Common law myth, reality, and hope

In the most general sense, "common law" is just the body of court precedents, which changes with each new precedent. The term originated with the judicial system set up by the Norman kings after the conquest in 1066, in which judges appointed by the kings would travel from county to county to hold court, and built a body of precedents that were common to all of England, rather than based on local customs or practices.

An important development for the development of the jury in court process occurred in 1215. Not the Magna Carta, contrary to popular myth, but the withdrawal by the Roman Catholic Church of approval of ordeal as a way to decide cases. Prior to that, something akin to juries were convened to conduct on-site investigations and report their findings to the court, but this resembled more what we would today call police work, than the work now done by grand juries, or the deliberation on evidence done by trial juries. It took another 300 years before grand and trial juries as we have come to know them became established in England. Also contrary to popular myth, the precedents came not so much from the jury verdicts in cases as from the opinions of the judges in those cases, providing the rationale for the decision, which were often no more than guesses about how the jury arrived at its verdict.

Kings had issued occasional edicts, it was not until the emergence of Parliament, especially the House of Commons, as a lawmaking body, that statutes began to codify and displace court precedents as the standard of legal practice, although there was continuing tension between the two kinds of law that endures to this day. The process was driven in part by the sheer volume of court precedents that had amassed over the centuries, more than anyone could hope to master in a career as a lawyer, and which contained so many contradictory precedents that one could find support for almost any position in them.

That development was carried to a critical stage by the adoption of written constitutions of government, first in the American states, then for the United States of America, which incorporated non-conflicting parts of Anglo-American common law, especially the definition of terms and practices like rules of construction. However, courts have continued to build a body of precedents on the basis of those written constitutions, often using the doctrine of stare decisis to deviate from them in important ways. Part of this deviation has included relegating the jury to hearing only evidence and not the legal arguments they originally reviewed in reaching verdicts, and placing many remedies for violations of rights out of reach of most ordinary people.

Growing popular dissatisfaction with the courts has led some to fantasize about a return to an ideal justice system in which the jury dominates and judges are reduced to only presiding over court sessions. The hope is that the people can be trusted to do what the judges won't. Some mistakenly refer to their dream as a return to "common law" where ordinary citizens can convene courts and juries without the machinery of established government. Unfortunately, that ideal was never fully realized in the past, even if parts of it were at various times.

The closest we can get to that ideal was the vision of the Framers of the U.S. Constitution. Not the actual practice in 1787, but the principles to which they aspired, expressed in the language of the Constitution they wrote, which conflicted with much of the legal practice of the day. We still have the task of reconciling their words with prevailing practices, and it may take some clarifying amendments to help do that. In the meantime the only way we may be able to build public support for amendments will be through a process of state-led nullification.