What Exactly is the Common Law?

(And Why This Isn’t a Stupid Question)

St. John Henry Cardinal Newman c. 1889

The New Digest is pleased to present this essay by Dr. Lucas Clover-Alcolea. Dr. Clover-Alcolea is a Lecturer at the Faculty of Law at the University of Otago in New Zealand.

The reader might think that this is a silly (or even stupid question) because the answer is obvious, the answer is that the common law is “The body of law derived from judicial decisions, rather than from statutes or constitutions”.[1] However, this definition is not as helpful as it looks at first sight, for example, what exactly do we mean by “derived from judicial decision”? The problem becomes apparent when one looks at the second definition provided for ‘American Common law’ which is “The body of judge-made law that developed during and after the United States colonial period, especially since independence”. The issue is that the terms ‘The body of law derived from judicial decisions’ and ‘judge-made law’ are not necessarily co-extensive, unless we assume that judicial decisions always and everywhere make the common law. Moreover, unless we believe that judges simply make the common law ex nihlo (from nothing), a further question presents itself: from what do judges make the law? And what do we mean by ‘make’ anyway? Do judges make law in the same as legislators do or is there something different about ‘judge-made’ law versus legislation? In either case, what are the limits on ‘judge-made’ law?

In this sense, there are two competing definitions of the common law,  as noted in Western Australia v Commonwealth ((1995) 128 ALR 63) either it is, 1, “as a body of law created and defined by the courts” or, it is, 2, “a body of law which, having been declared by the courts at a particular time, may in truth be – and be subsequently declared to be – different.” These definitions get to the root issue, is the common law something that courts (freely) make or is it rather something they ‘find’ based on pre-existing legal principles and from pre-existing legal sources? In other words, do we believe in the declaratory theory whereby “judges who decide cases (when they are not following precedents, obeying rigid rules of evidence, or interpreting and applying statutes) do not make but instead find law”[2] or do we believe that this is a ‘fairy tale” so that, in reality, “the law is what the judge says it is”?[3] The traditional view is that of Sir William Blackstone in his Commentaries on the Laws of England who stated:

[I]t is an established rule to abide by former precedents, where the same points come again in litigation: as well to keep the scale of justice even and steady, and not liable to waver with every new judge’s opinion; as also because the law in that case being solemnly declared and determined, what before was uncertain, and perhaps indifferent, is now become a permanent rule, which it is not in the breast of any subsequent judge to alter or vary from according to his private judgment, but according to the known laws and customs of the land; not delegated to pronounce a new law, but to maintain and expound the old one.

This approach was brought to the US, along with the common law itself, and remained dominant until the 20^th century when it was displaced by “a general understanding that the law is not so much found or discovered as it is either made or created.”[4] This displacement occurred, it is generally accepted, in tandem “with the rise of legal realism”.[5] However, it appears to the author that, perhaps inextricably intertwined with realism, an equally important cause of the repudiation of the declaratory theory was the rise of a particular understanding of federalism. Thus, in B & W Taxi Co v B & Y Taxi Co ((1928) 276 US 518) Justice Holmes dissented from the judgment of the Court, which held that there was such a thing as general federal common law, which federal courts sitting in diversity jurisdiction could apply when sitting in diversity jurisdiction instead of state common law, (subsequently being reversed in Erie Railroad Co v Tompkins (1938) 304 U.S. 64), on the basis that:

The common law so far as it is enforced in a State, whether called common law or not, is not the common law generally but the law of that State existing by the authority of that State without regard to what it may have been in England or anywhere else. It may be adopted by statute in place of another system previously in force.

Thus, the common law was not “a transcendental body of law outside of any particular State but obligatory within it unless and until changed by statute” but only existed in any particular state to the extent that it had “some definite authority behind it.” In other words, as was noted in Southern Pacific Co v Jensen ((1917) 244 U.S. 205) “The common law is not a brooding omnipresence in the sky but the articulate voice of some sovereign or quasi-sovereign that can be identified…It always is the law of some State”. It might be thought that this is obvious, how else could states be ‘laboratories of democracy’ if they were not entitled to set up 50 competing ‘common laws’? However, if one looks at other common law federal systems which were, at least influenced by, the US model it becomes clear that it is not at all self-evident that federalism necessitates, or even implies, the creation of competing common laws in each state or province.

