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Published: Fri, 02 Feb 2018
The History of Law
The “law” cannot be spoken of as a single homogenous entity. “Law” is defined in the Concise Oxford Dictionary as “a rule or system of rules recognised by a country or community as regulating the actions of its members and enforced by the imposition of penalties”. Beyond this, however, the history of law of different communities has developed in distinct ways, reflecting the prevalent socio-political norms and values of the society which they regulate. The history of “laws” of pre-literate African societies, for example, are significantly different from the history of laws of a developed Western democracy. This essay will consider the history of English law, and will outline how it has developed over the centuries.
The history of the law of England and Wales has developed in tandem with the peculiarly English unwritten constitution, which sets out the broad principles on which the common law is based. The United Kingdom is virtually alone amongst modern democratic states in not having a written constitution. This means that the sources of law in England are varied, and include not only the statutes that Parliament passes, but also the judicial decisions of judges on a case by case basis. This means that all three branches of the state, that is the executive, the legislature and the judiciary, all have a role to play in developing the history of the law. This collaborative system has developed throughout the history of the United Kingdom, and while the lack of any major single political upheaval has been cited as the reason the UK has not found the need for a written constitution, her history reveals much about her unique legal system.
One of the fundamental doctrines that is prevalent through the history of law in England is that of the supremacy of Parliament. This means that although all three branches of the state have a role to play in making the law, Parliament (that is, the legislative body) is the highest source of law. These laws (providing they have been passed properly) must be applied and upheld by the courts. This doctrine is premised on the principle that Parliament is democratically elected, so should have the upper hand in making the law. This doctrine has a sturdy historical basis, having developed since the Middle Ages, although in recent decades it has been somewhat undermined by the increase of judicial activism in making and interpreting the law, and by the increasing influence of European Union jurisprudence since the UK’s joining of the Community. The other major source of English law that has developed through the history of law is the common law, which will now be considered.
The common law is the law made by the courts (which will, often, be based on statutory law). The historical background to the development of the law in England is significant. It should be noted that historically, England was not governed by a single system of law. Rather, prior to the Norman Conquest in the eleventh century, there were several different systems in operation. There developed, however, a common principle of stare decisis (meaning “let the decision stand”) which made the law more predictable in similar cases. The law was administered according to local laws by representatives of the Crown. Eventually this led to a “common law” throughout the country, which became the historical basis for the common law of today. The basis of stare decisis developed into a more general system of precedent, which now manifests itself in the doctrine of binding judicial decisions (facilitated by the inception of a system of publishing the case reports of higher courts).
This, then, is the history of the common law in England, which was subsequently exported to many jurisdictions around the world, largely as a result of Britain’s colonial activities. The historical development of the common law has seen different eras of activity in judicial law-making. Until the twentieth century, for example, the judiciary were generally less prepared to “legislate from the benches”. Throughout that century, and in the early years of the present one, judicial activity in this respect has generally increased. In 1952, Lord Denning, a particularly activist judge, encouraged the judges not to be too timid in developing and adapting the law to meet the changing societal needs, in a lecture entitled “The Need for a New Equity”. One can discern a change in the focus of the history of the English law towards the judiciary.
In the 1980s (by which time Denning considered the courts to have regained a degree of control in this respect), Lord Scarman publicised his own view in McLoughlin v O’Brian (1982); namely that it was the courts’ role to adjudicate according to principle, and Parliament’s role to legislate in order to overrule any results of this that it considered to be socially unacceptable. He was concerned that if the common law remained static, it would be incapable of adapting to the changing needs of society. Particularly in the light of the Human Rights Act 1998 and the increase of European legislation, we have seen this degree of judicial influence on the law increase substantially. This was a crucial point in the history of the law.
Another major aspect of the English legal system‘s history is, in the context of the criminal law, trial by jury. Historically, this was imported into English law by the French during the Norman Conquest. Jurors initially acted as witnesses, however, and often had an administrative role (they were instrumental in gathering information for the Domesday Book for example). Gradually, through the history of the law, their function changed, and the principle emerged that jurors should know as little as possible about the case with which they are involved prior to the hearing. The historical significance of Bushell’s Case (1670) cannot be overstated. This established that juries are sole judges of fact, who have the right to give verdicts according to their conscience. The effect of this today is that juries may acquit a defendant even in circumstances where the law demands a guilty verdict.
This, then, outlines the historical development of two fundamental aspects of the English law; the common law and the juries. The richness of the English law is largely the result of the long and turbulent history, without the need to establish a codified constitution along the lines of civil law countries.
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