Comment on Calvin Woodard’s Paper - Peter Stein
In this paper, Peter Stein reflects on the continuum talked about in Calvin Woodard’s
paper.
Main Argument: Great Balancing Act of Law, ie, keeping law abreast of new social needs
while at the same time maintaining continuity with the past. Law undergoes reinvention
when there is a social question/challenge.
Stein identified 3 features of the common law - its ideal element, its institutions, and its
personnel.
There are two kinds of law, sometimes misleadingly called ‘written law’ and ‘unwritten
law’.
● Written Law: Authoritative, has fixed content and new changes must fit this
content. In written law, the interpretation is fixed and rigid to the language of the
law.
● Unwritten Law: Has fixed rules and no authoritative formulation.
Common law is of the unwritten kind, but more and more law today is of the written
kind.
The word ‘interpretation’ was properly applied in England to written law. It was also so
in Roman law where ‘interpretatio’ meant ‘interpretatio verborum’ and was applied to
lex (declared law) but not in ius (undeclared law). The interpretation of common law is
not an interpretation of text, but an interpretation of history.
The main difference between common and civil law systems is that procedures were
developed in England and the United States at a time when most law was unwritten.
Other differences were:
Civil Law Common Law
Found in the texts of Justinian’s Corpus Resides in the ‘bosom of the judges’.
Iuris.
The judge is just a bureaucrat. The judge is viewed as a father figure.
The role of the judge is mechanical. The judges are the ‘oracles of the law’.
There is legislative change There is judicial change
Formulation Reformulation
Invention Innovation
Historically, there have been 2 basic points of legal explanation:
● Positivist Approach:
➢ Law as a set of propositions
➢ Law can be analysed scientifically without regard for values.
➢ Law is nothing more than a matter of authoritative promulgation.
➢ The fuel of positivism is written law and the written law (the sovereign) is
supreme.
➢ Positivism and linguistics go well together and a text is reduced to its
objective meaning due to this relationship.
➢ It is easier to be a positivist in a system of written law.
➢ This was due to the influence of Jeremy Bentham.
● Teleological Approach:
➢ Teleologists believe the concern of legal interpretation is purpose and
structure. The rule of law depends on an understanding of the purpose
pursued.
➢ This goes with the Great Balancing Act of Law.
➢ Only possible in a common law system because there is no strict written
law so there is room for interpretation.
In jurisprudence, when there is a question of welfare, teleological law is applied. When
there is a question of technicalities, positivist law is applied.
Common law is based on precedents, and seeing if a precedent fits a case is the decision
of the judge based on the similarity of material facts in the past and present cases. Thus,
the finding of similarity and difference in the material facts is the key step in the
development of a rule in common law.
Assuming that the facts of the two cases are similar, the judge in the later case must take
into account the previous judges’ decisions and decide for himself what is ratio
decidendi (binding rule) and what is obiter dicta (incidental comments on the law not
necessary for the final decision). He must also keep in mind that his judgement will act
as precedent and a rule in the next case. Every judgement by a judge is made by the
application of a judicial mind, it is now a speaking order.
When a common law rule is modified by judicial reformulation (it leads to the expansion
of entitlements/transformative constitutionalism), it is accepted that the judges are
making a new law. But in theory, they are merely declaring what has always been the
law.
As Sir Henry Maine said, facts are decided upon old and existing principles, and if these
principles are unable to be found, it just means that the necessary patience and
knowledge required to detect them are not forthcoming. Hence, there isn’t a
modification of the law as such.
Each judge in a common law system is part of a collective enterprise. He is part of ‘a
complex chain enterprise’ (Dworkin) or a ‘chain gang’ (Fish). He is not free to strike out
on his own in a new direction. The judge must advance the project in hand. When there
are competing principles, he must choose between them, taking into account both the
doctrinal history and its purpose or value.
While the ‘guild mentality’ or ‘clubbiness’ of lawyers is important in fostering a common
approach to doctrinal history, it has less influence on judges because every judge passes
judgements based on their own perspective. However, due to a result of common
training and background, the difference in perspectives is not so great.
The preservation of the appearance of continuity even when there is change is of high
value to the common law mentality. For example, in the US, the pretence is maintained
that the original constitution has remained the same when in reality, it has undergone
several amendments. Conversely, in a civil law system, if the system you have does not
work, you scrap it and replace it with a new one. Thus, in France, several constitutions
have been made in the same period as the US.
