To Common Law Methodology v Law Reform by LJM Cooray (1985)

The phrase "common law" needs no explanation. Common law is the body of law brought in to existence and gradually developed over many centuries by the judges of the English courts. The word "methodology" is used to refer to (i) the values that underlie the common law as it existed at the beginning of this century — prior to the changes effected by law reform as defined in this paper; and (ii) the process through which the common law emerged. The phrase "law reform" is used to describe statutory changes to the common law. Many of the statutory changes depart from the "common law methodology" (as explained below). Some of the changes fall within the common law methodology.

"Law reform" involves statutory changes to common law, which changes are effected within the structures of the western constitutional/legal/governmental system. There are law reform philosophies which advocate fundamental replacement of the existing system and structures. The reference to the "law reform process" in the title of this paper excludes such philosophies.

In the previous paragraph the word "change" is used rather than "reform". It is only historians that can make judgments on whether change amounts to reform. Advocates of change, perhaps to lend legitimacy to their proposals, use the word "reform". Reform means change which is beneficial and this can only be evaluated after the change has been in operation for a period of time.

Strong reservations are held about the popular academic and superficial usage of the term ("reform"). A neutral word (change) is a preferred substitution for "reform". The words "law reform" are used in this essay because they are part of popular usage.

The purpose of this analysis is not to defend every rule and principle of the common law — but to explain and support its values and methodology.