Historical Foundations of the Common Law

Out of Print

The aim of this book is to give a single picture of the development of the common law, to draw the main outlines of the subject. But which are the main outlines depends upon the viewpoint of the observer.

Legal history means different things to different people. To historians it is usually a branch either of administrative or of social history; and legal thinking is not considered for its own sake. Lawyers are interested in legal thinking. But to them the subject usually appears as law read backwards, the inevitable unfolding of things as they came to be; and the thinking is seen as a fumbling for the result eventually reached.

In this gulf between the disciplines there is lost the interest of a story and perhaps the measure of an achievement. Societies largely invent their constitutions, their political and administrative systems, even in these days their economies; but their private law is nearly always taken from others. Twice only have the customs of European peoples been worked up into intellectual systems.

The Roman system has served two separate civilisations. The common law, governing daily relationships in very various modem societies, has developed without a break from its beginnings in a society utterly different from any of them. What was it that made its practitioners think on so unusual a scale? What made the product of their thinking so versatile and so durable? It is from the stand-point of such questions that this book will seek to trace its history.