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Common Law and the Rule of Law

Hannah Messer
The Anglo-American legal system is a complex apparatus combining various ideologies
and practices. Two such concepts underlying this system are common law and the Rule of Law.
Both impacting one another, and the legal landscape in its entirety, these concepts and their
relationship have been subject to academic debate on behalf of legal scholars for decades.
Common law is one of two major legal traditions followed by modern nations.
Contrasting civil law, common law derives from judicial decisions rather than statutes
(“Common Law.” np). Legal coding, then, is replaced with a dependency upon stare decisis, the
legal principle of determining litigation according to precedent. Countries practicing common
law, then, are capable of operating without a particular constitution or legal code. Nations most
know for practicing this tradition include the United States, Canada, England, India, and
Australia ("Civil np). Excluding Louisiana, a state operating with bijuridicial civil law, the
entirety of the United States relies upon precedent to make legal decisions (“Civil np). Use of
common law in the Anglo-American legal system often gives rise to codification, the
introduction of legislation to provide the permanence a statute otherwise would (“Common
Law.” np). Alongside civil law, common law remains a central aspect of global law, serving as a
foundation to the American legal system.
The Rule of Law is a set of moral principles followed within legal systems to ensure a
just society. Sometimes referred to as the “value of legality”, the Rule of Law seeks to evaluate
the distinctive and internal virtues of law on its own. The concept of Rule of Law does not seek
to establish themes of justice, efficiency, or equality within law. Instead, it’s understood that
simple accordance to Rule of Law principles generates these themes, as the natural value of law
already potentializes them. Many nations follow this ideal, with central points including equal
enforcement of law, fair processes of enforcement, and an independent judiciary (American np).
As this paper will further demonstrate, the Rule of Law is foundational to the Anglo-American
legal system.
Both common law and the Rule of Law hold great importance on an international scale.
With countries across the world following their principles, these concepts continue to
significantly shape legal systems. Within the Anglo-American legal system, common law and the
Rule of Law are interrelated disciplines whose relationship provides a consistent legal
framework in American society. This paper strives to explicate the common law tradition, the
principles underlying the Rule of Law, the relationship between the two, and that relationship’s
effects both nationally and globally.
By understanding common law’s historical development, one can understand its
significance in contemporary society. Common law as a tradition dates back to the Middle Ages
of England. Following the Normal Conquest of 1066, medieval kings created a strict system of
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writs establishing specific remedies for specific wrongs, resulting in an influx of cases too broad
for narrow regulations ("The Common Law 3). The need for further judicial review ultimately
gave birth to “ a new kind of court, the court of equity,” ("The Common Law 3). This courts
relied upon various legal ideologies and systems, combining ideas to come to a just outcome. An
excerpt from the American Bar Assocation details the first of these courts, created by Henry II in
the 1160s (American np). The King’s Bench consisted of judges known as the Assizes, utilizing
customary law of the Normans to first establish what is now known as “common” law (American
np). Contemporary nations following the tradition make its English history apparent- all were
once subjects or colonies of Great Britain, such as the United States ("Civil np).
Common law is fundamentally different from its counterpart, civil law. Civil law relies
upon codification, with countries under the system relying on a comprehensive and modern set
of legal codes. While common law nations often utilize legislation, it is not necessary or ensured
that these countries follow any set constitution. Legal codes within civil law often fall under
various legal categories, including substantive, procedural, and penal law ("The Common Law
1). Within common law, the role of lawyers is adversarial. This means that lawyers are expected
to question witnesses, produce evidence, and present cases with their findings ("Civil np). Civil
law attorneys, by contrast, hold inquisitorial roles, producing arguments based on evidence
sought by the court and its judge (“Civil np). The role of the judge, then, is much more formal.
As the investigator, a civil law judge must establish a case’s facts and determine the applicable
code from that nation’s legislation. Common law judges, however, rely primarily on the
arguments offered by the investigating lawyers. A common law judge is oftentimes described as
a “referee between lawyers,” ("Civil np). As seen, these two legal traditions differ greatly in
principle.
