Bench Memos

NRO’s home for judicial news and analysis.

Alas, No Bridge to Bainbridge


Steve Bainbridge has added an update to his original post, in response to my earlier post today.  The one thing that’s certain is that one of us is misunderstanding the other.  Bainbridge thinks that “judges should be constrained to base their decisions on norms, policies, and other social propositions that have strong social support.”  That would be reassuring if we could place our trust in such “norms” all the time.  But we can’t, and as I said previously, there are just too many norms to choose from.

I find it interesting that Bainbridge cites long-ago legal titans whose worldview was firmly in my camp on the issue between us–namely Coke and Blackstone–as though their thoughts can be cherry-picked for arguments against my view . . . which was also theirs.

Finally, he holds that I am either engaged in pushing a merely semantic distinction between “discover” and “make,” or else I must hold, preposterously, that ” the common law can never legitimately change because changing the law would be making law,” and that therefore I must hold all change illegitimate that has departed from the practices of “the primitive Britons.”

Sorry, it’s a false dichotomy.  As to whether the distinction I’m pushing (and which Bainbridge accepts one moment and belittles the next) is merely semantic, well, if Bainbridge’s dictionary is giving him problems, I will happily substitute “discern” for “discover.”  The difference, not to put it too bluntly, is between a jurisprudence that is willful and “creative” because it rests on the premise that there is no such thing as justice independent of our notions of it, and a jurisprudence that subjects itself to the discipline of being a kind of applied political philosophy, in the belief that justice can be known by us but is not “made” by us.  Is that merely a semantic distinction?

The phony Charybdis to this false Scylla is Bainbridge’s suggestion that I must hold the common law to be unchangeable, because to change is to “make.”  But that simply doesn’t follow at all from anything I said.  The undeniable fact of the common law’s evolution–attested by the quotation Bainbridge supplies from the Blackstone who agrees with me!–does not signify that judges are lawmakers.  In the traditional view, each change that is really a change (not merely a new statement, that is, but an actual repudiation of an earlier statement) is a correction of the old by the new, an exercise of reason in which the common law’s discernment improves.  By way of analogy, if the Nobel prize in economics was given 30 years ago for work that has been discredited and rejected by economists, under the influence of work done to earn the Nobel prize five years ago, we would not say that the more recent economist has “made” new economic principles, would we?  I think we would say that he has discovered something about economics that improves the state of our knowledge. 

So too would the old common lawyer like Coke or Blackstone say that discernment of the law’s principles has been improved by the slow course of reason’s application to legal problems.


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