Whatever else it might be or have, the common law has legs. It remains a vibrant force that has managed to retain its prominence and rigor through dint of its stamina and versatility. It is obviously not a “thing of beauty” that is “a joy for ever” whose “loveliness increases” – it very much has its sore spots, unsightly features, and ugly postures. But a little like Keats’ conception of beauty, the common law likely “will never pass into nothingness.” It has exhibited a tenacity and a familiarity that has enabled it to maintain the allegiance of its professional corps, who in turn have succeeded sufficiently to convince people, high and low, that it is an institutional practice worth preserving. The common law is a showcase or a shambles, depending on your point of view, by virtue of the talents of those lawyers who work with it and the interests of those litigants who must rely on it.

There are some true believers who insist that the common law, a little like the market, is much more than the sum of its discrete decisions. Following the lead of a Lord Mansfield (who, at the time, was still Mr. Murray, a young solicitor general) in an eighteenth-century case, such true believers opine that “the common law works itself pure by rules drawn from the fountain of justice.” In this lofty account, the common law is cast as both the expression and repository of a political insight that transcends the bounds of its temporary articulation – there is a balance between the law's immanence (i.e., the idea of law as the rational embodiment of an indwelling justice) and the law's instrumentality (i.e., the practice of using law as an institutional tool for settling social problems).