The point can be illustrated by a brief analysis of the position in Australia, whose apex court declared in Lange v Australian Broadcasting Corporation, ((1997) 145 ALR 96, 108) that “There is but one common law in Australia which is declared by this Court as the final court of appeal. In contrast to the position in the United States, the common law as it exists throughout the Australian States and Territories is not fragmented into different systems of jurisprudence, possessing different content and subject to different authoritative interpretations.” It is, of course, true that the courts of different states in Australia may differ on what that common law is but this does not mean that there are multiple common laws instead it merely means “that not all of these courts will have correctly applied or declared the common law.”[6] Similar arguments have been made in the Canadian context with Patrick Glenn arguing that “In common law matters, the decisions of the [Supreme] Court represent the common law everywhere within Canada because it is accepted as the same common law.”[7] Glenn goes on to note that “The normative effect of the decisions of the Supreme Court is thus today the direct effect of the declaratory theory of the common law – as it was applied throughout the Commonwealth. There is no particular common law of each province since there was no particular date for the reception of the common law in each province [thus] the Supreme Court is accepted as articulating the common law of all of the common law provinces in all of its judgments.”

Indeed, one can even cast the net wider still, and argue that, in general terms, the common law should be the same in all (at least commonwealth) jurisdictions in which it is applied. Thus, during the British Empire, it was held that all courts throughout the Empire had to follow decisions of the House of Lords as “That is the supreme tribunal to settle English law, and that being settled, the Colonial Court, which is bound by English law, is bound to follow it.”[8] Such uniformity was, in part, assured by having the Judicial Committee of the Privy Council as the final court of appeals across all jurisdictions. The justification for this rule was that, as the JCPC noted in Robins v National Trust Co Ltd ([1927] AC 515), “it is of the utmost importance that in all parts of the empire where English law prevails, the interpretation of that law by the Courts should be as nearly as possible the same.” However, it is important to note that the common law only applied in English colonies “if suitable” so that an English statute would not apply in a colony if it “was framed for reasons affecting the land and society of England, and not for reasons applying to a new colony.”[9] Thus, even at this stage, the common law was not identical throughout the Empire given that the common law would only apply to the extent that “it is reasonably applicable to the circumstances of the Colony” and “until it is abrogated or modified, either by ordinance or statute.”[10] Inevitably, this approach softened over time, particularly as former colonies achieved their independence, so that commonwealth courts, and the JCPC itself, were entitled to depart from decisions of the House of Lords “by reason of custom, statute, or for other reasons peculiar to the jurisdiction where the matter in dispute arose” as the JCPC held in Tai Hing Cotton Mill Ltd v Liu Chong Hing Bank Ltd ((1986) 1 AC 80).

Nevertheless, even in the present day, albeit to a significantly lesser extent as during the Empire and with a relationship of total equality amongst apex courts, it has been held that “[although] the common law can develop in different ways in different jurisdictions…it is highly desirable that all common law judges generally try and march together.”[11] The result is that no judge, including, perhaps especially, judges of the apex English courts or the JCPC, has the right to change the “basic building blocks”[12] of the common law which should be consistent among common law jurisdictions. This approach is rooted in a sort of (small c) conservatism which views judges as being the custodians of “a system of basic legal principles established over centuries and developed and matured by cases raising new factual situations to which established principles and precedents can be applied.”[13] Thus, as the House of Lords stated in Chapman v Chapman ([1954] AC 429) “We are as little justified in saying that a court has a certain jurisdiction, merely because we think it ought to have it, as we should be in declaring that the substantive law is something different from what it has always been declared to be, merely because we think it ought to be so. It is even possible that we are not wiser than our ancestors. It is for the legislature, which does not rest under that disability, to determine whether there should be a change in the law and what that change should be.”

There are parallels here, at least for the Catholic reader, with the fact that the Church has no power to add or subtract from “the original revelation given to the Church by Our Lord and His Apostles” because such revelation is “a divine deposit committed to the spouse of Christ to be faithfully protected and infallibly promulgated” (Decrees of the First Vatican Council). Thus, Papal infallibility does not permit the Pope to “make known some new doctrine” but rather merely to “religiously guard and faithfully expound the revelation or deposit of faith transmitted by the apostles.” How then does one explain the development of doctrine over time? For example, how do we go from proposition A that Jesus is fully God and fully Man, and proposition B that Mary is the mother of Jesus, to proposition C that Mary is the Mother of God? Here the Catechism explains that “Revelation is now fully complete, although the faith of the Church must gradually grasp its full significance over the course of centuries.” In other words, as Cardinal  Newman famously explained in his An Essay on the Development of Christian Doctrine, doctrine can develop over time, one can reason from propositions A and B to proposition C, even if proposition C was not previously explicitly stated, because C flows (and could be said to be found within) A and B.

