Introduction
“The glorification of the common law […] is to be strenuously resisted. There is nothing magical or miraculous about the common law as a decision-making process”.[1] In this conclusion of ‘Is Eating People Wrong’, Allan C. Hutchinson strictly warns against treating the common law with a transcendent reverence. This essay interprets the definition of Hutchinson’s “glorification of the common law” to be treating the law with a worship-like and sacred reverence, implying law to be that of a sovereign or religion.
In many ways, this perception of the common law is present, whether society is conscious of it or not. The common law governs society, and through doing so embodies qualities similar to a religion or sovereign, being the enforcer of social discipline, moral judge of right and wrong, and the perceived source of infallible authority. With law’s historic roots in religion, it is perhaps unsurprising that many people in society— especially laymen— blur the line between law, religion, and sovereigns.
However, the relationship between society and the common law especially is interdependent. With society’s fluctuating demands that trigger legal evolution, society shapes the common law as much as law shapes society. Ultimately, it is arguably this interdependent relationship that allows for both a flourishing society and legal system. This demonstrates why it is crucial for this relationship to be preserved, where laymen feel capable of accessing and challenging the law, and the law is able to easily accommodate to their social needs. This essay argues that in order to sustain this relationship with society, the common law needs to be open, never fixed, personal, authoritative, and trusted.
This essay will examine if these five qualities, and ultimately this interdependent relationship between law and society, is still present if society glorifies the law into a religion or sovereign: it is highly possible that this venerated perception could shift the mutual dependency between the two. Instead, society could become overly dependent on the common law, mimicking how historically society would generally depend on a sovereign or religion. Fundamentally, I argue in favour of Hutchinson’s claim, believing the glorification of the common law to a dangerous perception in the way it detaches the common law from being a practical decision-making process, to a transcendent source of excessive power. Whilst there are other significant socio-economic reasons for this perception— for example, the expensive nature of the legal system— this essay will solely focus on jurisprudential and philosophical factors, questioning if the common law should be glorified into a religion or sovereign.
Why is the law glorified, and why do religious and sovereign-like perceptions of law exist?
1. The Sacred Foundations of Law
Historically, religion has significantly shaped law, with religion values profoundly influencing legal principles. Religion only began to be separated from law during the Enlightenment, when rationalist philosophers encouraged the secularisation of law and governance.[2] Before this, law and religion were virtually intertwined. In fact, the foundations of the rule of law have been influenced by Judaism, Islam, and Christianity.[3] For example the Torah and Mosaic Law in Judaism provided one of the earliest examples of codified rules, with principles like “an eye for an eye” laying the foundations for proportionality in punishment.[4] Furthermore, being the dominant religion of the culture that developed the common law, Christianity greatly cemented the rule of law in the common law tradition.[5] Legal procedures were also intrinsically bound to religion: trials by combat were historically popular so that God could announce a verdict, treaties were protected in temples because contracts were viewed as sacred, and courts were very religious spaces where God could be a just witness and prevent judicial corruption.[6] These practices imbued law with a sense of moral authority and transcendence, making it appear as a sovereign over society rather than a human decision-making process. Furthermore, a main purpose of religious texts and commandments was to promote justice and order within society, as well as to encourage a morally upright society, seen with, for example, the 10 Commandments. This almost mirrors the role of law in society, therefore demonstrating that the nature of the legal system exhibits deeply religious characteristics: both aim to maintain societal and moral order. To an extent, religion was historically synonymous with law because religious institutions used to make law, creating the sacred foundations that underpin law. This explains why law is perceived and glorified in the same way as a religion, even today, because religion significantly shaped law.
2. The Authority of Law
Society abides by the law, trusting and relying on its moral judgement to resolve conflicts. This is especially because law is often perceived as neutral, impartial, and stable, thereby encouraging people to trust its authority. Therefore, it seems as though law is an overseeing authority, standing above society, maintaining order and regulating conduct externally from society. Indeed, Berman claimed that “Law— in societies— derives its authority from something outside itself”.[7] Similarly, in metaphysics, law commanded people and this power transcended them.[8] This transcendent nature of law makes people glorify it, where people start viewing law as infallible. This creates a belief of law as ruling over society, reminiscent of a sovereign whose commands are expected to be obeyed without question. This way of seeing law’s authority is similar to how people see God— transcendent, omnipotent, and omniscient— and the word of God— always correct, demonstrating the innate religious qualities within law.
