Professor Bainbridge...on law, politics, religion, culture & food

Discovering versus Making Law

Matthew Franck:

I share Robert VerBruggen’s amusement (and Orin Kerr‘s) at the spectacle of Justice Stevens saying that when the Supreme Court announces a “new rule” of constitutional law, it’s not really a new rule at all, but only a newly discovered rule that had always lurked in the interstices of the Constitution but had hitherto gone unnoticed, neglected, or denied.

But unlike Robert, I would not see this as a conflation on Stevens’s part of originalism and activism.  Whether Justice Stevens believes it or not, he evidently feels constrained by the norms of judicial rhetoric to say he believes that judges never, never “make” law, but instead only “discover” it.  This is in fact an age-old principle of common-law adjudication, which one can find repeated down through the centuries in Anglo-American law.  The “legal realist” school that wrecked legal theory and practice in America over the course of the last century and more is fond of decrying this “discover, not make” principle as a “legal fiction” intended to paper over the invariable reality of judicial lawmaking.  Bunk.  Even in the common law, “discovery” and not “making” is the correct mode of judicial thinking, inducing in the thoughtful jurist a self-effacing humility in the search for principles that stand outside himself, and outside the latest intellectual fashions or conventional notions of justice, and are therefore really principles.

Bunk. (Sort of.) True, common law judges should not - and generally do not (in contrast to the SCOTUS in constitutional cases - act as legislators in the sense of making law on the basis of personal policy preferences. They should not do so, in the first instance, because any complex society needs an institution before which claims based on existing societal standards can be heard. In our society, that institution is the courts. As Melvin Eisenberg wrote in The Nature of the Common Law, “If the courts resolved disputes by reasoning from those moral norms and policies they think best, there would be no institution to which a member of the society could go to vindicate a claim of right based on existing standards.” Second, because the judicial system is a peculiarly undemocratic institution, the legitimacy of the adjudicative process requires courts to look to “existing legal and social standards rather than [to] those standards the court thinks best.” Finally, prohibiting the courts from employing their personal standards makes legal reasoning fairer and more easily replicable by the profession.

Having said that, however, the notion that judges find law that somehow was missed - like an explorer discovering some lost continent - is absurd. Judges make law. Courts routinely refuse to apply preexisting doctrinal propositions to cases that appear to fall squarely within the rule. Courts routinely refuse to extend preexisting doctrinal propositions to cases that logically could be covered by the rule. And courts routinely routinely overturn preexisting doctrinal propositions. The innumerable examples of such behavior preclude giving explanatory credence to theories positing a judicial duty to blindly apply “found” doctrines without regard to the rules’ justification under relevant social propositions.

The difference between the legislative and judicial function, Eisenberg explains, is that judges may employ only those norms or policies that “can fairly be said to have substantial support in the community, can be derived from norms [or policies] that have such support, or appear as if they would have such support.” Legislators are not so bound.

I have defended Eisenberg’s theory of common law adjudication elsewhere in detail (see Stephen M. Bainbridge, Social Propositions and Common Law Adjudication, 1990 U. Ill. L. Rev. 231 (1990)).

But I’m not the only legal scholar on the right who holds this view (call us Reagan Realists, to borrow my former coleague Steve Ross’ phrase). As Jeremy Rosen wrote in a 1994 New Republic article:

It’s hard to avoid the suspicion, after reading and talking to [Richard] Posner, that he does not believe very wholeheartedly in law. He prefers the “cynical acid” of empirical analysis to abstractions about legal rules and legal rights. (Posner notes that Holmes, too, believed in policy analysis, but lacked the patience to do it.) The Chicago Council of Lawyers puts it mildly when it calls Posner a “legal realist who gives little weight to history and is famously derisive of original intent.” (See Posner’s “What Am I, A Potted Plant?” tnr, September 28, 1987.) In The Problems of Jurisprudence (1990) Posner confesses that “political factors, and sometimes social visions, are decisive in the most difficult cases”; and he endorses Holmes’s dark aphorism: “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.”

It is probably the case that this understanding of common law adjudication should not be imported into constitutional analysis, as Adam Pritchard and Todd Zywicki have argued:

The paradigm example of a spontaneous order legal system is the common law. The rise of legal realism and positivism in recent decades has obscured the common law’s origins as a spontaneous legal order. Thus, in the current climate of legal thought, it may seem archaic to focus on the spontaneous order nature of the common law. But the vision of the common law as a spontaneous order system dominated legal thought for centuries. More importantly, the spontaneous order model of the common law was the Framers’ understanding of the common law. Only comparatively recently has the spontaneous order model of the common law been supplanted by legal positivism. Imposing positivism on our understanding of the Constitution distorts the purposes that the Framers intended to achieve when they adopted that document. Looking at the common law through the Framers’ eyes gives us a different perspective on the proper interpretation of the Constitution.

