Is the common law made or found? Are Anglo-American judges legislators or oracles (or both)? In short, when deciding a close case, does a judge make law–the standard positivist view of judging–or does he find law? For anyone who is fascinated by these perennial questions, Professor Stephen A. Sach has written a beautiful, erudite paper “Finding Law” addressing these deep questions.
Here is Professor Sachs’s provocative thesis in a nutshell (p. 10): unwritten law “might be like other normative systems, such as grammar, etiquette, or fashion, which are solidly rooted in social facts without having been formally adopted by anyone.” (All page references are to the version of the paper posted on SSRN.) In other words, unwritten law is a lot like language, fashion, and etiquette because all these disparate domains are governed by general rules and shared norms, and although these behavioral customs are not deliberately made or manufactured by any one entity or organization, they are nevertheless accessible and easy to discover.
Professor Sachs, perhaps unwittingly, thus makes a strong case for the existence of unwritten natural law. Although he rarely uses the old-fashioned words “natural law” in his paper (he prefers the terms “custom” and “customary law” instead), what other type of unwritten law is there? After all, mere customs aren’t binding on judges the same way as natural law purports to be. In any case, whichever terminology we use, Sachs makes a strong case that “law” does not consist purely of holdings or precedents or statutes; “law” (contra legal positivism) can consist of unwritten and (locally) universal set of law-like principles.
But where do these diverse rules and norms come from, and how do we discover them? Let’s address the first question first. According to Professor Sachs, the ultimate source of these social customs is “usage today” (p. 22), the “mass of practice” (p. 23), “widespread practice” (p. 24), “prevailing views” (p. 38), and the like. (You get the picture.) In short, whichever way we formulate the source of unwritten natural law, the general idea is the same: an uncodified custom is “law” when enough people (or legal experts, in the case of law) believe in the existence of said custom. (As an aside, this view of law opens up the peculiar possibility of competing customs or multiple natural laws (!), depending on how many adherents a particular custom or unwritten law may have.)
That leaves open Sachs’s second question: how do we go about discovering these norms? That is to say, it’s one thing to say that unwritten natural law is like language, fashion, and etiquette. How do we then distinguish between rules of law and these other unwritten normative systems? We will address this key question in our next post.