If You Want to Look for Guidance in Ancient Treatises You Have to Do so on Their Own Terms

Our law is the common law, and the common law has maintained a consistent set of principles which establish its content and its method of determining validity for more than a millennia. If this is news to you, you can read the fundaments of the system in a legal treatise on the common law written around 1210 best known as “Bracton.” Bracton sets out the fundamental principles of right, of justice, and of natural rights, from which all other rights and laws flow. Indeed, the very purpose of law is to apply these rights and principles. Bracton also sets out how these first principles give rise to the concept of constitutionality.

I have hesitated mightily in crafting my response to this, partially in the hope that someone else would express my concerns with your line of reasoning better than I possibly could, but while u/SlightlyLessHairyApe, u/gdanning, u/akurteni, and u/Amadanb hinted at where I want to go with this, none of them got quite to the heart of the matter (though all made excellent points nonetheless). Your entire argument hinges on the assumption that, at some point after 1791, there was some kind of Great Betrayal of Common Law Principles. Whether you pin this moment at Marbury v. Madison, the Adoption of the 14th Amendment, the 1938 Federal Rules of Civil Procedure, or any number of other possible contenders is irrelevant, because there was no Great Betrayal, at least in the sense that the same principles hadn't been betrayed dozens if not hundreds of times prior to 1791. At the risk of sounding uncharitable, an assumption that the legal principles were unchanged up to a certain point to the extent that what we have now marks a radical departure from them can only be based upon a profound misunderstanding of the common law system generally, as well as the philosophical foundations behind modern conceptions of liberty.

Go back to Bracton and read it. Not just the rhapsodic introductory sections; all of it. You'll find that at the time it was written, the law was concerned primarily with one thing: Rights and obligations arising from feudal land tenures. There are a few seedlings of things we would consider modern law, but what actually survives from it to this day is as little barnacles of legalese.

Consider a very basic situation in modern litigation, a red car hiting a blue car, causing damages. Bracton provides no guidance on how to resolve this situation, notwithstanding the fact that cars didn't exist back then, because the entire concept of negligence didn't exist until the 18th century. The same with contracts; in an economy based upon land ownership commercial transactions don't really matter that much. It was only with the advent of the industrial revolution that this area of the law came into existence beyond a rudimentary level. Considering that torts and contracts make up about 80% of a modern civil docket, I'd say those are two pretty big omissions. This is especially interesting since these are pretty much the only two areas of law that are still largely governed by common law and not modern statutory schemes.

So what could you actually sue someone for in Bracton's time? He lists a number of actions that were available. The assize of novel disseisin allowed a plaintiff to recover lands he had been dispossessed of, the assize of darrein presentment determined who had the right to appoint a vacant ecclesiastical benefice, the assize of mort d'ancestor determined the rights of a deceased's relatives to his real property, the writ of cosinage is similar to the assize of mort d'ancestor except that it involves a different degree of relation to the deceased, an assize utrum was to determine whether the tenure held by a church was of a lay or spiritual nature, a dower action determined the right of a wife to her husband's property upon his death, a writ of entry also allowed one to recover land, you get the idea. These actions were so limited that courts and parliament began expanding the list shortly after Bracton was published and continued doing so for the next hundred years. Then they stopped doing so, but the needs of the legal system continued to evolve. Since courts were foreclosed from creating new forms of action they began creatively using the existing forms of action for new purposes. Thus began the convoluted period of common law pleading, where litigants would rely on magic words and legal fictions, and where the form of pleading was more important than the substance, where all torts were trespasses where the defendant "with force and arms broke and entered the close of the plaintiff" and all breaches of contract were breaches of the king's peace.

This system also prohibited multiple theories of the case; you had to pick one and run with it. Suppose you're being sued for battery and you have two defenses, that it wasn't you, and that the statute of limitations has run. There's strong evidence that it wasn't you, and your lawyer predicts your odds of winning a favorable decision at 85%. However, the statute of limitations is stronger, since you're unaware of any circumstances that would toll the statute, and such circumstances are present in well under 1% of cases. So your lawyer argues that the statute of limitations has run. However, this is one of those cases where the statute was tolled, and the court rules that it hadn't run out at the time the suit was filed. Under the common law rules, you took your shot and lost; the fact that you have strong evidence that you didn't do it is irrelevant, and the only remaining question is how much you owe.

The reason I'm bringing all this up is because when you insist that certain modern legal decisions are "incorrect" because they're incompatible with Common Law Principles, you fail to recognize that these principles aren't what you think they are. The common law changed dramatically between the time of Bracton and the time of Blackstone. It went from a system of determining feudal rights and obligations to something resembling the modern legal system. And yet you're implying that all these changes were fine and dandy, but somehow there was a Great Betrayal in the 200 years since. Why bitch about Carolene Products? Why not go after the statute of Quia Emptores, that in one fell swoop abolished subinfeudation? This is directly contrary to Bracton, who felt this to be a right of the lord. Hell, Bracton thought that scutage in general was a bastardization of the true obligation to provide military service. Why should courts allow it? And if you think that this is all arcana that has no bearing on modern law, keep in mind that Quia Emptores forms the basis of fee simple land tenure, the only form of land ownership that most people in the modern world even know about. If I take your arguments about Bracton to the end of their logical tether, I'd have to argue that the whole system of real property ownership in place everywhere in the United States is technically illegal because it's freely alienable and completely devoid of feudal obligation.

The point I'm making is that if you want to look for guidance in ancient treatises you have to do so on their own terms, and be careful not to read them through the lens of contemporary values. These texts are useful for trying to understand the philosophical underpinnings of our legal system and its historical, but their value is limited to that. They should certainly not be seen as definitive statements of "what the law is", because they were never intended as such; they were intended as glosses on what the law was at the time they were written.