3. The System of the Common Law
The common law’s system itself offers insight as to why the law is glorified into a religion and sovereign, because of its similarity to a religion. For instance, court proceedings and legislature could be reminiscent of rituals and canonical texts, and the specificity of legal terminology is similar to that of religious terminology. Moreover, because previous judicial decisions are necessarily referred to in future cases, this creates a belief of precedents as always correct, reliable, and optimal, thereby glorifying the common law’s system and treating it as infallible, which is certainly not the case. Therefore, the structure and nature of the common law with its similarities to religion and a sovereign, help explain why it is often perceived in this way.
Why should the common law not be perceived in this way?
Although the historical and structural features of the common law explain why it is often glorified and compared to a religion or sovereign, this perception proves misleading and dangerous. Arguably, the strength of the common law lies not in its transcendence, but instead in its accessibility, adaptability, and personal relationship with society. The glorified perception of law as a religion or sovereign risks muting these essential characteristics and detaching the common law from society. This creates a danger of law becoming a closed and absolute source. This section will examine the negative effects of law becoming glorified into a sovereign or religion, with reference to the five characteristics outlined in the introduction.
Firstly, this perception would restrict the adaptability of the common law, because if law were perceived as a religion or sovereign, people would likely begin viewing law as unequivocally correct and unchangeable, just like how the word of God is always correct and absolute. Society would become blindly dependent on the law, and the common law would no longer need to depend on society, disrupting the mutually-dependent relationship. This is especially dangerous for the common law: unlike codified traditions, judicial decisions from significant cases allow the common law to constantly develop by “regular acts of continuing transformation”[9], making it essential for this system to break from its past. Religion and sovereign orders are immutable, meaning perceiving the common law in this way would conflict with the system’s needs. Treating the law as infallible and stationary has also been proven as unjust through the House of Lords’ binding and crystallisation of precedent under the doctrine of stare decisis in the late 19th century. This enforced rigidity led to cases of injustice and outdated legal principles remaining in force, demonstrating that the inability to depart from precedent restricted law’s ability to cater to modern social needs. Glorifying the common law would similarly cause this same problem of restricting the functioning and evolution of law, meaning that law should be rationalised.
Furthermore, with the law viewed as a sovereign or religion, transcending society, law no longer feels as though it works alongside citizens, but rather as though it commands them. This contradicts the common law’s need to feel personal to society, because instead of feeling supported by it, laypeople would instead revere, worship, or even fear the common law as they would a sovereign or God. Whilst this perception supports the common law’s need to have authority, the extent of this authority as a result of law’s comparison to God causes the system to exceed the authority it should safely have, creating a dangerous slippery slope, risking the law being seen as absolute and beyond democratic scrutiny. Indeed, the common law tends to follow society and social change rather than lead it.[10]
Law transcending society also creates a conception of law as unattainable. Law would become increasingly distant from the layman, making it no longer feel open and accessible. In turn, this defeats the common law’s founding purpose which was to especially support the needs of common people, with the name “common law” deriving from the fact that it set out to apply equally to citizens across the whole country, being “common to all”.[11] This signifies the importance of the common law being open for the layman, which is also seen through landmark cases. Donoghue v Stevenson (1932) is an example of how the everyday actions of laymen shape the common law, because the history of tort law would have been very different had Donoghue made different decisions that day.[12] Brown v. Board of Education of Topeka (1954) showed the importance of not viewing the law as infallible and taking action to change corrupt law. The final ruling that banned segregation in public schools proves that the actions of laymen are powerful and necessary to ensure law is constantly modernised. This would not be possible if the law was perceived as a religion or a sovereign, because it would make the common law feel closed.
Why should the perception of law as a sovereign of religion still remain relevant?
Whilst glorifying the common law risks undermining some of its vital characteristics, it could be argued that this perception is only natural and even necessary. Society expects the law to provide stable authority, stability, and order, which is reflected in its glorification, and needs to rely on law as a guarantor of social and moral order. If law was not glorified into a religion or sovereign, the opposite view would be law as being level with society. However, this perception is arguably equally dangerous, and also threatens many of the common law’s vital characteristics.
Firstly, the common law must retain authority: only then can law govern, organise, and unite a diverse society— arguably the most significant purpose of law. If the common law was stripped of its religious or sovereign-like qualities, instead becoming completely level with society, this would cause it to lose this authority. The layman would instead perceive the common law as an ordinary social opinion, therefore potentially not trusting and obeying it. A slippery slope could also occur if law becomes too able to be moulded by society, possibly gradually transforming law into a fluid moral code, rather than a principled system. This would weaken legal stability and legitimacy, posing a risk of the state collapsing if insufficient authority is exerted on society by the legal system.[13] This justifies the perception of law as a sovereign, supported by Austin’s positivist argument that law is “a command of the sovereign backed by the sanction”.[14] This vital authority that the common law must retain supports the perception of law as a sovereign, rather than a social opinion equal to that of a layman.
