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.
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