An essay in nine easy tablets
Some years ago, I wrote a book called ‘The Common Law, A History’. I wrote it mainly for lawyers, in part because too many were admitted to practice without having been taught the history of the law. That in my view is worse than sad. This essay is not a précis of that book. It is an introduction written for the general reader. People at large should have an interest in the history that underlies and underwrites our way of life. It also represents the bare minimum of what law students should be taught. The alternative may resemble giving a ticket to a doctor who has not opened Gray’s Anatomy. I will publish the essay by nine consecutive posts on this website. I hope you get some of the enjoyment in reading it that I got in writing it.
This is the final part.
We started by looking at the division across the world between those who follow the model of Roman law and those who follow the English model. The Romans may have the numbers of adherents, but a very different question is – who has the political runs on the board?
England is separated from Europe by a channel. But the difference in world views is deeper than the ocean. We have paid too little attention to the contemporary difference between the Anglo-American and European (or civilian) models of justice.
The Roman law derived from codes and codification is its preferred mode of growth. Roman lawyers look for formal elegance. The Code Napoléon is a good example. The common law eschews theory, grand designs, and codification. It arrived, as if by accident, over a period of time – the product of trial and error in applying the doctrine of precedent to events that unguided chance throws up.
One is the rationalist view of the world. The other is the empirical. Ultimately that philosophical divide is reflected in the logical divide between deductive and inductive reasoning. From our point of view – that of the common law – there is a lot of truth in the well-known statement of Oliver Wendell Holmes that the ‘life of the law has not been logic, but experience.’
Those statements are very large. Let me give two examples.
The French law of negligence turns on a couple of parts of the Code. The Code expressly discourages applying precedent, but the French have had to invoke it. As we saw, the common law developed over centuries – and is still adjusting. In the same lecture, Holmes followed the statement above by saying that ‘as the law is administered by able and experienced men who know too much to sacrifice good sense to a syllogism, it will be found that when ancient rules maintain themselves …new reasons more fitted to the time have been found for them, and they gradually receive a new content…’
In 1789, The Social Contract by Rousseau – whom Carlyle called the Evangelist – contained high theory that engaged those in leading the revolution and creating the French Bill of Rights. In 1689, the English just got rid of the Stuarts and then went on with their lives. As it happened, a philosopher, John Locke, wrote a rationalisation after the event. Which almost no English MP has ever heard of. That revolution was successful. The English never had another – and Macaulay purred over that success. The French were in for a century of agony, and people lost count of their models of government.
The two world views can hardly be mixed. When Americans or Australians seek to mix a constitutional absolute with the common law, it is like dumping ox-tail on blancmange. Look at the carnage and intellectual dishonesty wrought by the ‘right to bear arms’ in the US. There is simply no such issue in the UK. They refuse to let a syllogism trump sense. The question is simply: What works better?
English lawyers have an unashamed want of respect for intellectuals or philosophers – and, on a bad day, even for scholars. Americans at least tend to admire legal scholars. This may be related to the absence of a separate bar – which we could not contemplate. (And nor could our judges.) Attempts to replace common lawyers with academics on the bench usually fall flat. (In the eyes of many, the same goes for solicitors – or anyone else who has not spent at least ten years in the trenches of the courtroom.)
The laws of England mainly came from the precedents of the judges with occasional interference from the parliament. The common law derived from custom and precedent and at once underlay but could be overridden by parliament. The law of France and Germany tends to derive from legislated codes with occasional contributions from judicial precedent. One tends to grow from the ground up; the other is what we now call top-down.
The differences between the systems of civil (European) lawyers and common lawyers are most striking in their lawyers. English lawyers were apprenticed – the word comes from the French apprendre (‘to learn’) – on the job. The bar and bench controlled both the education and certification of all lawyers. The Inns carried so much more clout than any bureaucratic form. This led to a very independent bar and an even more independent bench. Here we have that intangible that we know as individualism. You can’t teach it.
The common lawyers – at both the bar and the bench – often allied themselves with parliament against the crown. This de facto alliance is fundamental to our understanding of the English revolutions of the seventeenth century. This movement was not matched across the Channel. And although this comes from a lawyer, the role of English lawyers in shaping their nation only becomes apparent when you compare them to their colleagues in France and Germany and the rest of Europe. The English lawyers were looking at the double – rugged individuals professionally and incestuously united constitutionally. There’s still a fair bit of that about.
Only recently has law to practise been taught in universities in common law countries. Even then, we know they only really get to learn on the job. Lawyers in Europe learned their law at universities. They did not establish an independent bar or bench, at least one that was so strong in the profession and that could be compared to the English. While lawyers may have been prominent in the French and other European revolutions, they were not involved as a professional body as they were in England. And it is only recently that judges in some European countries have been seen to be independent. The role and standing of the judiciary in eastern Europe or on the Mediterranean has almost nothing in common with that in England. It would be rude to assess the difference in centuries.
