Five Centuries of Legal Thinking
What does it mean to think like a lawyer? My beloved teacher and colleague, Professor John Crook (1921-2007), threw down this challenge to classicists and jurists alike. While always keeping an open mind, he believed that the Roman approach to law – clear principles applied to evidence by logical argument – had much to commend it. He was justifiably proud of the introduction of Roman Law as Group F in Part II of the Classical Tripos. Alas, that experiment did not last long; but Roman Law still flourishes in the Law Tripos at a time when it has disappeared altogether from a number of other English universities.
The curriculum available to the dewy-eyed, fresh-faced young men who came up to St John’s in 1516 (the year when the College actually first opened its doors) did not include law. It was only after graduating with a B.A. from a rigorous interdisciplinary curriculum that it was possible to embark on the study of law – and then only Roman law: English law was not considered a worthy subject of academic study. The Law tripos arrived only in 1858, and even that was long dominated by Roman law.
The main problem with the English common law was that, as it had grown piecemeal, it was unsystematic and apparently lacked a theoretical structure.
This problem was brilliantly overcome by Sir William Blackstone in his four-volume treatise, Commentaries on the Laws of England, published between 1765 and 1769, which despite its modest title was in reality nothing less than a systematic and comprehensive exposition of the “primary rules and fundamental principles” of English law along similar lines to those of Justinian’s Institutes.
However, in the words of Professor Samuel Hallifax of Cambridge, “The Commentaries of Mr Justice Blackstone, excellent as they are, are still but the work of a private man, and without the stamp of public authority”. [1] This omission was made good in the United States, where a number of states, including New York, California and Florida, codified not only their statutes but also their common law. In addition, there are the highly authoritative (although not strictly official) Restatements of the Law published by the American Law Institute.
Meanwhile, in England, the closest thing to a compendium of the principles of the common law was to be found in various collections of maxims, which were accepted by the courts as authoritative statements of the law. Francis Bacon published a Collection of Some Principal Rules and Maxims of the Common Law in 1630. But the most influential compilation of maxims was A Selection of Legal Maxims by Herbert Broom of Trinity College, which first appeared in 1845 and went through numerous editions until the 1930s.
The landmark case of Donoghue v. Stevenson,[2] decided by the House of Lords in 1932, marks the beginning of the end of an approach to the common law based on time-honoured principles. Mrs Donoghue claimed to have contracted gastroenteritis from drinking some ginger beer contaminated by a semi-decomposed snail. There was only one small problem: Mrs Donoghue had not bought the ginger beer herself, so could not sue in contract. Lord Atkin, supported by two Scottish law lords, came to Mrs Donoghue’s rescue with the so-called “neighbour principle”, which brought the case into the realm of the tort of negligence. This amounted to a complete departure from the existing principles of law, as Lords Buckmaster and Tomlin were quick to point out in their dissenting opinions.
Lord Buckmaster summed up the proper approach to principle:
“The law applicable is the common law, and, though its principles are capable of application to meet new conditions not contemplated when the law was laid down, these principles cannot be changed nor can additions be made to them because any particular meritorious case seems outside their ambit.” [3]
Lord Buckmaster foresaw that Lord Atkin’s frolic would not be the last: “If one step, why not fifty?”[4] Lord Tomlin’s rejection of the majority decision was even more pointed: “[T]here is, in my opinion, no material from which it is legitimate for your Lordships’ House to deduce such a principle [as the ‘neighbour principle’].”[5]
As Lord Buckmaster predicted, this kind of judicial activism, or judicial supremacism, has prevailed over the older principle-based approach to the common law. After lurching from one unworkable basis to another, the House of Lords has now settled on a threefold test for a duty of care in negligence: proximity, foreseeability and whether it is “fair, just and reasonable” to impose a duty of care[6] – hardly an objective test!
Among the many examples of judicial supremacism, which can be multiplied almost at will, one may pick one where two non-principles vied with each other for acceptance while a fundamental principle was completely ignored.[7] The case concerned a failed asylum seeker, known only as “M.”, whose application for permission to apply for judicial review of the Home Secretary’s decision was refused by the High Court and also by the Court of Appeal, to which he had applied “at the fifty-ninth minute of the eleventh hour” on the very day when he was due to be repatriated to the country then known as Zaire. Yet another application was made on his behalf to the High Court, which adjourned it to the next day on the understanding (which was later disputed) that the Home Secretary had undertaken not to deport him in the meantime. M. was nevertheless removed from the United Kingdom at the time originally notified to him. When this was brought to the judge’s attention late that night, he immediately ordered the Home Secretary to bring M. back to Britain. But the Home Secretary maintained, on legal advice, that the judge’s order “was made without jurisdiction”. Even though M. was never found, the case trundled on all the way up to the House of Lords.
Who was right? Could a court issue an injunction against the Home Office or the Home Secretary? The correct answer, as given at first instance, is a simple “No”, as is clear from the wording of section 21(1)(a) of the Crown Proceedings Act 1947, which states quite categorically that “the court shall not grant an injunction” against the Crown. The Court of Appeal also rejected the possibility of an injunction against the Home Office, but instead issued a personal injunction and contempt finding against Kenneth Baker, the then Home Secretary. This conclusion was reached on the basis that “neither the Crown nor the Home Office has any legal personality”[8], or, to put it more simply, that “in law they are non-persons”[9]. [1992] QB 270. [1992] 2 WLR 73, 94, 101. The fact that every criminal prosecution is brought by the Crown shows just how implausible this argument is. And Blackstone confirms that the Crown most certainly has a legal personality — as a corporation sole.
This latter point was conceded by the House of Lords, but the main thrust of its decision was to substitute “the Secretary of State for Home Affairs” for “Kenneth Baker” as the party guilty of contempt of court for allegedly disobeying an injunction. However, section 21 of the Crown Proceedings Act disallows court injunctions not only against the Crown but also against “an officer of the Crown” “which could not have been obtained in proceedings against the Crown”. The House of Lords was therefore effectively rewriting a statute — something that unelected judges have no authority to do.
Is it too late to recognise that respect for principle forms the bedrock of the common law and also of democracy? [10]
Michael Arnheim
(PhD 1969)
Former Fellow
Email: michaelarnheim@clarendonchambers.com
[1] Preface to An Analysis of the Civil Law, 1774.
[2] [1932] AC 562
[3] Ibid, at 567.
[4] Ibid, at 577.
[5] Ibid, at 601.
[6] Caparo v. Dickman [1990] 2 AC 831; Mitchell v. Glasgow City Council [2009] UKHL 11.
[7] M. v. Home Office [1992] QB 270 (Court of Appeal), [1994] 1 AC 377.
[8] [1992] QB 270, at 300.
[9] Ibid, at 307.
[10] See Michael Arnheim, Principles of the Common Law, Duckworth, London, 2004
