The Common Law, Equity, and the Classical Tradition

A Collection From the Archives

One of the premises of The New Digest is that both the common law and equity, in both England and America, cannot be understood without reference to the classical legal tradition. Versions of originalism that attempt to treat common-law decisions and decisions of the equity courts as a series of positive data points, in abstraction from the non-positivist reasoning on which those decisions were constructed, fundamentally misconceive the very data on which they rely. We have already accumulated a large back catalogue of superb pieces on these issues by guest authors, some of which our readers may have missed. Thus we thought it would be helpful to offer today a collection of pieces from the archives on the nature, history and methods of the common law and of equity. Enjoy!

1. Prof. Anna Conley on “the common law tradition’s inherent understanding of equity as a principle-based judicial power meant to adapt to changing circumstances.”

2. Prof. Lucas Clover Alcolea on the nature and development of the common law, understood through the lens of St. John Henry Newman’s “development of doctrine.”

3. Prof. Hugo Decker on Ulpian’s understanding of natural law.

4. Prof. Stéphane Sérafin on codification and its relationship to the ius commune.

5. Prof. Alcolea on the incorporation of the classical legal tradition into the common law, with much reference to American as well as English caselaw.

6. Prof. Michael Foran on the common law as a local variant of the classical legal tradition.

7. And to top it all off, Judge Paul Matey on Blackstone and the judicial function. Enjoy!