Common Law Theory

Written by <a href='/index.php?option=com_community&view=profile&userid=68&Itemid=121'>danieleaton</a>

Sunday, 24 August 2008 05:24

Douglas E. Edlin (ed.), Common Law Theory, Cambridge University Press, 2007, 247pp., $80.00 (hbk), ISBN 9780521846424. W.J. Waluchow: ". . .if common law is case law, precisely where in legal cases are common law rules to be found? Among the most theoretically troubling features of such rules -- assuming that they do indeed exist -- is that they are not canonically formulated in the manner of statutory rules. Judges seldom formulate anything remotely like what we normally think of as a rule when they decide cases. Rather, they explain and defend their decisions by citing reasons, doctrines, precedents, and so on. Often they cite what appear to be moral, political and social considerations. But these are not the kinds of things we normally think of as legal rules; rather they seem to be factors one could draw on to support the adoption, application, alteration or rejection of such rules. And so our question remains: where precisely do we locate common law rules? And then there is this peculiar feature of common law rules: they are quite often capable of revision in the very act of application by a judge, a respect in which they seem quite unlike, say, statutory rules which judges are not free to change. How can rules, revisable at point of application, be intelligently thought of as legally "binding" on a decision-maker? Indeed, can they sensibly be said to be rules at all? . . ." more

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