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.
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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.)
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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.
