Another Useless “Interdisciplinary” Field Or How I Learned To Stop Worrying and Love The Common Law.


I learned many surprising things in my first year of law school, but one of the most surprising and interesting is the notion of the “common law,” sometimes called case-law. Before law school, I assumed that Congress (or a state legislature) writes most of the rules, and judges apply those rules, in the same way that someone writes the rules of football, which are enforced by referees. This kind of “rule” in legal parlance is called a “statute,” or more generally, “legislation” or a “code.”

But almost universally in American law schools, the first year of learning is dominated by learning rules that do not come from Congress or state legislatures. Almost every American law student first learns of torts, contracts, property, constitutional law, and civil procedure. The first three subjects are dominated by “common law,” meaning that the operating rules do not come from any legislature or commission but instead are (depending on who you ask, and more on this later) created or interpreted by judges. Students do not read any code or anything authored by a legislature to find the rules, but read cases authored by judges that both resolve particular disputes and (if the judge is any good) announces generally applicable rules for why the dispute was resolved that way. In theory, these cases interlock and explain each other, creating a structure known as the “common law.” Constitutional law is supposedly rooted in the text of the constitution, but as the charter document is somewhat general, most of the operative rules have to be fleshed out by case-law as well. Civil procedure is the class that gets closest to being based primarily on a comprehensive and written code, but even then, case law determines important rules where the code has gaps or has seeming inconsistencies.

The nature of common law is much debated. It has been historically characterized as a customary law that embodies tradition from time immemorial or transcendental universal principles that derive from Reason (capital “R”). It doesn’t take much imagination to see that those characterizations conflict. Back when people tended to believe in such things anyways.

To paint with a broad brush, this view of common law that it comes from an independent source of some kind, was attacked by American legal thinkers about a century ago in what’s called the “realist” movement. The realists, a somewhat self-congratulatory group, denounced the idea that the common law existed independent of the judges who interpreted the law as pie-in-the-sky thinking. Common law wasn’t tradition, custom, or deductive logic, so said the realists; common law is actually a fugazi, just made up by the judges as they go, often for hidden reasons. And it followed that if the common law was made up by judges anyways, why shouldn’t judges be honest about making it up as they go and air out the real reasons for their decisions? And while we’re at it, why don’t we just try to make up good rules? While few modern day judges have taken the realist pill wholesale, the realists’ influence on the modern legal profession is undeniable. This is aptly demonstrated by the belief of many elite law students that there really is no such thing as well-defined rules in the common law, only rhetorical propositions to be wielded for particular ends. A belief that no doubt would shock most outside of the legal profession.

As scholarship and ideas tend to wane and wax like empires or fashion fads, there have been some recent challenges to the realist hegemony. I suggest that an analogy of common law to comic book culture demonstrates that the realists’s description of the law, at least taken to its extreme, is overextended.

And Comics

There is an entire cottage industry of both “Law & X” interdisciplinary studies and clever analogies for law. But, then again, who doesn’t like cottages? This also is a true Golden Age for comic book geeks. Every year, new Marvel films come out and, generally less excitingly, so do DC films. Such mainstream popularization of comics have introduced some to the nerdier corners of the comic universe, to some confusion. For example, when a new fan wants Batman, which Batman? The Christopher Nolan trilogy? The Ben Affleck giant? The new Robert Pattinson edge-lord? Or the whole rag-tag gang of campy predecessors from Adam West to the “Bat-card” wielding George Clooney? That’s not to mention the handful of animated series or two dozen stand alone animated movies.

Perhaps this question can be ducked by reading the original source, the comics. But of course, which comics? The “Golden Age” Detective Comics of the 1930–1940s, from whence he came? The Silver and Bronze Age Batman subject to the Comic Code Authority in the 1950s? Or the various versions found in the iconic mini-series such as “Dark Knight Returns,” “Killing Joke,” or “Year One”? Or the most recent “reboot” that so frequently frustrates comic book fans? Filtering by author barely helps as there are more than two dozen writers who have tried their hand at Batman.

But despite all those disparate versions and writers, even a five-year-old can recognize the core attributes of what “counts” as Batman. His tragic loss of his parents, his adoption of the Bat mantle to fight crime, his no-kill rule. His alter-ego of playboy Bruce Wayne. True, certain characteristics may be empathized or de-empathized depending on the time and writer, but there remains a core that is recognizable and independent of the writer’s whims.

