Memory, the Reporters, and the Metaphysics of Law
posted by Nate Oman
I’ve been reading early nineteenth-century English contracts cases of late. One of the fascinating aspects of these cases is the way in which they deal with previously reported decisions. Everyone is familiar with the way in which judges narrow and distinguish earlier holdings. This, after all, is bread-and-butter lawyer stuff. Still, when we play this game we assume that the previous case refers to some stable and discoverable text, a judicial opinion. We can expand and contract the reasoning and pick at the facts, but the text remains the same.
Not so for the judges that I have been reading. Unlike their modern counterparts, their nineteenth-century lordships (or at least their early nineteenth-century lordships) did not seem to think that they were bound by the text of the earlier decision. Hence, judges would sometimes avoid previous, adverse holdings by noting that they “doubted” the accuracy of the reporter, and hence did not feel bound by the language cited by counsel. Of course, they didn’t do this willy-nilly. Rather, they would point out, for example, that volume 8 of Taunton’s reports was not really compiled by the esteemed Mr. Taunton and ought not to be trusted, etc. etc. Even more interestingly, leading advocates were regularly promoted to the bench, where they would then be called upon to apply cases that they had argued as attorneys. In such cases, judges seem to have felt justified in privileging their own memory of the case over the reported version.
The whole exercise raises an interesting question about the metaphysics of the law. We tend to think of law today as consisting of some set of texts. Even someone like Dworkin thinks that it consists of the interpretation of particular texts. Not so the nineteenth-century chancery judges that I have been reading. For them, law seems to have consisted of history, particular events in the past, and the point was to discover the basis of those events. Blackstone, of course, famously said that the decisions of the judges were not law but only evidence of law. He seems to have had in mind the unchanging laws of nature. More parochially, the judges I have been reading also saw reported cases as only evidence (and not always reliable evidence at that) of law, but they were looking for evidence of a somewhat less ethereal kind of corpus juris.
April 6, 2007 at 1:42 pm
Posted in: History of Law
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Responses (6)
joe - April 7, 2007 at 12:26 am
“Even someone like Dworkin thinks that it consists of the interpretation of particular texts. Not so the nineteenth-century chancery judges that I have been reading.”
Isn’t it still at least interpretation of texts in a Derridean sense? Mightn’t Dworkin sign on to that?
OR then aren’t we left with this sort of noninterpretation or willful misinterpretation, exclusion, etc. in contemporary American jurisprudence? I’m not pointing fingers at Scalia and Posner specifically or anything, but certainly it’s common for “the law” and its application to be clear and then for it to be disregarded, either by a court saying “we’re changing the law,” or (more commonly) these disingenuous and unconvincing distinctions you mention.
Matt - April 7, 2007 at 10:32 am
I’m not sure that Dworkin thinks law is the interpritation of a “text” in a very literal fashion, or at least not just that. After all, our moral practices and beliefs are part of the law on Dworkin’s account and those are not found in a ‘text’ in any normal sense. Even for the written law I don’t think he thinks it’s just the actual words on the page that matter. (And of course the old judges were right, at least often, to mistrust the reporters- many of those are much more like newspaper accounts of a trial than a collection of modern decisions. The few I’ve read are highly unclear and clearly unreliable. They were often not just compiled by 3rd parties but written by them, too.)
Nate Oman - April 7, 2007 at 10:45 am
I’ve no doubt that the judges were often correct in questioning the veracity of the early reporters. Indeed, the earliest reports, the old Yearbooks, seem to have simply been the complication of law student notes. Hardly the sort of stuff to inspire confidence.
Anthony Sanders - April 7, 2007 at 2:03 pm
Nate,
A lot of what Blackstone, et al, were referring to (although they might not put it this way) was not what is the immutable law of nature, but the law as it has come to be not through the intentions of judges, but through a spontaneous order process. F.A. Hayek, however, did put it that way. Todd Zywicki and I discuss his idea on precedent and judge-made law in our recent paper “Posner, Hayek, and the Economic Analysis of Law.” See it here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=957177
It discusses how Hayek saw law not as something made by humans intentionally, but something that reflects the rules that humans unintentionally create through their interactions. We point out the distinction between “precedent” and “stare decisis,” which are frequently confused these days. Common law judges would refer to general precedent, but not the specific words in the latest case. In this way they referred to the generally expected rules of conduct and not what the latest 5 folks on the Supreme Court thought on a particular day.
A fantastic early work of Todd’s on the subject is here:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=326740
It discusses competition between court systems in Pre-Nineteenth Century England, and how it allowed for law to grow in a manner relatively free from special interests or prior case law.
Miriam Cherry - April 7, 2007 at 3:01 pm
Fascinating post, as usual.
Zvi Rosen - April 8, 2007 at 9:54 pm
You should have a look at John William Wallace’s classic “The Reporters” (available in Heinonline’s Legal Classics Library). Wallace, who himself served as reporter of decisions to the US Supreme Court, discusses these considerations regarding the British reporters, and later editions also discuss American Reporters. Generally speaking it’s a good source to look at if discussing a case that was reported from an oral decision in the lower courts by a private party, and subsequently reprinted in the early federal or state lower-court reporters.
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