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The historical origins of the English common law




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It is impossible to understand even the general characteristics of modern English law and its legal institutions, and their role in the world today, without some grasp of their history. Indeed, one 43 of the most salient features of English legal institutions is their very age. The fact that English law has functioned without major revolutions or upheavals for upwards of nine hundred years (with the exception of one short period in the mid-seventeenth century, most of whose results were speedily reversed) is one of the great stabilising factors of the English legal and political traditions. Of course there has been constant change throughout the centuries, but because change has been gradual most people have felt a sense of security in their personal and political lives, which has derived from the law, and have felt in turn a sense of loyalty to the law. Besides, changes and modemizations of the law often take the form of imposing new layers of law over the old layers, but frequently in such a way that bits and pieces of the old layers survive; even when sweeping legal changes are introduced the new law is built on the foundations of the old. Historians tell us that as early as the twelfth century, English people have appealed to 'the old common law' when they felt their rights under threat, and their rulers have equally felt obliged to reassure them that their old rights would be respected. In a sense this long-standing tradition has taken the place, for English people, of the written constitutions which most other democratic countries have.

The law and the constitution

Until very recently, the basic constitutional position in Britain was very simple. The country had no written constitution and the sovereignty of Parliament was agreed by everybody - lawyers and public alike - to be legally uncontrolled. This meant that in the ordinary way there was simply no limit to the laws which could be passed by Parliament. Parliament could prolong its own life, alter the succession to the throne, or redefine the relationship of the two Houses. In fact it had done all these things. It could also deprive citizens of their rights, nationalize all private property (without compensation, if it so wished), abolish the monarchy, and take over or censor the press. Some, though not all, of these things it also did, but only in time of war. To say that Parliament could legally do any of these things only meant that there was no written constitution which limited Parliament's powers, and that the judges of British courts disclaimed the power to declare Acts of Parliament legally void for any reason whatever. It is not to say that if Parliament in fact tried to do any of these things in peacetime it would succeed. There is a point beyond which citizens and officials - perhaps even judges - might simply refuse to obey Parliament. Perhaps judges would resign if faced with laws they regarded as grossly unconstitutional, for instance a law which indefinitely prolonged the life of Parliament.



Until very recently English constitutional lawyers all accepted the view that Parliament retains today the legal sovereignty discussed above. The question was thought by many to have been politically settled by the revolution of 1688. Only one serious doubt was ever raised about this conventional view. The doubt concerned the power of the British Parliament to pass laws relating to Scotland which might breach the Treaty of Union of 1707 by which the two Parliaments of England and Scotland were merged into the one Parliament of Great Britain. Apart from this doubt, all lawyers accepted the view that the courts simply had to observe and enforce the law as laid down by Parliament. If Parliament did anything wrong the remedy lay in the. political sphere that is to say, through protest in Parliament itself, and through the electoral process.



 


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