Will the genius of the common law survive?

The cornerstone of our legal system has withstood the encroachments of EU and statute law, but the jury is out on its long-term future 

Jonathan Gaisman

The Supreme Court Justices: Lord Mance (fifth from left) has said that being a common lawyer in the EU can be “lonely”  ( ©Victoria Jones/PA Wire/PA Images)

The common law is perhaps the single most distinctive feature of the condition of Englishness. Together with our language, it is at the heart of what makes us different from the nations of continental Europe. We tend to take it for granted. But like anything else that is taken for granted, it is useful periodically to inquire into its health and future. As the United Kingdom prepares to leave the European Union, now seems a good time at which to do so.

The future of the common law, like the future of an individual, is inseparable from its past. The character of our law is inextricably linked to our national history — a statement truer of England than of any other European country (but not the United States).

England, unlike its neighbours on the continent, was unified before the Norman Conquest. (Scotland was of course an independent country, and it developed a body of law which is quite separate to this day.) It was Henry II who started the wheel in perpetual motion which generated the common law — meaning the law common to the whole realm. He introduced a centralised system offering superior procedures and more effective remedies than those available in courts which had previously applied local customary law. The new regime was overseen by itinerant judges, backed and sometimes accompanied by the King, travelling the country by horse to administer unitary justice. They were from the start men of the highest quality.

The common law was and remains the aggregation of the decisions made by those judges and their successors. It was initially rendered coherent by internal discussion, and then by the doctrine of precedent, whereby (broadly speaking) later judges were required to follow legal rulings made by their predecessors. Common law is judge-made law, and for present purposes (though not strictly accurately) is treated as including the rules of equity developed in parallel by judges in the Court of Chancery that had emerged by the 14th century. (The two were largely fused in the 1870s.)

It follows that an inquiry into the future of the common law engages two conceptually distinct elements: the law itself, and the judges who have created it. From an early stage, the common law was defined not just by what it was, but how it was made. The rule of law — the protection of the individual from executive oppression, exemplified in the remedy of habeas corpus — was indivisible from the standing and independence of the judiciary. Lord Goff, a former law lord, has gone so far as to argue that the distinguishing feature of the common law is not its substantive rules but the “form . . . of our law . . . our judicial system and our procedure . . . in its broadest sense, together with our methods of legal reasoning”. The health of the common law is thus inseparable from the condition of our judges.

The American jurist Oliver Wendell Holmes wrote that “the life of the law has not been logic; it has been experience . . . The law embodies the story of a nation’s development through many centuries, it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.” The common law is not written out in a series of lapidary propositions. (Certain legal textbooks attempt a codifying approach, but any given “article” is invariably followed by pages of discussion of the case-law and qualification of the original statement. There are also codifying statutes which are themselves based on the common law.) The nature of the common law is illustrated by a semi-humorous anecdote about an Eastern European country that, following the fall of the USSR, decided that it wanted to adopt English commercial law (widely regarded as a jewel in the common law’s crown). Apparently there were two insuperable obstacles: no one knew what it was, and no one knew where to find it.

An alternative to this whimsically self-effacing view is the romantic myth espoused in Harold Potter’s Outline of English Legal History (1958), which can still quicken the heart:

English law is like a river. The channel widens and deepens as it flows through the course of years and tributaries join it from time to time. It was first fed by the springs of the common law, but the fountain of equity and the wells of the law merchant and ecclesiastical law have increased the waters of the growing current. And upon the tide is borne the ship which is the soul of England.

As this purple passage implicitly recognises, English law has always been an acquisitive magpie: the term “common law” comes from the jus commune of the canon lawyers; the doctrines of equity had their roots in Roman and ecclesiastical law; and in his influential development of English commercial law, the great 18th century judge Lord Mansfield borrowed from the European lex mercatoria among other foreign influences, including Justinian himself.

