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.
1 Common law as custom
Common law is a term employed in many legal systems to mark a contrast between law
which is in some way general or common in scope - though the ways considered relevant differ
markedly between different legal orders - and more particular types or branches of law once or
concurrently applied in the same legal order. Custom, too, has figured widely as a significant
term of art within complex legal orders (Kelley 1990). It typically refers to an element or source
of law - unwritten, traditional, old, local - to be distinguished from other, usually newer, more
deliberate, more explicit, written sources, which apply on a territorial rather than a communal or
personal basis, and which are administered by officials (Constable 1994). Both common law
and custom are then, in part, contrast terms by reference to other aspects of legal systems; and
frequently the contrast in mind is between the two of them.
Today when the common law is mentioned, however, it is usually in connection with the
English legal tradition, and that tradition is distinctive in the way in which it has purported to
connect, rather than contrast, common law and custom. For while it is acknowledged in this
tradition that the institutions that administered common law supplanted those of customary law
to form a national law, common lawyers have long insisted that the substance of English
common law is drawn, and derives its legitimacy from, custom.

After the eleventh-century Norman conquest of England, the Kings Courts gradually
extended their sway throughout the kingdom. Institutionally this was at the expense of a variety
of local assemblies, tribunals, customary bodies and practices. Substantively, too, the centralized
application of written laws had profound transformative effects on oral customs and traditions,
even when the courts claimed to be applying customary law (Constable 1994). The law
dispensed by the Kings Courts came to be known as the common law. This has led to one broad
and two somewhat narrower uses of the term.
In its now most familiar usage, common law is a global term for the legal tradition that
was developed in Britain by these courts over centuries, and spread to its legal offshoots, such as
the USA, Canada, Australia and New Zealand. The common law, in this sense, is most often
contrasted with the civilian tradition (see Roman law 3) of continental Europe (and erstwhile
colonies of European countries).
In a second and narrower usage, internal to the common law tradition, the law dispensed
by the common law courts was distinguished from the specific equitable interventions by the
Lord Chancellor and the Court of Chancery to supplement traditional common law remedies (see
Justice, equity and law 4).
Third, when statutes enacted by Parliament became prominent sources of English law,
they were also distinguished from the common law developed by the courts. This third
distinction persists, though statutes are more and more general in scope and effect and in many
areas have come to override the common law.
English common law practice had many features that distinguished it from other legal
traditions. The common law also spawned a distinctive theory of law. Classical common law
theory crystallized most clearly in the seventeenth century and maintained its influence through
the eighteenth. It insisted - to the dismay of Hobbes, Bentham and other legal positivists - that
the common law, far from being made by any identifiable institutions or persons - kings or
parliaments or even judges - grew from the customs of the English people. As Sir William
Blackstone put it in the eighteenth century, the common law was an antient collection of
unwritten maxims and customs (Blackstone [1765-9] 1979, vol. 1: 17), and [t]he only method
of proving, that this or that maxim is a rule of the common law, is by shewing that it hath been
always the custom to observe it (Blackstone [1765-9] 1979, vol. 1: 68). Although the decisions
of judges were acknowledged to be crucial elements in the development of the tradition in this
perception, they did not make the common law, but were merely evidence of it.
The claim that the common law is grounded in custom addresses, often without much
differentiation, descriptive, explanatory and normative issues, as well as social theory and legal
and political philosophy. Several matters need to be unravelled, central among them the
following three. First, whether, and if so how, an account of law as custom can make sense of
legal change. Second, if law is popular custom, what is the role of legal officials? Third, what are

