The common law was originally regarded as a reflection of generally accepted social practices and customs. It has evolved into a method of juristic thought that may employ artful language, legal fictions, and other indirect means in the decision-making process. In Florida, the common law of England as it existed on July 4, 1776 was adopted by statute to the extent that it was consistent with the Constitution and state laws. Although the state legislature has exclusive lawmaking authority, the state courts have applied English methodology and traditions in developing Florida’s common law. The judicial practice of remolding laws in light of judges’ professional wisdom, skill, training, and insights has become widely accepted. This has resulted in an inconsistency with the principle of strict separation of powers among the branches of government.

This Article explores the development of the common law in Florida and the relationship between the common law and the rule of law. The Author examines the incompatibility of the common law with the core principle of separation of powers, as well as the emergence of judicial fiat, particularly in the field of negligence law and governmental immunity cases. In these types of cases, courts become policymakers when the state legislature is slow to respond to societal changes. The Author then discusses the impacts of judicial fiat, the proliferation of tort law and expansion of tort liability, and the distinctions between the rule of law and the common law. A fundamental concept underpinning the rule of the law in America is that government is not to be of men, but of laws and ideally insulates the law from the interests and whims of individuals. However, the modern common law methodology permits broad individual judicial discretion which may substantially affect the common law and have negative consequences for the rule of law.

The Author advocates that the rule of law is paramount and the principle of separation of powers is foundational in our federal and state constitutions. Although the common law may be dynamic, it should not be in such a state of flux that stability and predictability are impossible. Judicial discretion must be tempered by an adherence to stare decisis and deference to the legislature, particularly on significant matters of public policy, in order to preserve the rule of law and the integrity of our judicial system.