Sunday, August 25, 2013

Elements of Law 3.0 Notes of Readings: I-B (What is Law? Law Articulated by Courts: The Common Law & Equity)

(Pix (c) Larry Catá Backer 2013)

I have been posting about the development of a new course I have been developing for our first year law school students, "Elements of Law."  (Elements of Law 3.0: On the Relevance of a First Year Law Course Designed to Frame the Law School Curriculum).  The SYLLABUS can be accessed HERE.

With this post I continue to share with the class and interested "others" summary study notes for the course readings.  For this post we consider:  I. What is Law? B. Law Articulated by Courts: The Common Law and Equity.   Comments and discussion most welcome.

The Table of Contents for all of the Lecture Notes may be accessed HERE: Elements of Law 3.0: Table of Contents for Lecture and Reading Notes for An Introduction to U.S. Legal Theory and Practice.

I. What is Law? B. Law Articulated by Courts: The Common Law and Equity.
Reading Notes for

-- Arthur R. Hogue, Origins of the Common Law (Indianapolis, Liberty Fund 1986 (1966));
--Hon. Mr. Justice P.W. Young, “Equity,” The New South Wales Bar Association (August 2007).

In our first class we used Justinian's Institutes to identify the object of our exploration, law, and the structures created to conceive, build and implement law through collaborations by a variety of distinct actors. The Institutes provided a useful basis for structuring our understanding of the question of law in ways that reflect much that is still current as the foundation of law systems in the West. Several themes were identified that will follow students throughout the course. First there is the connection between law and justice that sits at the center of much Western jurisprudence. Law is understood as the manifestation of justice. But justice is understood in two distinct aspects--as principles of form and as contextualized substance. The initial core formal principles of justice remain central to Western law: accessibility (no secret law) and predictability (the rules must be applied in the same way to the same set of circumstances and actors). The substantive component of justice (manifested as law) is harder to define. We start with the general notion of giving everyone their due. But that principle is meaningless without context. The content of law, its substance, comes from outside of law itself. You have to look for the particulars of law elsewhere. And the Institutes provide a structure for deriving the substance of law with a quite certain (but variable) context--first the state and its government and then a set of three principle sources of law that describe both the place and content of substantive law rules.

The three sources recognized as providing law its substance are natural law, the law of nations and the civil law of the state. Each remains a powerful source of legal substance, that is of determining the meaning of giving everyone their due. The law of nature provides an immutable set of substantive rules derived from our interpretation of the natural order of things (scientific observation) and also derived from our sense of the divine order of things (religion/morals/ethics). These sometimes come into conflict with each other in modern times and are of the conflicts are of the essence to modern American (and especially constitutional) law. The sources of both the law of nations and the civil law of a state can be found first in the customs and traditions of states and the people respectively. In this sense we come to understand law first as passive in the sense that it reflects the behaviors of the people it is meant to regulate. But in both cases law can be understood in a positivist and instrumental sense. Bound up ion the idea of the law of nations and that of states is the idea of consent. Law may be derived from custom but it achieves its legitimacy only when it is adopted into one of a number of identified forms (statute, administrative regulation, customary law etc.) through the organs of the state to which the people have delegated authority or by direct action of the people. Thus the ultimate substance of law in a legitimately organized legal community--they are a set of rules reflecting the practices and desires of the people who consent to be bound thereby.