the normative implications of the customary character attributed to the common law; what, if
any, are its particular virtues?
2 Change and continuity in the common law
One of the most important interpreters of the language of the common law, Pocock (1987), has
argued that the common lawyers identification of common law and custom involved them in a
paradox, stemming from an ambiguity inherent in the concept of custom itself. On the one hand,
[i]f the idea that law is custom implies anything, it is that law is in constant change and
adaptation, altered to meet each new experience in the life of the people (Pocock 1987: 36). On
the other hand, it is equally possible to regard [custom] as that which has been retained
throughout the centuries and derives its authority from its having survived unchanged all changes
of circumstances (Pocock 1987: 37). Pocock took the views of Sir Edward Coke, the
seventeenth-century common lawyer and (from 1606-16) Chief Justice, as emblematic of the
tradition, and emphasized that Coke and his contemporaries seemed largely in thrall to the
second, unhistorical, interpretation. Later scholarship (Burgess 1992), and some clarifications by
Pocock himself, suggest than even Coke might have been less single-mindedly ahistorical than
Pocock was taken originally to suggest and, more important, that Cokes was never the
interpretation widespread among the most distinguished and sophisticated common lawyers.
Such lawyers, among them in the seventeenth century Spelman, Vaughan, Selden and
Hale, in the eighteenth Blackstone and Lord Mansfield, had no time for immemorial origins.
Since evidence was poor and incomplete, there was no way of knowing such origins with any
exactness. In any event it is not in the nature of law to remain unchanged:
From the Nature of Laws themselves in general, which being to be accommodated to the
Conditions, Exigencies and Conveniencies of the People, for or by whom they are appointed, as
those Exigencies and Conveniencies do insensibly grow upon the People, so many times there
grows insensibly a Variation of Laws, especially in a long tract of Time. (Hale [1713] 1971: 39)
Indeed, while Hale believed that deliberate legal change should be approached with
caution and humility, he also thought it absurd to imagine that the law should remain unchanged:
The matter changeth the custom; the contracts the commerce; the dispositions, educations and
tempers of men and societies change in a long tract of time; and so must their lawes in some
measure be changed, or they will not be usefull for their state and condition (Hale [1665] 1787:
269-70).
If there was all the adding, subtracting, altering and creating that Hale describes, what
held things together, in the absence of the glue of identity; what made all these different laws
part of the same common law? For Hale, and the common law tradition more broadly, change
was an intrinsic characteristic of a law in constant organic evolution. Like a person, the law
maintained its continuity through a process of continual change and growth. Or, to change the
metaphor as several of them did, the common law survived change just as the Argonauts Ship

was the same when it returned home, as it was when it went out, tho in the long Voyage it had
successive Amendments, and scarce came back with any of its former Materials (Hale [1713]
1971: 40). What made all its elements part of the same law was not their changelessness but their
continuity. And this continuity had more to do with the continuing authority and reception of the
law than it did with any demonstrable objective longevity of all its elements.
The source and ground of this continuity was twofold. First, it stemmed from the
anchoring of the common law, developed by the courts, in popular customs which had been
handed down by tradition, use and experience (Blackstone [1765-9] 1979, vol. 1: 17) and had
survived by constant transmission, reception, interpretation, refinement, transformation and
application, from time whereof the memory of man runneth not to the contrary (Blackstone
[1765-9] 1979, vol. 1: 67). These customs had developed over the life of the country, and had
indeed become constitutive of the people, into whom their ancient laws and customes are
twisted and woven as a part of their nature (Hale [1665] 1787: 255). As these customs
displayed continuity through change, so too did the common law, whose officials continuously
drew upon them, interpreted them, rendered them explicit and made them binding.
Second, continuity was embedded in the characteristic practices of the legal institutions
themselves, for these practices - and particularly those of the common law courts - were best
understood as customary ones. As A.W.B. Simpson has revived and endorsed this aspect of the
common law account:
the common law system is properly located as a customary system of law in this sense, that it
consists of a body of practices observed and ideas received by a caste of lawyers. The ideas
and practices which comprise the common law are customary in that their status is thought to be
dependent upon conformity with the past, and they are traditional in the sense that they are
transmitted through time as a received body of knowledge and learning. (Simpson 1987: 376)
Given such continuity, it was possible to accept, even to advocate, reform of the law, so
long as it was done by common law methods, materials and institutions. And much of the most
distinguished common law thought of the eighteenth century was devoted to advocating legal
reform of precisely that sort (Lieberman 1989).
3 Judges and the common law
Notwithstanding their insistence that the common law reflects and rests upon the customs of the
English people, not every custom was law. Customs became recognizably legal in the common
law when legal officials recognized them (though this was not, for common lawyers, the source
of their authority). Coke, Hale and Blackstone all paid great attention to the activities of such
officials. However, whereas legal positivists insisted upon the primacy of legislators, the
common law tradition did not. Instead its focus was on the common law judge. The declaration,
determination, refinement, alteration and transformation characteristic of common law
development were primarily the work of the judges of the common law courts: the depositary

