James Wilson and the Common Sense Theory of the Common Law


James Wilson

by Ethan Foster

When Thomas Paine published Common Sense in 1776, his was not the only commonly held sense of the term “common sense.” Ironically, the term was already complicated at the American founding. The simpler meaning imparted by Thomas Paine’s pamphlet became a destructive catalyst in the American heart by eroding affection for the British Crown. The subtler meaning in vogue among educated founders,[1] however, played a constructive role in justifying a democratic legal system after the revolution. Chief among them, James Wilson devoted an entire series of law lectures to expounding the principle that common sense informs customs which, in turn, inform the common law.[2]

Thomas Paine’s Common Sense

Thomas Paine

The common sense Thomas Paine appealed to was popular sentiment devoid of philosophical nuance. In his words, “I offer nothing more than simple facts, plain arguments, and common sense: and have no other preliminaries to settle with the reader, than that he will divest himself of prejudice and prepossession, and suffer his reason and his feelings to determine for themselves: that he will put on, or rather that he will not put off, the true character of a man, and generously enlarge his views beyond the present day.”[3] Paine’s Common Sense appealed to impassioned reasonableness, drawing its power from an abstract feeling of consensus. Rather than develop a subtle treatise on the need for a revolution, Paine’s pamphlet stitched together a crazy quilt of ideas already popular among American colonists: in one manifesto, he placed Lockean arguments from self-interest alongside scriptural references, the impassioned resentment of Rousseau, and the literary flare of John Milton. Throughout his pamphlet, one argument remained constant: people are and ought to be motivated by self-interest, and it was in the interest of American colonists everywhere to separate from Britain.[4]

Paine’s rhetoric gave the impression of reasonableness; but lest his readers focus too much on the substance of his arguments, he cautioned against dispassionate thought. For example, when responding to Tory arguments in favor of the Crown, Paine crowed, “He who can calmly hear and digest such doctrine, hath forfeited his claim to rationality—an apostate from the order of manhood—and ought to be considered as one who hath not only given up the proper dignity of man, but sunk himself beneath the rank of animals, and contemptibly crawls through the world like a worm.”[5] Paine’s Common Sense is full of inflammatory playground insults and snarky retorts. Indeed, the genius of his Common Sense is its reliance on inflammatory rhetoric to bind together popular ideas that ordinarily had little business supporting each other. If the content of his pamphlet is any indication of what Paine meant by common sense, it appears he had in mind a shallow intuition informed by popular beliefs. And so, Paine’s understanding of common sense resembles the modern use of the term. Nevertheless, common sense had a deeper philosophical meaning at the time of the founding, one that included but expanded beyond Paine’s understanding of the term.


“The genius of his Common Sense is its reliance on inflammatory rhetoric to bind together popular ideas that ordinarily had little business supporting each other. “


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Wilson’s Common Sense Philosophy

Well before Paine wrote Common Sense, the school of Scottish Common Sense philosophy had emerged,[6] influencing the education of such founders as Thomas Jefferson,[7] John Adams,[8] John Witherspoon,[9] and James Wilson.  Thomas Reid, a chief expositor of Common Sense philosophy, described common sense as the widespread apprehension of first principles impressed on the mind by God.[10]  He elucidated the practical implications of this philosophy: “[t]his inward light or sense is given by heaven to different persons in different degrees.  There is a certain degree of it which is necessary to our being subjects of law and government, capable of managing our own affairs, and answerable for our conduct towards others: this is called common sense, because it is common to all men with whom we can transact business, or call to account for their conduct.”[11]  It is this form of common sense that James Wilson hoped would become the center of American common law.

A clearer picture of Wilson’s common sense philosophy may be drawn from the Scottish philosophical conception of natural benevolence. Common sense philosophers like Francis Hutcheson maintained that humans are motivated by self-interest, but also by social affections which reveal a desire for the well-being of others.[12] In addition to the self-love that Paine’s Common Sense invokes, Hutcheson argued that people are motivated by “benevolent Affections also toward others, in various Degrees, making us desire their Happiness as an ultimate End, without any view to private Happiness.”[13] After all, humans are sociable creatures, and certain natural impulses are better explained if benevolence comes naturally and not derivatively from self-interest. If a child falls to the ground and skins her knee, it makes more sense that an unrelated observer will be moved to pity not from any self-interested motive, but out of an other-regarding affection for the poor child. Such benevolence toward others is the bond that holds society and community together; self-interest alone lacks the strength needed to sustain social ties. Given the moral dimension of this common sense, the terms “moral sense” and “common sense” were often used interchangeably by Scottish Common Sense philosophers. 