Common law judges usually come from the bar. Across Europe, judges are educated and trained to be judges from the legal cradle. They do not have years of private practice – hopefully on both sides and in various areas of the law. They are brought up in reliance on the state and then become a part of the machinery of government. They have not been self-employed professionals who were members of a professional body. We can only guess at the difference that makes to the view from the bench.
In the result, it is in my view extremely unlikely that the English judiciary could have descended to the hideous depths of judges in Europe under fascism or communism.
For similar reasons, I very much doubt whether the English people as a whole could have shrunk to the crimes against humanity seen in so much of Europe when convulsed by revolution – which, by definition, involves changing a mode of government by violence – so repudiating the whole idea of a rule of law. England as a nation has not been threatened by internal violence for 300 years.
The English never bothered to set out their constitution in one document. You get it from a number of documents – two agreements between the crown and subjects, the statutes confirming them, and a writ, and one other statute. The rights of the English derive from their power to elect governments, the requirement that government obeys the laws made by parliament on behalf of the people, and their right to require a judge or the parliament to review government action to see that it complies with the law, and of course their right to trial by jury..
If the government wants to imprison someone for a serious crime, it will have to get a verdict from the people of the nation constituted by a jury. In Europe, there can still be found the residue of the notion that whatever is done officially is the law, not of course as with absolute monarchs or dictators, but a different perspective to that of the common lawyer that what is done officially has to be done according to law. Private rights are seen to derive from constitutional laws and the institutions of government.
The English constitution forms part of or derives from the common law. The constitution is not so much the source as the consequence of the rights of individuals.
The English mode of trial is adversarial; the European is more inquisitorial. Just as importantly, the common law trial was developed with a jury finding facts (and an even larger role in parts of the US). The role of the jury dictated consequences for the laws dealing with pleading and evidence and media reporting of jury trials.
The jury also affected the mode of hearing. If you empanel a jury, you cannot run a stop-start inquiry and compile a dossier. The common law trial resembles combat or sport in a way that revolts the European sensibility (and a lot of common law litigants). On the other hand, common lawyers genuinely shudder if you mention the word ‘inquisition’, and an American lawyer would feel at best legless if denied their right – a constitutional right – to a jury.
It is a simple enough model. Representatives of the people meet to make laws; other representatives meet to decide if a person has broken a law.
If there is a jury, the parties get the inscrutable verdict of the nation. Trial by jury is being eroded by ignorant governments, shy judges, and powerful corporations, except in America, where the flame burns bright. Where judges sit alone, they are required to state their findings and reasons in full. This process can be repeated on appeal, often with scandalous duplicity. Some judges try to write with flair and some just try to be intelligible.
In Europe, the process is a lot more impersonal and to the point. It is as if the judges want the parties to know that they are getting the judgment of the court, and are before la majesté de la loi, rather than enduring the idiosyncratic posturing of a barely lapsed prima donna who has never lost the need for the limelight that glows upon the advocate (known by some as Limelighters).
Now, because I have not practised in Europe or presided over a tribunal there, I may be wide of the mark on aspects of their process. But the comparison does sound generally fair. And it is instructive, and not sufficiently noticed on either side.
That is one purpose of this essay. Now to unfold another, and what King Lear may have called a ‘darker purpose.’
In my view, what we know as the rule of law ultimately turns on a state of mind. That proposition sounds so nebulous that it will sadden or madden a lot of you out there. But in order for a community to live with the rule of law, in my view its members must act according to three notions. (Kant may have said that our polity, as we know it, presupposes three premises.)
First is the belief that each of us has a dignity arising from our humanity and no more. (If I need authority, it is Kant again – not faith.)
Second, we are very modest about the power of our minds to arrive at any conclusion that might safely or decently be held to bind the whole community. You could call it intellectual humility – a word we don’t use much now – but we completely reject people who insist that they have the answer to any issue involving moral or political values. (If I need authority, I might refer to David Hume; or Lenin or Hitler.)
Finally, there needs to be an underlying commitment ‘to live and let live’. We live by customs, conventions, and manners. They need to be followed. We can only operate on the footing – a phrase known to our law – that people will seek to act reasonably and accept the decision of those empowered by the law to make it.
The law says that if two people make a bargain, each has an implied obligation to seek to make the bargain work – or at least not act so as to send it off the rails. If the law imposes a binding legal obligation of one kind in a legal contract, the least we can do is to seek to meet the same standard in a social compact. As we found out in the pandemic, you don’t get to live in a decent community cost free. The wish to be free of restraints duly imposed in the communal interest is a profession of selfishness that we associate with those would-be leaders whom we least admire.
If you want a simple term, try moderation, common sense, or plain human decency. Someone – it may have been Erich Fromm – said that freedom means responsibility – that is why most men fear it.
In my view, any group of people – a family, a cricket club, a law firm, a medical clinic, a country town or a great city – is only as good as what those who have got on give back for the benefit of those who come later. You can call it noblesse oblige if you wish – but it is just common sense and ordinary decency. It is what separates the good from the bad and the ugly.