of the laws; the living oracles, who must decide in all cases of doubt, and who are bound by an
oath to decide according to the law of the land (Blackstone [1765-9] 1979, vol. 1: 69).
Given the acknowledged centrality of judicial pronouncements in its development, it is
not surprising that, increasingly from the eighteenth century, the common law has been referred
to as judge-made law, distinguished in this character from statutes, which are made by
parliaments. To put things this way, however, is implicitly (and today typically unconsciously) to
reject the common law understanding of law altogether, in favour of understandings from within
the tradition of legal positivism, which - in legal philosophy - has largely overwhelmed that of
the common law. For the common lawyers did not view the judge as lawmaker, but as interpreter
and declarer of custom, directly or as filtered through earlier judicial decisions; in Cokes words,
the mouth of the law (for judex est lex loquens [the judge is the law speaking]). This is not a
passive role, but nor is it a legislative one. And while common law theory may not furnish an
adequate account as it stands, it is neither unperceptive nor absurd.
The positivist critics of common law theory conceived of law as a system of substantive
rules, made deliberately by particular persons or institutions (see Legal positivism). Existing
rules would either cover a particular case, or not. If the former, the judges obligation was to
apply the rule to the case. If the latter, the judge would have to supplement the rule in a
legislative or quasi-legislative manner. To common lawyers, this set of alternatives would seem
unrealistic and impoverished.
On the one hand, well into the nineteenth century common law practitioners tended not to
think of the law as a collection of substantive rules at all. Rather it was a system of reasoning,
and a collection of procedures and remedies, to be adapted to cases as they came before the
court. Substance, on this view, came from below, in a constant feeding from society (Lobban
1991: 79).
On the other hand, common law theorists did believe that there were substantive rules of
the common law, but did not regard them as simply to be applied or made. In any event, unlike
statutes, they did not come in a fixed and delimited textual form, ready to be applied. The
meaning and bearing of customs and precedents was rather of continual argument, interpretation
and reinterpretation. More generally, common law theorists regarded the law, not as a systematic
collection of discrete rules, but as a traditional or customary order, of language, thought,
maxims, principles, understandings, values and rules - with its own ways of knowing, thinking
and arguing, handed down over generations. Lawyers and judges are trained and participate in
this order, and interpret it. The judges are the authoritative guardians of this tradition. They
conserve it, bring it to bear on particular cases, adapt, apply and transmit it. New things are said
and done, of course, on this Argonauts Ship - but by experts working from inside, not out, with
materials already on board, and with a keen and experienced sense of the risks involved in
straying too far.

