Introduction
The idea of “general law” or “general common law” is usually introduced to law students in the course on Civil Procedure in connection with Erie Railroad v. Tomkins, 304 U.S. 64 (1938). In that course, students might learn about the distinction between two kinds of common law, local and general. Local common law was particular to a given state or region: for example, local customs or practices might form the basis of common law norms governing property law. General common law was shared by all common law jurisdictions: for example, contract law was general and was, in theory, the same in every state, England, and other common-law jurisdictions. The idea of “general law” extended beyond the common law and encompassed international law, maritime law, and admiralty law–bodies of law that were thought to be uniform across national boundaries and to extend to both civil law and common law jurisdictions.
This Lexicon post introduces the idea of “general law.” As usual, the Lexicon is aimed at law students, especially first year law students, with an interest in legal theory.
The Erie Doctrine
Because the general common law was not the law of any particular jurisdiction, federal courts were free to depart from state-law precedents when deciding diversity-of-citizenship cases involving general common law. This understanding of the role of federal courts in general common law cases was reflected in the Supreme Court’s decision in Swift v. Tyson, 41 U.S. 1 (1842), but the general common was well-established long before Swift was decided. The workability of the general common law depended on voluntary agreement between cooperating jurisdictions to converge on a uniform set of legal rules and standards governing general common law topics, but the system of convergence was never perfect and began to break down in a series of cases including Black and White Taxicab and Transfer Company v. Brown and Yellow Taxicab and Transfer Company, 276 U.S. 518 (1928), in which the federal courts adopted general common law rules that were clearly different than the common law rules adopted by some states.
Erie Railroad v. Tompkins announced that there is “no general federal common law” and purported to overrule Swift v. Tyson. The reasoning of Erie was influenced by Justice Holmes’s long campaign against Swift, expressed most famously in his dissent in Southern Pacific Company v. Jensen, 244 U.S. 205 (1917): “The common law is not a brooding omnipresence in the sky, but the articulate voice of some sovereign or quasi sovereign that can be identified.” Holmes’s view was clearly influenced by legal positivism as articulated by John Austin. Austin’s version of positivism, “sovereign command theory,” held that law is the command of the sovereign backed by the threat of punishment. If law is always the command of a particular sovreign, then common law must law made by the judges of some particular nation or state. If the common law of some state (e.g., Ohio) is made by Ohio judges, then all common law is really local common law and the category of general law is an empty set.
The legal basis for the Court’s decision in Erie is notoriously unclear. But Erie seems to have initiated a process that led to the demise of the distinction between general and local common law. After Erie, federal courts were bound to follow the common law rules of particular states irrespective of whether the question was classified as one of general or local common law.
The General Law Revival
Until recently, the concept of general law was considered moribund. American law students learned about the distinction as a historical curiosity in connection with the Erie case. For this reason, the notion that contract law was general law was not likely to play a significant role in a course on contract law. I think it is fair to say that many American lawyers, judges, and scholars may not have heard of the concept of general law or had forgotten about a concept that was mentioned briefly in their contracts course. Moreover, Erie is not always taught in the course of civil procedure, and one can learn the Erie rule without discussing the general law at all.
But the notion of general law is now undergoing a revival as a result of the scholarship and theorizing of Professor Stephen Sachs, along with others such as William Baude and Jud Campbell. This revival is connected to what is usually called “Original Law Originalism,” a theory that holds that the “original law” remains in effect until it is lawfully changed. Because the original law in the United States included the general law, that law remains in effect unless Erie lawfully did away with it. If Erie was wrongly decided, then courts might still be obliged to follow the general law–even if judges today are unaware of that obligation.
General Law and the Constitution
The general law revival has played an especially prominent role in the context of constitutional law–particularly in connection with unenumerated constitutional rights. For example, it might be argued that the rights retained by the people, referenced in the Ninth Amendment and the privileges or immunities of citizens of the United States recognized by the Fourteenth Amendment were understood as general law rights. If this theory is correct, then the Supreme Court’s unenumerated rights jurisprudence would need to be adjusted to take the general law into account.
