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So far the past, and the questions when and why common law and civil law originated, and when and why judges, legislators or scholars dominated the legal scene, have been discussed. It has not been asked which of these approaches was the best – in other words, the discussion has not gone beyond value-free propositions. Many historians believe that this is only as it should be: the historian's task is to describe and, if possible, to explain what happened, not to tell his reader what lessons he should draw from the past. There are, indeed, innumerable books and articles describing the organisation of governments and courts in a multitude of countries and periods, but although they enter into the most minute details, the reader may be sure he will not be told how good that particular government was for the people concerned. That is a philosophical question, a subjective political decision and that is taboo in scholarly historical work. Although it is not difficult to see many good reasons for this attitude, it is a legitimate desire on the part of the layman that the historian, who presumably knows the past best, should also try to answer some questions about the lessons to be drawn from mankind's experiences. It is well known that the Historical School has been reproached by leading jurists with being ‘ultimately barren, because it could not consistently put any aim before men for which they should strive’ and that ‘in effect the historical method comes to the justification of what is, by simply asserting that it is’. [ABSTRACT FROM AUTHOR]

If amazement is the mother of science, the continental lawyer's amazement when he is confronted with the English common law must be one of the most powerful factors in the scientific study of the law (to which, after all, the Goodhart professorship is devoted). I shall therefore begin with the presentation of ten legal institutions which exemplify the different approach by English and continental law and, in the course of so doing, present some historical explanations or at least considerations. Many more examples could have been selected, but, whether under the influence of the decimal system or because of reminiscences of the decalogue, ten seemed a fair and not absolutely fortuitous number. As befits a legal historian, I shall be concerned with the historic or classic common law without, however, ignoring altogether various recent changes that seem to be narrowing the gap between the common law and the ‘Roman-Germanic family’. Some readers may themselves be amazed at this amazement: is it not natural that every country has its own laws? In the United States every state enjoys and even guards its own laws, and in some cases even a code of laws! To this the reply can be made that the difference between England and the rest of Europe (including to a large extent even Scotland) goes much deeper than the differences among the continental countries and the states in North America: it is the whole approach to the law and the very way of legal thinking which is different, and not just the laws on divorce or the maximum speed on the highways. [ABSTRACT FROM AUTHOR]