To understand how this works, consider a central element of the first year course in criminal law--killing. Adopting the Institute's approach, how might one give content to a law of "killing."We understand at the outset three constraining elements, grounded in the purpose of law as a manifestation of justice: it must be accessible (available and understandable), it must be predictable (applied more or less uniformly to similar sets of facts), and it must "give every man his due." Giving every man his due is derived from a matrix of factors that are process and substance based. The process elements include the form which our rules of killing will take (statutes, regulation, constitutional law, treaty, court rule, etc.) and thus the way it will be adopted.That, in turn, is a function of the source of the content of the rule. For that one has to determine the extent to which any rules of killing are framed by substantive rules derived form the law of nature, the law of nations and civil law. We start with the law of nature precisely because tends to set the foundation for discussion against which the transnational and local customs and desires of individuals represent an acceptable deviation. If we think of the law of nations as grounded in science (reason), we quickly come to the conclusion that "nature" is indifferent to killing, or that, indeed, killing is an efficient basis for establishing and disciplining social order in pack communities. But if we think of the law of nature as grounded in divine principles (extrinsic and superior to the natural order) then religion, with its morals and ethics (faith) provides an immutable foundation that insists on a hierarchy of killing that may provide a basis for rules regulating the killing of individuals. And in the West, of course, religion does serve that purpose, of adding substantive content to our notion of justice manifested in law. Religion in the West makes creates a complex system for distinguishing between a large variety of killing, which produces a continuum ranging from almost absolute condemnation (murder, a particular subset of killing) to protection of the self (justifiable killing). It also distinguishes between the consequences of institutional killing (killing at the behest of the state) and killing for individual or personal reasons (murder mostly). Noe a society is ready to create substantive rules for the regulation of killing by its public bodies and natural or juridical persons. Here the law of nations and the civil law play an important role. Each can suggest the framework within which the potentially complex distinctions among different forms of killing may be permitted, excused or condemned. For that purpose the customs and traditions of a locality may play an important role (e.g., heat of passion killing, reckless killing, etc.). In most jurisdictions, following natural law frameworks, some forms of killing may be prohibited even where otherwise permitted (the state may be prohibited, for example, form killing any person in the absence of a hearing and the preferring of a high standard of evidence against the accused). But these standards may vary and the extent to which they may be waived will vary according to the local customs and traditions of the people who will be bound by these rules. Increasingly, the law of nations, now understood more narrowly as the expression of international standards through law among states (treaties and conventions) may serve as a disciplining framework on local custom (minimum global standards), or it may suggest goals. Most of this will be made accessible through statutes, administrative regulations (rules of procedure and evidence), subject to constitutional limitations and the constraints of treaties on local practice. That aggregate then represents "every person's due" with respect to killing in any jurisdiction. Thus, when a student confronts the criminal law of killing in any jurisdiction, she intuits but is rarely conscious of the complex interactions that produce each criminal statute and that connect each of them to the wider web of rules within which it is understood, interpreted and implemented by police, prosecutors, defense council, international organizations and civil society actors. Yet this knowledge is critical when seeking to apply the law, extend it, oppose it or change it before courts, legislatures or international tribunals.This also helps explain why the law regulating killing is so distinct yet not altogether dissimilar in New York, Pennsylvania, France, and Russia.

Today's class builds on this foundation by beginning to explore in more detail the modern sources of law that serve as the foundation of the legal system of the United States. These sources are central to your studies in the conventional first year curriculum. For this class we look at the last of the traditional sources identified in the Institutes--customary law. That source in the United States is known as "!common law." To understand U.S: common law, however, it is necessary to understand exactly what is was that was received from the colonial power from which much of our law is derived--the United Kingdom. To that end I have suggested two readings. The object to to help understand the fundamental character of modern U.S. common law by exploring in its origins the premises and structures that help define how one approaches this source of law. In other words, I hope to introduce the students to the reasons why common law (judge made law) has its current character and the basic approach courts use to interpret and apply common law. As we will discover, this approach may be, in some respects, substantially different from approaches to the interpretation of other forms of law (statutes, regulations, etc.) precisely because the character of this type of law is different from the others. In this case I hope to suggest the structural basis of judicial conservatism at the heart of common law (and in the process also suggest why the current arguments about unaccountable and uncontrolled judges are completely incompatible with the legitimate core essence and structure of common law).