And such is the common law as well. Yes, it is true that ultimately the form of the common law, like the form of Batman is generated by human hands. But that is not to say that the common law or Batman can be subject to limitless stretching and kneading. At a certain point a person’s interpretation of the common law or Batman is so beyond the core, that the interpretation is no longer common law or Batman. A Batman who does not fight crime is no Batman at all. It just goes to show that a construct can be human-made but still have an independent existence not entirely at the mercy of whichever writer is penning the newest iteration. Similarly, while certain common law rules may be interpreted differently by different judges with shifting weight and focus, there is some outer limit, that once a judge passes that limit, those interpretations can no longer fairly be characterized as inside that tradition.

Like the common law, major comic characters like Batman are the products of accretion. There may be an originator, but there is no one author. Rather, generations of authors add to the character, and also subtract the non-essential. Common law’s writers are judges, who through time add chapters to the common law. The legal philosopher Ronald Dworkin analogized the common law to a great chain novel, where each author adds to the last, hoping to make the novel better while staying consistent with the earlier chapters. Perhaps it takes a simpler man to point out that while the medium is not a novel, such an abstract idea of continuity already exists in comics!

Comics and the common law even evolve through similar ways. Many changes in case-law can be attributed to “mistakes.” For example, the writer of Chevron, a major watershed case in administrative law, thought he was simply summing up existing law, but inadvertently generated a new rule. The mistake did not come out of left field; there were already hints existing in the law that pointed towards the rule announced in Chevron. Similarly, major shifts in plot lines can occur because of mistakes. For example, in an earlier storyline, Batman is seduced by his on-and-off again femme fatale, Talia al Ghul. But because Grant Morrison misremembered a detail, one of the newer iterations has Batman drugged and ravished by Talia instead of voluntarily falling to her whims. Such changes are derisively known by comic book fans as “retconning.” Certain scholars likely feel a similar annoyance when studying Chevron.

The close relationship between comics and the common law suggests certain things about the nature of the common law. For example, much like comics, the common law is largely a product of custom. The common law and a comic character are a certain way because they have been that way for a long time. Even a minor error or retcon from the past may persist for so long that it becomes eventually accepted as part of the custom. In law, this is called stare decisis, while in comics, this is called the fans coming around.

But custom is governed by its own deductive rules. Batman saw his parents murdered by a gun, and it follows that he never uses a gun. Deductively, this rule should extend to lethal artillery. There may be tensions between customs, or even within customs, just like there are tensions in Batman’s characteristics and their conflicting deductions. For example, Batman’s decision not to kill the Joker, despite the latter’s propensity to break out of jail and kill more innocents, is interesting precisely because of the tension between Batman’s no-kill rule and his mandate of protecting innocents. But those tensions and conflicts do not mean that there is no internal consistency at all, nor suggest that logic has no place in custom. Instead, those tensions and conflicts potentially bring to play other rules (i.e. Batman also needs to preserve his vigilante status with authorities, who cannot condone extrajudicial killing) or clarify which rule is supreme (i.e. no killing). It is only through serious attempts to arrive at an internal consistency that the character and the common law makes any sense at all. It may always be an aspiration to arrive at a perfectly rational system, but it is the striving towards that aspiration that generates the character and the common law.

A final thought. There’s nothing quite like watching comic nerds debate about what Batman could and could not do, and the technicalities of who would win in what fight. This last characteristic of comics shows the important role of the community in the development of both comics and the common law. It is not so simple as a poll; after all, writers do not base their storylines off of polls. But surely writers pay attention to fan input, and the passionate debates help inform the writers of plot points they missed, or inspire new story lines entirely. The same is true with law. Judges may announce the common law, but a community’s reaction and debate inevitably informs judges about the nature of the law, sometimes through deep and complex interactions. Balanced against pure principle is sometimes the thought of whether the community will accept the decision (now or in the future) and how the law will affect living persons. After all, both in comics and in the common law, there may be brilliant (and not so brilliant) writers, but we, the audience, are the ones that must live with it.

As always, this piece benefited from my patient readers, Nastassia Shcherbatsevich and Yvan Scher. All errors are of course my own.

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