The notion here is one of skilled and experienced participants in a familiar and intricate
customary order, who deal with both repeated and new problems and changing circumstances by
working with old materials. Moreover they do not merely work with those materials, but think in
terms that they provide, making distinctions and analogies that make sense in their terms, terms
endogenous to the legal materials rather than imposed on them from without. Here, to vary the
metaphor yet again, not merely is the statue within the block of stone, but so too are the tools and
even the sculptor as well.
Morever, the common law judges are not merely participants in the legal tradition; they
are experts in the law. This is an expertise not available to everyone without long experience and
training. Rather, as Hale observed, men are not borne Comon Lawyers (Hale 1966: 505).
Without training and long experience they lack what Coke called the artificial reason and
judgment of law, which law is an act which requires long study and experience, before that a
man can attain to the cognizance of it (Coke [1608] 1907: 1342-3).
4 The virtues of the common law
An intensely live question, perhaps even now, was what, if anything, England gained
from law which was predominantly of this sort: grounded in custom, and determined by judges.
More generally, what might any legal order have to gain from law which, unlike legislation is
not laid down; customs, we know, grow up (Simpson 1987: 363)? Simply put, the answer of
Jeremy Bentham and his followers to these questions was: nothing much and nothing good. For
the early positivists model for law was overwhelmingly legislative. Legislation was the model
both for what law is and for what good it can do. Laws are the general commands of legally
unlimited sovereigns to habitually obedient subjects. They can do good if clear-headed,
deliberate, purposeful legislators issue explicit and unambiguous general commands to deal with
social problems and to reform the law - particularly the common law. On this view, either the
common law really is inchoate custom or judicial resolution of particular disputes - and then it
is no law at all, for no general commands have been issued - or it is purported general commands
wrested from individual cases, but in that case power has been arrogated by the sinister
interests of judge and co., as Bentham described the masters of the common law.
The common lawyers, by contrast, believed that the common law owed its moral
authority (which they did not always sharply distinguish from its legal validity) to its
immemorial reception, rather than to its legally irresistible imposition. And they praised it above
all for those features which most distinguished it from legislation. Many of the themes of
common law theory were elaborated more famously by Edmund Burke (3) and more recently
by F.A. Hayek. They are elements of what might be called the methodological conservatism of
common law theory.
First, there is a stress on the irreducible complexity and interconnectedness of social life.
The problems and circumstances of life are extraordinarily various, complex, interdependent and

changing. Many of the most successful institutions have been the products of no ones design,
and the reasons for their success might be unknown to anyone in particular. There is too much to
know for any individual adequately to understand what makes for success in legal arrangements
or social arrangements generally - even those that already exist - let alone confidently to predict
the results of legal interventions (see Social theory and law 5).
Given the inherent complexity of the world, then, and the inescapable limitations on what
we can know and what we can hope to do, thoughtful, cautious, corrigible elaboration and
refinement of solutions is preferable to imperious imposition of them. The incremental methods
of the common law are suited to the first; legislation to the second. For unlike legislators, as the
eighteenth-century Scottish jurist Lord Kames (see Home, H. (Lord Kames)) insisted, [a] court
of justice determines nothing in general; their decisions are adapted to particular
circumstances. They creep along with wary steps, until at last, by induction of many casesa
general rule is with safety formed (quoted in Lieberman 1989: 162).
Moreover, common law judges do not creep unguided, with just their puny individual
natural reason to light their way. For the common law in which they are immersed provides
them with a great deal on which to draw. Given the difficulties in doing so, customs that have
survived some long time must, at the very least, be presumed to have weathered and adapted to
many trials, both literal and metaphorical. Common law judges have the vast storehouse of cases
and decisions to draw upon. This law, in its organic and recorded development, encompasses
multitudes of cumulative decisions, and these draw upon social customs since time immemorial.
These customs - and the judicial reflection upon and refinement of them - embody, or at the very
least should be presumed to embody, wisdom far deeper than could be available to any unaided
individual, for time is the wisest thing under heaven (Hale [1665] 1787: 270) and the common
law is fraught with the accumulated wisdom of ages (Blackstone [1765-9] 1979, vol. 4: 435).
Some interpreters have suggested that the common lawyers favoured custom over reason,
but that is not the way they saw it or put it. On the contrary, they insisted that the common law
combined both; indeed that its attention to the former uniquely revealed the dictates of the latter.
At its most philosophical, this is a variation on Aquinas distinction (see Aquinas, T. 13)
between deduction as one way in which particular conclusions can be derived from the natural
law, and determination, of certain general features like that of the arts in which some
common form is determined to a particular instance. So the natural law establishes that
whoever transgresses shall be punished. But that a man should be punished by a specific penalty
is a particular determination of the natural law (Summa theologiae, IaIIae.95.2). Determinations
will vary according to the ways in which circumstances, customs, other particular conditions and
human ingenuity themselves vary. Determinations cannot conflict with the natural law from
which they are derived, but nor are they uniquely correct implications of them. For there are no
such uniquely correct implications. The common law, dealing with the complex particularities of
social life, had general elements of the first sort, but in its detail was mainly of the second.
Indeed it is a remarkable store of such determinations, as adapted to and coloured by the

