Academic journal article
By Morag-Levine, Noga
Constitutional Commentary , Vol. 24, No. 3
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. …