Expanding upon the role of the judge within a common law system, a larger scope of
power can be observed when comparing to their civil law counterparts. With two opposing sides
representing their case to a judge, that judge is provided multiple viewpoints to then apply a
thorough knowledge of prior rulings and legalities to. This provides common law judges with a
larger flexibility with which to interpret statutes and regulations. Judicial review is the power of
the judiciary to declare legislative and executive acts unconstitutional ("Marbury np). This ability
was established in 1803 following the landmark decision of Marbury v. Madison, where the
Judiciary Act of 1789 was deemed unconstitutional (“Marbury np). While both common and
civil law systems practice judicial review, the scope is much larger within common law.
Unbounded by compliance towards a constitution or code, common law judges have greater
freedom in establishing accepted legal actions.
Most fundamental to common law is the principle of precedent. Precedent refers to the
use of past court decisions as authority figures in deciding like cases ("Precedent.” np). Stare
decisis, as a result, is the doctrine expecting courts to adhere to precedent when making legal
decisions. The American Bar Association notes that use of precedent first gained traction in the
1530s, when judge rulings began being published for public consumption (American np).
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According to this historical account, reporters of the time began prompting judges to seek
consistency in their decisions (American np). As a result of this, judges began referring to past
decisions and allowing such to influence new cases. Now, in contemporary common law legal
systems, precedent and stare decisis is relied upon to come to decisions. By investigating the
principles underlying common law, the process of stare decisis can be better understood.
Common law relies upon major principles, some of which have been previously
established. These include stare decisis, a legal principle of adherence to precedent; an
adversarial system, the use of two advocate to represent their parties’ case; judicial
independence, in which judges are not subject to political influence; and adaptability, law’s
ability to adjust to contemporary social and economic conditions. Frederick Schauer emphasizes
these various points in Thinking Like a Lawyer: A New Introduction to Legal Reasoning, writing,
“...the beauty and majesty of the common law, so its celebrants declare, resides largely in its
capacity to change in response to a changing world,” (Schauer 47). As Schauer argues, precedent
arises from core principles underlying legal decisions, not the decisions themselves. Precedent
can be understood by examining the significance of judges and legal interpretation within
common law.
Legal interpretation effectively juxtaposes stability and flexibility within law. Legal
interpretation is the process of analyzing legal texts, a process birthing various theories and
arguments for its various approaches. As common law judges rely upon precedent, a thorough
understanding of law is critical in effectively applying past decisions. Schauer discusses
problems that arise when interpretations are not satisfactory, writing, “The very process of seeing
and having to decide a concrete dispute may well lead the judge to overestimate the
representativeness of this dispute within the array of disputes of this type – to think that other
cases within some broad category are like this one when in fact they are not,” (Schauer 45).
Here, it’s established that, while precedent is highly valued, it should not bar judges from making
necessary adaptations needed for a particular case. Of course, this is a responsibility on behalf of
a judge, one not particularly enforced. This and other aspects of common law have, inevitably so,
led to criticism of the tradition.
Disapproval of common law has called for heightened legislation. Many find fault with
common law for lack of democratic input, claiming that decisions made strictly by judges and
influenced largely by the past results in biased or faulty reasoning. Professor Adrian Vermeule of
Oxford University writes about this in “Law and the Limits of Reason”, saying, “What
legislators get that judges don’t get is that they talk to lots of people. They have to run for
re-election; they hear from constituents. They’re not sitting in a place that’s constrained by a
relatively narrow form of professionalism,’” (Dahl np). Vermeule believes, as do many legal
scholars, that judges lack both the proper training and diversity to accommodate democratic
desires.
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Adding to concerns regarding common law is tradition’s incapacity to create positive

policy-change in a swift manner. Categorizing like-cases does shorten the judicial process, yet
contested political issues often remain trapped by outdated or irrelevant principles. In a society
that is constantly changing socially, technologically, and economically, past principles no longer
address many issues. Vermeule describes, “’The rate of change in the policy environment has
accelerated to such a degree that the common law just can’t keep up,’” (Dahl np).
