UVA Law Professor Caleb Nelson Discusses Common Law

Caleb Nelson
Caleb Nelson

Caleb Nelson, the Emerson G. Spies Distinguished Professor of Law and the Class of 1966 Research Professor of Law at the University of Virginia, delivered the fourth annual David Aldrich Nelson Lecture in Constitutional Jurisprudence on Monday, Sept. 19, in the Chapel.


While Nelson is not a Hamilton alumnus, his father Judge David Aldrich Nelson, for whom the lecture was named, graduated from Hamilton in 1954 and eventually became a trustee of Hamilton College. He also served on the U.S. Court of Appeals, Sixth Circuit. Nelson’s older brother, Frederick Nelson, is also a Hamilton graduate. Both Fred and David Nelson were class valedictorians, the only father-son valedictorians in Hamilton’s history.


In his lecture, which was titled “The Constitution and the Benthamite View of the Common Law,” Nelson discussed the origins of the Common Law, its relationship with the United States Constitution, and how it eventually fell out of favor in 20th century jurisprudence. He began the lecture by giving the audience a “crash course on the different kinds of law.”


Nelson started by drawing a distinction between written and unwritten law. He said that written law was law codified by a legislature. This means that elected officials enacted a law through the democratic process. Unwritten law, also called common law, on the other hand was not written by legislators, but rather emerged almost exclusively through custom. The advantage of common law, according to Nelson, is that it was shaped by experience. He said, “Common law was shaped from the bottom up by the people who had to submit to it.” Most 18th and 19th century jurists believed in the importance and practicality of common law.


Even so, not everybody agreed that the English common law should be the law of the land. The prominent jurist Jeremy Bentham argued against the common law and denounced it as Judge-made law. Bentham believed that “real” law was written law and that common law was better fit for ruling dogs than it was for ruling men. Bentham’s views did not gain much attraction in the United States until the 1920’s and 30’s.


According to Nelson, the 1938 Supreme Court case, Erie Railroad Co. v. Tompkins, marked the beginning of Benthamite orthodoxy in America. The case overturned an earlier case, Swift v. Tyson, which essentially permitted federal courts to use state common law. Nelson believes that Justice Brandeis’ reasoning in the case marked a new era in American understanding of common law jurisprudence. After the decision, law schools began to shy away from traditional understandings of the common law, supporting instead Bentham’s arguments of a codified, written law.


Nelson argues that even Justice Scalia, who many consider to be the embodiment of traditionalist, legal thought, has a Benthamite understanding of law. Nelson went on to use Justice Scalia’s judicial interpretations to make a broader point about the United States Constitution.

Scalia has a Benthamite view of law, according to Nelson, primarily because he looks for common law solutions within the Constitution. Nelson argues that this is inappropriate because “the Constitution was not written with a Benthamite interpretation of law in mind.”


He went on to say, “You cannot try and find doctrines of jurisprudence in the Constitution that are best understood as common law.” Nelson clarified that he did not agree with the principle of judge made law. Instead he sought to stress that Justices can better understand certain legislation and the meanings of certain words by turning to outside, namely common law, sources. He summed up this point in his conclusion saying, “The Constitution says only what it says, not what modern day lawyers and judges want it to say.”

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