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Subject Area: Political Theory

The Unwritten Common Law - Leonard P. Liggio, Literature of Liberty, April/June 1979, vol. 2, No. 2 [1979]

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Literature of Liberty: A Review of Contemporary Liberal Thought was published first by the Cato Institute (1978-1979) and later by the Institute for Humane Studies (1980-1982) under the editorial direction of Leonard P. Liggio.

Part of: Literature of Liberty: A Review of Contemporary Liberal Thought, 20 vols. 19781-982

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


The Unwritten Common Law

Thomas C. Grey

  • Stanford University

“Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought.” Stanford Law Review 30 (May 1978): 843–893.

Aristotle distinguished between the written law (the rules governing a particular community) and the unwritten law (those equitable principles “supposed to be acknowledged everywhere”). Grey observes that “this Aristotelian dialogue permeates American constitutional law.” This dialogue “is played out around the issue of whether the formal enacted Constitution, conceded to be legally supreme, is the exclusive legitimate source of judicially enforceable constitutional law.” It is an unarguable historical fact that our judges have over time developed a body of unwritten constitutional law, which Grey calls “noninterpretive,” and a major issue now swirls around the legitimacy of this kind of judicial review. The bulk of the article is an effort to examine American constitutional theories in the years prior to 1776 as a way of establishing the historical legitimacy of noninterpretive judicial review.

The medieval view of law recognized no unlimited political sovereignty. Parliamentarians like Coke and Pym argued that the King's as well as Parliament's authority was limited by fundamental law. For the American Whigs “the origins of these fundamental unwritten laws themselves were buried beyond recovery in the Saxon past.” And, “as Christopher St. Germain had noted in the sixteenth century, the common lawyers' resort to what was considered ‘reasonable’ as a source of law was the English equivalent of the natural law arguments of the scholastics and the Roman and canon lawyers.” At the same time, reason with respect to the idea of law was a special “artificial” type, infused with the dictates of custom, experience, and the professional training of lawyers.

While modern concepts of the separation of legislative, executive, and judicial power were not fully developed in the seventeenth century, there are a number of cases of judicial review which can be cited, the most famous of which is Dr. Bonham's Case in 1610 in which Coke made his celebrated declaration that “when an act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such act to be void.”

It was in the seventeenth century, during and after the English Revolution, that these limitations began to change in favor of the supremacy of Parliament. Yet, into the era of the American Revolution some leading lawyers continued to assert the old common law limitations. Blackstone was a leading figure in this triumph of the positive law view. Americans were also influenced by such thinkers as Grotius, Pufendorf, Burlamaqui, Vattel, and Rutherforth. Like Locke and Blackstone, they stressed the importance of natural law, but went far beyond in viewing it as a legally binding force, while asserting the idea of a fixed constitution placing limitations on the legislative power.

Americans were generally unpersuaded by the new notions that Parliament had the power to do as it liked. This is evident in writings such as those of John Wise or James Otis. Using the research of Lawrence Leder, Grey questions Bernard Bailyn's views about the supposed inconsistency of the early American arguments, for instance, those of Otis. Daniel Dulany also questioned the supremacy of Parliament in his protest against the Stamp Act, and some Americans, in essence, raised the question of judicial review.

John Dickinson's Letters of a Pennsylvania Farmer, written in protest against the Townshend Acts, were also an appeal to fundamental law. Stemming from these specific cases, by 1774 the Americans found themselves involved in a challenge to all parliamentary authority. Among the English, Edmund Burke understood best the American view about the illegality of British policies, “and the law to which the colonists appealed was the unwritten fundamental law of reasonable custom and customary reason that made up the British constitution.”

Given this outlook, the justification of independence had “to be based entirely upon extra-legal considerations of utility and political philosophy.” That kind of majoritarian democracy argument differed from the fundamental law and the two together form the contrasting views which have been a part of the American legal tradition.