However, if a development goes wrong in some way, it is called a corruption rather than a development, hence Newman provides that in order to be legitimate a development must “retai[n] one and the same type, the same principles, the same organization…its beginnings [must] anticipate its subsequent phases, and its later phenomena protect and subserve its earlier…it [must have] a power of assimilation and revival, and a vigorous action from first to last.”[14] For example, Pope John Paul II stated in his apostolic letter Ordinatio Sacerdotalis that “the Church has no authority whatsoever to confer priestly ordination on women” as “in giving the Church her fundamental constitution, her theological anthropology-thereafter always followed by the Church's Tradition- Christ established things in this way.” On this view, the very nature of the Church itself, as Christ established it, debars, and has always debarred, and been understood as debarring, the ordination of women, so that in developing doctrine to permit such ordination the Church could not possibly “retai[n] one and the same type” nor “the same principles” nor would “its beginnings anticipate its subsequent phases”. Instead, the Church would be adding, or subtracting, (or better said, purporting to add or subtract) from the deposit of faith which is something it cannot do. This is recognised in Scripture itself with St Paul famously stating in Galatians 1:8-9 “But though we, or an angel from heaven, preach a gospel to you besides that which we have preached to you, let him be anathema.  As we said before, so now I say again: If any one preach to you a gospel, besides that which you have received, let him be anathema.” In this respect the position for the Church is even stricter than for common law systems as whilst in the latter at least the legislature can innovate, the former simply has no power to add or change the deposit of faith at all.

Similar issues arise in the common law context, thus when considering decisions of courts where the court claims to have developed the common law we will not infrequently claim that X decision is ‘wrongly decided’ or that Y series of decisions resulted from a ‘wrong turn in the law’. Such terms necessarily presuppose that the law is not just what judges say as it is, that judges cannot modify the common laws ‘deposit of faith’ so to speak, as if it was merely whatever a judge said it was then it would be impossible for them ever to get it wrong. Thus, if we disagree with such a decision because it “is objectionable on policy grounds” we should really just say that it is “‘inappropriate’ or ‘bad’”[15] however, as if betrayed by his intuition, even the most hardened positivist or realist will inevitably use the term ‘wrongly decided’ when disagreeing with the decision of a court. Moreover, the declaratory theory does not hold that judges can never ‘make’ law rather it holds that they do so only because “Every act of interpretation shapes something new, in a secondary sense. A man who chops a tree into logs has in a sense ‘made’ the logs. A man who annotates a code has ‘made’ a learned work, but he has not ‘made’ a system of law. Mankind, with all its resources and inventiveness, is limited in its creative power by the physical material vouchsafed to it. Similarly the creative power of the Courts is limited by existing legal material at their command.”[16] Judicial developments that go beyond this, for example by “project[ing] into the future a rule of law which has never before existed in [X jurisdiction]” are not developments of the common law, but rather corruptions. The parallels between these views, and those expounded in the theological sense as discussed above, are striking even if each was expressed in very different contexts and the proponents of each likely did not know of the other.

At this stage the reader might ask ‘Well that’s all very interesting (or not) but are we any closer to establishing what exactly the common law is?’ Here, we can respond that the answer is implicit in the discussion we have just had. The common law is, like the deposit of faith, a shared tradition, or more specifically, a set of shared legal truths, as well as a shared way of ‘doing’ law. This operates as a restraint on judicial development because “the law provides a body of doctrine which governs the decision of a given case [and] the decision of the court will be ‘correct’ or ‘incorrect’, ‘right’ or ‘wrong’ as it conforms with ascertained legal principles and applies them according to a standard of reasoning which is not personal to the judges themselves.”[17] It is for this reason that we can say that a particular decision was ‘wrongly decided’ or that a series of decisions represent a ‘wrong turn in the law’ and it is this body of doctrine which enables us to tell us even an Apex court “We admit that you are the highest court in land and we admit that there are no further appeals from your honours’ decision, still we say that your judgment here is wrong, because…”

However, here we should add some important qualifications.

