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“Our legal system is based on the Bible.” “Judges do not make law.” Historical realities expose both these currently popular pronouncements as myths. The roots of our legal system are heathen. For centuries before any European learned of the Ten Commandments, the Germanic tribes were resolving disputes in public assemblies. Disputants brought with them other community members, who contributed their knowledge of either the facts of the dispute, or the relevant community history, e.g., concerning land use or the credibility of the disputants. Then, designated “law speakers” provided the legal rules from memory and reason. The decision was often heavily influenced by the relative numbers of supporters, termed “oath helpers,” that the parties brought to the trial. Legal proceedings were of necessity entirely oral since none of the Germanic languages except Gothic was written until the eighth century, and long after that most of the population was illiterate. The pagan Angles, Saxons and Jutes brought these traditions to England in the fifth century, and the Normans arrived in 1066, with their blend of Norse and Frankish (both also Germanic) traditions. The assemblies became courts, the law speakers evolved into judges and the community witnesses developed into juries. The primacy of oral proceedings survived the spread of literacy. Criminal prosecution by the government was not consistently a part of the English system until about the 13th century. The Germanic crime victim brought a personal claim against the perpetrator, a tradition of private legal vengeance that is the direct ancestor of our system of intentional torts. Until about 1500, English juries were “self-informing,” i.e., they deliberated by sharing their pre-existing knowledge, rather than the impartial, disinterested “trial informed” group that we know today. The legal pronouncements of the law speakers also evolved, at first in the natural course of any oral tradition and over time in response to new and different disputes. Most areas of law were left to the judges to decide as they resolved individual cases. Once printing made dissemination of court decisions practical, the force of precedent built, and the weight of history behind them enabled the judges to withstand many of the periodic efforts by the crown or Parliament to assert more control over the courts’ principles of decision. It was the perceived virtues of that independence that prompted our founders to provide life tenure to the federal judiciary. After centuries of a largely Christian judiciary, Judeo-Christian ethics and morality have had their influence on the common law system, but it has been less than pervasive. And at least the overtly visible Christian influences have been outweighed by those from Roman law, still another pagan tradition, which had become accessible with the development of a literate legal profession after the rise of European universities and offered a far more extensive set of specific rules for the borrowing. Although codification came to the European continent beginning in the late 1600s, it did not first arrive in the common law world until the late 1840s. The idea that law should be dominated by the legislature is, in America, much younger than our Constitution. While our founders had rejected the British form of government, they had purposely retained the common law system (as did the states; with Louisiana eventually the one exception) in which the mass of the law was made (not just applied) by judges. Judge-made law is pervasive Large areas of law in most states, such as the law of contracts, torts, agency, indemnification, civil fraud, personal property and remedies, remain uncodified and overwhelmingly judge made. Moreover, from the first, the fact that even statutory law derives its ultimate force from its application to actual disputes put the power of interpretation into the hands of the judges, whose traditional law-making power almost inherently led to broad discretion in statutory interpretation. The U.S. Constitution is silent as to how constitutionality disputes are resolved, but many of the founders apparently assumed, as would be natural in a common law system, that this would be the prerogative of the courts, as indeed soon happened more than once at the state level before the Supreme Court faced the issue for the first time in Marbury v. Madison. The power of judicial review emerged from the novel combination of a written constitution with a common law judiciary, courts that had as part of their legacy over a millennium of saying what the law is. And when such courts are asked to interpret broad principles, such as found throughout the Constitution, those courts must inevitably provide rules of implementation that the writers left out, as the lawyers among them would have expected. They would have also expected that the courts’ reasoning and decisions would evolve as new cases were presented, which is how the common law courts had functioned for centuries, guided but not hidebound by precedent. Our legal system is based not on the Bible, but on human experience that began accumulating long before Christianity came to our forebears. The judges of common law systems have always been makers of law. Let us openly debate what the law should be, but let us avoid trying to achieve our legal goals by being dishonest about history. Gregory F. Hauser is a partner in the New York office of Atlanta-based Alston & Bird, specializing in commercial litigation, in particular representing companies with ties to German-speaking countries. He has studied the history of the common law system and lectures regularly on the subject for the firm’s foreign law intern program.

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