There’s a very interesting (but very dense) draft law review article circulating on SSRN right now by Profs.Dana Neacsu of Duquesne Law School and Paul Douglas Callister of the University of Missouri Law School entitled “The Persistent Treatise.” It is a quantification of how legal treatises are still crucial to judicial reasoning, as opposed to just relying on case precedents. As a firm common law man myself (believing that, in one sentence, common law is applied natural law) this chart in particular caught my eye:
The fine print makes reference to classic common law jurists going back to Bracton in the Middle Ages and Roman law even earlier, but most crucially Edward Coke (pronounced “Cook,” by the way), Blackstone, Chancellor Kent, Joseph Story, and Matthew Hale. Notice that the reversal and revival of citations to these authors coincides with the revival of constitutional originalism since the early 1980s.
The authors comment:
A hypothesis for the upsurge in use of these early treatises and sources starting with decades in the 1980s is the originalist orientation of recent justices on the Supreme Court. This is a splendid finding. The implication is early law is conservative, and reflective of the meaning of the Constitution and origins of our law.
Hear ye, hear ye! A splendid finding indeed.
JOHN adds: For thousands of years, philosophers have proposed various theories of justice, most of which would be disastrous if implemented. A philosophy professor whom I had in college made a comment that I have never forgotten: If you really want to know the principles of justice, the best resource is the English common law. It was a) developed over hundreds of years, and in fact continues today; b) it was developed in the context of specific, practical disputes; and c) its rulings by courts and juries actually mattered, as opposed to the musings of philosophers.
Very wise words, in my opinion. I think Britain’s devotion to its common law is an important reason why it never lapsed into ideological insanity like, for instance, France and Germany.
