LAWS1006 READINGS 2

1-H CLASSICAL COMMON LAW THEORY

 There are ways of understanding law which simply cannot be explained in

the terms of modern Western legal theory.
o E.g. Aboriginal law: “The law is everywhere, we breathe it….we live
it.” Law is a spiritual construct, part of the person.
o As opposed to Western lawlaw is something imposed by human
beings that is separate from any individual and separate from the
physical world.
 “Common law theory” refers to conception of law held by those revered
as “Fathers” of modern common law; esp. Edward Coke, William
Blackstone, and Matthew Hale.
o Most of our modern perspectives on law finds at least a basis in the
positivist view of law law consists of rules and principles laid
down by authority and is therefore conceptually separable from
morality, custom, social norms.
 Thinking about classical common law theory therefore illustrates the
inter-relationship between the history of law and the philosophy of law.

Law and Declaration

 “Common Law theory arose, in part, in response to the threat of
centralized power; Common Law theory reasserted that…[law] is the
expression of a deeper reality which is merely discovered and publicly
declared by them.”
 Classical law thinkers thought that the common or customary law was not
laid down by anyone; the judges did not make common law, they declared
it.
 William Blackstone wrote that judges are the “living oracles” of the law
a judicial pronouncement which misrepresents the law does not result in
bad law, it is simply not law.
 Lee Godden: In this light “judicial activism” in the Australian native title
cases of Wik and Mabo, can be understood not as reinvention of law, but
as a fresh declaration of law based upon the changed perceptions of
history.
 The declaratory theory essentially: it is the law that speaks, not the judge:
the judge merely passes on the law.
o Declaratory theory used to defend against claim that law is too
political.
o ButLaw is political because it is simply not possible to exclude
social or ideological influences from the process of judging; judges
cannot escape from social conditioning.
Unwritten Law and Time Immemorial
 In the 17th Century, the law was still considered to be largely unwritten,
allowing “individual innovation to be forgotten, subsumed in the image of
a changeless collective legal knowledge.”
 The common law was said to be “unwritten,” and therefore distinguished
from legislation, because it did not have its origin in writing.
 Matthew Hale stated that the Law of England could be divided into two
laws.
o Lex ScriptaStatute Laws, written laws; are originally reduced
into writing before they are enacted, or receive any binding Power.
Every such law in the first instance is formally drawn up in
Writing.
o Lex non Scripta the unwritten law, statute laws that were made
before the beginning of the reign of King Richard I, and that have
not changed, become part of the common law.
 Continuity between common law and oral tradition evident here in
distinction between law which, though set down in writing, did not
originate in writing, and that, such as Statute law, which did originate in
writing and is formally defined by a particular set of words.
o In contrast, theory of legal positivism is founded upon idea that in
order to be valid, a legal principle must have an identifiable origin,
it must have a formal “pedigree” which is its condition of validity.
 Immemorial Usage
o The common law is legitimate, not because it has been laid down
by authority, but rather because of its age.
o It is the timelessness of common law which gives it its authority.

Artificial Reason
 Common law theory is a way of thinking which rests on the idea that
there is something inherently necessary and right about the process of
legal reasoning which emerges in decided cases.
 Legal reasoning divides into two fields:
o Natural reason, which everyone possesses
o Artificial legal reason, which comes from study of the law; this has
been accumulated over a very long period of time and has attained
stability through its development in the customs of the courts.
 The existence and widespread acceptance of human rights does provide
an appearance of some agreement on fundamental norms.
 Artificial reason is seen to provoke less controversy than natural reason,
as it is based on a body of settled principle and therefore leaves no room
for subjective opinions of a particular person.