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.

Professor Milsom works out a fresh view of the beginnings of the common law concerning land. The received picture depends upon progressive assumptions: key words began with their later meanings; the law began with abstract ideas of property; a tenant's title to his tenement was never subject to his lord's control; the lord had no discretion, only the power to decide disputes according to external criteria; jurisdiction in that sense was all the lord lost as royal remedies developed; and all the tenant gained was better protection of unaltered rights. It is a picture of procedural changes taking place against an unchanging background, with the feudal structure at the beginning almost as insubstantial as it was to be at the end.

This book is directed at the central difficulty in legal history: one is not reconstructing earlier answers to modern questions, but earlier questions; and they were different in kind. Today we see law as a system of substantive rules which can be explained in textbooks, altered by legislation, and embodied in a restatement or a code. It is somehow separate from society and needs separate adjustment; and there is a simple relationship between legal and other change. If this had always been so, legal and social and economic history would all be easy. They are not. Such a vision comes late in legal developments, and the common law reached that stage only in quite recent times. But ever since an early stage fortune has preserved copious original materials; and we can hope to trace not just the changing arrangements of one society, but the stages through which at least one legal system has passed, the changing ways in which the law itself has been seen. The underlying questions have always been beyond discussion in any practical context. How far are right and wrong man's business rather than God's? How and upon what terms are the resources of creation to be appropriated to individuals? But answers are at any one time assumed, and determine what smaller questions arise as daily business for those concerned with the legal process. It is to the changing nature of those practical questions that this book seeks to reduce the development of each of the main branches of the law.