The first of the readings, Arthur R. Hogue, Origins of the Common Law (Indianapolis, Liberty Fund 1986 (1966)), describe the origins of what became common law in the United Kingdom roughly to the time it was transposed to England's colonies in the Americas. While English common law after the 18th century is of some interest, its culture and structures through the early 18th century, and the great debates around its relationship with the structures of government, has proven the most influential on the development of the common law's U.S. cousins. Our tort and contract law (the latter to the extent it has survived the codification movements that brought us the Uniform Commercial Code) are to a great extent the contemporary reflection of an ancient system with origins in customary law (recall the Institutes here on custom, Bk.I tit. II. 12).

We start with the simple definition of common law: "the body of rules prescribing social conduct and justiciable in the royal courts of England." (p. 5). That definition is both simple and revealing. Let me suggest a number of useful insights for the first year law student (from Hogue 188-195): (1) common law was a generalized set of social rules but developed in competition with other rules, laws and customs; (2) the effectiveness of common law was grounded in the willingness of the Crown courts to accept and enforce it, that is, common law was transformed form custom to enforceable rule only through its reception and memorialization as writ; (3) once memorialized as writ the development of the common law principles was undertaken by the courts through their accumulated interpretation and application of writs, that is it lost a direct connection to the body of custom form which it may have arisen; (4) the attenuated connection between common law and the people (as source of custom) was retained through the use of the jury which determined facts necessary for decision (the jury, in this sense, can be seen as the interposition of popular power within the system of governmentally applied law derived form popular custom, a premise that is highly contested today in the forms of jury "nullification" and the move toward judicial fact finding); and (5) common law is grounded int he premise that law is superior to government in the sense that government might empower individuals to act but law constrains their actions (the meaning and effectiveness of this premise is both highly contested and has changed dramatically over the last 1000 years; it is a subject at the core of your constitutional law class and central to the ideology of the "rule of law").  
Taken together these suggest the unique character of common law, for which its medieval origins are important to remember.  The Hogue readings suggest the centrality of the premises of medieval English legal thought in developing the common law, and, as well, its diminished through still powerful influence on "common law thinking" in the 21st century.  That latter point is important as a core element of what it means to "think like a lawyer" as those terms are sometimes bandied about in law schools.  The first premise is the most critical--law for medieval minds was not something that was created, it was derived from ancient customs and traditions.  "In the Middle Ages there was the notion of permanence in the law imparted by its connection with immemorial custom.  Law was not "made", according to the medieval view; it was "declared" by those familiar with the customs of certain territories." (Hogue, 9-10). Decisions, then, could articulate and apply these traditions, and courts could regularize and institutionalize these traditions through intermeshed decisions, but they could not create law. The Crown chancery could choose which of these ancient customs its courts could name and enforce; and the courts could entertain these writs.  Juries could be used as a check on the administrative apparatus to ensure a continuous connection with custom and tradition as understood contemporaneously, at least as to fact. But the "law" remained something distinct and apart from the state and through the state could act on it, and increasingly so from the end of the medieval period in the West, it could not, until recently, presume to deem itself the "owner" of law.    As a consequence, the presumptions of the common law and its substantive mechanics built into decision bound by stare decisis and the role of juries, produced an inherently cautious and conservative character in courts.  Courts remained powerful as the space within which a law detached from the state could be defended, even against the will of powerful state agents--and thus rule of law in its organizational sense. The common law is designed to be conservative, to move only at the pace society moves.  But it is not designed as a tomb to a particular place and time; common law can move, albeit slowly and in spurts to reflect, not to manage, the tastes and behaviors of the subject population.  That helps explain, for example, the reticence of judges to push the law and also the controversy, going to the legitimacy of the judicial office when judges appear to seek to use law instrumentally (as an instrument of social, economic, religious or political policy or tastes).  That also helps explain the role of courts in opposing government officials who exercise power beyond their jurisdiction or authority, which is also limited by law.

