The Morality of the Common Law

Abstract

This essay is about the problem of determining the possibility and nature of a connection between morality and law. Its purpose is to indicate, by reference largely to some recent problems of the law of contract and the law of torts, the way in which judges are compelled to look at the nature of the common law system in order to extract some basic principles, from which decisions can be made in different instances. The argument is put forward that such principles are culled from the innate morality of the common law, which itself is a product of society in general and the legal nature of that society in particular. Justice, indeed, is what the judges declare it to be: in making such declarations the judges are governed by what they find to be the fundamental concepts of legal rules — and these concepts are variable.