Alluding to the contretemps sparked by Sonia Sotomayor’s comments about the distinctive perspective a “wise Latina” might bring to the Supreme Court, Douglas Edlin asks that we “move beyond the familiar civic phobia that judges will decide cases on the basis of their own values rather than the law” and recognize “that when judges decide on the basis of the law they are deciding on the basis of their own values.” (p. 40). Common Law Judging is the latest in Edlin’s ongoing philosophical consideration of the nature and virtues of the common law legal tradition, with an eye to identifying the critical, if constrained, role for its judges in advancing justice. In earlier work on judicial review, he argued that the common law framework elided a sharp distinction between “law” and “morals.” Here, judicial review and (purportedly) extrinsic sources of law take a back seat, and the author approaches similar questions from a different angle, this time involving what he argues is an inappropriately sharp distinction between judicial objectivity and subjectivity.

Edlin’s argument is grounded in a complex epistemology of judicial decision making in an adversarial system aimed at establishing “legal” (as opposed to metaphysical) truth (p. 28), shaped by such institutional features as the issuance of individually signed opinions (including dissents), the duty of judges to reason from and reconsider precedent, and the protection of judges against removal for their legal judgments. Rejecting both academic and popular calls for “strict” or reified objectivity and legal realist and “attitudinalist” pronouncements of a pervading subjectivity, he contends that common law judging is better characterized as entailing “mediated objectivism” (p. 10) and “intersubjectivity” (p. 5).

Subjectivity, Edlin argues, is intrinsic to the common law process: The supposed duty of objectivity is better understood as a duty of “impartiality,” or freedom from “any personal stake or bias” (p. 22); “universality,” or a requirement that the decision yield “a rule that can be applied in the same way to all similarly situated individuals and cases;” and “functional effectiveness,” or “the sense that the legal process operates according to identifiable rules and yields results that are identifiably legal in relation to governing rules” (p. 21). He asks that “the process of identifying legal norms . . . be understood differently from the norms themselves.” Because “the production and identification of legal norms must involve human expression and perception, it is misleading to think of these norms and processes in strongly objective terms” (p. 25).

Returning to a theme adumbrated in earlier work, Edlin finds “enlightening parallels between Kant’s [analysis of aesthetic judgment] and the common law’s approaches to the formulation and communication of reflective judgments” (p. 52). Kant held that the exercise of aesthetic taste “combines feeling and imagination with reason and reflection . . . to arrive at [a] . . . judgment that is communicated to and evaluated by a larger community” (p. 53). The common law judge’s exercise of his or her sense of justice, Edlin argues, can be analogized to the critic’s exercise of taste in passing on a work of art. Both appropriately begin with “an individual’s felt [and “personal”] response” (pp. 55–56), and proceed to an autonomous, independent judgment. That judgment is then justified in an individually signed opinion, and thus communicated for adoption—and, implicitly, reconsideration—by colleagues engaging in a similar process across time. In both cases, the job not only allows but also requires the critic and the judge to bring their subjective identities, understandings, and experiences—their humanity—to the process to arrive at singular judgments “informed by [their] perspectives without being influenced by [their] prejudices” (p. 73). Such judgments, Edlin explains, are simultaneously “personal and interpersonal,” and “not merely a statement of personal preference” (p. 54). In a common law process that “does not seek something like objective truth but rather a public justification achieved over time through sustained efforts by judges to communicate their best understanding of what the law means,” he observes, moreover, that “[e]rrors and disagreements no longer appear to challenge the usefulness of the enterprise [but] are recognized as a necessary, inevitable, and worthwhile part of the process” (pp. 61–62).