particular, complex and variable conditions in which the law must operate, and refined by the
sustained application of the artificial reason and judgment of law.
In this way one could insist on the existence of a law of nature, accessible to reason,
which the common law could not violate, and at the same time insist that laws apt for some
people at some times could not simply be transplanted to other people and other times. In this
way, too, one could, by praising the reason immanent in the common law, deny that the common
law was simply whatever judges had decided. One could insist, on the contrary - and the
eighteenth-century common lawyers increasingly did - that deeper principles underlay the
common law, could be discerned through expert interpretation of it, and furnished grounds for
decisions which appeared to depart from particular precedents. Such decisions furthered or were
said to further values immanent in the common law - general principles which run through the
cases, in Mansfields phrase.
To modern positivists this appears to be a sophistical mask for judicial legislation, but
this is not how it appeared then, nor is it necessarily so. Rather, underlying it are conceptions
which emphasize the particularity and practicality of the judges task, the collective nature of the
publicly justified reasoning processes in which they indulge, and the wisdom of reflecting in a
sustained manner on what the tradition in which one works has done in similar circumstances. It
is not necessarily the mere reactionary resistance to change, and obscurantist deference to
authority, that Jeremy Bentham took it to be.
5 Conclusions
The common lawyers had many commitments on which most contemporary observers
would be at best agnostic. They shared, for example, a hagiographic commitment to the common
law as the accumulation of the wisdom of ages. And while they did not claim that all of the
common law merely stems from the customs of the people - for one of its sources is old statutes the common lawyers saw no difficulty in claiming that it was grounded directly in the customs of
the people rather than merely in the activities of the lawyers and the decisions of the judges.
Many critics have found extremely questionable this premonition of historical
jurisprudence, with its homogenization of official law with social life, and of social life itself
(see Jurisprudence, historical). Of course the common law has a continuing link with the
common life, if only because some cases are brought by ordinary folk, and lawyers and judges
are required to meditate on whatever problems are brought before them. It is one thing, however,
to say that as a reactive social institution which is driven by the cases brought before it, the
common law is likely to adapt over time to the Conditions, Exigencies and Conveniencies of the
People; although even this is not a simple matter, for the cases that come before the courts particularly the higher courts - are not random samples, and there are open and difficult questions
about how and how much that adaptation occurs, about what law responds to in society and
about what in law responds. It is another thing entirely to say that judicial law meshes directly,

smoothly and constantly with popular custom. Questions abound not only about the degree of
autonomy of official law from other social practices and traditions, but also about the complex
and variable relationships between official and lay customs and traditions, and about the
significance of social and political power in maintaining elite practices. There are also a host of
other questions, for example, about what elements in plural, stratified, heterogeneous societies including England, notwithstanding its insularity - judges law might be related to. While it is
obvious and important, then, that law and life are intimately related, the relationships are not
simple, unidirectional, unmediated or uniform. To say that the products of specialized and
differentiated institutions represent a distillation of national mores and customs is to raise and to
beg a host of questions of fact, morals and social theory upon which it is difficult to pronounce in
general or even with regard to the long history of the common law.
Nevertheless, the common lawyers had a better appreciation than many of their
successors of the complexity of social affairs, of the significance of continuity in legal life, of the
need for social grounding of legal institutions, of some of the resources available to schooled
participants in a traditional order, and of the inextricable relationships between continuity and
continuous change that are characteristic of enduring and complex normative traditions, such as
the common law. Not all of these insights were retained when the cloying hagiography of
common law partisans was thrown out of philosophical discussions of law.

