Common law

Common law and custom are features of most enduring legal orders. In English law the concepts have taken on special and interrelated significance, since English law is said to be grounded in common law and that in turn is said to derive from custom. According to classical common law theory, which crystallized in the seventeenth century, common law grew from the customs of the English people. It was not made by legal officials, as statutes are. Change was accommodated in this theory, on the basis not of identity of elements of law over time but of continuity, a continuity of authority and reception of legal customs, and of the traditional legal order which declared them to be law. The role of legal officials – particularly judges – was to interpret and declare legal custom; their judgments provided evidence of it. They did not make it or invent it. This mode of development through continual interpretation and reinterpretation of the significance and bearing of the legal inheritance was, according to common lawyers, better adapted to social complexity, change and variety, and also to human epistemological and practical limitations, than attempts to cover any field with legislation.

This theory was largely eclipsed in nineteenth-century England by the theory of legal positivism, and with it were eclipsed for a time some useful insights into social complexity and institutional limitations. Also lost was a sense of the complex dialectic between continuity and change in legal and institutionalized traditions. In its best moments, common law theory had such a sense.