REVIEWS
| DOI | http://doi.org/10.1111/j.1468-2230.1970.tb01277.x |
| Date | 01 May 1970 |
| Published date | 01 May 1970 |
HISTORICAL
FOUNDATIONS
OF
THE
COMMON
LAW. By
S.
F.
C.
MILSOM,
F.B.A.
[London: Butterworths.
1969.
xiv
and
429
and
87
(tables and index)
pp.
44s.
net (Paperback) and
60s.
net
(Hardback).]
THE
common law system
is
one of
the
two great systems of legal thought
evolved by European civilisation. In this book Professor Milsom
sets
out
to discuss
two
basic questions about this system.
He
formulates these as,
first, “what
starts
a
legal system
off,
what causes customs
to
turn into
reasoned law?” and secondly, “how has
it
been
so
versatile and
so
durable?
How can
a
system of law,
a
system
of
ideas whose hypothesis it is that
rules
are
constant, adapt itself to
a
changing world?” These two questions, which
could of course be asked of any sophisticated legal system, form the frame-
work within which Professor Milsom aims
to
give
“a
single picture
of
the
development
of
the common law,
to
draw the main outlines
of
the subject.”
The specific topics which
are
discussed in varying degrees of detail are
familiar;
seisi,
uses, trespass and case, assumpsit,
Blads’r
case, and all
the
standard headings
are
included.
A
mere perusal of the table
of
contents would
suggest that the book contained the mixture
as
before, offering
a
rather more
concise
Concise
Hiutory
of
ti6
Common
Law.
As
such, coming from
a
scholar
of Professor Milsom’s standing, it would be
a
valued work by all those who
are interested in the history of English law, for one could be sure that he
would have something interesting
to
say upon even the most worn subjecta.
Historical
Foundcrtionr
of
the
Common.
Law
is designed, however, to relate
the discussion to central issues in common law legal history; the aim is to
provide
at
least a partial answer to the two general questions which are posed
in
the introduction. The attempt, and
the
degree
to
which
it
is successful,
gives the book
a
unity and an interest to all students of the common Jnw
which no mere short history could achieve.
His first question is given an answer in terms of the history of legal
institutions and procedure. The centralisation of justice made possible and
gave rise to
a
cohesive profession of the law; the evolution of
a
certain
sort
of legal procedure put the professionals into
a
position in which legal
reasoning and analysis became both possible and necessary. This thesis is
worked out in detail with great elegance, and the argument is not one which
can be summarised. The account given
of
the relationship between
the
evolution
of
substantive law and the evolution of procedure, a theme which recurs
throughout the book, is remarkably well done.
The account of the rise of the legal profession, and the literature
of
the
profession, is by comparison less interesting, being
less
fully treated. Both
the emergence and the survival of the common law system are intimately
bound up with the history of the legal profession and the literature its
members produced. But
here
much original work remains to be done; until
it is done many questions about the legal profession must remain unanswered.
The discussion of the second question occupies the major part of the book.
in which Professor Milsom discusses in detail the way in which various
branches
of
the common law were adapted and manipulated
by
the lawyers
over the course of the centuries; the message
Is
that the common law
survived because it was, somehow
or
other, kept more
or
less
in line with
what was needed, and this more by accident than design. Here Professor
Milsom’s general thesis is perhaps most clearly
set
out in the following
passages
:
“The life of the common law has been in the unceasing abuse
of
its
381
a82 THE
MODEBN
LAW
REVIEW
VOL.
33
elementary ideas. If the rules
of
property give what now seems an unjust
answer, try obligation; and equity has proved that from the materials of
obligation you can counterfeit almost all the phenomena of property. If the
rules of contract give what now
seems
an
unjust answer, try
tort.
Your
counterfeit
will
look off
to
one brought
up
on categories of Roman origin;
but it will work.”
To
put
it
rather differently, the categories of
the
common
law remained fluid, and the dominant method of change consisted
in
perpetual
reclassification. The tortuous steps involved in the
process
might lead
to
a
complete reversal of
a
rule of law. “Even when [such
a
rule] is formally
abolished
or
finally forgotten, its shape will be seen in the twisting route
by which it was circumvented.” This general thesis is worked out and illus-
trated in gent detail, with
a
fascinating command of the materials.
No
lawyer who wishes to understand the process of change in the common law
system can neglect the account which Profasor Milsom gives of the
mechanism by which it was brought about.
There are, however, some curious gaps in the story. Most striking is
the
absence of any general discussion of
the
place
of
authority, and precedent
in particular, in the evolution of the common law; to what extent can the
history of legal change be seen in terms of
a
conflict between reason and
authority? Closely connected with this topic is the question of
the
role played
by
the judiciary
in
legal
chanpto what extent have judges and courts,
at
certain
periods
consdously,
set
about
to
modify
the
law, and
to
what extent
have they merely been pushed one way
or
the other by counsel, with no
clear
conception
of
where, if anywhere, they were going? Professor Milsom also,
perhaps, says too little about change by statute, and its relationship
to
internal
change.
It
is true that before the nineteenth century legislation on private law
has, for long periods, been uncommon. Even since the passion for legislation
took hold, the law of contract and the law of tort have been
little
affected
by it.
It
is
a
question to what extent
it
is
true that in modem times
legislative activity has,
as
it were, saved
the
common law system from extinc-
tion,
or
to
what extent legislative reform of the common law (for example,
the
1925
property legislation) is best regarded
as
a
mere offshoot of the system.
At
a
more general level it
seems
plain
that
the endurance of the common
law is only partially explained by the mechanisms of internal change;
its
survival and spread depend to
a
considerable and obvious extent upon political
facts. With explanation
at
this level Professor Milsom’s book
is
not, of course,
concerned. The fact, however, that (for example) West African countriee,
possessing
as
they do very different social systems, can
get
along on virtually
the same law of contract
as
ourselves,
at
least
in
a
formal sense, prompts
the speculation that there is
a
tendency to think that the substantive rules
of law matter more than they in fact do. Would life be much different if
Rylondr
v.
Fletcher
had never been decided,
or
Eastwood
v.
Kenyon
gone
the other way?
Or,
shocking though
it
may seem, if
Donoghue
v.
Bteoensm
were suddenly to be rejected?
I
myself have never personally met anyone
who has utilised that great decision.
It
could be that, given certain political
conditions, it does not make very much difference
to
its survival whether the
law is kept in touch with the times; at least
the
point is worth some attention.
It
is perhaps needless
to
say that Professor Milsom’s style and presenta-
tion make this an absorbing
book
to
read; the writing has
a
certain Tacitean
character, and abounds with sentences which
are
both memorable and
illuminating. Such
as
these
:
“
Negligence
as
‘
a’
tort seems to be the result
of
an
accident of classification.” “The settlement of wealth has been perhaps
the most distinctive contribution of the common law to legal achievement.”
“The miserable history
of
crime in England can
be
shdy
told.
Nothing
worth-while was created. There
is
no achievement
to
trace.”
Here
indeed
is
a
happy hunting ground for examiners in legal history. Those, however,
whose main interest lies in modern law will find much to interest them in this
book, which deserves the success it will surely enjoy.
A.
W.
B.
SIMPSON
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