A Natural History of the Common Law

S.F.C. Milsom, along with fellow Englishman F.W. Maitland, are the two great names in English legal history. Each asked, "Whence sprang the common law, that baffling array of arcane writs, complex tenures in real property, odd rules of evidence, and bewigged barristers and judges?" Maitland, writing in the late 19th and early 20th centuries, saw the common law as more or less an organic whole, the conscious product of the genius of Henry II and his advisers. His classic work, known as "Pollock and Maitland," is still required reading more than a century after its production. Milsom, writing in our own time, takes a radically different view. The common law, according to his thesis, arose not from the royal will but piecemeal and by accident, as lawyers confronted unresolved legal questions and sought the best resolutions for their clients (much the same as lawyers do today). Case-by-case judicial resolution of real legal issues produced a body of law common to all of England, hence the term "common law." Not only did the common law govern England, it became the fountainhead for American law, indeed for all law throughout the Anglophone world. Milsom's main scholarly works on this topic are difficult to find, and difficult to read for anyone not schooled in the arcana of the common law. Thankfully, this slim volume provides a handy introduction to his theses, as well as those of Maitland and other legal historians. Anyone desiring a cogent introduction to this most interesting but thorny area of the law will find "A Natural History of the Common Law" to be a useful guide.