[C]ommon law originates in custom, wins recognition in courts, and develops in commentary. Custom naturally comes first. It long ago gave rise to a set of social practices, such as avoiding bloodshed, honoring borders, and upholding oaths, that permit us to live in peace and prosperity. Referring to those and other customs helps common law courts to resolve our disputes justly. A judge might for instance determine reasonable conduct in a tort case by looking to community standards, award legal rights to someone who has long and openly used property entitled to another, or interpret a contract's language by light of trade usage. In these and other ways custom inspires—if not mandates—the common law. Commentators, looking back over many court decisions and across many years, help us to follow the common law's meandering path, explaining and rationalizing its wanderings. The common law thus develops from custom, through courts, and to commentary. [The below figure] illustrates.
[The above figure] traces the common law's origins from unarticulated customary practices, found in actions but not words, through the powerful speech of courts administering justice, to purely verbal commentaries on the law. Up to a point, then, the common law grows upward towards increasing abstraction over time; hence the initial upward cast of the arrows of influence laid out in [the above figure]. The forces driving the common law's development flow downward, too, though, toward more concrete results. Legal commentary sometimes persuades a judge, balanced on the cusp between two plausible claims, to choose one over another. Legal decisions sometimes affect customary practices, as when courts clarify that no person can own another. The threads of custom, court, and commentary thus intertwine, weaving over time the tapestry of common law. That offers a somewhat idealized picture, granted, and one far removed from the nitty gritty of real world litigation. What [the above figure's] satellite view of the common law lacks in detail, however, it makes up for in comprehension.
At its most basic and elegant, the common law comprises just a few, simple rules. "Aggress only in self-defense, do not trespass, and keep your word," it directs. Even more succinct: "Respect persons, property, and promises." We find it convenient and useful to follow those rules. They seem natural to us. They should; they evolved alongside us in the long journey from tribes, through kingdoms, and to states. They will doubtless continue to follow, and indeed promote, our social progress.
Rather than simply inventing it out of whole cloth, courts have helped to develop the common law by deciding how customary rules apply to particular disputes. In their collective wisdom, over hundreds of years, judges and commentators in Britain, the United States, and other common law countries have refined the principles of tort, property, and contract law. They have bequeathed to us a detailed set of time-tested and mutually compatible rules, well chosen to safeguard our peace and prosperity.
Nobody planned that happy outcome. The common law instead evolved spontaneously, developed over the ages and tested in countless conflicts, to protect our persons, property, and promises. Tort law, property law, and contract law do the heavy lifting. Beyond that, the core of common law, lies a variety of supporting sub-orders. We can fairly describe the rules of wills, trusts, and estates as a specialized part of the common law, for instance. Ditto the common law rules of agency and restitution. We find these, the rules of common law, initially in customary practices and then later in courts' decisions. Commentators, in treatises and restatements of the law, summarize, clarify, and systematize the common law's rules. By diligently studying those various sources we might discover the tort, property, contract, and other rules that together make up the common law. Notably, that effort will not lead us to copyright.
[NB: The above text comes from chapter 1, § II of my draft book, Intellectual Privilege: Copyright, Common Law, and the Common Good. You can find a PDF of the entire chapter, including footnotes, here. I welcome your comments.]
[Crossposted to Intellectual Privilege and The Technology Liberation Front.]
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