Recent change in the heavily contested issue of abortion demonstrates the critique
common law has received. In Planned Parenthood of Southeastern Pennsylvania v. Casey, a
landmark case reaffirming Roe v. Wade, the Supreme Court described the difficulty in
overturning precedent, writing, “But whatever the premises of opposition may be, only the most
convincing justification under accepted standards of precedent could suffice to demonstrate that
a later decision overruling the first was anything but a surrender to political pressure, and an
unjustified repudiation of the principle on which the Court staked its authority in the first
instance,” (“Planned 18). In this case, judges attempted to demonstrate their respect and strict
adherence to stare decisis. Those advocating for abortion rights agreed, relying upon the stability
common law provided. Opposers, however, viewed the doctrine of precedent as stringent and
undemocratic. Thus, when both Roe and Casey were overturned in Dobbs v. Jackson Women’s
Health Organization, the American judicial process lost its adherence to precedent, sense of
stability, and democratic support. Public reaction to the Dobbs decision stands as a wider protest
of common law in its entirety, arguing that the tradition prevents public input and effectiveness.
The Rule of Law is believed to naturally avoid instances of injustice such as previously
described. Joseph Raz, however, in “The Rule of Law and its Virtue” establishes that the concept
is not to be confused with the rule of "good" law and therefore does not seek to ensure
democracy or equality. Instead, he defines the rule of law by saying, “...people should obey the
law and be ruled by it...in political and legal theory, it has come to be read in a narrow sense, that
the government shall be ruled by the law and subject to it,” (Raz 3). This includes not only the
validity of a law, but its ability to be readily understood and able to be followed.
The Rule of Law holds origins in ancient Greece with the work of Aristotle. In 350 BC,
the philosopher first questioned whether a society ought to be ruled by men or by law ("The Rule
np). Ultimately, Aristotle found that law offers the best method of governance if carefully
thought out. For more difficult cases, Aristotle determined that general rules were too wide in
scope to effectively address the matter ("The Rule np). These cases were referred to as epieikeia,
oftentimes translated as equality ("The Rule np). Raz discusses this same concept centuries later,
describing how law should strive to remain generalized first and particular second. Throughout
the Rule of Law’s historical development, efforts have been made to redefine the term as a
system of morality. Raz, however, denounces this redefining. On equality, Raz explains, “Racial,
religious, and all manner of discrimination are not only compatible but often institutionalized by
general rules,” (Raz 7). Again, Raz attempts to establish this legal concept as an objective
standard of equal obedience, rather than a determining factor of morality.
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The Rule of Law centers around various principles to ensure both the law’s validity and
accessibility. Raz lists:
All laws should be prospective, open, and clear; Laws should be relatively stable; The
making of particular laws should be guided by open, stable, clear, and general rules; The
independence of the judiciary must be guaranteed; The principles of natural justice must
be observed; The courts should have review powers over the implementation of other
principles; and the courts should be easily accessible. (Raz 214-218)
Based upon these principles, it’s observable that the Rule of Law mainly seeks to provide
predictability, stability, impartiality, and accessibility.
While the principle is not to be confused for an assurance of social justness, the Rule of
Law is a necessary vessel for democracy. A state is deemed democratic if electing their own
leaders and operating under a set of laws respected by government and citizens alike. That
system of laws, if meant to be followed properly, must govern political power, protect individual
rights, and promote governmental accountability. The Rule of Law accounts for this criterion,
establishing a judiciary independent from other governmental branches, ensuring accessibility to
the legal system, and due process of law. Claire Gardner of William & Mary Law School
describes how crucial such is, reporting, “In a stable, self-perpetuating institution all conflicts are
solved according to the institutional rules, and therefore, the Rule of Law stabilizes the
democratic society,” (Gardner np). By self-perpetuating, Gardner refers to a government’s ability
to maintain stability throughout adversity or challenge. Stability, it’s argued, can only be
obtained through adherence to institutional rules. Following the Rule of Law generates
predictability and stability within the legal system, as well as equalizes all members within a
society.
