Common Law, Democracy, History: a Modernist Tradition of Reading the Past

From the American Revolution until the very end of the nineteenth century, the common law was considered an integral mode of governance and public discourse in America. The vital presence of the common law might seem odd in a country that was premised in so many ways on breaking with its European past and on assuming political control of its own destiny. After all, the common law had originated in, and remained closely identified with, England. It was ideologically committed to upholding precedent and to repeating the past, claiming as it did so to embody the “immemorial” customs of the English, customs so old that their origin lay beyond “the memory of man.” It consisted of judicial, rather than legislative, articulation of legal principles. For all these reasons, one might expect Americans, who were intensely proud of their republican experiment, to have rejected the common law.

Instead, until the very end of the nineteenth century, the common law was widely – although never universally – claimed and celebrated. In 1826, in the first volume of his celebrated Commentaries on American Law, the “American Blackstone,” James Kent, delivered the following breathless paean to the common law that captures how many nineteenth-century American lawyers thought about it: