The Nature of the Common Law [Paperback]

Melvin Eisenberg (Author)

Book Description

Publication Date: October 1, 1991 | ISBN-10: 0674604814 | ISBN-13: 978-0674604810

Much of our law is based on authoritative texts, such as constitutions and statutes. The common law, in contrast, is that part of the law that is established by the courts. Common law rules predominate in some areas of law, such as torts and contracts, and are extremely important in other areas, such as corporations. Nevertheless, it has been far from clear what principles courts use--or should use--in establishing common law rules. In this lucid yet subtly argued book, Melvin Eisenberg develops the principles that govern this process.

The rules established in every common law case, he shows, are a product of the interplay between the rules announced in past precedents, on the one hand, and moral norms, policies, and experience, on the other. However, a court establishing a common law rule is not free, as a legislator would be, to employ those norms and policies it thinks best. Rather, it can properly employ only those that have a requisite degree of social support. More specifically, the common law should seek to satisfy three standards. First, it should correspond to the body of rules that would be arrived at by giving appropriate weight to all moral norms, policies, and experiential propositions that have the requisite support, and by making the best choices where norms, policies, and experience conflict. Second, all the rules that make up the body of the law should be consistent with one another. Third, the rules adopted in past precedents should be applied consistently over time. Often, these three standards point in the same direction. The central problems of legal reasoning arise when they do not. These problems are resolved by the principles of common law adjudication.

With the general principles of common law adjudication as a background, the author then examines and explains the specific modes of common law reasoning, such as reasoning from precedent, reasoning by analogy, drawing distinctions, and overruling. Throughout the book, the analysis is fully illustrated by leading cases.

This innovative and carefully worked out account of the common law will be of great interest to lawyers, law students, students in undergraduate legal studies programs, scholars interested in legal theory, and all those who want to understand the basic legal institutions of our society.

Editorial Reviews

Review

This is a first-rate study of the principles that govern decision-making under common law--it brings out how the social functions of the courts bear on the correctness of a decision. Unlike many works on this topic, it is rich in examples, and sensitive to actual judicial practice.
--Judith Jarvis Thomson (Massachusetts Institute of Technology )

Professor Eisenberg has written a concise, thoughtful and refreshingly optimistic account of the common law tradition.
--Harry H. Wellington (Yale Law School )

About the Author

Melvin Aron Eisenberg is Koret Professor of Law, University of California, Berkeley

Product Details

• Paperback: 224 pages
• Publisher: Harvard University Press (October 1, 1991)
• Language: English
• ISBN-10: 0674604814
• ISBN-13: 978-0674604810
• Product Dimensions: 9.2 x 6.1 x 0.6 inches
• Shipping Weight: 11 ounces (View shipping rates and policies)
• Average Customer Review: 4.5 out of 5 stars  See all reviews (2 customer reviews)
• Amazon Best Sellers Rank: #638,200 in Books (See Top 100 in Books)

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11 of 11 people found the following review helpful:

5.0 out of 5 stars An underappreciated modern classic--Highly recommended, June 2, 2000

By 

Stephen M. Bainbridge "www.professorbainbridg... (Los Angeles, CA USA) - See all my reviews
(REAL NAME)   

This review is from: The Nature of the Common Law (Paperback)

In his ambitiously titled book, "The Nature of the Common Law," Professor Melvin 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.

1 of 1 people found the following review helpful:

4.0 out of 5 stars a Chinese version is published now!, May 12, 2004

By 

hanguang (Beijing,China) - See all my reviews

This review is from: The Nature of the Common Law (Paperback)

hello, I want to tell a news about this book.a Chinese version is published now!
I am graduated in Law School of Renmin University of China.In college, a professor, doctors and I translated this book into Chinese,we all study Jurisprudence. We try our best to master the spirit of this book and translate accurately.
Now the Chinese version is published, we want to let more and more chinese students know it.
who can do me a favour?Please send some introduction material of the nature of the common law.please send it to [e-mail].
Wish to learn from your law system and exchange ideas.
All best regards.