The English and the rule of law

The English desire for freedom and their rights is given practical expression in their attitude towards the law  throughout England’s history: it was respected out of all  proportion to the justice it commonly delivered. It predated  the Conquest. It survived Norman rule. When the jurist  Blackstone’s “Commentaries on the laws of England” were  published in the 1760’s they were immensely popular amongst  the chattering classes of the day. It is difficult to  imagine heavy works on the law being acclaimed by educated Englishmen and women of our own time, but for their  eighteenth century counterparts it was not merely a work of  law but a statement of English liberty and, indeed, of  English superiority over foreigners. Were they wrong to so respect a very flawed system of justice? To answer that  question one need only look at the alternatives.   A system of justice as opposed to law is one of the most difficult of social plants to cultivate. Human beings have a natural inclination to act according to custom within the  prevailing social hierarchy rather than according to an  intellectual construct such as the concept of natural  justice. Moreover, a system of law requires within it the need to apply the law equally to equals. This does not imply a general equality before the law, because a system of law  which differentiated between people, for example on the grounds of social class, would be perfectly rational.  However, it does mean that anyone who fell into a designated class would be treated equally.

What applies to a group based system of law applies with vastly greater force than where general equality before the law is concerned, ie where every person within a jurisdiction is equally subject to the law.

 The difficulty in establishing meaningful systems of law can be all too readily seen in the present. Most of the world’s  people live now as they have always done in societies which do not have legal systems worthy of the name of justice. The most unfortunate live in circumstances where they are at the mercy of competing warlords. There nothing better than the  will of the warlord exists. Other people live in states where there is a formal system of law made worthless by political interference. Many societies have legal systems which lack any meaningful protection for the accused through an absence of forensic examination or concepts such as Due Process.

It is against this background that the English legal development must be seen. The English legal system is as fair  as any in the world and arguably the fairest. It has an  ancient unbroken tradition, formal equality before the law,  habeous corpus, sub judice, well established principles of  due process, widespread use of the jury, substantial   provision for legal aid and above all the presumption of  innocence. The whole is underpinned by the potent concept of  natural justice.

These legal goods stand on the platform of an immensely  strong strain of personal freedom in English history which  has produced a general principle utterly at odds with continental systems of law, namely the idea that an  Englishman may do anything legally which is not forbidden by  law. Continental systems do the reverse: citizens are permitted to do what the law says and not what it doesn’t. That in itself makes those operating under continental law  much more liable to prosecution simply because the variety of  offences is multiplied.

This is not to say that the English justice system is perfect. Indeed, it is far from that. Its most general failure is the fact that it is tainted with money. The quality of legal advice and representation a man receives in either civil or criminal proceedings is largely determined by his wallet. In civil suits the size of his wallet frequently determines whether he may even go to court. Some laws, most notably that of libel, are only available in practice to the very rich or those backed by a rich patron or organisation. Patently, while law is not open equally to all, equality one may add the political involvement of the parliamentary  law officers, the secrecy and incompetence of the prosecuting authorities and the overly restrictive rules of evidence.

But despite its many practical weaknesses, the English legal system does and has provided for centuries the basis for the sane and reasonable delivery of justice. The English have long recognised that a flawed system of law applicable to all is vastly preferable to a partial law which distinguishes between nobles and commoners or no meaningful law at all.  Indeed, it is this attachment to the English Common law which is one of the primary themes of English history. It has had profound consequences, because those who respect the law are likely to be less violent in their personal lives (the idea of vendetta was never part of English custom). Men who can be sure of keeping their property will build for the future.  Political chaos is made less likely where men believe there is a chance of perceived royal wrongs being ighted through parliament.

The case of the leveller leader, John Lilburne, shows how much part of English life respect for the law was even three  and a half centuries ago. Lilburne by every account of him was a most difficult man – it was said that his nature was so  combative that he would seek a quarrel with himself if he were alone – ‘Jack would fight with John’. Yet this man, who  came from a very modest gentry background, remained alive despite challenging the authority of first the king and then during and after the civil war, Parliament, Cromwell and the  Commonwealth. He thus carried on this mortally dangerous behaviour for almost a generation. To the end of his life in 1657, he was thought dangerous enough to imprison.

Lilburne first came to notice for seditious speeches and writings in the 1630s. For that he was whipped from the Fleet  to the Palace Yard where he was stood in the stocks. Whilst in the stocks, he removed copies of the pamphlets which had caused his punishment and threw them to the crowd. That little episode will give a good idea of the Lilburne’s  general mentality. He was an extreme example one of those  necessary unreasonable men without whom nothing great gets done.

From the time of his flogging onwards, Lilburne’s career was one of studied defiance of authority. He was one of the most potent pamphleteers England has ever seen. For more than a decade. He produced a flood of writings guaranteed to inflame virtually anyone in public authority in the land. He faced down judges in the most powerful courts in the land. He controlled the London mob consummately. He treated the greatest men in the land as equals. In any other place on the planet at that time, he would have been dead meat before his career as an agitator began. But not in England. He might be flogged. He might be put in the stocks. He might be imprisoned. He might be tried twice for his life. But what England would not do was unreservedly murder him.

Perhaps one act from history epitomises the advanced legal  state of England. In 1760 Earl Ferrers was found guilty and hanged for the murder of a servant, his steward. One cannot be sure, but I suspect that this was the first time an  aristocrat was executed for the murder of a servant anywhere in the world. Two and half centuries ago, the ideal of  equality before the law in England had become more than a pious hope.

The English desire for freedom and their respect for the law was long driven by a belief that whatever the present faulty state of affairs, this was simply a slippage from a previous state of perfection. This mindset did not begin to change until the nineteenth century when the idea of progress took hold. It has left its mark to this day.

Magna Carta was supposed to return matters to the golden age of the Confessor. The Levellers sought the recovery of the rights and liberties guaranteed by Magna Carta. Those who tried to change the Constitution after the Glorious Revolution had to do so under the guise of restoring the past. If the law was defective it must be so because its  original intentions and operation had been subverted.

This frequent recourse to a better past is significant, because it tells us that to a freeborn Englishman since time  out of mind, subordination to authority has only seemed  natural and reasonable when it was set within social  structures such as the law and parliament, which provided the opportunity for redress by judgements made on objective criteria and the means of peaceful change if the government, whether it be the king or the executive in Parliament  behaved unreasonably and against the laws and customs of the land.

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