The importance of the role of judges in the development of the common law emerges most clearly from a comparison with continental nations. Most European countries have a civil (Roman) law system, based on codes which declaim a series of legal propositions. Current Supreme Court Justice Lord Mance has said that being a common lawyer in the EU can be a lonely business: Ireland, Malta (in part) and Cyprus are the only other member states which have the common law. (By contrast, the countries to which Britain has bequeathed it, especially the United States, Canada, Australia and New Zealand, retain close links with English law and with each other; there is a high degree of cross-fertilisation.)

It is hard not to feel a sense of covert national pride — a diminishing resource — at the comparison of our judges’ modus operandi with that prescribed by article 5 of the French Civil Code, dating from the time of Napoleon. This forbids French judges to make any general statement of legal principle in any case before them, or indeed to construe the code — the very activities which English judges regard as at the core of their function. As Lord Sumption, another Justice of the Supreme Court, has pointed out, the ancient fiction promulgated by Blackstone in the 18th century, that judges discover legal principles in the luxuriant undergrowth of previous decisions, is just that: instead, modern English judges consciously seek to keep the law abreast of current social conditions and expectations.

By contrast, judicial decisions in civilian jurisdictions are no more than glosses on an unchanging legislative code. While judges in these countries are not allowed to pronounce by way of principle on what the codes mean, foreign law professors are under no such inhibition. Lord Goff was a keen comparative lawyer (i.e. one interested in examining and sometimes adopting solutions to legal problems offered by the civil law), but he thought that the “astonishing” and “dominating” influence of academic lawyers in civil law systems was a massive incubus of learning, casting a shadow under which it was a relief for common lawyers, with their “simple, practical island story”, not to have to live.

English judges are traditionally drawn from the upper ranks of the legal profession — whereas on the continent judges (a far more numerous body than in England) are typically appointed straight after completing their law studies at university. The recently retired President of the Supreme Court, Lord Neuberger, has favourably contrasted English common law — adaptable to fast-changing practical and commercial realities, applied by late-entry judges familiar with real world problems as a result of their decades of legal practice — with an academically constructed set of rules applied by judges who are more akin to state functionaries, having spent their whole careers in a “judicial cocoon”.

When a judge in England expresses or develops a common law principle, this is always only a working hypothesis, and is not usually cast in theological terms. It is expected that other judges will qualify, improve and maybe in due course depart from it. Lord Goff again: “Continental lawyers love to proclaim some great principle, and then knock it into shape afterwards. Instead the boring British want to find out first whether and, if so, how these great ideas are going to work in practice. This is not at all popular with the propagators of the great ideas.” The European approach is to apply principles top-down, rather than to define the legal issue by reference to the facts of the case; it favours fixed and easily-applied rules over pragmatism and flexibility. It is irresistible to see here a parallel with the contrast between the British and continental philosophical systems (especially the German): the common-sense empiricism of Hume (say) compared with the synthetic a priori truths proved to his own satisfaction by Kant.

The working method of the French Cour de Cassation provides an example: modelled on the Aristotelian syllogism, it proceeds by way of major premise (statement of law); minor premise (statement of fact); conclusion. The judgments of the Court of Justice of the European Union adopt what Lord Mance calls the “uniform and colourless style we associate with the civil law”. They set out the facts and the law with only terse reasoning, often repeating without elaboration some previous statement of the Court, which is said to govern the present case. Overt dissent is not permitted. The disadvantages in this approach identified by Lord Mance include obscurity; a committee-style process discouraging individual engagement; a lack of nuance and contrast which is prejudicial to future legal development; and a want of transparency. (It is right to say, however, that this committed internationalist also identified countervailing advantages). German judges favour strewing their judgments with strings of indigestible paragraph references, of course called Paragraphenketten. Judgments in the German Supreme Court are typically written before the hearing, and oral advocacy there (and in France) is often little more than a formality.

