CHANGE IN LAW

85 The shifting of these interests and ideas means that society, and as a result the law as well, is constantly changing. The appearance at certain historical periods of a stable and immutable law is mislead­ing; and so are the beliefs held by the people of the time.

3 R. C. van Caenegem, Royal writs in Englandfrom the conquest to Glanvill. Studies in the early history of the common law (London, 1959; Selden society, 77), 360-90.

4 e.g. GlanvilFs Tractatus de Iegibus et Consuetudimbus regni Angliae of 1187-9, ed∙ G. O. G. Hall (London, 1965; Medieval texts).

s Cf. S. Reynolds, â€?Law and communities in western Christendom c. 900-1140’, American Journal of Legal History 25 (1981), 205-25. military service which the vassal had to offer; when he died the contract was dissolved and the fief returned to the lord, who could again feu the same property to another vassal (without any obli­gation to choose the son of the deceased, who might not be so talented or so trustworthy). Vassals, however, were eager to provide for the material well-being of their own line of descendants and, under pressure from them, the principle of inheriting fiefs was recognized in the Frankish kingdom during the ninth century. This is a very clear example of the evolution of customary feudal law.⁶ The lords at least managed to preserve their entitlement to releυium, the tax due to the feudal lord by the heir when he took possession of the fief.

Although law is constantly changing, the rate of change varies from one period to another, and periods of stagnation alternate with periods of rapid change. This constant movement occurs whatever the predominant source of the law may be, whether custom, precedent, legislation or scholarship. The shifts in customary feudal law have just been illustrated, and earlier an account was given of the creation of English commercial law through the bold case law of Lord Mansfield.⁷ Likewise, several illustrations of the influence of scholarship have been given, while that of legislation is obvious. Yet whatever the means of change in the law, innovation is usually the result of the collective pressure of interests or ideas, and the efforts of groups in society aiming at emancipation or power. For centuries it was possible to justify (and to impose) one particular conception of the law by appealing to the notion of a return to the â€?golden age’. During the ancien regime, however, opposition to the established order was rife, and argument in favour of a new order widespread; return to the â€?good old days’ was treated as a notion which had been corrupted by certain self-seeking social groups. But until the seven­teenth century, innumerable insurrections and peasant revolts

⁶ F. L. Ganshof, que la fiodaliU?, 5th edn (Brussels, 1982), 218.

’ See above, section 69.

marched under the banner of a return to the past. In seventeenth­century England, nationalistic motives provided another reason for this; there the good old law was Anglo-Saxon law, which had been corrupted by the continental law imposed by the Normans under the tyrannical William the Conqueror (the �Norman yoke’). Only in the eighteenth century did reformers have their eyes fixed resolutely on the future. The old law had lost its prestige as �good’ law.