Continuity and change in the common law tradition

In this chapter, the author argues that law is a tradition, and the common law most clearly so amongst extant secular legal orders. The common law is, of course, not solely a tradition. Nevertheless, understanding law as tradition explains much about its fundamental character. Here the author advocates a return to a particular ‘tradition of tradition’, re-evaluating Krygier's four-part criteria for the classification of legal traditions: pastness, presence, authority, and transmission. He supplements this by articulating three ‘values’ that traditions – as socio-temporal forms of communication – can be seen to advance regardless of their specific contents. He terms these traditions’ pragmatic, social-expressive, and constitutive values. He continues by arguing that the common law, as a living tradition, inherently must change and constantly so. This fundamental, perhaps counter-intuitive, paradoxical reality lies at the heart of the concept of tradition: that to ensure the continuity tradition's form may bestow, then the tradition's contents must change.