The Common Law: Its Influence on Anticipating the Future Public Order of the World Community and International Law

Abstract

This chapter explores the idea of anticipation in the context of the evolution of jurisprudence and legal culture. It focuses on the idea that anticipation is a component of the human personality system. Because it is an important component of the practice and evolution of law, it poses particular challenges for the understanding of human subjectivity and its management of legal processes, whichever implications – both locally and globally – for the system of public order that law promotes and defends. The chapter draws attention to the critical contribution of Oliver Wendell Holmes, Jr., one of the most distinguished Supreme Court Justices of the United States. At the turn of the last century, he gave a major address titled “The Path of the Law.” He stressed that the prediction of what judges do is what constitutes the real law. This provided a direct focus on the human agents involved in advocacy and decision-making. This led to a revolution in legal thinking, in which the focus was on so-called “realism,” that is to say what legal actors actually do. The actions of legal actors in turn impact the consequences of legal interventions for the state of the public order in the community.

This approach evolved into a post-realist aspect of legal culture. This aspect had a direct focus on decision-making as the heart of jurisprudence. In this view, law emerged as an authoritative expression of authority and control over decision-making, with social and political consequences. The evolution of the focus on decision led to a better understanding of the role of decision in the context of constitutional order, and the role of decision and constitutionalism in the context of the public order. This, in turn, led to advances in our understanding of the architecture of decision-making, and the role of decision in the promotion and defense of the common interests and values of the community’s stake in the nature of the public order. These ideas became even more important in the context of the great global issues of war, peace, democracy, and crimes against humanity. This has led to an approach to law that moves from the state to the trans-state, and global dimensions of the challenges imposed on law and legal theory. Today, we continue to grapple with understanding the constitutional order of the world community, and to grapple with the defense of the world community in the context of war, terrorism, and gratuitous violence.

This paper is written with the research assistance of Megan Weeren, Junior Fellow of The Institute for Human Rights, Peace and Development