A Natural History of the Common Law

A Natural History of the Common Law

A Natural History of the Common Law

A Natural History of the Common Law


How does law come to be stated as substantive rules, and then how does it change? In this collection of discussions from the James S. Carpentier Lectures in legal history and criticism, one of Britain's most acclaimed legal historians S. F. C. Milsom focuses on the development of English common law -- the intellectually coherent system of substantive rules that courts bring to bear on the particular facts of individual cases -- from which American law was to grow. Milsom discusses the differences between the development of land law and that of other kinds of law and, in the latter case, how procedural changes allowed substantive rules first to be stated and then to be circumvented. He examines the invisibility of early legal change and how adjustment to conditions was hidden behind such things as the changing meaning of words.

Milsom points out that legal history may be more prone than other kinds of history to serious anachronism. Nobody ever states his assumptions, and a legal writer, addressing his contemporaries, never provided a glossary to warn future historians against attributing their own meanings to his words and therefore their own assumptions to his world. Formal continuity has enabled nineteenth-century assumptions to be carried back, in some respects as far back as the twelfth century. This book brings together Milsom's efforts to understand the uncomfortable changes that lie beneath that comforting formal surface. Those changes were too large to have been intended by anyone at the time and too slow to be perceived by historians working within the short periods now imposed by historical convention. The law was made not by great men making great decisions but by man-sized men unconcerned with the future and thinking only about their own immediate everyday difficulties. King Henry II, for example, did not intend the changes attributed to him in either land law or criminal law; the draftsman of De Donis did not mean to create the entail; nobody ever dreamed up a fiction with intent to change the law.


These essays spring ultimately from an interest addressed in lectures and articles over many years and immediately from an invitation to give the Carpentier lectures at the law school of Columbia University in 1995. the first three essays contain most of the substance of those lectures, though somewhat enlarged and rearranged. the last essay is partly new and is concerned not so much with the mechanisms of legal development and legal change as with the slippery nature of the evidence with which legal historians have to deal.

I am deeply grateful to the dean and faculty of the Columbia Law School for inviting me to give the lectures and for much kindness and hospitality at the time. To Professor Barbara Black I owe a further debt for her friendship and encouragement over many years.

Perhaps I may be forgiven for one further acknowledgment which in her lifetime my wife would never allow me to make: all who knew us know how great my debt to her has been.

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