Although Lord Goff acknowledged the ability of continental systems to produce judge-made law (e.g. the development in Germany of a right to privacy, which did not become part of English law until after the passing of the Human Rights Act 1998) he expressed himself pungently about the contrast in method: “Our judgments tell the truth”; they “are not written in code like the French judgments”. Part of this process of truth-telling is in the ability of the English judge sitting as one of a court of three or five (occasionally more, in important Supreme Court cases) to dissent, i.e. to write a judgment saying that his colleagues have simply got it wrong. What Lord Goff called a “liberation” is on the continent an “anathema”. Some English law dissents have become famous in their own right, such as Lord Atkin’s impassioned refusal to permit war-time detention on the Home Secretary’s mere say-so, in Liversidge v Anderson (1941). Others have become adopted as orthodox, because later judges realised the error of the earlier majority’s thinking. Unsurprisingly, the most famous post-war example involves the vindication in 1963 by the House of Lords of a 1951 dissent in the Court of Appeal by the most celebrated judge of the 20th century, Lord Denning.

As for the innumerable historical achievements of English judge-made law, one might single out, first, the early development of a coherent law of trusts (a concept which is still absent in many legal systems, although its roots in England lie as far back as the Crusades); secondly, the evolution of the entire law of obligations, both voluntarily assumed (as in the law of contract) and involuntarily incurred (as in the law of tort, which includes negligent actions or statements). A third remarkable development, beginning in earnest in the 1960s, was the entire body of remedies available to individuals seeking to challenge decisions taken by governmental and public bodies, now exercisable through an application for judicial review.

Developments in the law of contract mirrored the rise of mercantilism and industrialisation in the 18th and 19th centuries. English commercial law was the first into the field, a field which (as stated) it leads to this day. Lord Scarman was wrong to say in 1983 that the common law was “delightful but . . . now of marginal importance”. English law is still frequently chosen by non-English parties as the law which will govern their international contracts. Disputes are resolved in the Commercial Court in London or under arbitration clauses which typically choose as a venue either London or other common law jurisdictions.

The common law has thus existed and flourished in England for more than 800 years. It has been successfully exported to many other countries, where it is enthusiastically applied. It is an unquestionable success. As in any such case, the question arises: can it last? What are the threats to its continued prosperity? Although others might answer this question differently, for the present writer three concerns come to mind.

A first threat to the development of the common law is the relentless rise in the number of statutes — laws passed by Parliament, not declared by the courts. There are many areas of law which have always been the province of the legislature, but the history of lawyers’ hostility to statute law is a long one. Sir Edward Coke in the 16th century contrasted common law with statute law: the former was built on “the perfection of reason”, the latter “according to . . . private and sudden conceit”. The jurist Cheshire identified a field of law that had been only lightly touched by what he called “the paralysing hand of the parliamentary draftsman.” Lord Evershed, who preceded Lord Denning as Master of the Rolls, said that the interpretation of statutes was “intellectually exacting but spiritually sterilising”. The humorist A.P. Herbert noted that there was no reference to “fun” in any Act of Parliament — and that was in 1935. There is clearly an element here of lawyers preferring to read their colleagues’ well-educated prose, with the hope of an occasional classical allusion along the way, than to have to grapple with the dry logic of the parliamentary draftsman.

Whatever the aesthetic grounds for regretting the incursion of statute, it is irreversible. As Lord Sumption has observed in this context: “The technical and intellectual capacities of mankind have grown faster than its moral sensibilities or its cooperative instincts. At the same time, other restraints on the autonomy and self-interest of men, such as religion and social convention, have lost much of their former force.” A little earlier, Lord Bingham (a former law lord) wrote: “All must recognise that the complexity and range of modern government, the increasing sophistication of legal issues and relationships, the demands of representative democracy [and] the growth of regulation . . . make it inconceivable and impracticable that the law should depend on the decisions of the judges alone.”

