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The American jurist Oliver Wendell Holmes wrote that “the life of the law has not been logic; it has been experience . . . The law embodies the story of a nation’s development through many centuries, it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.” The common law is not written out in a series of lapidary propositions. (Certain legal textbooks attempt a codifying approach, but any given “article” is invariably followed by pages of discussion of the case-law and qualification of the original statement. There are also codifying statutes which are themselves based on the common law.) The nature of the common law is illustrated by a semi-humorous anecdote about an Eastern European country that, following the fall of the USSR, decided that it wanted to adopt English commercial law (widely regarded as a jewel in the common law’s crown). Apparently there were two insuperable obstacles: no one knew what it was, and no one knew where to find it.

An alternative to this whimsically self-effacing view is the romantic myth espoused in Harold Potter’s Outline of English Legal History (1958), which can still quicken the heart:

English law is like a river. The channel widens and deepens as it flows through the course of years and tributaries join it from time to time. It was first fed by the springs of the common law, but the fountain of equity and the wells of the law merchant and ecclesiastical law have increased the waters of the growing current. And upon the tide is borne the ship which is the soul of England.

As this purple passage implicitly recognises, English law has always been an acquisitive magpie: the term “common law” comes from the jus commune of the canon lawyers; the doctrines of equity had their roots in Roman and ecclesiastical law; and in his influential development of English commercial law, the great 18th century judge Lord Mansfield borrowed from the European lex mercatoria among other foreign influences, including Justinian himself.

The importance of the role of judges in the development of the common law emerges most clearly from a comparison with continental nations. Most European countries have a civil (Roman) law system, based on codes which declaim a series of legal propositions. Current Supreme Court Justice Lord Mance has said that being a common lawyer in the EU can be a lonely business: Ireland, Malta (in part) and Cyprus are the only other member states which have the common law. (By contrast, the countries to which Britain has bequeathed it, especially the United States, Canada, Australia and New Zealand, retain close links with English law and with each other; there is a high degree of cross-fertilisation.)
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