INTRODUCTION. Section the Third. Of the LAWS of ENGLAND.
In this section, Blackstone defines common law as a “collection of maxims and customs . . . of higher antiquity than memory or history can reach.” Lawyers these days often call common law ‘judge made law’, but Blackstone insists that judges’ decisions merely announce the common law; they do not make it. Still, his explanation of judicial precedent — the way judges adhere to previous judicial decisions — seems to describe a law making process. When a case is decided, law on that point has been “solemnly declared and determined,” he says, “what before was uncertain, and perhaps indifferent, is now become a permanent rule.” According to Blackstone, though, these judicial precedents are merely “evidence” of customary rules whose legal force comes not from the judges’ say-so, but from their “long and immemorial” usage.
On the day I was reading this section of the Commentaries, my husband showed me an obituary in the New York Times, that made me reconsider the role of memory in Blackstone’s description of common law. The obit was for H.M. — the nom de research of a famous psychological subject, a man (who we now learn was named Henry Gustav Molaison) who had brain surgery at age 27 and forever lost the ability to form lasting memories. Though his intellect and personality were otherwise undamaged, from the time of his operation in 1953 until he died this past Tuesday evening at the age of 82, every time H.M. saw a friend, ate an apple, or heard about his mother’s death it was as though it were happening for the first time.
In other words, he couldn’t follow precedent. Or, more to the point, he couldn’t create precedent. Faced with the same problem day after day, he had to keep figuring it out from scratch each time because he couldn’t add to his long-term memory. At least not consciously. Apparently, he could still develop what cognitive psychologists call procedural memory. This is the sort of largely unconscious learning that comes from practice over time. It’s how we learn to ride a bike or play a musical instrument — and how we sometimes discover we can do things that we didn’t know we knew how to do. (I had a demonstration of the durability of this kind of memory when I decided to sew a Halloween costume for my daughter. One night, with the adorable lion pattern and fuzzy material in hand, I pulled out the old sewing machine that I had not used since my early teens — some 30 years ago. Oops. No instruction booklet. I dimly recalled that there was a tricky threading procedure required to fill the bobbin, but I had absolutely no idea how to do it. I sat there staring in consternation at the machine. And then I just did it. Without any conscious recall, I reached for the thread and pulled it through all the right hooks and nooks and wires, opened the right little drawer, pushed down right button, whirred the machine into action with the foot pedal, and voila.) And it turns out that one of the most interesting things about H.M.’s condition was that even with no conscious memory of how he was doing it he could still learn to do new things, when he practiced them over and over again. The sorts of things people learn this way all seem to have something to do with physical actions. They are by no means limited to physical acts — after all, drawing and singing, even sewing machine threading, seem to involve fairly complex thought. But it seems as though this kind of learning and memory storage and recall are in some way led by physical action, especially repeated physical action. Hence, I suppose, the term “procedural” memory — and hence, the connection, I want to argue, to common law.
Blackstone’s picture of common law is torn between two relations with memory. In one sense, law depends completely on the kind of conscious, long term recall that H.M. lost. That’s what the doctrine of precedent seems to be all about. You have to recognize that the situation you are facing in that case today is in some way the same as the situation you faced in that case last year, and proceed to apply last year’s decision to today’s case. As Blackstone explains, the number one source of common law is the “praeteritorum memoria eventorum” — i.e., the record of past events. But at the same time, according to Blackstone, what gives common law its legitimacy and status as law is not that it is remembered or memorable but that it is “immemorial” — beyond memory. Now, you could say, as many skeptics have said, that this contradiction just proves that the whole system of judicial lawmaking is basically a sham. Certainly, anglo-american common law is not, and cannot be, “immemorial” in the sense that it predates human memory, because it is obviously a human creation, and a relatively recent one at that, if we are considering the entire history of humanity.
But reading about H.M. made me think that there’s another way to see this contradiction. I’ve always found it curious how deeply dependent judicial procedure is on physical actions — formal, repeated physical actions. Which is, after all, I suppose, just another way of saying that common law is quintessentially procedural. And if that’s true, why shouldn’t we assume that the kind of procedural memory that applies to bike riding and dancing and sewing machine threading plays a big role in judicial proceedings? I’m not prepared to say how, exactly, but it seems to me that the fact that judges are there in court, repeatedly, deliberately ritually, going through the same procedures day after day, year after year, has to affect the way they make decisions. A lot of times we assume that courtroom ritual is superflous — a kind of quaint survival of a more formal era. But what if all those ritual moves are connecting judges to a source of knowledge from “time immemorial” — i.e., knowedge from the past that is inaccesible to conscious memory? Maybe all the repetitious words and motions judges (and lawyers) go through connect them to their own previous experiences in court and the thinking and decisionmaking processes they went through in other cases that are too numerous, too detailed, too various and too long ago to be recalled consciously.
What I like about this idea is that it suggests a plausible way in which judicial process — and the resulting legal decisions — really might partake of some source of knowledge that escapes and transcends the bounds of conscious memory. What is troubling, of course, is the notion that much of what determines legal outcomes is unconscious and not transparent. It suggests that perhaps we ought to be both more respectful and more worried about the ways formal judicial process shapes the legal landscape.