This article explores the democratic features of common-law judicial law-making. It begins by examining the so-called “classical” account of the common law, associated with English jurists Edward Coke and Matthew Hale. These jurists describe the common law as a kind of “reasonable custom” that emerges out of a public process in which lawyers exchange reasons with the court about how to resolve a dispute. The article then turns to modern common-law adjudication, and, drawing on the work of Fred Schauer, Edward Levi, Martin Golding, and others, shows how public deliberation prominently features in the modern adjudicative process as well. The core idea is that modern common-law adjudication requires the court to engage the arguments of the parties in determining how the law ought to apply to their case. This makes the court responsive to the concerns of those it governs. The article then draws a comparison between common-law adjudication, so described, and the legislative process. To do so, the article summarizes the key ideas behind the “deliberative” theory of democracy, which argues that democratic law is legitimate because it arises out of a collective process of public deliberation over the wisdom of a proposed policy. Legislation under the deliberative theory of democracy is similar to common-law adjudication, in that in both cases, legitimacy depends on a process of exchanging reasons about the appropriate collective course of action.
The Journal Jurisprudence
Originally published in The Journal Jurisprudence.
The Democratic Common Law,
Available at: https://digitalcommons.law.buffalo.edu/articles/126