General Law, Natural Law, and Legal Positivism
Recall that Justice Holmes’s critique of the general law was grounded in legal positivism–a theory of the nature of law. Although Holmes seems to have relied on Austin’s sovereign command theory, contemporary legal positivism has gone in a different direction. The most influential strands of legal positivism in the Anglophone world have been heavily influenced by the ideas of H.L.A. Hart and Joseph Raz. In particular, Hart’s theory dispenses with the notion that law must be the command of a sovereign and instead relies on the notion of a “rule of recognition,” a social rule or norm shared by officials. The rule of recognition provides the criteria for identifying the content of the law. Hart’s view might be used to provide a positivist account of the general law as system of voluntary cooperation among common law jurisdictions in which judges adopt the general common law rules recognized by a majority of cooperating jurisdictions. The relevant rules of recognition of the cooperating jurisdictions accept this practice and hence the general common law is the positive law of those jurisdictions.
What about Holmes’s contention that the common law is not a “brooding omnipresence in the sky.” Here Holmes seems to be referring to natural law theory, perhaps assuming that natural law theory is based on divine commands by God (the brooding omnipresence). Whatever misconceptions Holmes might have had about natural law theory, there is substantial evidence that the historical concept of the general law was based in part on the natural law idea that right reason could discover moral principles that should guide judges and lawmakers irrespective of their national or subnational affiliations. This would provide an account of the idea that the general law (derived from the natural law) is the same throughout the world.
The natural law account of the content of the general law might work for those who subscribe to natural law theory generally, but it will create problems for legal positivists, especially for those who subscribe to what is called “exclusive legal positivism.” One way of articulating the exclusive version of legal positivism is via the respective role of moral facts and social facts in determining legal content. Legal positivism would be the view that legal content is determined by social facts, and the exclusive version of legal positivism would be the view that only social facts can determine legal content. Joseph Raz was one of the most prominent proponents of exclusive legal positivism–although space does not permit a reconstruction of his argument for that view in this Lexicon entry.
If exclusive legal positivism is correct and if the historical concept of the general law is bound up with a natural law theory, then the general law revival might be in trouble. If the historical view that general law was universal is based on a mistaken view of the nature of law, then that conception of the general law cannot be revived–as would rest on a philosophical mistake. Perhaps, the general law could be saved by substituting the positivist system-of-voluntary-cooperation account, but then the general law that would be revived would be a very different version the historical version that might have been part of the original law.
Conclusion
The revival of the general law is certainly one of the most interesting and controversial developments in contemporary legal theory. The issues raised by the revival are deep and complex. The aim of this Lexicon entry is to provide an entry point for those who are interested in the concept of general law and its role in contemporary legal theory.
Related Lexicon Entries
Bibliography
- William Baude, Jud Campbell & Stephen E. Sachs, General Law and the Fourteenth Amendment, 76 Stan. L. Rev. 1185 (2024)
- William Baude & Robert Leider, The General-Law Right to Bear Arms, 99 Notre Dame L. Rev. 1467 (2024).
- Anthony J. Bellia Jr. & Bradford R. Clark, General Law in Federal Court, 54 Wm. & Mary L. Rev. 655 (2013).
- Danielle D’Onfro & Daniel Epps, The Fourth Amendment and General Law, 132 Yale L.J. 910 (2023).
- William A. Fletcher, The General Common Law and Section 34 of the Judiciary Act of 1789: The Example of Marine Insurance, 97 Harv. L. Rev. 1513 (1984).
- Caleb Nelson, The Persistence of General Law, 106 Colum. L. Rev. 503 (2006).
- Stephen E. Sachs, Originalism Without Text, 127 Yale L.J. 156 (2017).
- Stephen E. Sachs, Finding Law, 107 Calif. L. Rev. 527 (2019).
- Stephen E. Sachs, Life After Erie (Scalia Lecture, Harvard Law School, Nov. 1, 2023), https://youtu.be/QB07L22QzN0?si=y0PJi1UTHSNWXmMc.
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