Why We Work Through the Common Law
The Nonhuman Rights Project argues that some nonhuman animals should have the capacity to possess common law rights. What is the common law and why do we take that approach as opposed to using federal laws, which only provide for minimal protection of certain animals?
The common law is what English-speaking judges around the world have been making for a thousand years in the process of deciding cases that turn on general legal principles, when they’re not interpreting statutes or constitutions, regulations or treaties. American federal courts don’t use the common law. Neither does the state of Louisiana, with its French civil law heritage, and Puerto Rico, which relies on Spanish civil law. But the other 49 American states and the District of Columbia all use common law.
How does a judge decide what the common law should be? Before the mid-19th Century American Civil War, Lemuel Shaw, one of America’s greatest common law judges, thought it consisted “of a few broad and comprehensive principles, founded on reason, natural justice, and enlightened public policy, modified and adapted to the circumstances of all the particular cases which fall within it.”
Shaw left out one thing: the influence on the development of the common law of cases that have been decided previously. That’s because he didn’t care about how previous judges dealt with the same problems. But a lot of common law judges do. They value stability and certainty in the law, even when that law might be morally wrong or bad for society, and so they decide cases by determining how other judges have ruled then trying to do the same thing. But Shaw, and our other great common law judges, don’t do that. They struggle to determine the morally right thing to do or the best thing to do for society, each based on modern morality, experience, and scientific fact. Then they do it.
The Nonhuman Rights Project will focus on establishing fundamental rights that can be achieved through the common law, since a common law court can do what it believes justice requires, while relying on constitutional or statutory law is unlikely to be unsuccessful, as their legislative histories are unlikely to mention nonhuman animals.