The writ itself suggests both the critical role played by the institutions of government in the recognition and enforcement of custom recognized as enforceable by the state before its courts. It also suggests the way in which process and substance elements of law can sometimes interwine in complex ways. Writs both initiated a legal action and gave notice of its scope and object--it took the form of an order from the Crown under the Great Seal, addressed to the shire-reeve (the modern constabulary) in the county in which the action arose or where the defendant could be found, commanding the defendant to appear and answer the complaint.  (Hogue, 12).  The description of the premises inherent in a simple form writ (pp. 7 et seq.) illustrate this. Built into the concept of writ were the notions that (1) actions had to be initiated by an aggrieved party (not the state or other actor); (2) the state is involved to aid the litigant in "getting his due" as described in the writ itself; (3) notice of the wrong plays a central part of the request (the fundamental character of notice in pleadings is an early product of the development of writ practice, though it took a long time and many turns to reach modern form); (4) the defendant plays a critical role in the determination by being provided with a power to contest the allegations of the writ; (5) courts were the final determinants of the applicability of a writ, if the writ did not fit the facts the court was free to quash the writ and dismiss the case (modern rules FRCP 12 echo this); (6) the court reserves to itself the power to determine the resolution of disputes, but that power must be exercised only by applying the customs and expectations bound up in the concepts on which the writ is based (notions of judicial construction of reliance of past decisions and a basic conservatism in approach to decision making tend to mark the culture of legitimacy reinforcing judicial decision making, notwithstanding politically motivated suggestions to the contrary by public intellectuals in the late 20th century); and (7) once a cause is accepted for determination the state will use its power to enforce the judgement of the court through its police power.

The customary law based system of common law grew with the sophistication of society and popular acceptance of the law courts as a means of resolving private disputes based on acceptable substantive standards of conduct recognized by the courts through writs and applied by them in ways that satisfied litigants of its fidelity to these standards. But what is most interesting is that the common law was not a system of customary law is much as a means by which customary law could be recognized and subsumed within the systems of rights protection developed by the courts. It is that "uploading" of custom into the judicial apparatus of the state, and the state's willingness ot enforce the decisions of judges that mark the common law as something other than customary law in the loosest sense. Once recognized in writ, custom lost its direct connection to its origins and became the object of development by the courts (in fidelity to the expectations of litigants).

But this development, taken to its limit, would have been used ot construct a system of law that would have been wholly extrinsic to the machinery of state. It would also have suggested the supremacy of popular expectation in ways that might make legislative authority irrelevant. That was not to be. Balanced against and ultimately constraining common law (popular custom as a source of law) was both the administrative apparatus of the state (the Crown) and the legislative apparatus of the government (Parliament). The incarnation of the people of England (represented as was customary for the ime by its classes--king, lords temporal and spiritual, and commons) would have viewed an unconstrained common law as constraining its ability to "make" law, that is to use the power of commanding behavior instrumentally. That was a legitimate power (recall the Institute's notion of direct and representational consent to governance power in senate and imperial authority). Efforts from the 13th century Provisions of Oxford were meant to restrict the rise of novel writs without the consent of a Crown Council and thereafter Parliament. That practice, of course, set a pattern that is much followed in contemporary times. Common law has been "frozen" and the power to recognize new rights and obligations increasingly transferred to the apparatus of government, usually but not always its legislature. The move, then, is from popular lawmaking reflecting the customs and traditions of the people, as they might evolve, but with respect to which government played no active role, to an more instrumental premise of law grounded in the centrality of the state apparatus to the construction of law (not merely to its recognition and application through its courts). That profound change starting in the 14th century marks the character and premises of modern "law" in the United States.