Francis Hutcheson

The moral sense was considered common in at least four respects. First, the moral sense was an innate faculty common to human nature.[14] Hutcheson called this faculty an internal sense as distinguished from the five external senses, but similarly capable of refinement: as a trained palate can distinguish between good and bad wines, so can a honed moral sense discern upright from rotten conduct.[15] Second, common sense implies that one can appeal to self-evident truths, the denial of which would be ridiculous.[16] Indeed, part of Reid’s response to the skeptical philosophy of David Hume was that Hume’s skepticism was ridiculous, the belief of which would make “Yahoos” of mankind.[17] Third, as social affections produce a benevolent disposition toward others, the moral sense becomes refined out of a sense of commonality.[18] Put differently, common sense here describes a sort of “other feeling,” often characterized by comradery, sympathy, and fraternity. This sense of commonality is largely what Paine appealed to in his pamphlet. Fourth and finally, as Reid and Wilson claimed, the moral sense of the individual was shaped and refined by the common judgments of a community, judgments which were themselves cultivated through consensus.[19] In other words, textbook education could only partly develop the moral sense. To be properly trained, the moral sense required practice through convivial conversation and sociable activity. Community must shape the common sense.

It may seem strange that common sense could derive from self-evident truths and from public opinion at the same time. But consider the way the conscience is described in modern conversation: it simultaneously holds to certain moral assumptions which are either fine-tuned or deadened by such influences as the company one keeps, the books one reads, and the institutions one attends. The sense of self-evident moral truth is to polite discourse what mathematics is to applied physics: the distinction is not between objective truth and subjective experience, but between a field of knowledge and its application in the tangible world. Wilson built his legal philosophy on that complex common sense philosophy.[20]


“The sense of self-evident moral truth is to polite discourse what mathematics is to applied physics: the distinction is not between objective truth and subjective experience, but between a field of knowledge and its application in the tangible world. “

Wilson’s Court of Common Sense

Readers may recall that Wilson advanced the “Revolution Principle” in his Lectures on Law, that is, the axiom that conscience alone binds people to their laws,[21] making consent (rather than superiority) the basis of sovereignty.[22] When combined with his common sense philosophy, Wilson’s Revolution Principle takes on new dimensions: if citizens are sovereign, and if laws are only legitimate insofar as they bind the conscience, then it’s easy to see how moral assent to law-making institutions manifests itself at the voting booth, but what about the law of the courtroom? It is one thing to say the common law derives from local customs and conventions and that consent is therefore implicit within the common law;[23] that much goes to explaining how the common law is authoritative. But in what sense does the judicial process respond to the moral sense of society? Wilson’s answer reflects his common sense philosophy: the slow-changing common law derived from common sense moral reasoning in society, rather than the accumulation of individual judges’ preferences over the years.[24] After all, a judge is but a guardian over what the people have entrusted to the courts (rather than a lawmaker) and a guide for juries.[25] In the world according to Wilson, it takes a village to make a common law. 

Consider the fourfold nature of common sense reasoning and apply it to customs and conventions that thrive today. A custom as banal as shaking someone’s hand, for example, reflects the presumed truth that all men are created equal and merit respect, a truth that is hard to prove but which people assume and arguably apprehend by some inborn intuition. This sense is refined by the common judgments of a particular society such that, over the history of the western world, shaking the hand of another person has come to represent a gesture of that respect among equals. It may have begun as a way of disarming oneself, communicating strength, vulnerability, and trust all in one motion. In any event, the widespread reception of this gesture added to the ways one could communicate and reinforce a sense of commonality with others. Now, if someone refuses an outstretched hand, they violate a custom and usually feel obligated to excuse their refusal to reciprocate on account of having dirty hands, a sickness, or some other good reason. Without such an excuse, the initiating party senses a small rule has been broken. Such small transgressions are far from disastrous, but they cut against social expectations, the most serious of which develop into legal doctrines.


