Tied to the mast
…but orange now and black

The Aristocracy of Common Law

A line by Whelan in his post “outing” Publius (which I’ll get to later) set me thinking about this.

A few months ago, an acquaintance of an acquaintance of mine—who’s in law school in Ontario… in which common law, the system on which American law is based, is the law of the land—made the offhanded remark, as a coda to a response to the acquaintance that is the intermediary between he and I, that:

Remind me to talk to you about Civil Law now that I’ve actually been studying (read: learning) things. Actually, Civil is *amazing.*

My acquaintance responded:

Civil law[!] Always codifying things. Hell, I don’t even like the Californian approach to common law because they’re so hell bent on codifying everything…

To which my old roommate, who just finished law school in… well Ontario… but it’s a civil law school, and he intends to work in Quebec (where civil law is supreme), responded:

…we covered this before, but civil law is meant to be accessible to citizens in general (you open your civil code, have a hint for the answer) whereas common law is judge and lawyer heavy, unpredictable and random. Also, the entire world but 6-7 countries run on civil law (All of Europe but the UK).. That said, I’m adding a common law year to my degree starting next September 😉

I don’t want to say that there are not down sides to civil law, or that accessibility is the only relevant factor.

But, it is important to acknowledge that the common law is fundamentally elitist, more so than other systems. And as I see it, this elitism has manifested itself most widely in two general veins of the jurisprudential discourse in America:

(1) The perception of “Activist” decisions by un-elected judges with positive policy implications is “undemocratic” if democracy is defined narrowly. That aside,  more often than not there is compelling legal reasoning supporting a particular position all of which is in the record, and a judicial philosophy grounding that reasoning. But all that is seen by the aggrieved segments of the population is a decision that seems out of keeping with how they would reason on the case as presented superficially, often in demagogic rants (on the editorial page, on cable, on AM radio…).

This is much bemoaned on the right, but it doesn’t seem to me to be by any definition a structurally right-wing grievance (I don’t think originalism as a judicial philosophy can be consistent if it grounds itself in right wing ideology…). It just happens that the judicial branch… though it has changed much in the last 8 years) has tended to be considerably to the ideological left of the elected conservative wing in America. I’m sure it would be a grievance associated with the left if that situation were reversed (e.g. if Republicans were in charge of replacing Souter) and whoever is next to resign.

(2) The second vein is better demonstrated than explained…


“Well, I’m amused to learn that I was wrong about publius’s lack of legal education.”

Hugh Hewitt interviewing Andrew Sullivan:

HH: And did you get a PhD?

AS: Yeah, I got a Masters in public administration, and then a PhD in government.

HH: And the PhD was under Mansfield, Harvey Mansfield’s direction?

AS: Yeah, he was my supervisor, yeah.

HH: Oh, that’s very interesting. Have you had any training in the law?

AS: Not really. I haven’t…I don’t have a law degree, no, except whatever I’ve picked up along the way.

HH: Okay, I just was wondering, because there’s a lot of Con Law in the book, and we’ll get to that. Are you a Christian?

HH: You don’t know what you’re talking about when it comes to the Constitution, and I understand why you don’t want me to get to it. But I’d like to get to it.

AS: I would like to get to the core of the book, which is The Conservative Soul, how we’ve lost it. When conservatives are abrogating habeas corpus and torturing people, they have lost their soul. And that’s what this book is called, and that’s what it’s about…

HH: Andrew, is the Constitution a fundamentally…

HH: Andrew, it’s not. It’s your book. You write, for example, on page 240, that the government needs a compelling reason to treat citizens differently. That’s flat-out wrong. That would flunk any law student in America. Are we supposed to ignore the fact that you do not have a basic grasp of Constitutional law?

I find staggering the condescention from both Whelan and Hewitt, delivered from the pedestal of their respective law degrees. In Hewitt’s case, this condescention is further delivered against someone who in any other political discussion carries the in-itself aristocratic mantel of a PhD from the Harvard School of Government.

Hewitt and Whelan hold out their JDs as reasons in themselves for the validity of their disputed claims. There is legal reasoning supporting the claim that Sullivan either misinterpreted the constitution or didn’t… he doesn’t provide it. He just implies something like “How dare you talk about law! Anybody whose been to law school knows what a stupid argument that was!”

Disturbing no?


2 Responses to “The Aristocracy of Common Law”

  1. It reminds me of that NPR skit 20 years ago, “Ask Mr. Science.” A serious-sounding fellow would say, “you should listen to me because I have a master’s degree — IN SCIENCE!” And then proceed to recite outlandish drivel, explaining (for example) that dogs bite mailmen because mailmen are actually dogs.

    Of course, Mr. Science was joking. Whelan and Hewitt are dead serious, and that makes it a lot less funny.

  2. You don’t even need to go to spoof to find that parallel. Check out this video: http://www.youtube.com/watch?v=6-3X5hIFXYU

    You can just hear the capital “R” every time the narrator says “According to Research.”

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