Is the common law on a quest?

We identified “the seven basic plots” in my previous post, but of these seven plot devices, what type of narrative or story do lawyers, law professors, and judges like to tell? To begin exploring this question, let me introduce you to one of the most cited and most influential law review articles of all time: “The Right to Privacy” by Samuel Warren and Louis Brandeis, which was published in volume 4 of the Harvard Law Review. In summary, Warren and Brandeis (1890, p. 193) begin their famous article by telling the following quest-like story:

That the individual shall have full protection in person and in property is a principle as old as the common law; but it has been found necessary from time to time to define anew the exact nature and extent of such protection. Political, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the new demands of society. Thus, in very early times, the law gave a remedy only for physical interference with life and property, for trespasses vi et armis. Then the “right to life” served only to protect the subject from battery in its various forms; liberty meant freedom from actual restraint; and the right to property secured to the individual his lands and his cattle. Later, there came a recognition of man’s spiritual nature, of his feelings and his intellect. Gradually the scope of these legal rights broadened; and now the right to life has come to mean the right to enjoy life … the term “property” has grown to comprise every form of possession–intangible, as well as tangible.

What is remarkable about this particular quest is its historical sweep, for the protagonist or hero of Warren and Brandeis’s story is not a person. It is “the common law,” a massive body of Anglo-American legal precedents going back centuries. This body of judge-made law has been the subject of many scholarly studies–from Sir William Blackstone’s four-volume Commentaries to Oliver Wendell Holmes’s 1881 book The Common Law–but Warren and Brandeis were the first to cast “the common law” as an actual hero, a protagonist on an epic, never-ending ethical quest: the pursuit of human autonomy or “the full protection in person and in property” of every individual.

This story is so captivating and compelling that Warren and Brandeis’s privacy article is one of the few works of legal scholarship to have actually changed the law. Today, judges in the United States generally recognize four types of privacy harms or privacy invasions, including intrusion into one’s private life and affairs, public disclosure of embarrassing private facts, false light, and misappropriation of one name or likeness for financial advantage, and courts continue to cite “The Right to Privacy” in many different types of cases. [See generally Restatement (Second) of Torts, § 652, available here.]

To sum up my analysis thus far: Samuel Warren and Louis Brandeis told a concise, cogent, and compelling story in their classic article on “The Right to Privacy”, but is their story true? After all, autonomy is not the only ethical or moral value embodied in the law. As it happens, the great Oliver Wendell Holmes, writing seven years later, would tell a much different tale about the common law. (I will describe Holmes’s alternative narrative in my next post.)

About F. E. Guerra-Pujol

When I’m not blogging, I am a business law professor at the University of Central Florida.
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1 Response to Is the common law on a quest?

  1. Pingback: What kind of story is Oliver Wendell Holmes’s “The Path of the Law”? | prior probability

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