The Law of Obligations, the Common Law and Legal Change: A View from the Gutter

22 Pages Posted: 13 May 2021

See all articles by Warren Swain

Warren Swain

University of Auckland - Faculty of Law

Date Written: October 20, 2016

Abstract

The leading Canadian law academic, Stephen Waddams, has summed up the predicament of the law professor:

Law teachers are used to being attacked from several directions. Colleagues in other university faculties consider them mere technicians. Law students think, on the contrary, that their teachers are insufficiently practical and the legal profession regards them as a woolly minded set of individuals out of touch with reality.

These tensions are nothing new. This inaugural will explore the role of the law professor from a historical perspective. The law professor in England was in quite a different position to their equivalents in mainland Europe. The Common Law was not taught by anyone in universities until Sir William Blackstone in the mid-eighteenth century. Blackstone’s lectures did not form part of a law degree. The Common Law was not on the formal syllabus for another century. Teaching and writing about law in universities was confined to the Civil Law rather than the Common Law. Those who were educated in the Civil Law practiced in Doctors’ Commons. Whilst the Ecclesiastical Court and Court of Admiralty were not insignificant, they could hardly be compared with the Common Law courts. Equally the range of legal writing does not compare favourably with other jurisdictions. All in all it can be said that law professors in England have, over the course of centuries, had a relatively peripheral role. This has had a major impact on the relationship between the legal profession and academic lawyers. It helps to explain why jurists in Common Law jurisdictions tended to be less important in shaping the direction of legal development.

Keywords: Legal education, legal writing, contract law

JEL Classification: K10, K40

Suggested Citation

Swain, Warren, The Law of Obligations, the Common Law and Legal Change: A View from the Gutter (October 20, 2016). Available at SSRN: https://ssrn.com/abstract=3830853 or http://dx.doi.org/10.2139/ssrn.3830853

Warren Swain (Contact Author)

University of Auckland - Faculty of Law ( email )

Private Bag 92019
Auckland Mail Centre
Auckland, 1142
New Zealand

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