Firstly, it is certainly true that a judge may have to apply existing law to novel situations and in doing so develop the law, for example applying the law of torts to self-driving cars, or the rules of property to cryptoassets, and even, perhaps, laying down ‘new’ legal rules for such cases. Nevertheless, even in such situations, judges are not making law ex nihlo but rather merely “applying a principle not previously embodied, but consonant with the whole doctrine of law and justice”,[18] or, in other words, drawing out implicit or latent truths already present in the body of the law.

Secondly, we do not deny that “the common law [can] develop slightly differently in different common law jurisdictions”. Instead, we merely deny that there can, or should, be “a general divergence of the basic principles of the common law between common law jurisdictions.”[19]

Thirdly, we do not suggest that the entire model of US federalism should be changed to accommodate the idea of ‘one US common law’, but our theory does provide support for the harmonising effect of the Restatements (which are predicated on the idea of a ‘right’ common law answer)  and the harmonising efforts of the Uniform Law Commission. Moreover, it also explains the almost universal practice of state, and federal, courts considering the decisions of courts in other states or circuits.

Fourthly, we do not deny that judges can overrule earlier decisions however we say, to quote Blackstone in his Commentaries, that in such cases “do not pretend to make a new law, but to vindicate the old one from misrepresentation. For if it be found that the former decision is manifestly absurd or unjust, it is declared, not that such a sentence was bad law, but that it was not law”. It may be that this correction of earlier false declarations may take centuries, but even here an apex court would be doing nothing wrong. This is because, as Lord Hoffman noted in Kleinwort Benson Ltd v Lincoln City Council, ((1999) 2 AC 349) “It is the proper business of [such a court] to clarify and develop the common law by restating rules in accordance with principle, even when this may require the correction of ancient heresies.” In addition, it may be that the law truly needs to be corrected because it was founded on a statement of fact which, while it was generally assumed to be true, has in fact, through the passage of time been shown to be false. Thus, as explained by Justice Gummow in Wik v Queensland ((1996) 141 ALR 129) the decision of the High Court of Australia in Mabo v Queensland ((1992) 107 ALR 1) to hold that, contrary to the centuries-old assumption, Indigenous Australians had proprietary rights which persisted subsequent to colonisation, in many cases to the present day, was the result of correcting “past assumptions of historical fact, now shown then to have been false.”[20] Our theory does not, therefore, foreclose the correction of past grave historical injustices even where this might, on one view, result in radical ‘changes’ to the law.

At this stage, a final question presents itself: Why should the understanding of the common law outlined be preferred to the ‘common sense’ view that the common law is whatever judges say it is? There are various possible answers to this question, including the undoubted fact that this is the understanding which judges and theorists have outlined over centuries, as well as the reality that it is exceedingly difficult to explain the retrospective effect of judicial decisions on any other basis.[21] However, neither explanation is likely to satisfy those who are unconcerned about ‘legal niceties’, history, or tradition. In particular positivists, including legal realists and legal instrumentalists, who believe that the common “law can be whatever [judges] want it to be”,[22] with the inevitable result that one should influence them in order to ensure that the law satisfies one’s desired policy goals, will want to know why we say that, in fact, no matter what X apex court says the common law cannot be Y or Z. Here, we can meet such interlocutors on their own ground, say that you successfully persuade an apex court to grant you X legal right on policy grounds, what exactly is it that you have obtained from the court?