This process does not “afford judges of art or law license to make their decisions [arbitrarily or] idiosyncratically” (p. 57), and, contrary to the all-too-common charge, it is not akin to legislating. Legislating and judging “function in entirely different institutional contexts and under entirely different institutional constraints” (p. 78). Common law judging is a form of “nonergodic” decision making (p. 79): It takes place not within a stable, mappable system but as part of a perpetually altering environment with “a designed capacity for change” (p. 79) in which novel experiences and dilemmas are continually confronted and assimilated. Common law judges do not apply a priori rules, nor do they generate rulings that have the status of diktats. Rather, they apply distilled principles to a succession of particularized fact scenarios in what the system recognizes as a perpetually altering context. In so doing, common law judges “‘necessarily refashion the prior rule’” (p. 12). Innovation, adaptation, and learning are at the core of this process, which the author illustrates with examples from real estate, criminal, and civil rights law.

Edlin illuminates what he contends is the poorly understood “relationship between the independence of judges and the independence of the judiciary” (p. 92). The latter, he explains, is partly aimed at advancing the former —“the autonomy and authority of judges to decide as individuals” (p. 95). A judge’s humanity is constitutive of his or her independence and, moreover, a requisite of the office. As such, it is a mistake common to political scientists, among others, to hold that judicial independence entails no more than a formal institutional independence from public opinion and other government actors. Edlin illustrates this point by critiques of the proposed Constitutional Restoration Act of 2004–5 (by which Congress would have instructed judges on the legal sources that they could cite in their judicial opinions), and the Federal Sentencing Commission’s aim of imposing a greater uniformity and standardization of criminal sentences.

Common Law Judging is short: The table of authorities, notes, references, and index comprise more than half the book, and it is even shorter if one considers its many, admittedly helpful, redundancies. At the same time, it is dense, subtle, and rich in pregnant distinctions and resonant formulations. The book carefully engages with the relevant philosophical and jurisprudential literature concerning objectivity and subjectivity, both generally and within law. Notably, however, it neglects significant recent work by prominent legal scholars like Kunal Parker, David A. Strauss, Adrian Vermeule, and Philip Hamburger that either explicitly addresses or implicitly raises questions about the relationship between the common law reasoning and constitutional adjudication.

The nature and degree of that relationship is not at all obvious, and, here, Edlin simply assumes it rather than argues for it. One question that both Hamburger’s Law and Judicial Duty (2008) and Edlin’s book raise is the appropriateness of simply importing our understandings of (traditional, English) common law judging into the United States, where the common law inheritance functions as part of a broader constitutional order structured by a written Constitution premised upon a different set of problems, structures, and logics. Many of the critiques of subjective judging that Edlin is writing against arise out of that other institutional paradigm. That paradigm, moreover—including the concept of the neutral judge—is underwritten by an extensive tradition of (modern) liberal political and constitutional thought, extending from Locke to Madison to John Rawls.

In that context, it is not surprising that Justice Sotomayor’s comments triggered concerns that have long been prominent in American politics. To be sure, the common law ideals that Edlin celebrates were once more widely known and appreciated than they are today, especially in the nineteenth-century glory days of the nation’s (elite) bench and bar. But from the Founding forward, from Thomas Paine, to “The Jeffersonian Crisis,” to the Codification Movement, to the rise of the “statutory” or “policy” state, there have been major movements to rid the nation entirely of its common law inheritance and traditions, or to mitigate their sway. In another rub, in the United States (and unlike in Great Britain), many of the state and local judges most closely engaged with the common law are democratically elected. The problem is further complicated by the ties of the nation’s appointed, life-tenured federal judges, via the appointment process, to its often boisterous and contested partisan politics. Judges are most likely to be charged with “legislating from the bench” when their interpretation of the Constitution tracks partisan cleavages on major public (and, these days, highly personal) issues that might reasonably be understood—and were once historically understood—to be the legitimate province of legislatures, or of state, rather than federal, courts.

Common Law Judges is most convincing when focused on its core task: explaining why demands for strict objectivity in judging are epistemologically misguided, and why, in recognizing this, common law institutions not only permit some degree of subjectivity in judging but also invite and structure it. The American Constitution, however, not only permits but invites and structures a sometimes robust democratic politics. That some rulings by judges draw spirited attention to the inflection point where one system abrades against the other is a necessary, inevitable, and, perhaps even, at times, worthwhile part of the process.