1990 U. Ill. L. Rev. 231 (1990)
Social Propositions and Common Law Adjudication

handle is hein.journals/unilllr1990 and id is 239 raw text is: SOCIAL PROPOSITIONS AND
COMMON LAW ADJUDICATION
THE NATURE OF THE COMMON LAW by Melvin A. Eisenberg.
Cambridge: Harvard University Press, 1988, 204 pp. (hardcover).
Reviewed by Stephen M. Bainbridge*
In his ambitiously titled book, The Nature of the Common Law, Pro-
fessor Melvin Eisenberg's stated goal is to develop the institutional prin-
ciples that govern the way in which the common law is established in our
society.' In doing so, Eisenberg tackles a host of topics. Among other
things, he addresses the functions of courts in American society, modes
of legal reasoning, and the process of overturning prior precedents. Yet
Eisenberg never loses sight of his central thesis, namely, that all com-
mon law cases are decided under a unified methodology, and under this
methodology social propositions always figure in determining the rules
the courts establish and the way in which those rules are extended, re-
stricted, and applied.2 His masterful defense and exposition of this the-
sis makes The Nature of the Common Law a significant addition to the
body of common law jurisprudence.
I. SOCIAL PROPOSITIONS IN ADJUDICATION
To say that courts should and do rely on social propositions in de-
ciding (at least some) common law cases is hardly new. Eisenberg's con-
tribution comes in mapping a coherent course between the Scylla and
Charybdis of modern jurisprudence. He explicitly rejects theories claim-
ing that some cases can be decided without reference to social proposi-
tions. On the other hand, Eisenberg also rejects theories claiming that
* Assistant Professor, University of Illinois College of Law. B.A. 1980, Western Maryland
College; M.S. 1983, University of Virginia; J.D. 1985, University of Virginia.
I wish to thank my colleagues Ron Rotunda and Tom Ulen for their helpful commenta
1. M. EISENBERG, THE NATURE OF THE COMMON LAW 1 (1988). For Eisenberg the com-
mon law consists of the rules that would be generated at the present moment by application of the
institutional principles of adjudication. Id. at 154. He refers to this as the generative conception
of the common law. Id. A necessary c6rollary of this conception is the notion that the common law
is comprehensive-all legal issues have an answer that can be divined through correct application of
the principles of adjudication. Id. at 159.
2. Id. at 2-3. Eisenberg describes three categories of social propositions: moral norms, poli-
cies, and experiential propositions. Moral norms characterize conduct as right or wrong. Id. at 14-
26. Policies characterize states of affairs as good or bad in light of the general welfare of society. Id.
at 26-37. Experiential propositions focus on the way the world works. Id. at 37-42. In contrast,
doctrinal propositions are statements of legal rules derived from statutes, judicial precedents, and the
academic literature. Id. at 1.

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