S. F. C. Milsom is the most distinguished living legal historian of the English Common Law. His first article on legal history was published as long ago as 1954. He is best known among legal historians for his classic articles on the early history of trespass (of 1958), his “legal introduction” to the Selden Society volume of Novae Narrationes of 1963, and his textbook account of the Historical Foundations of the Common Law (first published in 1969, with a second edition published in 1981). It was, however, his Legal Framework of English Feudalism, published in 1976, which first attracted the attention of a rather wider audience of medieval historians.

His latest book is a published version of the James S. Carpentier Lectures, which he gave at Columbia University Law School in 1995. It consists of a substantial introduction, a full bibliography of his published works (down to 2002), and four chapters of text. The introduction is particularly revealing for what it tells us of Milsom's own view of his work. He sees himself as engaged in “historical jurisprudence” on the grand scale and in trying to write something like a “natural history” of the Common Law as a legal system, which allows its development over time (through infancy, maturity, and decadence) to be compared with that of the only other legal system that can be studied over the whole of a similar period of development, Roman law. His interest is primarily, indeed almost exclusively, in legal ideas, in legal thought, and in how it develops (slowly) over time, and not with the specific legal institutions through which legal ideas have been applied or developed (except insofar as they facilitate or retard legal thinking) and certainly not with law in action, how specific people have used law in the past. This kind of legal history is, for Milsom, the only kind of legal history worth the name, and it is something, he argues, that only lawyers can do, because historians have come to concentrate on shorter and shorter periods and on static pictures, ignoring the kinds of longer-term change with which legal history must concern itself.

Three of the four chapters that follow provide an elegant and eloquent restatement (and occasional modification in points of detail) of some of the main theses advanced in Milsom's earlier work. Chapter 1 (“Making Law: Lawyers and Laymen”) explains why the English Common Law took so long to even begin to develop a comprehensive substantive law of tort (civil wrongs) and contract. In contract it was the use of compurgation as a method of proof that prevented the courts developing substantive legal rules. In lawsuits thus decided no detailed facts could or needed to emerge in pleading, and no sophisticated legal thought about contracts was possible without such facts emerging. In tort it was the primacy of the general issue (“not guilty”) and the blank and legally unfruitful jury verdicts this produced that acted as an impediment to legal thinking. Chapter 2 (“Changing Law: Fictions and Forms”) looks at how long-term legal change, and major changes in the conceptual categories of the Common Law, were possible within the Common Law without the need for legislation. Milsom sees such changes as being ultimately the result of the cumulative work of generations of individual lawyers working in an intellectual free market, not seeking to change the law, just to produce the best result for their clients, but able to enlist the cooperation of jurors who were concerned to do justice but not overly concerned with preserving the purity of existing legal rules. He again draws most of his examples from the history of the law of contract and tort. Chapter 3 (“Management, Custom and the Law”) looks at the process initiated in the second half of the twelfth century by which the Common Law came to develop a comprehensive substantive law of property (land law). He sees this as the unintended effect of external royal enforcement of customary rights against what had until then been sovereign feudal courts, making essentially managerial decisions about who was to hold the land of the lords of those courts. Chapter 4 (“History and Lost Assumptions”) is quite different. It is in essence a discussion of methodology, explaining why it is so difficult, but also so crucial, for the modern legal historian to uncover the hidden assumptions behind the legal thinking of the past and why it is necessary in doing so not to work not as most historians do, building up a framework of ascertainable facts, fact by fact, into an overall picture, but more like natural scientists, looking for large hypotheses that possess general explanatory power. This is vintage Milsom, written with great clarity and elegance, an excellent introduction to his own, often less accessible, earlier work.