As applied to the common law itself, however, the Framers view amounts to sophmoric metaphysics. It says that common law judicial opinions are not the law, but merely the best evidence of the law. It says that the law is floating around out there in the ether somewhere waiting for someone to stuble over it. To be sure, as Pritchard and Zywicki also argued:

Tradition is inextricably linked to the classical common law. For the classical common law, “the authority of the [common law] rests ultimately on its justice and reasonableness, but the witness to this fact, and its strongest demonstration, lies in its very age, its persistence, and continuity over great reaches of time.” Common- law judges decided cases by finding and articulating the customs, norms, expectations, and preferences of individuals and communities, rather than making new law and imposing it upon the community. This reliance on custom for substantive rules was mixed with the judicial reasoning of the common-law method to develop a body of law that provided the groundwork for the freedom and prosperity of the Anglo-American world. Among the elements that fed into the common law, “custom was the most important.”

But there’s nothing in that account inconsistent with the proposition that judges rely on norms, policies, practice, and other social propositions to make the common law. Indeed, specaking of tradition, Right Coast blogger Maimon Schwarzschild wrote in a 2007 law review article that:

For many centuries in England, and well into the twentieth century there and in other English-speaking jurisdictions, the law of tort and contract--the heart of private law--was mostly judge-made common law, with statutes few and far between.

In sum, I agree with Franck that “self-effacing humility in the search for principles that stand outside himself” is the proper judicial temperament. But calling the end result of adjudication by such a jurist discovering rather than making common law is just semantic silliness.

Update: Matt responds here. The response still fails to adequately explain what Matt thinks it means to say that judges “discover” law. He says:

… all I can come up with as an argument is when he says that the framers’ “metaphysics” (and mine) “says that common law judicial opinions are not the law, but merely the best evidence of the law.  It says that the law is floating around out there in the ether somewhere waiting for someone to stumble over it.”

We’re meant to laugh at this notion of “out there in the ether,” and we do, of course—me included.  But a good joke is not a good argument.

Actually, a good joke is a great argument, but set that aside. The question remains: what the heck does “discovering the law” mean?

Matt says that:

I said that the judge’s business is to “search for principles that stand outside himself.” The crucial point is “outside himself,” and it neither adds to nor detracts from my argument to say that the locus of those principles is “the ether.” Come to that, I would prefer the ether to the judge’s viscera, or the latest Gallup poll.

Matt and I agree that judges should base their decisions on “principles that stand outside” their own personal preferences. This is precisely why I endorse Eisenberg’s view that judges should be constrained to base their decisions on norms, policies, and other social propositions that have strong social support. But to say that those decisions “discover” rather than “make” law reminds one of the famous Alice-Humpty Dumpty dialogue:

‘When I use a word,’ Humpty Dumpty said, in a rather scornful tone,’ it means just what I choose it to mean, neither more nor less.’

Discover means “to obtain knowledge or awareness of something not known before, as through observation or study.” In other words, to find something that already existed but simply had not yet been found. To say that judges “discover” the law does imply that there was law out there somewhere (where?) waiting to be found.

In contrast, make means “To cause to exist or happen; bring about; create.” When judges issue common law opinions they create law. As Sir Edward Coke wrote:

Reason is the life of the law; nay, the common law itself is nothing else but reason.

The process of common law adjudication is the application of educated reason to precedents and social propositions to determine whether an existing rule solves the case, whether an existing rule needs to be tweaked to fit the case, or a new rule created.

Consider also Matt’s claim that:

I didn’t say judges never make law.  By speaking prescriptively, I indicated that judges who do make law have overstepped their bounds.  And Bainbridge doesn’t really provide an argument against that view.

If you buy Matt’s argument, one of two things follows. One is that the common law can never legitimately change because changing the law would be making law. To deny that the common law can - and properly does - evolve is error both normatively and descriptively. No less a figure than William Blackstone acknowledged that the common law evolves over time:

OUR ancient lawyers, and particularly Fortescue insist with abundance of warmth, that these customs are as old as the primitive Britons, and continued down, through the several mutations of government and inhabitants, to the present time, unchanged and unadulterated. This may be the case as to some; but in general, as Mr. Selden in his notes observes, this assertion must be understood with many grains of allowance; and ought only to signify, as the truth seems to be, that there never was any formal exchange of one system of laws for another: though doubtless by the intermixture of adventitious nations, the Romans, the Picts, the Saxons, the Danes, and the Normans, they must have insensibly introduced and incorporated many of their own customs with those that were before established: thereby in all probability improving the texture and wisdom of the whole, by the accumulated wisdom of divers particular countries. Our laws, saith lord Bacon, are mixed as our language: and as our language is so much the richer, the laws are the more complete.

Surely Matt doesn’t think common law judges should have left the common law as it came to us from “the primitive Britons.”

The other option is that there is a meaningful distinction between “discover” and “make,” but as we have seen this is either metaphysics or semantic silliness.