Storied law

In The Moral Tradition of American Constitutionalism: A Theological Interpretation , Duke Law’s H. Jefferson Powell describes the contribution that common law made to the American legal tradition, highlighting the fact that common law represented a tradition of legal story-telling into which a lawyer had to be socialized:

“For classical common lawyers, rules were discovered in, debated in terms of, and decided with reference to stories of past situations and decisions. A rule of broad generality might emerge from such stories, but its application in future circumstances was always open to further narrative argument. It was not possible, even in theory, to establish in advance a metarule that would determine the proper application of a rule to all the varied circumstances of human life. Even a putatively general rule was limited to cases that a lawyer well schooled in the profession’s traditions of argument would agree fell within the reasoun of the rule. One learned how to be a good legal reasoner by reading and hearing good arguments by lawyers and judges with virtues of insight, discrimination, judgment, integrity, and so on” (78).

Powell shows how the conjunction of Enlightenment rationalism and common law in American law makes for some tensions in American political life. On the other hand, the common law gave early Americans “a substantive means of examining rationally the justice of positive law” and this played “an important role in the formulation of arguments for resistance” (83).