A Natural History of the Common Law

A Natural History of the Common Law

S.F.C. MILSOM
Copyright Date: 2003
Pages: 184
https://www.jstor.org/stable/10.7312/mils12994
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    A Natural History of the Common Law
    Book Description:

    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.

    eISBN: 978-0-231-50349-5
    Subjects: History, Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. PREFACE
    (pp. ix-x)
  4. ABBREVIATIONS
    (pp. xi-xii)
  5. INTRODUCTION
    (pp. xiii-xxviii)

    The jurist, the lawyer looking at law from a distance, is a species extinct in the common-law world. His habitat was annexed by philosophers as a playground for their own games. The older kind of analytical jurisprudence was still worth scorning when the writer was young: but historical jurisprudence had been discredited too long before to attract even the contempt due to the beliefs of one’s teachers. Anthropologists and sociologists may make general observations about law, but not lawyers. Comparative lawyers may juxtapose the responses of different societies to similar conditions, and legal historians may trace the responses of a...

  6. CRONOLOGICAL LIST OF PUBLICATIONS
    (pp. xxix-xxxiv)
  7. I MAKING LAW: LAWYERS AND LAYMEN
    (pp. 1-24)

    There is a reason for beginning this essay with a question it will not discuss, namely the influence of Roman law upon English law. This has been a perennial topic among English legal historians, partly because in England (as elsewhere in Europe) the study of Roman law was being revived in the twelfth and early thirteenth centuries, the very time from which hard English evidence begins. There has been a strong sense that there ought to have been an influence, and this has provoked disappointment in some historians and a rummage for examples (of varying plausibility) in others. This essay...

  8. II CHANGING LAW: FICTIONS AND FORMS
    (pp. 25-50)

    The previous essay was concerned with the ways in which substantive law (other than property law) comes into being. This one turns to the means by which it changes. A court guided by its own customs had no difficulty in accommodating to new conditions, and if an adjustment seemed desirable it might expressly announce what it proposed to do in the future.¹ One of my teachers remembered what he thought an absurd notice pinned up in his school: “As from next term it will be a custom of the school that.” But it is not absurd. And in a custom-based...

  9. III MANAGEMENT, CUSTOM, AND LAW
    (pp. 51-74)

    Because english records reach back to a true starting point, the first of these essays was able to describe the mechanisms by which the common law of crime and tort, and up to a point contract, came to be stated in substantive terms. Procedural developments compelled the consideration of facts, and the first of these was the substitution of human decision for supernatural tests of oaths denying liability generally. And it seems more likely than not that the Roman law also began with the replacement of supernatural tests by human decision, though at a time before the earliest evidence. In...

  10. IV HISTORY AND LOST ASSUMPTIONS
    (pp. 75-108)

    The preceding essays have considered the mechanisms by which law first comes into being and then changes. This one will discuss the difficulty of discerning both processes. They cannot easily be seen by historians today largely because they could not be seen to be happening at the time and left no explicit documentary evidence. It is always possible for a visible mischief to be addressed as such by an equally visible process of legislation: but visible mischiefs rarely grow in a customary system, and until the nineteenth century legislation played a small part in private law other than property law....

  11. NOTES
    (pp. 109-130)
  12. INDEX
    (pp. 131-140)