Theory, Method, and the Common Law Mind

This lecture seeks to provide a theoretical account of the common law building upon Michael Polanyi’s idea of polycentricity. Polycentricity in the context of the common law involves a number of decision-makers who go about making their decisions by anticipating - with the guidance of tacit knowledge - what is likely to pass muster with the community of decision-makers. And having thus arrived at a decision, seek to persuade the community by justifying the decision at hand by showing its similarity with previously decided cases. The prong of anticipation is where tacit knowledge comes in: through years of training, the common lawyer tends to internalize the gaze of the professional group and its sensibility of what is the apt response in a given case. The idea of polycentricity holds the key to explaining much in the common law which might be inscrutable to the onlooker including: a) malleability of common law precedent caused by the leeway available to a judge in determining what amounts to rationes in past decisions; b) the counterintuitive nature of analogical reasoning in the common law (which involves invoking a past case as an example after a prior decision has been arrived at in the case at hand) thereby giving the judge great latitude in picking an analogy; c) the model of normativity underlying the operation of the common law instantiated in reasoning with precedent and analogical reasoning which shows how normative constraints are possible despite the common law operating without rules or standards.