But where one door closes, another appears ready to open. This was certainly the case with common law. Just as the writ system and the power to recognize from custom and practice novel actions was closing, the Crown chancery found anther way to assert law making power--through the power to do "equity", that is to assert the administrative authority of the Crown to ensure that "right" was done--from which sprang both administrative law and the equitable power of the Crown chancery to intervene where a subject could otherwise not receive "justice". (There is that word again. . . . think Institutes). Through the 14th century, law was equitable (in the modern sense) as the chancery developed and issued writs and applied new remedies as needed. After the 14th century equity began to develop autonomously, in the face of the closure of the common law produced an additional means of rendering justice. In the United States, "Both historically and today, the term “equity” refers to a set of rights, remedies, and procedures available ostensibly to ameliorate defects of the common law (such as in the cases of fraud, mistake, and forgery) and to enforce equitable instruments that required the ongoing supervision of a court (such as trusts and guardianships)." ( Kristin A. Collins, “A Considerable Surgical Operation”: Article III, Equity, And Judge-Made Law In The Federal Courts, 60 Duke L.J. 249, 266 (2010)).

Common law, then, does not explain the full extent of customary law in the United States. The colonies also received, though with varying degrees of enthusiasm, the practice of equity and understood in England through Independence. The problem with equity, of course, was its connection with the Crown and the administrative apparatus of the state. For colonial society, chafing under what it saw as the impositions of an unaccountable administrative apparatus in Westminster, there was sometimes a sense of the tyrannical (arbitrary power arbitrarily applied) to the whole business of equity. That, in part, was the result of the conflicts between king and Parliament in England in the 17th century, in which the customary traditions enshrined in common law protected by a class of jurists and lawyers was seen in opposition to the structures of equity controlled by the Crown and administered with little reference to standards. English rules seeking to place equity over law were seen as efforts to overturn the rule of law and advance executive power without restraint. The irony, of course, is that by the 21st century, the structures of cultures of equity has overwhelmed customary law in the United States, central to its procedure (the Federal Rules of Civil Procedure and related rules) and to the approaches to interpreting both customary and statutory substantive law. That result, however, was as much a product of the development of rules under which equity became administered (predictability).

The second of the readings for this class, Hon. Mr. Justice P.W. Young, “Equity,” The New South Wales Bar Association (August 2007) is intended to bring some of this out. This article was chosen in part because, unlike the United States where law and equity have been merged, the distinctions between the two remain much more visible in Australia. This short reading introduces you to the origins of Equity as an alternative to law, beginning in earnest under the Tudor monarchs (at the commencement of the great colonization of North America) and its importance both as a source of substantive rules in some sorts of cases and as the basis for a particular set of remedies otherwise unavailable under the common law (injunction, constructive trust, specific performance, etc.). The critical insight of equity is its flexibility based on its conscious reliance on extrinsic sources for the determination of equity (which eventually was also codified in equity practice). Thus, equity was grounded in notions of providing relief where remedies at Common Law were unavailable if the action complained of went against "good conscience." What that meant, of course could either be a matter of arbitrary determination (the individual taste of the equity judge, something altogether too common in early equity practice in the U.K: and the U.S.) or it could "receive" extrinsic standards of good conscience from out of which rules of equity practice could be derived (and enforced, holding courts and equity chancellors accountable to standards other than their own predilections). These have found expression, for example, in the process rules of the Federal Rules of Civil Procedure, Rule 8(c) affirmative defenses (unclean hands, in pari delicto, laches, fraud, etc.) and Rule 65 (restraining orders) and Rule 66 (receivers). Critically important, here, is the rise, through equity, of a judicial power to compel a person subject to the court's jurisdiction to do or not do something--the court's injunction power. (For additional insights consider Stephen N. Subrin, "How Equity Conquered Common Law: The Federal Rules of Civil Procedure in Historical Perspective," University of Pennsylvania Law Review 135(4):910-1002 (1987) ). In the United States this power has significantly expanded the authority of the courts. And so, by the 14th century in England, the expansion of common law stopped but the development of equity flourished. Both eventually would be constrained by the logic of statutes and regulations--the legislative authority of the legislature and the executive. But that is a story for the next class.

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