When the BBC asked me to present a series on the history of the English
legal system – broadcast under the title of The Strange Case of the Law – like
many other lawyers, I knew little about the subject. I have tried to make up
for that deficit. It struck me that the story of the law should be better known,
and that a short selective history was called for, devoid of jargon, replete
with good stories, a restitution of the key of knowledge. This is the result:
breaking no new ground, but providing a new approach to the telling of
legal history, distilling the efforts of others in a way palatable to the educated
layperson. There is no legal history quite like this. It is certainly panegyric,
but with justification. The eulogy, however, at least so far as public law is
concerned, may be an elegy.
England is a law-abiding country: parliament enacts laws; courts enforce
and interpret them; citizens on the whole obey them. What is sought is
justice beyond the rigidities of legalism or the letter of the law, justice that
is blind and impartial, justice that is done by judges who are expected to be,
and largely have been, the disinterested champions of law and of right, and
by independent jurors who bring in the verdicts they choose. English law,
legal procedures, the quality of the judiciary, trial by jury, and the championing
of freedom, justice and equality under the rule of law are rightly
recognised throughout the world.
In two respects the common law of England is not common at all.
Firstly, unlike legislation, it is not the creation of the common people or
of the community, but of kings and their judiciary. Secondly it is not at all
common, but is unique – in its inception as in its development. It is peculiarly
English, but not insular, as its reach has spread widely throughout the
world – as indeed has that of its great continental rival, Roman or civil law
– first as a result of colonisation and empire, and latterly because of the its
intrinsic excellence. It is a law unto itself.
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