I recently had occasion to reread Professor Melvin Eisenberg's ambitiously titled book, The Nature of the Common Law, which I highly recommend as a short and very accessible introduction to some very complex ideas.
Eisenberg's stated goal "is to develop the institutional principles that govern the way in which the common law is established in our society." In doing so, Eisenberg addresses the functions of courts in American society, modes of legal reasoning and the process of overturning prior precedents. Yet Eisenberg never loses sight of his central thesis, namely that "all common law cases are decided under a unified methodology, and under this methodology social propositions always figure in determining the rules the courts establish and the way in which those rules are extended, restricted, and applied." To say that courts should and do rely on social propositions (such as moral norms and public policy) in deciding common law cases is hardly new. Eisenberg's contribution comes in mapping a coherent course between the Scylla and Charybdis of modern jurisprudence. He explicitly rejects theories claiming that some cases can be decided without reference to social propositions. On the other hand, Eisenberg also rejects theories claiming that legal reasoning is nothing more than a mask for the social and political values of the decisionmaker. 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. "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, since 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 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.
Common law adjudication thus is not merely the ad hoc application of whatever social propositions a particular judge is taken by; rather, he lays out institutional principles that constrain and guide the adjudicative use of social propositions. According to Eisenberg, adjudicators may only employ 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." Two critical assumptions underlie this claim: (1) that social morality is a meaningful concept; and (2) that judges are capable of discerning and effectively applying social morality. As space does not permit one to do full justice to Eisenberg's defense of those assumptions, suffice it to say that the argument is well-crafted and even-handed.
Eisenberg's second claim is that courts have a duty to utilize only those social propositions that have the requisite degree of social support. "By accepting and retaining office the judge undertakes an ongoing commitment to carry out the rules of the office," one of which is "a moral obligation to faithfully employ the norms of social morality ... whether or not he privately agrees with those norms." One may be skeptical about the force of an oath of office in constraining judicial discretion, but this is not the only arrow in Eisenberg's quiver. A variety of corrective forces come into play when a judge strays from those social propositions having the requisite degree of support. From the aggrieved litigant's perspective, the best outcome will be a reversal on appeal. Even if the decision stands, however, it may nevertheless soon be consigned to the dust bin of legal history. Lawyers will make a decent living arguing that the rule should be overturned or distinguished in future cases. Commentators and other courts may point out the decision's flawed reasoning. In extreme cases, the legislature may step in. In sum, common law decisions do not live in a vacuum. The wider arena of legal discourse acts a significant check on judicial error, whether the "error" is deliberate or accidental.
At first glance, Eisenberg's thesis appears to create substantial problems of doctrinal stability. He is unwilling, however, to make doctrinal propositions entirely defeasible in the face of changing social propositions. Accordingly, he constrains the use of social propositions by giving some counter-balancing weight to the value of doctrinal stability. In areas where parties are unlikely to plan their behavior based on existing doctrines, doctrinal stability may be relatively unimportant and a court should be fairly liberal in bringing out of whack doctrines back into line. But in areas such as property and estates, where planning is common and reliance on doctrinal stability is likely, courts should be more reticent. In these latter areas, techniques such as signaling (in which the court suggests that it will revisit the issue later) or prospective overturning may be more appropriate than an immediate reversal of existing doctrine.
For readers persuaded by Eisenberg, or at least interested in seeing his ideas play out, the book's only major flaw is likely to be its length: It is too short. For example, I would have been interested in Eisenberg's view of the claim that efficiency is the sole acceptable and/or the prevailing norm in common law adjudication. Perhaps the most glaring omission, however, is Eisenberg's failure to discuss in more detail the relationship of statutory interpretation to common law adjudication. Nonetheless, it belongs in every common lawyer's library.
