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Three things strike me as being embedded into the common law.

The first is its commitment to the past. The common law answers every question with an answer based on what it has done before. The magic of precedent is that it looks out to the past to provide a starting point to answer a present question.

The second is its aversion to replicating the past mechanically. Even when given the answer as to what has happened in the past, the common law does not regard that answer as set in stone. It asks instead whether and what principles – what general rule – can be extrapolated from the past rather than any particular answer. The common law, even when it looks at a particular example, treats all such examples as something to be abstracted into a common general rule that is synthesized from all the prior cases.

The third is its caution at applying the past to the present even when the general rule seems apt to the case before it. The common law is always alive to the possibility that an old rule is no longer a good rule. It tests such questions by reference to modern circumstances, societal norms, cultural values and local circumstances. Every general principle can be modified and every such modification finds itself into the next application of the general principle.

In contrast, the poverty of statutory law is that it fails all three tests. It is neither based on past experience (unless there is that rare thing the codifying statute) nor does it identify the key principles that ought to apply by reference to a variety of circumstances and ultimately a statutory rule cannot be changed by contemporary experience. It has to rely on politics and that fickle beast the legislative process to turn an old rule into a good rule.

To all these three deficiencies of statutory law, the common law applies its limited remedial touch through the principles of statutory interpretation. The magic of the common law is that it corrects some of the principal flaws of the system that is superior to it though its own virtues.

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