The Sources of Legal Judgment

Abstract

Abstract Given that the common law was based on a system of pleas and forms of action and that common lawyers sought for its sources outside that law, it can be seen that it was no static set of eternal rules, nor was it divorced from society and social considerations. As Lord Kenyon put it, judges were not ‘men writing from their closets without any knowledge of the affairs of life, but persons mixing with the mass of society, and capable of receiving practical experience of the soundness of the maxims they inculcate’. The common law was not a self-contained science: it was rather based on a system of forms which allowed lawyers to look outside the law for solutions to legal problems, once the terms of the legal dispute had been set. This did not mean that every case was a wholly new adjudication, where the judges were free to rule as they pleased, based on their ideological or political prejudices, however: for the common law was an artificial forum, where the judges were constrained by the forms of law, its analogies and precedents. Judges remained faithful to a consensus on legal rules, where that consensus existed;4 and in most cases, there was little dispute as to what the law was, since the force of precedent and analogy could give uncontentious answers to legal problems. In these cases, judges did not need to look to social considerations very far, but could answer legal problems from the idealist position that doctrine held all the answers.