Raz describes the Rule of Law as necessary to respecting human dignity. There are,
according to the scholar, three methods of denying someone of their dignity, including insults,
enslavement, and manipulation (Raz 221). Regardless of whether the Rule of Law is observed or
not, the law is prone to denying one of their dignity. However, the distinction lies in intent. Raz
writes, “It is the business of law to guide human action by affecting people’s options. The law
may, for example, institute slavery without violating the rule of law. But deliberate violation of
the rule of law violates human dignity,” (Raz 221-222). The rule of law exists as a framework
promoting equality above justness. If actions are taken promoting corruption or abuse of power,
actively rejecting one’s dignity over others, then it no longer falls within the Rule of Law. The
Anglo-American legal system claims to adhere to the Rule of Law. Due to this premise, as well
as conflicting definitions of what the Rule of Law truly entails, many legal scholars and ordinary
citizens alike criticize and denounce the Rule of Law as a legal principle.
While the Rule of Law seeks a universal system that applies equally to all persons,
existing power structures prevent such equality from coming to fruition. In “Reconsidering the
Rule of Law”, Margaret Jane Radin writes, “The ideal of ‘the rule of law, not of men’ calls upon
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us to strive to ensure that our law itself will rule (govern) us, not the wishes of powerful
individuals,” (Radin 781). By this, Radin recognizes that contemporary society does not promise
legal equity as promised by the Rule of Law, arguing that those holding higher societal positions
have more legal footing than their counterparts. This can prove dangerous, as political neutrality
on behalf of judges is never promised. Jeremy Waldron writes in Is the Rule of Law an
Essentially Contested Concept?:
If law is reason, then legal structures must facilitate the exercise of reason, and that
means trusting human discretion to be reasonable in certain circumstances...Such
perplexities have helped lay the foundation for enduring controversy about whether
judge-made law is to be regarded as the epitome of the Rule of Law or as part of the
problem that the Rule of Law is supposed to solve. (Waldron 142)
Here, Waldron specifies that human reason and judgement ineluctably influence law. Some
prefer this, as it allows for proper judgements to mold law into contemporary societal needs.
Others, however, find room for potential political bias or pressure. Additionally, inequity exists
in everyone being subject to the same laws that only some are able to create them.
An intrinsic relationship exists between common law and the rule of law, as the former is
an essential component of the latter. As formerly described, the principle aim of common law is
to generate legal consistency and predictability. The Rule of Law seeks to do the same, applying
a general and just law to all citizens within a society. Thus, an intrinsic relationship exists
between the two. The Stetson Law Review writes, “The common law is important, but the rule of
law is paramount. The rule of law provides the medium of civil society in which the common
law may be developed and applied to resolve our civil disputes,” (Drake 468). Together, these
two concepts work together to create the Anglo-American legal system.
Examining the cases of Plessy v. Ferguson and Brown v. Board of Education of Topeka,
one can observe both the use of common law and reliance upon the Rule of Law in the American
legal system. Plessy was decided in 1896, set into motion when Homer Plessy sat in a segregated
railway car as a mixed man. In trial, it was found that the Separate Car Act did not violate the
Equal Protection Clause of the Fourteenth Amendment ("Plessy np). This decision was justified
by the argument that, while the clause sought absolute equality for various races before the law,
separate treatment or segregation was not indicative of inferiority. By itself, the Plessy decision
demonstrated weaknesses within the American legal system. Primarily, use of precedent to
justify the upholding of socially outdated segregation laws displayed common law’s adherence to
conservative and potentially discriminatory practices. Additionally, belief in the notion of
“Separate but equal” exemplified a narrow interpretation of the Equal Protection Clause,
devaluing Rule of Law’s claims of accountability and clarity.
Brown v. Board of Education of Topeka was decided in 1954, demonstrating strengths of
the established legal principles. Returning to the clause examined in Plessy, Brown sought to
determine whether segregation of public education based solely on race violated the Equal
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Protection Clause of the Fourteenth Amendment ("Brown v. Board of np). The separation was
unanimously decided unconstitutional, providing African American students accessibility to
public schools (“Brown v. Board of np). This case illustrates common law’s ability to adapt to
growing social and legal context, denouncing societal values that no longer served the nation.
And yet, while such adaptability was necessary, it was done so in passivity. Earl Warren, the
Supreme Court Justice to author the majority opinion, based the Court’s reasoning on social
science rather than precedent, demonstrating common law’s inability to reject prior precedent
that was wrongly decided ("Brown v. Board of np). Additionally, integration of African
Americans into formerly segregated public schools was slow in spite of the Court’s unanimous
decision ("Brown v. Board at np). This demonstrates the American judicial system’s poor pace,
as various political factors can often hinder judicial enforcement of legal principles.
