Social Propositions and Common Law Adjudication

Abstract

This essay reviews The Nature of the Common Law by Melvin A. Eisenberg (Harvard University Press, 1988). Professor Eisenberg's stated goal therein "is to develop the institutional principles that govern the way in which the common law is established in our society." In the course of doing so, Eisenberg addresses the functions of courts in American society, modes of legal reasoning and the process of overturning prior precedents. Yet Eisenberg never loses sight of his central thesis, namely that "all common law cases are decided under a unified methodology, and under this methodology social propositions always figure in determining the rules the courts establish and the way in which those rules are extended, restricted, and applied." According to the reviewer (UCLA law professor Stephen M. Bainbridge), The Nature of the Common Law is one of the most thought-provoking books ever written on common law adjudication. Eisenberg's belief in social morality as a workable guide to decisionmaking surely invites further debate. So too does his concomitant belief that law is more than merely the personal moral and policy preferences of the judge. Indeed, one might almost say that The Nature of the Common Law deserves to be controversial, for Eisenberg has given us a report that is both normatively appealing and descriptively accurate. The Nature of the Common Law succeeds because it is both an attractive vision of how courts should function and a perspicuous account of the real world in which courts actually function.