Tuesday, September 09, 2008

Round the blogging traps - Legal Eagle on the common law

One of the reasons that I am so fond of scepticslawyer as a blog lies in the standard of discussion from the posts themselves through the interplay of the two writers to the standard of some of the comments.

Earlier this month, Legal Eagle had an interesting post - Has the time come for the common law to be scrapped. Nick Gruen also reviewed this issue if from a somewhat different perspective on Club Troppo.

As I read the material, I found the discussion rubbing up against some of my very long held and traditional opinions (perceptions) dating back to my study of European and British history at school. There George (RWL) Crossle presented the common law as an example of English genius, part of the evolution of British freedoms, contrasting this with the history and operation of the Napoleonic codes.

It was only later that I came to realise that studying history with George was in fact a liberal education in its own right. In many ways, George was a conservative man. He certainly seemed so to me. He wrote regularly to the local newspaper in defence of the Menzies-McEwen Government, attacking the manifold sins of the ALP opposition. Yet when it came to teaching history, he had the capacity to present the sweep of history, to draw out various sides. He was also prepared to countenance alternative arguments.

The issue of the differences in due process between the common law and the continental inquisitorial system formed a key thread in Legal Eagle's discussion. Nick Gruen focused on the same issue, pointing to the huge costs associated with the adversarial system. The comments on LE's post drew out some of the history of the evolution of the common law and its interactions with individual freedom.

The reason why both LE and Nick's posts rubbed up against my prejudices lies, I think, in their focus on the processes of common law as compared to my own perceptions of the history and role of common law.

As I understood common law, it's roots date back to Feudal England as a response to the varying exercise of power within Feudal structures. These structures were marked by cascading authority.

In Europe, the concept of centralised power was reinforced through divine right flowing from the church as successor to the Roman Empire through to the ruler. Individual rulers may have challenged this, but the concept of authoritarian power was clearly established. Napoleon's later codification was based on the concept of absolute imperial central power.

For a number of reasons England went a different route. Yes, there were many features of the continental type, but power was more divided, less formally centralised. In these circumstances, law became more of a device for controlling power, less of a device for imposing power.

This links to the second feature of common law, the way in which law evolved through practice, through judicial decision. Over time, this created a flexible if sometimes messy body of law capable of governing relations between individuals and entities independent of central dictates.

The emphasis on due process, on the adversarial system, was a by-blow of all this.

From my perspective, the common law is now threatened not so much by either its costs or the adversarial system, but by two linked developments.

The first is the emergence of the state as the single, central, source of power. In theory in Westminster systems, parliament is paramount. In practice, the executive has inherited the divine right of Empire.

One side-effect is that the importance of the legal system in acting as a barrier to the unbridled exercise of state power has increased. No Government likes to have its divine right to rule constrained. All respond to greater or lesser extent by trying to alter the law so that it delivers the control required.

The second development is the huge proliferation of laws and quasi laws. We live in a black-letter world in which everything must be controlled, regulated, ordered, risk managed. In these circumstances, there is less and less scope for the sometimes messy processes bound up in common law.

It is a fact that all organisations, Government or private, will use the law and legal processes to their own ends. The more formal law of all types, the greater the economic interests involved, the greater the incentive to work the system.

The fact that cost and complexity have increased is not, of itself, a reason for moving further away from the common law, although this may be the actual effect. Rather, we should ask the more basic question as to what we are trying to achieve, what the principles and processes should be.

Nothing that I have said in this post should be construed as an attack on either LE or Nick Gruen's points. I am simply mulling over things from my own perspectives.


Marcellous had a rather depressing post, Banging your head against a brick wall, illustrating some of the costs and complexities of the legal process.


Anonymous said...

I actually love the common law. There's no way I'd want it to be scrapped. But I do think some improvements can be made to the legal system (and to the way in which lawyers work/charge) which might make it fairer.

Jim Belshaw said...

I know your position on the common law, LE. I am sure that improvements can be made to the legal system. But here one question is what do we mean by the legal system? So much now has been turned into law that, to my mind, it has come to threaten the very concept of law itself.

Anonymous said...

I've long been an advocate of keeping the law reasonably simple and structured (insofar as that's possible with an organically growing system).

My focus as a former litigator is on the court system and how that works for resolving disputes. But there's many more aspects to the legal system, including the legislature. Legislation has assumed a dominance in our system unprecendented in former years. It is partly for this reason that the regulation of society has exploded.