Common Law

The common law is the body of law built up over centuries from judicial decisions, custom, and precedent rather than enacted in a single code by a legislature. It developed in England after the Norman Conquest and spread to the United States and much of the Commonwealth, and it remains the great rival to the codified civil-law systems of continental Europe. Conservatives prize it because it embodies accumulated judgment refined case by case rather than imposed by abstract design.

For the conservative, the common law is less an invention than an inheritance: a method of resolving disputes that treats the experience of past generations as evidence about how to live, and that constrains the ambitions of any single ruler or assembly.

Key Takeaways

• Common law is judge-made law grounded in precedent and custom, as opposed to statute or comprehensive codes drafted from first principles.
• Sir Edward Coke and Sir William Blackstone are its foundational expositors; Blackstone’s Commentaries (1765-69) shaped Anglo-American legal thought.
• Conservatives value its incremental, evolutionary character, which echoes Edmund Burke’s defense of prescription and inherited institutions.
• F. A. Hayek treated the common law as a model of “spontaneous order”: rules discovered through experience rather than designed by command.
• Critics answer that judge-made law can be uncertain, slow to reform injustice, and democratically unaccountable, favoring codification or legislative supremacy instead.

History And Context

The common law took shape in England after 1066, as the royal courts gradually replaced a patchwork of local customs with rules “common” to the whole realm. Decisions were recorded, cited, and followed, so that like cases were decided alike and the law grew by accretion.

Its great early champion was Sir Edward Coke (1552-1634), the jurist whose Reports and Institutes systematized English law and who insisted that legal questions be settled by the “artificial reason” of the law, the trained judgment acquired through long study and experience, rather than by the unaided reason of any individual, including the king.¹ In the next century Sir William Blackstone (1723-1780) produced the Commentaries on the Laws of England, published in four volumes between 1765 and 1769, the first work to render the common law as an ordered and intelligible whole.² The Commentaries became the standard text on both sides of the Atlantic and influenced the founding generation of American lawyers.

Across the Channel, a different path prevailed. The Napoleonic Code of 1804 set out private law in a single systematic statute, the model for the civil-law tradition that aims to derive decisions from an enacted code rather than from accumulated precedent. The contrast between these two methods frames much of the conservative argument.

The Conservative Position

Conservatives defend the common law as the legal expression of a deeper claim about knowledge and authority. Edmund Burke (1729-1797) argued that institutions surviving across generations carry a presumption in their favor, because they embody the tested judgment of many minds over long stretches of time, where any single reformer commands only his own.³ The common law fits this account precisely: no one designed it, yet it works.

F. A. Hayek developed the point in Law, Legislation and Liberty (1973-79). He distinguished evolved “law”, the grown rules of just conduct discovered through adjudication, from deliberate “legislation”, the commands of a sovereign assembly. The common law, for Hayek, is the leading example of spontaneous order: a system more intelligent than any of its makers because it pools dispersed experience that no central planner could assemble.⁴ Coke’s “artificial reason” is the same intuition in older language.

From these premises conservatives draw practical conclusions. They favor judges who decide cases narrowly and defer to precedent over judges who treat the bench as an instrument for remaking society, a posture they criticize as “judicial activism.” They are wary of sweeping codification, which freezes into statute what might better evolve. And they see in the common law a built-in protection of liberty and property, since rights long recognized by the courts are harder for a transient majority to sweep away.

Differing Positions

The case against the conservative reading is serious and deserves a fair statement. Critics observe that judge-made law can be uncertain and unequal: litigants cannot always know the rule until a court announces it, and access to that process favors those who can afford to litigate. A comprehensive code, by contrast, makes the law public, predictable, and equally available to all, which is one reason the civil-law tradition spread so widely.

Reformers add that precedent can entrench injustice. The common law upheld slavery, coverture, and other doctrines for generations precisely because it deferred to the past, and it was often statute and constitutional amendment, not slow judicial evolution, that overturned them. On this view, treating inherited rules as presumptively wise can dignify inherited wrongs.

Democratic theorists press a further objection: in a self-governing society, law should be made by elected legislators answerable to the people, not refined by unelected judges. What conservatives call judicial restraint can shade into judicial supremacy whenever courts decline to follow the legislature. Defenders of the common law reply that codes are themselves only as wise as their drafters, that judges remain bound by precedent and reasoned justification, and that an evolving body of decisions can correct itself over time. The dispute, in the end, is about where to locate the authority to change the rules, and how much weight the accumulated past should carry against the present will.

References

1. Allen D. Boyer, Sir Edward Coke and the Elizabethan Age (Stanford University Press, 2003), p. 100.
2. William Blackstone, Commentaries on the Laws of England, Volume 1 (Clarendon Press, 1765), p. 3.
3. Edmund Burke, Reflections on the Revolution in France (J. Dodsley, 1790), p. 47.
4. F. A. Hayek, Law, Legislation and Liberty, Volume 1: Rules and Order (University of Chicago Press, 1973), p. 94.