After last week, we should have some idea what the common law is about. But we need to understand that the common law is made by human judges. In “Rattling the Cage – Toward Legal Rights for Animals”, I set forth an easy system of roughly classifying how common law judges decide cases according to the legal values they hold.
“Formal” judges decide cases the way judges have already decided them, just because judges have decided them that way. They value stability and certainty in the law. They don’t care whether the law is right or good; they want it to be predictable. The most formal of these judges – I call them “Precedent (Rules) Judges” – think of law as a system of narrow and consistent rules from which they can construct rules they hope can be mechanically applied. The problem is that this demands the impossible: no two cases can be identical. A judge can no more step into the same facts twice than she can step twice into the same river. Every case is infinitely similar and infinitely different from every other case and a judge must use her judgment to decide which of the infinite similarities and differences that any two cases present will actually matter to how she makes her decision. What I call “Precedent (Principles) Judges” also look backwards for their answers, but to a past that produced not narrow rules, but broad legal principles.
On the other hand, “Substantive” judges care about whether the law produces right or good answers, whether these bring stability to the law or not. They want law to express a community’s present sense of justice. They believe that judges must keep law in step with contemporary public values, prevailing understandings of justice, morality, and new scientific discoveries. They don’t want issues settled; they want them settled to produce good or right.
Substantive Judges who try to predict the future impact of their rulings I call “Policy Judges.” They think law should achieve important social goals, such as economic growth, national unity, or the health or welfare of a community. On the other hand, “Principle Judges” supremely value moral correctness. They want to do what’s right, and they may derive what’s right from almost any source, including religion, ethics, economics, politics, and what their mothers told them.