Furthermore, the common law as a religion or sovereign exerts a sense of stability into society, where legally-binding precedents, conventional procedures, and unilateral authority create a predictability in the legal system. This makes law feel reliable to laymen, facilitating trust. If the common law was to be perceived as too personal to society and without sovereign-like authority, it could become disproportionately dictated by heterogenous societal opinions, likely eventually making law become unpredictable, inconsistent, and perceived as arbitrary. However, complete legal predictability is equally dangerous, because the flexibility and evolution of the common law is required to effectively respond to societal demands. Furthermore, the law needs to be nuanced for it to have value and be most effective, demonstrating that complete predictability in the law would undermine law’s purpose. It is also questionable if social trust in this stationary law would be genuine, or if trust would be better facilitated by having a transparent and responsive legal system instead.
Therefore, the common law must indeed retain religious and sovereign-like elements, in order to maintain social authority and legal stability. Without this, the common law could lose societal trust and obedience. However, there should be a balance between sovereign-like reliance and legal flexibility in the common law, in order to ensure that the mutual dependence between law and society remains. This should be achieved through law remaining personal to society, but preventing the perception of law becoming on level with society.
Conclusion
Fundamentally, it is evident that the common law needs authority, which society and laypeople expect: without any authority or sovereignty, legal legitimacy would be significantly weakened, in turn eroding trust in the law. As a result, along with its sacred foundations, religion and sovereign-like nature, this explains why the glorified perception of law as a religion or sovereign exists: people need to rely on the law, otherwise without a governing body, society could collapse.
However, this perception is a slippery slope. There is a danger of this perception increasing and intensifying, thereby providing excessive power and authority to the law, to the extent where it could very much transform into a religion or sovereign, rather than just embody those qualities. If the common law then transcended society, this would then cause people to perceive it as closed, fixed, and impersonal, severely undermining the system’s need to constantly adapt and evolve amidst society. Thus, glorifying the common law into a religion or sovereign would destabilise the mutual dependence between law and society and divorce law from its original purposes. This perception of law as a religion or sovereign should therefore, as Hutchinson claimed, be “strenuously resisted”.[15]
Bibliography
[1] Hutchinson, A.C. (2010) Is Eating People Wrong?: Great Legal Cases and How they Shaped the World. Cambridge: Cambridge University Press.
[2] Powell, John A. & Menendian, Stephen M. (2010) “Remaking Law: Moving Beyond Enlightenment Jurisprudence”, Saint Louis University Law Journal: Vol. 54: Iss. 4, Article 3.
[3] Stern, Craig A. (2004) “The Common Law and the Religious Foundations of the Rule of Law Before Casey”, University of San Francisco Law Review: Vol. 38: Iss. 3, Article 4
[4] Fox, M. (2012). A History of Jewish Law. Oxford: Oxford University Press.
[5] Brauch, Jeffrey & Woods, Robert (2001) “Faith, Learning and Justice in Alan Dershowitz’s The Genesis of Justice: Toward a Proper Understanding of the Relationship Between the Bible and Modern Justice”, Valparaiso University Law Review: Vol. 36, Iss. 1, pp. 1–60.
[6] Flatto, D.C. and Porat, B. (eds.) (2022) Law as Religion, Religion as Law. Cambridge: Cambridge University Press. p7
[7] Berman, H.J. (1983) Law and Revolution. Cambridge: Harvard University Press, Section 15
[8] Flatto and Porat, (2022), p53
[9] Hutchinson, (2010) p220
[10] Ibid.
[11] Nash, H.A. (2025) Common Law. EBSCO Research Starters. Available at: https://www.ebsco.com/research-starters/history/common-law
[12] Hutchinson, A.C. (2014) ‘Some “What If” Thoughts: Notes on Donoghue v Stevenson’, Osgoode Hall Law Journal, 51(2), pp. 537–548.
[13] Benjamin, W. (1968) ‘Critique of Violence’, in Arendt, H. (ed.) Illuminations: Essays & Reflections. Translated by Jephcott, E. New York: Schocken Books, pp. 278–300.
[14] Austin, J. (1995) Austin: The Province of Jurisprudence Determined. Edited by W.E. Rumble. Cambridge: Cambridge University Press (Cambridge Texts in the History of Political Thought).
[15] Hutchinson, (2010), Is Eating People Wrong?
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