscurity. Pretension. A shut store of lawyers and judges, wrangling past scenarios (precedents) through a manner of argument, at at the time formulaic and fluid, regarded only to them. “Dog law” is what Jeremy Bentham, the frequent law’s most excoriating critic, called it. Instead than say obviously in advance what we are supposed to do and not do, the typical legislation punishes us, like beasts, without the need of warning following the event. Worse, considered Bentham, the thriller in which it will get wrapped stymies enlightened legislative reform, blocking the path to larger justice.

Right before joining the censorious refrain, let’s think about what can make common regulation distinctive. Law in normal is about making and applying regulations that coordinate social motion. Civil law techniques do this by collating the regulations into a authorized code, frequently up-to-date. The popular law depends additional on judges to shape the legislation. Its rules are subject matter to continuous evaluation and revision, as and when disputes come to court demanding resolution.

It is tempting to say that civil regulation prioritises lawful transparency and certainty, whilst prevalent regulation embodies a far more inductive spirit of argument and tests. But the contrast should not be overstated. Surely, popular regulation retains some of its base-up character—after all, litigants nonetheless established its wheels in movement. The reality is also far more mundane. Absent are the times when most English legislation was frequent regulation. Principles occur now from federal government and parliament, and protect each part of life. There are islands in this sea of favourable law exactly where common regulation still predominates. But its most important small business is earning perception of statutes and restrictions. Judges search to give new legislation clear which means. They also try to make it just, seeking for coherence with an evolving overall body of principles, the material of which normally owes additional to former statutes than prior situations. Disregard tub-thumping tabloids and judicial ability obsessives. Prevalent law knows its put. Notify to queries of constitutional balance, it is particularly delicate to democratic imperatives.

So why like widespread regulation? Perfectly, I don’t—not essentially. Like most issues, it depends on a amount of aspects and situations. What I do know is that to abandon common law at this stage for a unique technique would be an act of collective self-damage. (The exact same applies to proposals for a published constitution.) An embedded institution like the prevalent regulation can’t be substituted in or out like a soccer participant. Much better to see it as inhabiting complex and sensitive ecosystems—social, political, commercial, ideological. You can’t just excise it with out disturbing the relaxation. How that could perform out is unpredictable. But it is juvenile to think that you can retain the very good matters of the outdated program (get, balance, continuity) and get the rewards of the new (transparency, efficiency) with out incurring considerable draw back dangers.

Outlining the difficulty of changing widespread legislation is not the very same as giving factors to benefit it. What is there to like? I like its granular construction. The way it drills down into the detail. And the way it builds a major picture from individuals aspects. What you get is a collective attempt to compile a kaleidoscopic account of how social life need to be ordered dependent on how myriad situations of conflict have already been resolved.

I like its discursive quality. It effects an ongoing debate about justice, at the moment principled and intensely useful. In that perception, it is accurate to what is ideal about law—the try to resolve conflict not by power but by recourse to rationale.

I like its humanity. Although its task is to assistance specify procedures, the particular person by no means solely drops out—she, just after all, is the a person bringing the case. For me, there is a parallel below with what David Hume referred to as the “perpetual intestine struggle” among authority and liberty that marks all govt, especially in societies that aspire to be absolutely free. This has its clearest expression in public regulation, in which the ability to need justification for the imposition of point out energy on me is a valuable aspect of our authorized-political landscape.

Lastly, I like its heritage. Not automatically for what it did or what was completed in its name—on that rating, I’m as conflicted as any. But I benefit how the frequent law’s venerability, the actuality that its roots are entwined with our other social and political structures, makes it less difficult for us to believe that that we have the rights and status thanks to legal topics by birthright or affiliation and not purely at the gift of federal government.

 

A shorter version of this short article seems in Prospect’s new print report on the rule of law in partnership with the Bingham Centre, Jones Day and the Metropolis of London