Our interlocutor will no doubt tell us that what they have secured is recognition of their right by the Court. When we ask them what they mean, they will inevitably say that obtaining X right means that in future if X right is violated, they will be able to approach the courts for a remedy. However, is this in fact true? If the law can in fact be “whatever we want it to be” and a judge is bound by nothing except, perhaps, pressure and nebulous policy concerns, why should any future judge, or court, enforce X right? What if a future judge, or court, is persuaded by someone who holds views contrary to our interlocutor that X right is in fact not a right at all (The most obvious example of this is the recent decision of the US Supreme Court in Dobbs v Jackson (2022) 597 U.S.). What then will our interlocutor do? No doubt, they shall complain that the Court has robbed them of X right, and has acted illegitimately. But on what grounds shall they, who believe that the law can be anything at all that judges want it to be, complain?  Herein lies the rub, if rights, whether in private or constitutional law, are to mean anything at all they must be binding on all involved, including judges, and it is exactly this that they cannot be if they are merely the result of “raw judicial power”.[23] Such a view inevitably reduces all who approach a court to the level of “supplicant[s]” throwing themselves “on the mercy of the court”[24] as on such a view ‘rights’ are nothing more than judicial creation, so they no longer fulfil “their function as a trump” but merely “take their place along with the interests of everyone else.”[25] Our interlocutor is therefore left in a bind, if he is right and obtains rights from the court out of judicial sympathy, or for reasons of policy, he may well have won the battle but he could still lose the war, depending on future judicial fickleness. On the other hand, the traditional common law approach protects novel rights which have been developed in accordance with the common law in the same way as it protects any other right, and they are binding on judges whether they like it or not. Thus, as Justice Kirby noted in Wik v Queensland “I forebear of my own motion, to reagitate the wisdom of the step taken by the court in Mabo (No 2). Once that step was taken, ordinary common law principles for the protection of a proprietary right, found to have survived British settlement, extended to the protection of the indigenous peoples of Australia, in exactly the same way as the law would protect other Australians (emphasis added).” Here then is a true right.

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[1] Bryan A Garner and Henry Campbell Black, Black’s Law Dictionary (Tenth edition, Thomson Reuters 2014) 334.

[2] Brian Zamulinski, ‘Rehabilitating the Declaratory Theory of the Common Law’ (2014) 2 Journal of Law and Courts 171, 171.

[3] Lord Reid, ‘The Judge as Law Maker’ (1972) 12 Journal of the Society of Public Teachers of Law (New Series) 22, 22.

[4] Sosa v Alvarez-Machain (2004) 542 US 692, 725.

[5] Samuel Beswick, ‘Retroactive Adjudication’ (2020) 130 The Yale Law Journal 276, 295.

[6] Lipohar v R [1999] HCA 65 [45].

[7] H Patrick Glenn, ‘The Common Law in Canada’ (1995) 74 Canadian Bar Review 261, 274.

[8] Robins v National Trust Co Ltd [1927] AC 515, 519.

[9] Jex v Mckinney (1889) 14 App Cas 77, 82.

[10] Cooper v Stuart (1889) 14 App Cas 286, 291.

[11] Willers v Joyce & Anor [2016] UKSC 44 [13].

[12] Sir Geoffrey Vos, ‘“Certainty v. Creativity: Some Pointers towards the Development of the Common Law”’ (SAL Distinguished Speaker Lecture, London, UK, 14 September 2018) para 58.

[13] Sir Geoffrey Vos, ‘Preserving the Integrity of the Common Law’ (Lecture to the Chancery Bar Association, London, UK, 16 April 2018) para 2.

[14] John Henry Newman, An Essay on the Development of Christian Doctrine (London : BM Pickering 1878) 171.

[15] Allan Beever, ‘Formalism in Music and Law’ (2011) 61 The University of Toronto Law Journal 213, 299 fn54.

[16] Carleton Kemp Allen, Law In The Making (1927) 174.

[17] The Rt Hon Sir Owen Dixon, G.C.M.G., ‘Concerning Judicial Method’ (1956) 29 The Australian Law Journal 468, 470.

[18] Carleton Kemp Allen (n 16) 172–173.

[19] Sir Geoffrey Vos (n 13) para 11.

[20] Wik Peoples v State of Queensland (1996) 141 ALR 129, 229.

[21] Allan Beever, ‘The Declaratory Theory of Law’ (2013) 33 Oxford Journal of Legal Studies 421, 432–444.

[22] Brian Z Tamanaha, Law as a Means to an End: Threat to the Rule of Law (Cambridge University Press 2006) 3.

[23] Roe v Wade (Dissenting opinion of Mr Justice White and Mr Justice Rehnquist) (1973) 93 S Ct 762, 763.

[24] Peter Birks, ‘Three Kinds of Objection to Discretionary Remedialism’ (2000) 29 Western Australian Law Review 1, 13.

[25] Allan Beever, Freedom Under the Private Law (Edward Elgar Publishing 2023) 223.