Furthermore, there are many examples of statutes which have addressed an undoubted social need which English judges could not realistically have met. The 1960s witnessed the passing in short order of the Abortion Act, the Race Relations Act, and the Sexual Offences Act (decriminalising homosexual acts), which have all (together with subsequent legislation in the same fields) attracted wide consensus. There is also a lively debate about whether it is the courts which should be deciding questions of fundamental rights, as philosophers such as Ronald Dworkin have maintained, or whether it is politicians, for all the chicanery and fudge of political decision-making, who should be doing so, as Lord Sumption has argued. (He points out that the US Supreme Court decision of Roe v Wade, recognising a woman’s constitutional right to an abortion, a decision which remains controversial in the US, might have gained more general acceptance if it had been promulgated by the legislature instead of by judges.)

Nonetheless, there are grounds for concern. Statutes reflect all the venalities of the political process, increasingly unmitigated by careful review and expression. (The Equality Act 2010 is a particularly lengthy and dismal example of Soviet-style draftsmanship.) The number of new laws is in itself troubling. There were 40 major Acts of Parliament on criminal justice or penal policy between 1997 and 2006. It has been estimated that in the same decade more than 3,000 new criminal or regulatory offences were created. A statute, once passed, is likely to remain in force; Parliament prefers to make new laws than to repeal old ones. The common law is a more agile and flexible means of correcting a newly-emergent problem. There is also the proliferation of secondary legislation (an issue acquiring acute significance in the context of Brexit), whereby statutory instruments, promulgated on the fiat of ministers and without full scrutiny, effect significant legal change. Thus, in becoming increasingly determined by statute, our law falls into some of the vicissitudes of the continental codes.

There is consolation in the fact that the task of interpreting statutes falls to the very judges who administer our common law. They can be relied upon to do so robustly, and there are often wide areas in which a statute accords significant interpretative freedom to the courts. Lord Justice Beatson has observed that while “the core of pure common law doctrine continues to shrink” under the influence of statutory incursions, what he calls the “common law technique” will continue — meaning that the business of statutory interpretation is a furtherance of the common law by other means. Judges have often stressed that common law and statute law should not be seen as oil and water, but as part of a single system. It is even suggested (as a corollary of this analysis) that judges should welcome elements of legislation into the common law. Beatson envisages that this would require academic lawyers to work co-operatively to identify the principles underlying statutes and the limits of such principles, in order apparently to plot them back into the unified system of which the common law is part. Although it is possible to think of examples where such a course might be realistic, this is not the development of the common law in any traditional or easily recognisable sense.

Much the most significant external influence on the development of the common law in its history has been triggered by the accession of the United Kingdom to the (then) EEC in 1973. At the time, Lord Denning expressed the impact of this occurrence in the apocalyptic language of reverse Churchillianism. “The Treaty [of Rome] is like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back . . . Parliament has decreed that the Treaty is henceforward to be part of our law. It is equal in force to any statute.” A few years later: “The flowing tide of Community law is coming in fast. It has not stopped at high-water mark. It has broken the dykes and the banks. It has submerged the surrounding land. So much so that we have to learn to become amphibious if we wish to keep our heads above water.”

Subsequent judges have tended to denigrate this view. Lord Goff mischievously wondered whether his former colleague had forgotten that tides go out as well as come in. He pointed out that the European Court was open to influence from national laws, including our common law. Lord Neuberger has said that Lord Denning ought to have been invigorated by “yet another external influence” on the common law (an allusion to the magpie tendency referred to above). Serving judges are constrained in what they can say, and have to make do with the legal tools available to them. Some are also enthusiastic Europeanists. It must however be pointed out that the sheer scale of the incursion of EU laws and directives which have altered and affected domestic English law (though not commercial law to any significant extent), together with the fact that we cannot choose whether or not we wish to adhere to them, make a parallel with the judicious borrowings of Lord Mansfield in the 18th century seem somewhat far-fetched.

Lord Denning was already an old man when he made his remarks. He loved the common law, and had contributed as much to it as any 20th-century judge. The extent to which judges are relaxed about the encroachment of European law into English law is, like many matters European, one of taste. But the 27 countries which will remain in the EU after March 2019 have (with the historical exceptions identified) showed little general interest in the way we do things here. The European Court is wont to reject a submission based on common law doctrine by saying that it is “only recognised in a limited number of Contracting States” — majoritarian reasoning which is depressing to English lawyers, who are used to an argument being weighed on its actual merits.

