Warren Swain, ‘Change in the Common Law, Letting Our Illusions Die: Some Observations From History’

ABSTRACT
‘We would rather be ruined than changed,
We would rather die in our dread,
Than climb the cross of the moment,
And let our illusions die.’

So wrote WH Auden in his book length poem, The Age of Anxiety. Auden’s poem reflected the world in the middle of wartime but his musing on change also contains a wider truth, not least for lawyers. Lawyers tend to have an inbuilt resistance to change. Change in private law especially is often glacially slow. Where it happens it is usually only visible with the benefit of hindsight. At the same time there is a paradox at the heart of legal change. It was described by the great American jurist Roscoe Pound who once observed that, ‘Law must be stable and yet it cannot stand still’. Perhaps one of the most important benefits of the study of legal history is what it tells us about the mechanics of legal change. It is sometimes easy to get caught up in detail and ignore the bigger picture. Yet, whether it is explicitly recognized or not, legal change is at the heart of everything that lawyers do. The nature of that change in legal systems derived from the English Common Law is shaped by a particular, and sometimes peculiar, history. This paper will highlight the role played by custom, legal procedure, social change, chance and individual lawyers and judges in changing the Common Law.

Swain, Warren, Change in the Common Law, Letting Our Illusions Die: Some Observations From History (July 20, 2017).

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