Common law, civil law, and the administrative state: from Coke to Lochner.

Author:Morag-Levine, Noga

In ... most [states] on the Continent of Europe, the ... rules ... stand, to a large extent, in the form of positive statutes, or Codes, enacted by the arbitrary power of the sovereign, or by the authority of the legislative assembly, where such a body exists ... [codification] is a characteristic feature in those [states] which have a despotic origin, or in which despotic power, absolute or qualified, is, or has been, predominant.

James Coolidge Carter, The Proposed Codification of the Common Law (1884)

The Constitution of the United States was ordained, it is true, by descendants of Englishmen, who inherited the traditions of English law and history; but it was made for an undefined and expanding future, and for people gathered and to be gathered from many nations and of many tongues. And while we take just pride in the principles and institutions of common law, we are not to forget that in lands where other systems of jurisprudence prevail, the ideas and processes of civil justice are also not unknown. Due process of law, in spite of the absolutism of continental government, is not alien to the code which survived the Roman Empire as the foundation of modern civilization in Europe.

Justice Thomas Stanley Matthews, Hurtado v. California (1884). Subsequently quoted in Justice Henry Billing Brown's opinion upholding workhour restrictions in smelters and mines, in Holden v. Hardy (1898), and in the opinion of Chief Judge Alton B. Parker of the New York Court of Appeals in People v. Lochner (1904).


    The American administrative state emerged over the course of the 19th and early 20th centuries out of protracted conflict over the status of the common law within it. The writings of prominent legal commentators throughout this era attest to this proposition. (1) Yet the meaning and significance of the common law within this historical context is currently ambiguous. For a generation or so following the New Deal, a conventional wisdom on this issue did take hold: viewed through the prism of legal realism, (2) common law ordering became synonymous with formalist rationalization of legal outcomes that served the interests of economic and political elites. (3) Within this narrative, the common law was the handmaiden of "laissez-faire constitutionalism" and became indistinguishable from extreme flee-market ideologies. (4) Its putative opposite was nothing more than sensible governmental involvement in society and the economy in pursuit of remedies to the inefficiencies and inequities of the marketplace. Defined in this fashion, the controversy surrounding the common law was a relic of an earlier era that had been resolved once and for all when the New Deal buried laissez-faire constitutionalism. By implication, the conflict had little relevance to contemporary political life.

    One cornerstone of this construction was a long-dominant interpretation of Lochner v. New York. (5) For much of the 20th century, the case stood for judicial usurpation of the common law for partisan purposes. (6) In the 1970s, however, legal historians began to call into question the thesis equating the Lochner decision with unvarnished laissez-faire ideologies. The intervening decades have produced a wealth of revisionist scholarship that has challenged, in various ways, the notion that in order to invalidate the workhour restriction at issue in the case, the Lochner Court invented a constitutional rationale out of whole cloth. (7) In the process, this line of research cast serious doubt on previous equations between laissez-faire and common law constitutionalism. One logical implication of this shift is the reopening of what was once seen as a resolved question: What defined the administrative paradigm against which common law ordering was pitted, and what was at stake in the choice between the two during the Lochner era?

    This article argues that continental civil law provided the competing paradigm to that of the common law, and that at the core of these respective regimes stood divergent models of administrative governance. (8) The civil law model relied on centralized, agency-based, state administration aimed at the implementation of regulatory standards through expert legislators and bureaucrats. The common law model fundamentally distrusted bureaucratic administration, and as a consequence, identified courts as the proper locus for administrative governance. In contrast with the civil law, it gave judges and juries the final say on the necessity of regulatory interventions to protect public health and safety, empowering them to oversee actions by both administrators and legislators. The choice between these models was at the very core of late 19th-century police-power debates. (9)

    The use of the term "police power" as a synonym for regulatory authority itself attests to the influence in America of continental models of administration. Police (polizei in German) was at its essence a continental concept connoting family of regulatory institutions in the German cameralist vein. (10) Within that tradition, both the meaning of public interest and the means necessary to protect it were a matter of sovereign prerogative. A countervailing common-law-based view delimited the state's regulatory authority under the police power to actions the courts would uphold as properly designed to enforce public nuisance law. The latter was defined, in turn, as the authority to protect public health, safety, morals, and sometimes welfare. This formula permitted, at least in theory, a very broad scope of governmental interventions, few of which could not be construed to serve at least one of these goals. Given this broad substantive scope, the primary difference between this common law version and its continental counterpart was not in the regulatory domain which it defined. Instead the cardinal difference pertained to which institution should be entrusted with ultimate regulatory decision-making authority, and, by implication, the standards that ought to govern regulatory interventions. The continental model provided for regulatory decisions informed by legislative and administrative expertise. The common law gave precedence to the communal norms and lay knowledge that juries could bring to regulatory decisions and the specialized knowledge of legally-trained judges. From this distinction followed important implications regarding the utilization of law as an instrument of social and economic change. The civil law made possible an interventionist and reformist model of administrative government; by contrast, the common law imposed significant barriers before the implementation of state-initiated social and economic reforms. Not coincidentally, reform agendas of this type often made their way to the United States from France, Germany and elsewhere on the continent.

    Fear of the influence of radical French immigrants helped spawn the passage of the 1798 Alien and Sedition Acts. (11) These attitudes continued into the Jacksonian period with Democrats and Whigs taking opposing views on immigration from the continent and the reformist agendas these immigrants carried with them. (12) The 1848 revolutions in Europe greatly sharpened this divide with the subsequent arrival of hundreds of thousands of refugees from the continent, (13) among them an influential group of radical reformers who took on transformative agendas across multiple social and political spheres. (14) By the 1870s a new channel for the importation of continental reforms had opened as American students began to attend German universities in growing numbers. Upon their return, these students perceived "an acute sense of a missing 'social' strand in American politics," historian Daniel Rodgers has argued. (15) Subsequent years saw an influx of imported administrative reform proposals and legislative blueprints into the United States, e.g., workingmen's insurance, urban planning, and cooperative farming. (16) Across these and other reform projects, the driving engine was ideological change brought about through unprecedented exposure to European political sentiments. And, as was the case throughout the 19th century, the agents who carried these continental-inspired reforms confronted a countervailing array of "pitchmen for made-in-America-only ideas and politics." (17)

    Efforts to stem the various waves of continental influence throughout the 19th century drew on the same central argument: the putative absolutist propensity of continental states. Within this line of argument, the common law was made a cornerstone of Anglo-American liberty; the civil law was the threatening antithesis. Throughout the 19th century, leading jurists repeatedly glorified the common law through direct contrast with the civil law. James Kent did so in 1811 in a leading opinion that invoked the common law's difference from the civil law as justification for the protection of vested rights, (18) and he returned to the theme in his Commentaries (published between 1826-1830). (19) In his 1853 treatise On Civil Liberty and Self-Government in the United States, Francis Lieber contrasted the benefits of what he termed "Anglican liberty," a system of government founded in common law, with the type of "Gallican liberty" for which leaders of the 1848 revolutions rallied. (20) Throughout much of the 19th century, opponents countered codification initiatives with warnings about the absolutist tendencies of the civil law. This clash came to a head during the 1880s with the fight over the passage of a proposed Civil Code in New York. James C. Carter's 1884 anti-codification pamphlet, quoted above, epitomized a prevalent view among American lawyers of the time regarding the existence of fundamental and irreconcilable political incompatibilities between the civil law and common law traditions. This same argument--amplified into a constitutional claim--was at the heart of the era's police-power debates.

    Among the...

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