History and Theory of the Common Law (LAW540H1F)

Common law reasoning, most often learned through the case-method, is at the very heart of how law schools teach students how to “think like a lawyer.” And yet the essential nature of common law reasoning, its virtues, and its defects, have been strongly contested throughout its history. Sometimes personified as “Our Lady the Common Law,” sometimes treated as a rigid and ossified product of formalist doctrinal thinking of the late nineteenth century, other times viewed as a canvas for a flexible conception of justice that operates on a case-by-case basis. This course will investigate a variety of perspectives on the common law, working through a series of influential writings in legal theory and in legal history, from Oliver Wendell Holmes Jr. to Karl Llewellyn to H.L.A. Hart and Lon Fuller. Topics will include judging in a common law system by examining the writing of “great” judges like Holmes and Benjamin Cardozo, Jeremy Bentham’s famous critique of legal fictions, and the disappearance of the late nineteenth-century historical school of jurisprudence in the acid wash of legal realism. Themes will include the tension in the common law of case-by-case adjudication and the building of science or system in a precedent-based system, debates about the relationship between rules, principles, and policy, what happened to legal theory and legal history in the post-realist period of academic legal thought, and the place that law schools and staples of the curriculum like the case method of teaching play in our conceptions of what the common law is.