The idea that we can solve our conflicts by bringing them to judgment touches on the real source of law, or rather the source of real law, which is our innate understanding of justice. To bring a case to judgment is to appeal to a third party as judge, and in this appeal certain principles are assumed: the judge must be impartial, both sides must be allowed a fair hearing, the evidence must be openly declared and independently assessed, with a view to discovering the truth. Such, according to St Augustine, were the God-given requirements of natural justice, revealed to us by our very nature as rational beings. And from the repeated application of this natural justice there emerges a system of law, as a body of solutions to particular problems, from which general principles can be deduced.
There is another and equally astonishing feature of the English law that struck me as a student, which is that our law is not uttered in the imperative mood, but in the indicative. It tells us how rights and duties have been discovered, assigned and protected, and how harms have been provided with a remedy. Understanding this point seems to me to be essential to understanding the deep legal culture of our country.
I don’t need to remind the lawyers here of the ruling principle of the common law, the principle of stare decisis, which tells us that particular decisions should stand unaltered, and precedents followed, unless and until over-ruled by a higher court. To discover whether a precedent applies, a judge must ascertain its ratio decidendi – the reason for the decision. This may not have been explicitly stated by the original court, but merely implied in the reasoning of the judge. Those brought up on the Roman law find this amazing, since they see law as a deductive system, beginning from first principles, and working downwards to the particular case. Law, they assume, begins in commands, issued by the sovereign power. The courts merely deduce in the particular case what those commands amount to, and then enforce the result. But common law goes the other way. Like morality, it builds upwards from the particular to the general. The important thing in moral life is to do what is right, not to expound the principle that makes it so; and often the principle eludes us, even when the rightness of the act is clear. The abstract rigour of civilian and Napoleonic systems is no guarantee of their justice. For justice is done in the particular case, and until tried in the courts abstract principles have no more authority than the people who declare them.
This is particularly obvious if we attend to civil law – the area in which the English legal system has excelled. When one person has a complaint against another and applies to the court for judgement he is seeking a remedy. The facts of the case may never have been considered before, and the judge may have no explicit ruling, no precedent and no Act of Parliament as guidance. But still there is a difference, the common law says, between a right and a wrong decision. The common law is not a system for inventing law, but a procedure for discovering it. And when the common law and statute have found no remedy the search for one has often continued, so producing the unique system of judge-discovered law that we know as equity. In this way our jurists discovered the trust, a concept lifted from the soil of moral life and burnished to brightness in the fire of legal argument.
The exploratory nature of our law has brought it about that, unlike continental courts, our higher courts issue all opinions from the judicial bench, including the dissenting opinions of judges who voted against the decision. Our law, it is implied, is to be discovered through argument, rather than imposed by decree.
If the English law is not a system of commands, then what exactly is it? In my view it is best seen as a summary of what is assumed, though not necessarily consciously assumed, by all of us in our free dealings with each other. It assigns responsibility for fault and remedies to those who have suffered it; it describes the rights, duties and privileges that will be upheld by the sovereign power at the law’s behest. However, it is not the voice of that sovereign power, so much as the voice of its most important critic.
Because the English law derives from the particular case, which has to be studied with all its facts, English legal thinking has remained concrete, close to human life and bound up with a given history. No student of this law can fail to absorb a sense of life as it has been lived here, through all the social, religious and political changes that have affected us. This closeness to life as it is lived is one explanation for the adaptability and flexibility of English law. Cases may be decided, like the famous leading case of Rylands v Fletcher in tort law, on facts that have never before been encountered, concerning matters that Parliament has never considered and never could consider in time to solve the immediate problem. And although the sovereign must enforce the law, it is not the sovereign who dictates it. On the contrary, it has been a principle here since the earliest Middle Ages that in it is the law that appoints the sovereign, and not the sovereign who makes the law. The oath sworn by our sovereigns is an oath of obedience, an undertaking to honour and uphold the law by which they rule.
So whence comes the authority of this law? How can it stand above the sovereign, who is the one uniquely empowered to enforce it? There is a kind of religious fundamentalism, which holds that true law is a command issued by God, and that jurisprudence is merely the working out of its consequences. And there is a similar political fundamentalism, which argues that secular law is founded in commands issued by a sovereign authority, the Queen in Parliament or the Assemblée Nationale. Both those fundamentalisms are threats to the true rule of law, since both fail to recognize law as an independent force in human affairs, and one that stands in judgment over all of us, the sovereign included.
The most important principles of our law have arisen from the judgements made by courts guided by the rules of natural justice. As I remarked, these principles are not issued in the imperative mood; they are, rather, the description of a historical bequest. Our law is the voice of a territorial jurisdiction. The countless decisions that animate our legal understanding have originated here, in courts scattered around the country. Our law is not the will of God, nor the command of the sovereign; it is the law of the land. And if St Augustine is right, it is God Himself who implanted this conception in our hearts.