It may be thought an odd time to be identifying the laws of the EU as a (second) threat, given that we are shortly to leave it. Lord Neuberger, a few weeks after the referendum, saw the influence of EU law as perhaps no more than a 50-year “blip” in the life of the centuries-old common law. This already seems optimistic. Although the future is uncertain — whether the UK adopts a policy of adherence to EU laws, or one of gradual divergence — the signs are that Brexit will be an opportunity not fully taken to purge English law of what purists see as the scarring inflicted by an aberrational experiment in the pooling of legal sovereignty.

As an illustration, we may focus on the legal rules relating to the wide exclusions of liability which are contained in the small print of many contracts. These are often found where the person tendering the contract is in an economically superior position, and can dictate terms to the consumer. The common law developed various techniques for mitigating the unfairness to which such situations could give rise, and in due course there was parliamentary intervention in the form of the Unfair Contract Terms Act 1977. This in turn gave rise to numerous judicial decisions on the Act; and the two together constituted a body of distinctively English law on the subject. However, all of this was cast to the winds by the EU’s 1993 Directive on Unfair Terms in Consumer Contracts, compulsorily enacted into our domestic law (and now reflected in the Consumer Rights Act 2015). The Directive ignored the anterior English position and introduced an approach based on the German Standard Contract Terms Act 1976 and similar legislation from the Netherlands and Luxembourg. English judges now have to grapple with the unfamiliar civil law concepts of “good faith” and “significant imbalance”, as interpreted by the European Court. To read an English textbook on the subject is now in large measure to read a European law textbook. Indeed this comment could be applied to many areas of English law.

Another benevolent creature of the English common law (in fact derived from Scottish law) is the doctrine of forum non conveniens. This provides that an English court can halt an action properly begun before it, provided that it is persuaded by the defendant that the case ought to be tried in the courts of some other country, because that would better serve the interests of all the parties and the ends of justice. This pragmatic and sensible rule finds no parallel in civil law systems. The European Court has therefore decreed that English courts are not to apply it in any case where jurisdiction is conferred on the English court by EU rules — even where the other country is outside the EU.

The UK government has made clear that it intends to seek a perpetuation of the existing jurisdictional rules post-Brexit. This approach is likely to be typical across the board. It is also unlikely that the Consumer Rights Act will be repealed. Nor is it just a question of the probable perpetuation of old arrangements. The question also arises to what extent English law in the future will be subject to new EU laws, on the content of which the British will have had no say. Predictions on Brexit are liable to be proved wrong sooner than most, but Lord Neuberger’s “blip” is more likely to prove a cloud on the horizon. EU law as a diminution of the common law is not only here to stay, but is of uncertain future ambit.

One footnote to the European dimension should be added. Despite comments to the contrary by some who cast envious eyes on the successful export of English legal services to the international community, there is nothing in Brexit which need make parties hesitate in continuing to choose English law or jurisdiction. The substance and quality of English commercial law itself (in particular English law’s highly developed law of contract) remain unaffected by the UK’s departure from the EU. Parties who enter shipping or sale or insurance contracts hereafter will receive the same blue riband product as before. Those who suggest otherwise do not do so in good faith.

“The Court of Common Pleas” (1808-1810) by Thomas Rowlandson and Augustus Charles Pugin, from the series “Microcosm of London” (©Historical Picture Archive/CORBIS/Corbis via Getty)

The common law has been shown to be inseparable from the judges who administer it. A third potential threat would arise from a decline in the quality of the judiciary. Distinguished judges have long been alive to this danger. When Lord Goff wrote about it in 1997, it was still normal for top QCs ultimately to abandon a successful practice and accept the invitation, as in those days it was, to a (far less lucrative) High Court appointment. He recognised that if this delicate balance were upset, “it could be disastrous for the whole future of our legal system”. Lord Bingham, speaking in 1999, was in no doubt: “If the bench were to become the refuge of the mediocre . . . the timid and the unsuccessful or if the appointment of judges were to be blighted by a search for the safe, the conformist and the representative . . . the quality of justice would suffer and respect for the law decline.”

