Why the History of English Law Has Not Been Finished

Professor Baker here revisits the theme of Maitland's celebrated inaugural lecture as Downing Professor in 1888. English legal history cannot be properly written until the original sources have been found and made accessible, a process which has proceeded far more slowly than Maitland had hoped. Baker raises questions about the relationship between the sources which legal historians use and their assumptions about the unchanging nature of the common law. The concentration on case-law rests on the questionable assumption that English lawyers have always given the same weight to judicial decision-making as they do today. Rather, was the English common law at one time predominantly perceived as a body of shared learning and practical experience rather than as purely case-law? Some of that common learning may still be uncovered from sources which parallel the law reports and records.