Russell Sandberg, Cardiff University
On the centenary of his birth, this post notes the work of the eminent legal historian S F C Milsom and how important it is that law students read his work. It introduces my new student textbook – A Historical Introduction to English Law: Genesis of the Common Law (Cambridge University Press, 2023) – which is designed to encourage law students to look at the common law historically and which introduces them to the wider legal history literature including Milsom’s important works.
In Cambridge in 1972 in candlelight a heresy was being expounded. Stroud Francis Charles Milsom, then Professor of Legal History at the London School of Economics, was delivering the Maitland lectures during a series of black outs. His lectures, later published as The Legal Framework of English Feudalism (Cambridge University Press, 1976), were designed, in his words ‘to make out what sort of world lies in the darkness behind our earliest legal records’. His account was heretical in that it challenged the orthodox account of the development of the common law as authoritatively laid out by Frederic W Maitland a century before.
At this point, Milsom had already secured his reputation as the pre-eminent legal historian of his generation. He had published his detailed introduction to the reissue of the second edition of Frederick Pollock and Frederic W Maitland’s The History of English Law in 1968, which had become a sacred text since the publication of its first edition in 1895. And in 1969, Milsom had published the first edition of what would also become a revered piece of legal history scholarship, his Historical Foundations of the Common Law. Much of this work had entered into a dialogue with the ghost of Maitland, daring to question what had become widely received and accepted orthodoxies, with his Historical Foundations presenting a new vision of the historical development of the common law.
In his introduction to Pollock and Maitland, Milsom speculated that Maitland:
‘would have been saddened by this re-issue of his book, and not only by the inadequacy of an introductory essay that is the sole addition of what last left his hands just seventy years ago. He felt sorry for those whose work became classical: it meant that vitality had been lost from the enterprise they had loved’.
Milsom lamented that ‘Maitland himself would probably wish his work to be superseded. There is little sign that this will happen soon’.
Yet, Milsom’s dialogue with the work of Maitland, his self-confessed heretical revisions and his new formulations has gone some way to rectify this. Maitland’s work has not been superseded but now major elements of it cannot be spoken of without recourse also to the work of Milsom.
This is true not only of the specific corrections or heresies made by Milsom, such as his correction of assumptions that had existed for centuries that the word trespass had always had a specialised legal meaning. Recourse is also needed to the work of Milsom more broadly. Milsom’s contribution has been to show why it is vital to understand the past on its own terms, rather than to read back later understandings and assumptions. He revolutionised the study of the historical development of law by regarding it as an intellectual puzzle, the purpose of which was not to shed light on the current law but rather to reconstruct a different earlier legal world. His work highlighted how in each age practitioners sought to get their client out of the legal difficulties of the day.
Yet, a century after his birth and seven years since his death, there is a risk that what Milsom feared had happened to Maitland might now be happening to Milsom himself. Historical Foundations of the Common Law has itself become a classic text. Milsom’s work is now in danger of being seen as the final word on the topic.
Moreover, in an age where legal knowledge is reduced to a multiple choice test akin to the driving theory exam and where information is not only at our fingertips but constructed by artificial intelligence, it may be thought that old stories about the origins of the common law and legal history are passé. It may be asked why anyone other than legal historians should bother with Milsom’s erudite and very technical writings.
However, I am of the view that it was only through studying legal history that my law degree made sense. I was fortunate enough to study an optional module at Cardiff University taught by Professor Thomas Watkin which explored the origins and early development of private law and I have been even more fortunate for the last ten years or so to reintroduce a module on legal history at Cardiff teaching alongside Professor Norman Doe and Dr Sharon Thompson. In so doing, I have seen legal history have the same effect on students today as it had on me.
The study of legal history provides much needed context. As I pointed out in my book, Subversive Legal History: A Manifesto for the Future of Legal Education (Routledge, 2021), the need for and potential of a historical approach to studying law can be illustrated by using a novel analogy. Law students studying particular legal modules are like a reader of a novel who is reading in isolation a chapter somewhere towards the end of a novel. By focusing on that one chapter, the reader has little if no grasp of the story so far, the extent to which the current chapter moves that story on, or what is likely to come next. The same experience is true of students who only study a very small part of the story and have little insight as to how the story has previously developed and its future likely trajectory. Reading those previous chapters would not necessarily show a linear movement towards progress. Rather they show the ebb and flow of ideas, the paths not taken and the voices silenced. A historical approach to law underscores that the current system came from somewhere, that there was a time when things were done differently and that the narrative of progress is a story.
In a rare post-retirement address in 2001 to mark the unveiling of a memorial tablet for Maitland at Westminster Abbey, Milsom reflected that the history of law ‘is the intellectual history of society’. Milsom’s work shows us that the study of legal discourse over time is a form of intellectual history revealing the development of legal ideas.
This not only contextualises the current law. It also transforms our understanding of legal change. It shows how the law and legal institutions are not fixed but are constructed and that every line drawn in the law and everything the law holds as sacred is arbitrary. Different ways of thinking are possible now since they have existed in the past.
The study of legal history can transform legal education. Studying law is not just about learning how to think like a lawyer but also how to question like a citizen. And a critical understanding of the historical development of law is central to both objectives. A historically informed law student can understand the nature of law, play and analyse legal ideas and concepts and explore the potential for legal and social change.
A century after Milsom’s birth and following a lifetime of scholarly dialogue with Maitland, the work of both men deserve to be read by law students today. But as Milsom noted of Maitland’s work, their work should not be seen as rarefied classics. Rather, we should now approach Milsom as he approached Maitland. We need to enter into a dialogue with both men, drawing also upon an interdisciplinary range of materials, approaches and insights.
This is the aim of my new student text – A Historical Introduction to English Law: Genesis of the Common Law(Cambridge University Press, 2023). The book retells stories surrounding the origins and early development of the common law. It seeks to not only help students understand and contextualise their study of the current law but it will also show them that the options they have to change the law are greater than they might assume from just studying the current law. It enters into a dialogue with Maitland, Milsom and other scholars from a range of perspectives and disciplines. The book is designed to highlight the importance of the historical study of law, to whet the appetite and to introduce students to the wider literature.
A Historical Introduction to English Law: Genesis of the Common Law is intended to be the first book students read on the history of English law but not the last. If it inspires and encourages students to discover the work of Milsom then it will have fulfilled its purpose, ensuring that his work is read, engaged with and criticised during the second century since his birth. After all, there are new heresies to expound and possibly even in candlelight.
- I am grateful to Dr Sharon Thompson for her comments on an earlier version of this post.