The great English historian of the eighteenth century, Sir Lewis Namier, said that what was missing from English society then was ‘restraint, coupled with the moderation it implies, plus plain human kindness.’ That looks to me to be a precise description of our problem here and now.
We have acquiesced in soulless misdirection for too long. We have stayed silent too long. A silly devotion to a misguided pluralism has stopped us calling out bad behaviour for what it is. We do have morals. They are the rules we make to allow us to get on with each other. Courtesy is like cutlery – it is what distinguishes us from the apes. And there are limits to tolerating misfits where the deformity is moral.
People spruik nonsense about ‘freedom’. Any law stops people doing something – like going through a red light. That is how we seek to live in a community. None of us can ever be free to do what we like. If you prefer anarchy, try a desert island, or some of the darker parts of Africa – but not here, Mate. These delusional ‘freedom fighters’ should stick to Phantom comics. They are like spoiled brats on steroids.
Disaster struck twice in 2016. One problem of democracy is that the people may serve up a rat. The people of the UK and the US each elected as their leader a person whose flagrant self-interest made him obviously unfit to discharge the burdens of his office. Each has by his upbringing as a spoiled brat felt able, if not driven, to flout customs, conventions, and manners. Neither has acted reasonably. Each has refused to accept the decision of those empowered to make it. Each repudiates moderation, common sense, and plain human decency. The word ‘kindness’ limply dies on our lips.
Each traded on the grosser symptoms of the disease called ‘populism’, and yet each claimed – falsely – to be a ‘conservative.’ Each seduced enough soi disant conservatives to have trashed that term for eternity. The word ‘liberal’ suffered a similar fate.
The result in England has been demeaning and insulting – one long Mad Hatter’s Tea Party. The two pole stars of English politics – ‘conservative’ and ‘liberal’ – have been debauched. The result in America has been truly frightening. If it could happen there, who is to say that it could not happen here?
We live under a rule of law that in my view is the essential foundation of any community that claims to be civilised. We have now seen just how fragile our condition is. We have been given what auctioneers call ‘fair warning.’ The rule of law was erected by our ancestors in the course of a millennium. We now know we could blow it all in the space of one generation. As matters stand, the leading national exponent of the rule of law in the world has been sorely maimed. And as far as we know, that wound may prove to be in some way mortal.
So, we – and I’m not just referring to the lawyers – are left with the question asked by that moral giant of the true noblesse oblige, Dietrich Bonhoeffer: ‘Are we still of any use?’
Holmes on first laws: The Common Law, Little Brown & Co, 1881, 2-3.
American jurist: James Barr Ames, Lectures on Legal History, Harvard, 1913, 34. The common law is essentially of Teutonic origin, and came from…Anglo-Saxon law and Norman law, Norman law being Frankish.
Maine: substantive law: Sir Henry Maine, Law and Custom, John Murray, 1890, 389.
Maitland on modes of trial: Pollock and Maitland, The History of English Law Before the Time of Edward I, Revised Ed., Cambridge, 1898, Vol 2, 670-671.
King under the law: Bracton, On the Laws and Customs of England, (Ed Woodbine, trans Thorne) Harvard, 1977, Vol I, 38.
Bloch: Feudal Society, Folio Society, 2012, 434, 545.
Cases on negligence: Macpherson v Buick Manufacturing (1916) 217 NY 582 and Donoghue v Stevenson  AC 562.
Naval case: Commonwealth v Verwayen (1990) 170 CLR 394.
Namier on the US as refrigerator: Namier, Crossroads of Power, 1968, Hamish and Hamilton, 78.
Maine on status: Ancient Law, London, 1861, 170.
French Code on Contract: 1134.
Kant on enlightenment: Kant’s Political Writings, Ed Reiss, CUP, 1970, 54.
Recital: Act in Restraint of Appeals (1533) 24 Henry VIII, c 12.
Historian on brilliant bar and law students: T F T Plucknett, A Concise History of the Common Law, Butterworths, 1948, 205, 211.
Pound on Coke and Charles I: R Pound, The Spirit of the Common Law, 1921 (Legal Classics Library), 74.
Trevelyan on English counsel: England under the Stuarts, Folio, 1996, 105-106.
Ship Money Case: Hampden’s Case, State Trials, 2nd Ed, 1730, Volume 1, 483.
Bill of Rights: I William & Mary, Sess. 2, c 2.
Plumb on Hanoverians: The First Four Georges, PenguinClassic,2000, 39.
Plumb on sanction clauses and violence: The Growth of Political Stability in England, 1675-1725, Macmillan, 1967, 19, 21, 64.
Lord Denning on freedom and the executive: Freedom under the Law, Stevens, 1949, 15.
Act of Settlement, 1701: 12 and 13 William III, c 2.
Mansfield at the bar: Fifoot, Lord Mansfield, Oxford, 1936, 33