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Developments in the law of contract mirrored the rise of mercantilism and industrialisation in the 18th and 19th centuries. English commercial law was the first into the field, a field which (as stated) it leads to this day. Lord Scarman was wrong to say in 1983 that the common law was “delightful but . . . now of marginal importance”. English law is still frequently chosen by non-English parties as the law which will govern their international contracts. Disputes are resolved in the Commercial Court in London or under arbitration clauses which typically choose as a venue either London or other common law jurisdictions.

The common law has thus existed and flourished in England for more than 800 years. It has been successfully exported to many other countries, where it is enthusiastically applied. It is an unquestionable success. As in any such case, the question arises: can it last? What are the threats to its continued prosperity? Although others might answer this question differently, for the present writer three concerns come to mind.

A first threat to the development of the common law is the relentless rise in the number of statutes — laws passed by Parliament, not declared by the courts. There are many areas of law which have always been the province of the legislature, but the history of lawyers’ hostility to statute law is a long one. Sir Edward Coke in the 16th century contrasted common law with statute law: the former was built on “the perfection of reason”, the latter “according to . . . private and sudden conceit”. The jurist Cheshire identified a field of law that had been only lightly touched by what he called “the paralysing hand of the parliamentary draftsman.” Lord Evershed, who preceded Lord Denning as Master of the Rolls, said that the interpretation of statutes was “intellectually exacting but spiritually sterilising”. The humorist A.P. Herbert noted that there was no reference to “fun” in any Act of Parliament — and that was in 1935. There is clearly an element here of lawyers preferring to read their colleagues’ well-educated prose, with the hope of an occasional classical allusion along the way, than to have to grapple with the dry logic of the parliamentary draftsman.

Whatever the aesthetic grounds for regretting the incursion of statute, it is irreversible. As Lord Sumption has observed in this context: “The technical and intellectual capacities of mankind have grown faster than its moral sensibilities or its cooperative instincts. At the same time, other restraints on the autonomy and self-interest of men, such as religion and social convention, have lost much of their former force.” A little earlier, Lord Bingham (a former law lord) wrote: “All must recognise that the complexity and range of modern government, the increasing sophistication of legal issues and relationships, the demands of representative democracy [and] the growth of regulation . . . make it inconceivable and impracticable that the law should depend on the decisions of the judges alone.”
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