Life Of The Common Law

The life of the common law has been in the unceasing abuse of its elementary ideas. If the rules of property give what now seems an unjust result, 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 odd to one brought up on categories of Roman origin, but it will work. If the rules of one tort, say deceit, give what now seems an unjust answer, try another, try negligence. And so the legal world goes round. But it goes round slowly, too slowly for the violence with which the conceptual economy is transformed to be felt, too slowly, in periods of rapid social change, for the law to keep pace with life. In the sixteenth century the gap grew so wide that the system itself was perhaps in peril. In the twentieth we make use of legislation; and our familiarity with deliberate change makes it easy for us to misread history. How could our ancestors be so perverse in doing indirectly what could be done directly? How could they be so clever in using mere tricks to reach desirable results? Certainly if we view the common law on the eve of reform as a piece of social engineering, we see the spirit of Heath Robinson at his most extravagant. But the viewpoint is anachronistic and the questions unreal. It is a real question why nobody before Bentham was provoked, and a part of the answer is that nobody before Blackstone described the system as a whole. Lawyers have always been preoccupied with today's details, and have worked with their eyes down. The historian, if he is lucky, can see why a rule came into existence, what social or economic change left it working injustice, how it came to be evaded, how the evasion produced a new rule, and sometimes how that new rule in its turn came to be overtaken by change. But he misunderstands it all if he endows the lawyers who took part with vision on any comparable scale, or attributes to them any intention beyond the winning of today's case.

-- S.F.C. Milsom