Funerary stele of Thrasea and Euandria

Wilson maintained in his Lectures on Law that the common law originates from society through customs and conventions rather than government institutions. Indeed, Wilson’s theory would describe the law of torts in that manner. For example, if a dog bites a stranger without having a prior history of aggression, courts of different jurisdictions—think “legal communities”—will assign liability to the owner differently, depending on the local common sense judgments of his particular jurisdiction. In some states, the dog owner is typically liable: after all, dogs always present a nonzero risk of danger. In other states, the dog owner is only liable if the dog had a known history or high risk of aggression.[26] The significance of this difference, in Wilsonian terms, is that both sorts of legal communities approached the same sort of question, having a common apprehension of basic moral truths, and yet arrived at different legal conventions about how to balance the need for compensation when someone gets attacked by a dog with the countervailing need to avoid punishing innocent dog owners who had no reason to believe that their dogs would turn.[27]

It bears noting that judges often conduct the sort of “common sense” reasoning I just attributed to entire communities. And it may seem at first blush that crediting entire communities with the decisions of judges is disingenuous, but two clarifications are in order.  First, the presence of social norms and conventions is something judges can evaluate when transmitting the common law from one generation to another. Indeed, the common law is not made from whole cloth, but it develops slowly and incrementally after decades of wisdom have been heaped upon it and refined its contours. Second, Wilson (and several provisions of the Constitution) anticipated a court system that heavily relied on juries.

Wilson conceived of the American jury as an active participant in the courtroom.[28] Astoundingly, Wilson’s proposed lecture Of the Judges barely takes up four pages.[29] By contrast, his lecture Of Juries occupies fifty-eight pages.[30] A modern lecture series would likely switch those ratios. The disparity might be explained by the fact that Wilson’s audience included lay citizens who would be expected to serve on juries.[31] But juries were also more significant and powerful in the courts prior to 1790.[32] As one commentator notes, “Beginning in the 1790s, some courts began limiting the jury’s province to fact questions only and, according to prevailing accounts, a trend in this direction continued throughout the nineteenth century.”[33] Over time, the role of citizens—and therefore the judicial reliance on a jury’s common sense—waned. Yet Wilson prized juries, less for their utility to the courts as objective fact-finders, than as “abstract[s] of the people” of the nation.[34] When a jury presided over a case, a defendant could expect the judgment of peers who possessed the common moral sense of the community, and with it, local standards of reasonableness, fairness, and justice.  A defendant was at the mercy of common sense: a jury brought with it the innate apprehension of self-evident moral truths, combined with the common judgments as they had been refined within that jurisdiction. 

Jefferson Davis jury

The jury system also enabled a sense of commonality to emerge among the jurors. Impaneled jurors received the cultivating benefits of affirming civic duty, the fearsome responsibility of representing the people, and the opportunity to revisit and discuss a shared moral sense with a cross-section of their community. It followed, therefore, that the common law according to Wilson had a democratic character, a character that Americans could proactively institutionalize through the jury so that the common sense of the American people could directly influence the common law over time. In turn, the common law could inform and mold the common sense of future generations. Wilson’s design was that every court could serve as a court of common sense: not the haphazard common sense of shallow propaganda, nor the forged common sense of a few enlightened authority figures, but the dispassionate, benevolent, and well-reasoned common sense of a truly self-governing people.


Ethan Foster is an attorney working as a law clerk in the United States Court of Federal Claims. His Master’s thesis, “James Wilson (1742–1798): America’s Forgotten Blackstone,” won the Roger and Madeleine Traynor Prize for outstanding scholarship at the University of Virginia School of Law. He previously worked as a legal fellow for the United States Senate Committee on the Judiciary. He received his BA from Patrick Henry College in 2014 and his JD and MA in History from the University of Virginia in 2017. He lives with his wife in Arlington, VA.

Notes

[1] Thomas Paine was, in fact, self-taught after spending a brief part of his childhood at a free school. See Philip Foner, “Introduction: Thomas Paine—World Citizen and Democrat,” in The Complete Writings of Thomas Paine (NY: Citadel Press, 1945), ix–x. 

[2] I am indebted to Dr. Roberta Bayer for calling my attention to the contrast between Thomas Paine’s simplistic view of common sense and the philosophical school of Common Sense Realism.

[3] Thomas Paine, Common Sense, in Complete Writings of Thomas Paine, 17.

[4] Paine, Common Sense, in Complete Writings of Thomas Paine, 5–6, 31.

[5] Paine, Common Sense, in Complete Writings of Thomas Paine, 41.

[6] See, e.g., James Buchan, Crowded with Genius: The Scottish Enlightenment: Edinburgh’s Moment of the Mind (NY: Harper Collins, 2004), 75–84. See also George Davie, The Democratic Intellect: Scotland and Her Universities in the Nineteenth Century  (3rd ed.; Edinburgh: Edinburgh University Press, 2013); David Allan, Virtue, Learning and the Scottish Enlightenment (Edinburgh: Edinburgh University Press, 1993).