Of course, Brown was decided over fifty years in the past. Now, common law and the
Rule of Law face new challenges in American and international legal systems. Globalization
describes a, “growing interdependence of the world’s economies, cultures, and populations,”
(“What Is Globalization?” np). This is achieved through international trade, technological
advancement, and economic partnerships. While international relations have persisted for years
without a common legal framework, such might not remain the case for the foreseeable future.
As a result, the United States must prepare for possible changes in the common law system and
America’s role in a multinational legal system.
This changing landscape is not foreign to American law by any means. The Peterson
Institute for International Economics reports that the United States aided in the establishment of
global economic order following World War II, utilizing rules as the foundation. It’s described,
“Free trade and the rule of law were mainstays of the system, helping to prevent most economic
disputes from escalating into larger conflicts,” (“What Is Globalization?” np). Legal scholars
agree that Rule of Law is helpful in promoting stability, proved to be successful on an
international scale. Additionally, evidence suggests that the Rule of Law is positively connected
to economic growth. The World Justice Project juxtaposed countries’ 2018 GDP to their 2020
Rule of Law Index Score, finding a positive correlation (“What is the Rule of Law?” np). This
can likely be attributed to the Rule of Law’s advocation for legal stabilizers such as property
rights and contracts.
Despite positive effects of globalization, international change also poses a problem for
the Anglo-American common law system. Current internal legal issues have yet to be addressed,
creating what David Zaring describes as a “sovereignty mismatch,” (Zaring 59). While the Rule
of Law is an effective legal model for conducting international business, there is no assurance
that factors such as political interest or cybercrime will not threaten peace. Zaring warns of hasty
involvement in globalization, writing, “As the globalization of policymaking is the likely future
of environmental, business conduct, and consumer protection regulation – and the new
paradigm-setting present of financial regulation – the sovereignty mismatch problem must be
addressed,” (Zaring 59). Globalization and America’s role within globalization is inevitable.
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However, it’s necessary to integrate in a logistical way, understanding the strengths and
weaknesses the current American legal system holds.
Persisting through years of legal debate, America has existed as a common law legal
system operating of the Rule of Law. Common law largely differs from its opposing legal
tradition, civil law. Born in medieval times, common law’s history demonstrates how it
developed to its contemporary state. Lacking reliance upon specific codes or statutes, common
law operates on stare decisis. This is the judicial act of following precedent, decisions made in
prior cases. This system provides the judge with a large role, meant to analyze both precedent
and attorney portrayals.
Principles underlying common law include stare decisis, an adversarial system, judicial
independence, and legal interpretation. While it proves effective for many countries, common
law is subject to criticisms for its slow pace and heavy reliance upon unelected officials. These
criticisms were highlighted in the recent Dobbs decision, overruling precedent decided upon in
both Casey and Roe.
The Rule of Law is a legal principle outlining law as rules meant to be followed by all
members of a society in an equal capacity. This principal dates to ancient philosophers such as
Aristotle, eventually becoming a heavily contested and misunderstood foundation to American
law. The values Rule of Law holds are clarity, stability, impartiality, and accessibility. At one
point in its development, people came to understand the Rule of Law as an assurance of social
and political equity. However, the Rule of Law seeks to establish a single set of rules for all of
society, void of that law’s justness. Instead, it seeks to provide democracy and individual dignity.
This debate, however, has led to critique of the Rule of Law, as well as calls for reinterpretation
or denouncement.
Common law and the Rule of Law are inextricably linked, both ideologically and in
practice. In America, common law serves as a vehicle for the principles valued by the Rule of
Law. Cases such as Plessy and Brown demonstrate the prominence of both concepts in American
law, with the cases highlighting the roles, strengths, and weaknesses of both.
Now, as globalization grows, American law must determine its footing in the
international scene. Additionally, improvements must be made internally to address weaknesses
posed by common law and the Rule of Law. Ultimately, however, a concrete relationship
between the two is established, allowing for a thorough understanding of the Anglo-American
system.
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