The quality of the English Bench is still remarkable in many instances. Regrettably, however, in relation to some current or recent judges, and even allowing for the inveterate tendency of policemen to get younger, almost all of Lord Bingham’s adjectives strike a chord of recognition within the profession. The reasons for this state of affairs were discussed at length by this writer in an article published in the January 2017 edition of Standpoint (“Who will do justice to our judiciary?”), to which interested readers are referred. There exist serious problems of recruitment to the High Court bench. These are attributable to the misconceived constitutional reforms of the Blair government, in particular the 2005 abolition in all but name of the Lord Chancellor (formerly the representative of the judges within the government and Parliament), the devolution of responsibility for the judiciary to the Lord Chief Justice, who lacks any comparable powers to champion them, the introduction of an infantilised, process-driven method for applying to become a judge, and a serious deterioration in judges’ terms and conditions of work.

This last factor is not just about money — though the judges have been treated shabbily enough in this respect to have attracted the concern of the Senior Salaries Review Board, as well as the House of Lords Constitution Committee, whose November 2017 report into judicial appointments makes grim reading. In 2016, some judges were driven actually to sue the government over pension cuts. (The judges won the first round; the government has appealed.) There are many other pressures on judges, most obviously overwork. Appearances before the Court of Appeal, for example, sometimes leave the impression that these conscientious public servants are no longer given enough time to do their job. Cases are compressed into unrealistically short time estimates; oral advocacy is pared down; written arguments are subject to arbitrary page limits. The wonder is that the judges are able to produce judgments which look coherent; but none of this necessarily conduces to the fairest outcomes. Those who work in other public services may have had to endure this relentless Procrusteanism for a long time. In the upper reaches of the legal profession (though not elsewhere within it), this is something quite recent.

Meanwhile, judges have never been held in less high public esteem. This is partly due to a culture of repudiation which challenges any person exercising authority, amplified in the blogosphere. It is also due to the contemptible echo in the popular press (as Dominic Grieve and Philippe Sands among others have pointed out) of the sort of language used by the Nazi newspaper Völkischer Beobachter to describe judges doing their job (and getting it right). The new Lord Chief Justice, Lord Burnett, identified these concerns in his first press conference in December 2017. “Of course judges must earn . . . respect, and should not be immune from criticism for their decisions; but fair criticism is different from abuse . . . [there are] cases where judges face a torrent of personal abuse for decisions they have made — increasingly online and in social media — and a growing number of cases where judges are threatened and physically abused. Some is calculated to intimidate judges individually or collectively. Such abuse is capable of undermining the rule of law.”

Standpoint’s January 2017 article ended with the words: “Society is only as healthy as its judges, and its judges will in the end be no better than the way they are treated.” There seems to be no good reason to revise this view. It has evident potential implications for the future development of the common law.

The common law is a mature creature, but its evolution continues. It is the judges who have taken it upon themselves quite recently to decide that husbands who inflict non-consensual sex on their wives are guilty of rape, and that doctors caring for permanently vegetative patients are under no duty to treat and feed them. These decisions show the common law at its best, still responding to changing mores and the challenge of new technology. Perhaps one should not resist too strenuously the elegiac conclusion that — like the symphony or the novel — the golden age of the common law lies in the past; but it nonetheless continues broadly to function as it always did. Despite the encroachment of statute and the invasive effect of EU law, despite legitimate and growing concerns about the overall quality of the judiciary, and the conditions under which it works, litigants in England still have the benefit of generally committed judges applying what remains in large part a common law system, and lively in their approach to those areas where the codes have taken over. It may sound excessively Panglossian to summarise this as a case of the best judges applying the best law, but that is a claim which, for the present at least, can still be legitimately made.

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