There is wide agreement in American law and scholarship about the role the common law tradition plays in statutory interpretation. Jurists and scholars of various stripes concur that the common law points away from formalist interpretive approaches like textualism and toward a more creative, independent role for courts. They simply differ over whether the common law tradition is worth preserving. Dynamic and strongly purposive interpreters often claim the Anglo-American common law heritage supports their approach to statutory interpretation, and that formalism is an unjustified break from that tradition. Many formalists reply that the common law mindset and methods are obsolete and inimical to a modern legal system of separated powers. They argue that because the legal center of gravity has shifted from courts to complex statutory regimes, judicial interpreters, especially at the federal level, should no longer understand themselves as bearers of the common law tradition.
Thus, Judge Guido Calabresi’s case for judicial updating of outmoded legislation presents itself as A Common Law for the Age of Statutes, while Justice Scalia celebrates how interpretive formalism imposes discipline on Common-Law Courts in a Civil Law System. This dichotomy is not unique to the federal context. Judith Kaye, writing as Chief Judge of the New York Court of Appeals, rejected a Scalia-style formalism based on her court’s role as a “keeper of the common law.” By contrast, Michigan Supreme Court Chief Justice Robert Young Jr., a textualist, rejects Chief Judge Kaye’s approach because statutory interpretation is “not a branch of common-law exegesis.” If anything, rhetoric on common law and statute is more dramatic at the state level, with Chief Judge Kaye offering paeans to “the common law, that ‘golden and sacred rule of reason,’” while Chief Justice Young likens the common law to a “drunken, toothless ancient relative” who has overstayed his welcome.
Contemporary debate in statutory interpretation offers a choice between either continuity with the common law tradition (and thus, creative statutory interpretation) or formalist interpretation that breaks with that heritage. As with much conventional wisdom, this framework captures a good deal of truth. Nevertheless, those who accept this neat frame, including myself in past work, miss an important part of the picture. As this Article will argue, formal theories of interpretation like textualism, which today generally distance themselves from the common law tradition, can claim support in that heritage. Furthermore, nonformal approaches to statutory interpretation rely on a partial, controversial vision of the common law tradition. A more nuanced understanding of traditional common law thought undercuts an important justification for nonformal theories of statutory interpretation—namely their continuity with our common law legal tradition. More broadly, we need not understand the debate between formalists and their critics as a disagreement about the common law tradition’s continued validity; rather, it concerns which interpretation of that tradition best suits a modern, complex polity.
To establish these points, this Article takes up central ideas that classical common lawyers held about legislation, interpretation, and the legal system to show how these notions recommend formal, faithful agency in statutory interpretation. The central relevant feature of classical common law thought is its participants’ understanding of their practice as the disciplined refinement and embodiment of a polity’s customs and beliefs. Law, in a common law system, rose up from the practices and beliefs of the people, rather than descending in systematic form from the will of a ruling cadre. This understanding unified the common law justification for law developed in adjudication and legislation alike. In fact, the common law method of adjudication—with its reactive and incremental development of law through structured argument—anticipates the formal, rule-laden, and nonsystematic manner in which American legislatures today translate popular norms and preferences into statutes. Common law adjudication and common law legislation pursue similar ends in analogous fashion.
Advocates of nonformal statutory interpretation take this congruence as a cue for courts to depart from faithful agency in the development of statutory regimes. This standard, antiformalist move is a misapplication, or at least a controversial reading, of the common law tradition itself. Common law legislation by its nature is often a product of untidy compromises necessary to secure supermajority support, and is rooted in reasoning that is difficult for outsiders to reconstruct after the fact. If legislation is a modern iteration of common law lawmaking, dynamic interpreters who seek to update or smooth the rough corners of statutes resemble classical common lawyers’ archrivals: philosophers and royalists who sought to rationalize the untidy warrens of common law doctrine. Like those academic lawyers who sought to privilege their isolated reasoning over the shared wisdom of the common law, a dynamic interpreter puts herself in the position not only of a legislator, but a legislature, whose translation of public views and practices into concrete norms she as an individual cannot replicate. By contrast, classical common law lawyers contended their lay competitors’ natural reason was inferior to the disciplined, shared “artificial reason” of the common law in identifying and integrating the common customs of the people. Interpretive formalists respect the artificial reason of common law legislation when refusing to upset awkward legislative compromises or update statutes to comply with contemporary values.
In this light, the central disagreement between formalists and their opponents is an argument within the common law tradition about the deference courts owe to the legislature, an institution that also identifies and translates social norms into common—shared—law. An interpretive formalist can see the legislature as the culmination of the common law tradition, not its nemesis. Accordingly, while such formalists need not reject judicial development of common law in the absence of legislative direction, they defer to reasonably clear statutory norms out of respect for the legislature’s superior and inimitable process of forging shared norms. To be clear, the formalist argument is a development of the classical common law tradition, not a secret history. Nevertheless, the mindset of the interpretive formalist coheres with central ideas in classical common law theory and can be seen as the natural development of a tradition that has increasingly linked law with popular custom and consent. In fact, given the challenges a complex, pluralistic society poses to developing common law through adjudication, the formalist’s emphasis on legislative primacy may be necessary for the tradition to survive.
One final note on scope: This work leaves for another day the role of administrative agencies in statutory interpretation and the common law tradition. To some, agencies are today’s true practitioners of the common law. To others, they represent an anathematic return to the Star Chamber. Unpacking this analysis’s implications for the fourth branch of government is neither obvious nor trivial and deserves a separate work.
The Article will proceed as follows. Part I will catalog the received wisdom that our common law heritage presses against formal approaches and in favor of more dynamic methods. Part II will offer a fresh look at the relationship between the common law and legislation, arguing that important figures in the common law tradition championed parliamentary legislation and understood it as an important source of common law. The common law, in fact, plays a central role in a broader conception of law that views law as ascending from the people, rather than descending from a select few. Legislation by assembly, like common law adjudication, aspires to identify and channel popular custom into formal law.
Part III will explicate a theory of legislation as a form of common law. It picks out key features of classical common law theory—the “artificial reason of the law” and its development—and explains how they are manifest not only in adjudication, but also in the style of legislation by American assemblies. Part IV will unpack the interpretive implications of legislation in common law style. In particular, it identifies important breaks between today’s dynamic statutory interpreters and the common law tradition, while also highlighting unappreciated affinities between that heritage and more formal approaches to legislation. Part V will step back to underline mutually reinforcing features of the common law tradition and statutory formalism. From this broader perspective, the statutory formalism’s deference appears a faithful development of the common law tradition and an advance on the more juriscentric versions championed by dynamic interpreters.