See also: Law, philosophy of; Savigny, F.K. von; Selden, J.; Stair, J.D.
MARTIN KRYGIER
Routledge Encyclopedia of Philosophy, Version 1.0, London: Routledge

References and further reading

Blackstone, Sir W. (1765-9) Commentaries on the Laws of England, 4 vols, Oxford: Clarendon
Press, 1787; Chicago, IL: Chicago University Press, 1979.
(The 1979 edition contains valuable editorial introductions to each volume.)
Burgess, G. (1992) The Politics of the Ancient Constitution, London: Macmillan. (Excellent
account of English political and legal thought in the seventeenth
century, with thorough and thoughtful revisions to Pococks theses about the common law
mind.)

Coke, Sir E. (1608) Prohibitions del Roy, in 77 English Reports, London: Stevens and Sons,
1907, 1342-3.(The case was 1608, but is incorporated in
the 1907 English Reports.)
Constable, M. (1994) The Law of the Other, Chicago, IL: University of Chicago Press.(Study of
transformation of the customary institution of the
mixed jury with interesting reflections on the replacement of customary law by official law.)
Hale, Sir M. (1665) Considerations Touching the Amendment or Alteration of Lawes, in F.
Hargrave (ed.) A Collection of Tracts Relating to the Law
of England, vol. 1, 1787, 249-89; repr. Oxford: Professional Books, 1982.(See 2 above for
discussion.)
(1713) The History of the Common Law of England, ed. C.M. Gray, Chicago, IL: University of
Chicago Press, 1971. (Published posthumously; printed
three times, 1713, 1716, 1739, virtually as it stood in manuscript and numerous times thereafter
with editorial additions.)
(1966) Sir Matthew Hales Criticisms on Hobbess Dialogue of the Common Laws, repr. in Sir
W. Holdsworth, A History of English Law, vol. 5, 2nd
edn, London: Methuen, 419-513.(Unpublished in Hales lifetime.)
Kelley, D.R. (1990) The Human Measure, Cambridge, MA: Harvard University Press.(Masterly
historical discussion of the role of custom in European
legal and social theory.)
Lieberman, D. (1989) The Province of Legislation Determined, Cambridge: Cambridge
University Press.(Excellent discussion of eighteenth-century
English and Scottish, common law and positivist, views on the rival claims of common law and
legislation - especially as sources of law reform.)
Lobban, M. (1991) The Common Law and English Jurisprudence, 1760-1850,
Clarendon Press.(Study of the tensions between common law

Oxford:

practitioners remedies-focused assumptions about the nature of the common law and the more
rule-based focus of eighteenth-century common law
system builders, such as Blackstone, and critics of the common law tradition, such as Bentham.)

Pocock, J.G.A. (1987) The Ancient Constitution and the Feudal Law: A Reissue with a
Retrospect, Cambridge: Cambridge University Press.(Classic study
of the common law mind with extensive reply to critics of the first edition.)
Postema, G.J. (1986) Bentham and the Common Law Tradition, Oxford: Clarendon Press.(One
of the best available accounts of the legal theory of the
common law tradition, and of Jermey Benthams criticisms of, and alternative to, that theory.)
Simpson, A.W.B. (1987) The Common Law and Legal Theory, in A.W.B. Simpson, Legal
Theory and Legal History, London: Hambledon Press,
359-82. (Excellent critique of positivist accounts of the common law, in favour of a slightly
modified common law theory.)

Routledge Encyclopedia of Philosophy, Version 1.0, London: Routledge