The Common Law Mind: Medieval and Early Modern Conceptions
Scholars of comparative law and English legal history have traditionally distinguished the civil law's emphasis on legislation as the primary source ... Show synopsis Scholars of comparative law and English legal history have traditionally distinguished the civil law's emphasis on legislation as the primary source of legal authority from the common law's emphasis on custom and on case law. In The Common Law Mind, lawyer and political scientist James Tubbs finds little evidence to support this and other traditional understandings of English jurisprudence. Examining thousands of legal and judicial documents for references to the nature and authority of custom, case law, statutes, equity, and reason, Tubbs depicts the tensions within and the evolution of English legal thought between the twelfth and seventeenth centuries. Most lawyers, he concludes, never thought of all English law as customary in nature and never understood the common law to be a fundamental law, superior to statute. Instead, statute law was much more central to English jurisprudence than has usually been believed, and it was always understood to be superior in authority to the common law. The Common Law Mind revises a whole tradition of thinking about the nature and development of common law and its role in statutory interpretation.