[7] The influence of the Scottish Enlightenment on Jefferson is particularly well documented. See, e.g., Allen Jayne, Jefferson’s Declaration of Independence: Origins, Philosophy & Theology (Lexington: University Press of Kentucky, 1998), 96–98, 120; Forrest McDonald, Novus Ordo Seclorum: The Intellectual Origins of the Constitution (Lawrence, Kansas: University Press of Kansas, 1985), 54–55; A. J. Beitzinger, A History of American Political Thought (Eugene, OR: Resource Publications, 1972), 154, 269–71.

[8] John Adams was one of the most well-read founders, and he doubtless read plenty of the Scottish Enlightenment philosophers. See, e.g., Gordon Wood, The Radicalization of the American Revolution (NY: Vintage Books, 1993), 219–20.

[9] John Witherspoon was originally from Scotland, and he brought his own brand of Scottish thought to America, where he presided over Princeton. See, e.g., Gordon Wood, The Radicalization of the American Revolution (NY: Vintage Books, 1993), 219.

[10] Thomas Reid, Essays on the Intellectual Powers of Man, in The Works of Thomas Reid, D.D. Now Fully Collected, With Selections from His Unpublished Lectures ed. by William Hamilton (7th ed.; Edinburgh: Maclachlan & Stewart 1872), 1:431–32.

[11] Reid, Essays on the Intellectual Powers of Man, in Works of Thomas Reid, 1:432.

[12] Francis Hutcheson, An Essay on the Nature and Conduct of the Passions and Affections, with Illustrations on the Moral Sense, ed. Aaron Garrett & Knud Haakonssen (Liberty Fund, 2002) (1742), 136.

[13] Hutcheson, Essay on the Nature and Conduct of the Passions and Affections, 136.

[14] Hutcheson, Essay on the Nature and Conduct of the Passions and Affections, 136.

[15] Francis Hutcheson, An Inquiry into the Original of Our Ideas of Beauty and Virtue, ed.Wolfgang Leidhold & Knud Haakonssen (2nd ed.; Liberty Fund 2008) (1726), 8–9.

[16] Wilson, Lectures on Law, in Collected Works,1:619.

[17] Reid, Inquiry into the Human Mind, in Works of Thomas Reid, 1:102.

[18] Hutcheson, Essay on the Nature and Conduct of the Passions and Affections, 136.

[19] James Wilson, Lectures on Law, in Collected Works of James Wilson, ed. Kermit L. Hall and Mark David Hall (Indianapolis: Liberty Fund, 2007), 2:820; Reid, Essays on the Intellectual Powers of Man, in Works of Thomas Reid, 1:423.

[20] See, e.g., Wilson, Lectures on Law, in Collected Works,1:615.

[21] See, e.g., Wilson, Lectures on Law, in Collected Works,1:572.

[22] See Ethan Foster, James Wilson and the Natural Law Case for Individual Sovereignty Ad Fontes no. 3 (Oct. 2018), 1.

[23] Wilson, Lectures on Law, in Collected Works,1:567.

[24] See, e.g., Wilson, Lectures on Law, in Collected Works,1:494–99.

[25] Wilson, Lectures on Law, in Collected Works,2:950–53.

[26] A quick survey of dog bite laws throughout the United States will reveal a disparate patchwork. Without endorsing their specific findings, I would encourage readers to examine any compendium or chart comparing these laws to appreciate the variety that exists within the common law.  See, e.g., Matthiesen, Wickert & Lehrer, S.C., “Dog Bite Laws in All 50 States,” https://www.mwl-law.com/wp-content/uploads/2018/02/DOG-BITE-LAWS-CHART.pdf

[27] To the extent that this democratic development of the common law is in tension with certain systems of natural law, I will address those questions in my next article.

[28] See generally Wilson, Lectures on Law, in Collected Works,2:954–1011.

[29] Wilson, Lectures on Law, in Collected Works,2:950–53.

[30] See generally Wilson, Lectures on Law, in Collected Works,2:954–1011.

[31] Wilson, Lectures on Law, in Collected Works,1:437.

[32] Aaron Knapp, Law’s Revolutionary: James Wilson and the Birth of American Jurisprudence, 29 J.L. & Pol. 189 (2013), 271–72.

[33] Knapp, Law’s Revolutionary, 271–72.

[34] Wilson, Lectures on Law, in Collected Works,2:1008.