William Penn wanted a colony with religious freedom. A considerable number, if not the majority, of American religious denominations were founded in this city. The main misconception about religious Philadelphia is that it is Quaker-dominated. But the broader misconception is that it is not Quaker-dominated.
Until the time of our Civil War, a lawyer had two sets of books on his shelves, roughly equal in size. One was the Common Law, evolved by the Courts over thousands of years. The other was Statutory Law, created by Congress and the Legislatures in about a hundred years. Today, the Statutory Law is vastly larger in size, as our elected representatives keep adding to it. Thomas Jefferson would be greatly pleased with this result, disappointed only that it was not even more unbalanced. John Marshall is the name most often associated with resistance to this trend. Marshall and Jefferson hated each other.
|Sir Francis Bacon|
There are many ways to define the essential difference between the two kinds of law, coming down ultimately to the question of Who Decides. The Common Law was created by judges, who purport to be experts or at least serious students of the subject, attempting to be impartial referees of people with major disputes. If they are running smoothly, the judges leave things alone. In the early part of the Sixteenth Century, Sir Francis Bacon was instrumental in organizing the Common Law process into an acknowledged pattern much like the scientific method being developed at the same time by people like Galileo. A theory was propounded, and then tested by actual disputes; when the theory was found to be flawed in some way, it was modified and offered for further testing. The Law evolved. Oliver Wendell Holmes is famous for the remark that "The life of the law has not been logic, it has been experienced." But Holmes' quip is incomplete; the common law is logic, constantly tested by experience. And a major feature of the experience is that if things are running well, remain silent.
Statutory law bases its claim to preeminence on the reasoning that elected representatives in Congress assembled are more likely to express the collective wishes of the whole nation that are a cloistered minority who spend their lives listening to disputed arguments. One group tends to develop an inflated view of the importance of mass opinion, while the other group is perhaps a little too disdainful of it. In the end, the authors of the Constitution elected to set the two against each other, hoping the tension would reach a balance point.
There were historical reasons for concern, both ways.
Originally published: Wednesday, June 21, 2006; most-recently modified: Friday, June 07, 2019