The legal strategy inherent in the recent New York State lawsuits seeking to extend the concept of legal “personhood” to chimpanzees, filed by the Nonhuman Rights Project (a non-profit United States animal rights group), is of interest to American society at large and libertarians in particular because it necessarily operates on the unconventional recognition that common law is fundamentally and pragmatically superior to statutory law if one seeks justice for rights-bearing beings, irrespective if one resides in a statist OR a stateless society. This article shall evaluate the root differences between common law and statutory law. The philosophical merits of the chimpanzee “personhood” claim, while also intriguing, will be analyzed in a future essay.

 

What is common law? The following excerpt from the “Why We Work Through the Common Law” section of the Nonhuman Rights Project website explains,

The common law is what English-speaking judges around the world have been making for a thousand years in the process of deciding cases that turn on general legal principles, when they’re not interpreting statutes or constitutions, regulations or treaties.

By contrast, what is statutory law? Wikipedia defines statutory law in the ensuing manner,

Statutory law or statute law is written law (as opposed to oral or customary law) set down by a legislature (as opposed to regulatory law promulgated by the executive or common law of the judiciary) or by a legislator (in the case of an absolute monarchy).

 

Why do members of the Nonhuman Rights Project and those who struggle for human justice (libertarians) prefer common law to statutory law? As noted on the Nonhuman Rights Project website,

 … a common law court can do what it believes justice requires, while relying on constitutional or statutory law is likely to be unsuccessful, … .

The radical idea embedded in the preceding extract is that common law is a decentralized judicial-based system that seeks justice (“finding” law), whereas statutory law is a centralized legislative-based system that pursues injustice (“making” law). Even political demagogue Governor Willie Stark, in Robert Warren’s All the King’s Men, noted the inherent malfeasance of statutory law, stating,

The law is always too short and too tight for growing humankind. The best you can do is do something and then make up some law to fit and by the time that law gets on the books you would have done something different.

 

A reader of this column, especially a typical American citizen, might be skeptical of the claim that American State statutory law is regularly unjust. Does evidence exist to back this assertion? Certainly. In fact, many inequitable — especially racist — statutes have been passed by the United States Congress, signed by the United States President, and confirmed by the Supreme Court of the United States. For example, in Dred Scott v. Sandford in 1856, the Supreme Court of the United States (SCOTUS) ruled that enslaved or free men of African descent could not be American citizens and the federal government could not regulate — meaning prohibit — chattel slavery in territory acquired after the creation of the United States. In Pace v. Alabama in 1883, the SCOTUS confirmed that a law prohibiting interracial marriage was constitutional. In Plessy v. Ferguson in 1896, the SCOTUS legitimized racial segregation of public institutions via “equal but separate accommodations”. In Korematsu v. United States in 1944, the SCOTUS decreed that President Franklin Delano Roosevelt’s executive order mandating the relocation of approximately 110,000 Japanese-Americans to concentration camps was constitutional. In Ingraham v. Wright in 1977, the SCOTUS enjoined that the 8th Amendment right to protection against “cruel and unusual punishment” did not apply to public schools (which are disproportionately populated by minority students as compared to private schools). I halt the list at this point to minimize reader disgust.

 

In conclusion, if one believes justice should be the fundamental concern of a legal order in any society, whether stateless or statist, a common law (customary law) system is superior to a statutory law (State law) system. A quick review of American State history reveals a plethora of criminal — and commonly racist — statutory laws. Defenders of human rights and proponents of nonhuman animal rights are wise to seek legal recourse via a common law option whenever feasible.