Ellie McHugh considers how applicable that extract from Tacitus’ Annals remains today
Before the last General Election, the left-wing comedian Mark Thomas toured the country with a satirical stage show, “The People’s Manifesto”, in which he canvassed public opinion for election policies as a means of lampooning the main political parties.
One of the more interesting ideas he encountered was the simplification of our legal system to just two categories of offence: Out of Order, and Bang Out of Order. The logic of this suggestion is that we all possess some innate sense of right and wrong (or at least of moral outrage) and that collectively this sense can differentiate between misdemeanours and gross criminality without needing an established body of laws.
I suspect this isn’t exactly the kind of reform Tacitus had in mind, but it does prompt some rather obvious questions. Where does our law come from? Who does it belong to? How can we be sure it’s serving its purpose? And why has the volume of our laws increased ten-fold in just four decades?
In England the Common Law is our native tradition of criminal law, an adversarial system presided over by judges and ruled upon by juries drawn at random from the general population. One of the distinctive features of this system is the importance of case law, the rulings of previous judges based upon the particulars of individual cases and the precedents these establish for future courts in weighing the competing claims of plaintiff and defendant.
The other distinctive feature of our system is the sovereign power held by juries. It’s the role of a jury to consider the facts of a case and find a defendant guilty or innocent, independent of any judicial direction. Having delivered its verdict, a jury can’t be compelled to explain its reasons for reaching it.
The nucleus of our laws are the customary laws we’ve inherited from the Anglo-Saxon and Christian traditions, primarily crimes against: the person; property; and, The Crown. The rest come either directly from Acts of Parliament, or from the exercise of statutory instruments to amend existing Acts.
So does this mean our law belongs to Parliament? And if not, who does it belong to?
Well, in principle, the law flows from The Crown, and The Crown-in-Parliament is capable of passing or repealing any Act without limitation. However as noted earlier, when it comes to deciding whether an individual is guilty of committing a crime, a jury is sovereign. But behind every attempt by the State to restrict jury trial lies the fear of jury nullification, which is our fundamental safeguard against repressive and unpopular legislation.
This independence of jury and judiciary embodied in Common Law is closely related to the exercise of the Rule of Law, namely, that the law should apply equally to citizen and government alike. Even the most hardened and unrepentant criminal depends upon the protection the Rule of Law provides. It is the guarantor of a fair trial with the presumption of innocence until proven guilty.
Further, it’s well established in our constitutional framework that even the Crown is subject to the Law. Such a principle is suggested as far back as the Charter of Liberties issued by Henry I in 1100, and is the legal basis upon which The Civil War, The Glorious Revolution and the American War of Independence each stand. Indeed, without it, neither Bill of Rights would have legitimacy.
As such the Common Law has been the wellspring of liberty in every jurisdiction where its principles have been applied. It’s sufficiently liberal in response to the needs of each generation as to sustain a living tradition, and yet at the same time conservative in its application.
So why do we now have so many statutory laws? Between the Norman Conquest and our accession to the (then) EEC, the Common Law developed around 3,000 laws, mostly as the result of Parliament seeking to tackle the perceived problems of the day. Many of these laws have subsequently fallen into disuse, though not all of these have been removed from the statute books.
However in more recent years our membership of the European Union has made us subject to many laws developed under the influence of the very different Civil Law traditions of the Continent where case law is of only minimal significance. These laws are often introduced into English law via statutory instruments, drafted by civil servants without the oversight of Parliament. But once these laws are introduced, it becomes the duty of judges to discover their applicability based upon actual case law.
Despite the preponderance of lawyers in Parliament, it seems that politicians – often over-fond of legislating – have difficulty understanding the unintended consequences of such wholesale importation. Instead, they blame judges for defects and contradictions, although these are doing nothing other than their appointed task.
But this isn’t only a problem of European Union imposition. Our politicians are perfectly capable of finding reasons to legislate in response to public pressure or their own collective prejudices, no matter that existing law already adequately applies to a given situation. It’s therefore not the process of the Common Law, tested over centuries, which brings our legal system into disrepute. It’s the seemingly endless stream of statutes which do that.
Ellie McHugh splits her time between writing open-source software and pithy apologetics in 140 characters or less, to Christian, libertarian and free-market principles. She can be found on Twitter at @feyeleanor