After a century in which history lost prominence in the general understanding of English constitutional law,Footnote 1 various English public lawyers have invoked or turned to history in their treatment of doctrine, theory or practice.Footnote 2 In prominent debates for more than a decade, they have, for example, invoked leading figures or authorities, developments or episodes, from the past and often the distant past, according to their own later view, account or recollection. Arising from these debates have been various issues about invoking or using history in public law—its recurrence, purpose, adequacy and significance, both real and potential. This article aims to address those issues.
The significance of history as an account, interpretation or recollection of the past varies with its purpose, and of its various purposes one is better to understand aspects of the present: to appreciate, for example, what from the past has lingered on in the present, or what in the present has diverged from the past. In this article, I will first elaborate on history used for the simple purpose of understanding aspects of English public law, on its necessity and on the orthodox implications for the history that is needed. Secondly, I will suggest the extent to which history has been used for more than this simple purpose. I will review and explain several prominent invocations of history in public law debate as uses of history not merely to understand English public law but to reform it, for example, by reviving or reconstructing old authorities in support of new agendas or reinvigorating past practices with imputed purposes of present normative or ideological significance. I will argue that these invocations of history to reform English public law have been highly contentious and vulnerable to criticism for their selectivity, overriding sense of purpose, unexplained unorthodoxy and lack of transparency. Thirdly, to address the criticism, I will distinguish different kinds of orthodox and unorthodox reformist history and advocate their transparent and thoroughly deliberative use in public law. I will do so in view of the problems revealed and encountered in the work of two great innovators in law and history. The one is Sir Edward Coke, because of his purposeful, whig, use of history and his formative influence on the English common law tradition. He was presented by Herbert Butterfield as the most influential early whig historian and as “almost the extreme example of the whig interpretation of history”.Footnote 3 Further, he was credited by Holdsworth for “remoulding the medieval common law” to be fit for later purpose and to be amongst those exceptional people who were able Lightly to build new world.Footnote 4 The other great innovator is Maitland, because he inaugurated into English legal history the historical approach that became orthodox and remains pervasiveFootnote 5 and because he famously deduced from the contrasting needs of the lawyer and of the historian a restrictive law-history dichotomy.Footnote 6 I will suggest how that dichotomy might be refashioned to be less restrictive of a transparent and deliberative reformist use of historical legal resources. Finally, I will elaborate on the features, advantages and significance of a thoroughly deliberative approach to using history. It is an approach comparable to that promoted by comparativists when turning to other jurisdictions for ideas, arguments and inspiration in their developed literature on legal transplants and law reform.
I. Understanding English Public Law
Enduring anachronisms of a constitution that evolved over centuries render English constitutional law and practice peculiarly difficult to understand, indeed certain of its aspects barely intelligible, to someone whose knowledge of basic history cannot be taken for granted. The standard opening words in Acts of Parliament would, for example, confound or seriously mislead a foreign visitor unfamiliar with the basics of English legal and constitutional history. The visitor would encounter the standard form of words: “BE IT ENACTED by the Queen's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—”. The visitor might ask “Well, is the Queen then in charge? Does she rule?” The answer might be “No, not really; the opening words reflect the residual role of the Crown in a constitutional monarchy that has become a modern democracy as a ‘Republic has insinuated itself beneath the folds of a Monarchy’”, in the famous words of Walter Bagehot.Footnote 7 Now the visitor might have made an excursion to the Tower of London and remember that “piece of jewelled headgear under guard at the Tower”, as once described by Lord Simon,Footnote 8 and would naturally have assumed that “the crown does nothing but lie in the Tower … to be gazed at by sight-seers”.Footnote 9 Were the visitor understandably to ask “If it is not that, what is the Crown?”, the unfortunate person the visitor addresses would struggle if the person lacks some sense of the historical development of a symbolic, vague, mystical and capacious notion of the Crown from its medieval English monarchical context. If historically illiterate or insufficiently equipped with a historical understanding, the person would understandably meander between the conception of the Crown as the government and as the state rather than hazard talking of a corporation sole (a corporation of one—the Queen) and/or of a corporation aggregate (a corporation of many—the servants of the Crown), for both of which there is English legal authority.Footnote 10
Apart from anachronism, the standard form of words in Acts of Parliament illustrates a gap between appearance and reality.Footnote 11 To grasp the reality and not be misled by the appearance requires knowledge of the constitutional conventions by which the Queen fulfils her legislative function only on the advice of her Prime Minister and only by granting the royal assent to the legislative texts approved by Parliament. To understand the constitutional conventions requires, in turn, an understanding of past practices and their constitutional significance, established principally through the seventeenth century struggles between the Crown and Parliament. What is required to understand constitutional conventions is similarly required to understand judicial precedents, especially those derived from historic cases such as Bonham's Case or Beatty v Gillbanks,Footnote 12 the precedential weight of which varies, inter alia, with the proximity of the situation in which they are invoked to that in which they were originally decided. Binding constitutional law and practice presuppose attention to history and at least some sense of it.
To appreciate constitutional change or continuity also necessitates attention to history. Change in the doctrine of parliamentary sovereignty and formal continuity in that of the separation of powers are illustrative. On the one hand, change to the doctrine of parliamentary sovereignty was clearly evident in the judicial adaptation of the doctrine of implied repeal in Factortame.Footnote 13 Lord Steyn's conclusion that the “classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and simple as it was, can now be seen to be out of place in the modern United Kingdom” would seem unavoidable.Footnote 14 To determine, however, the extent of the change—the particular statutes apart from the European Communities Act 1972 that are also likely to be regarded as immune from implied repeal and thus falling into the category of constitutional statutesFootnote 15—and the degree to which “the supremacy of Parliament is still the general principle of our constitution”, also emphasised by Lord Steyn,Footnote 16 necessitates, inter alia, an enquiry that is partly historical. It is an enquiry into the judicial treatment, more than two decades ago, of the European Communities Act 1972 in Factortame and the applicability of the court's reasoning and motivation then to other statutes now. On the other hand, the reform initiatives, for example, to establish the Supreme Court and abolish the office of Lord Chancellor (as both government minister and head of the judiciary) were initially promoted in the media and later in Parliament in the name of the separation of powers,Footnote 17 but they culminated in the Constitutional Reform Act 2005, which only modified that office and guaranteed not the separation of powers as such but judicial independence.Footnote 18 Only in the Explanatory Notes accompanying the Act was the aim of making “a distinct constitutional separation between the legislature and the judiciary” presented as background to the provisions for the Supreme Court.Footnote 19 Formal continuity in the rough English separation of powers (as a principle of judicial independence) despite the institutional changes is properly appreciated only by way of a historical understanding—of the slow, pragmatic and uneven evolution of domestic English institutions and the domestication of Montesquieu's theory in Blackstone's emphasis on the centrality of judicial independence in his elaboration on separate powers in England.Footnote 20
Understanding English public law is much more than a historical endeavour. It is a complicated interpretive process raising normative issues and difficult contextual questions of past application and present or potential applicability. It involves, however, at least by the way, enquiry into basic, often preliminary, questions about the past, certain of which are particularly relevant in public law, others beyond it. A few are implicit in the demands upon understanding suggested above. First, what is the meaning and relevance of a legal anachronism as evident, for example, in the standard form of words in parliamentary statutes or in the conception of the Crown as a corporation sole? Secondly, for the purpose of establishing a constitutional convention, what was the past practice and did those whose conduct exemplifies that practice believe they were bound to follow it? Thirdly, in the consideration of judicial precedent, what was its original context and the reasoning by which the court reached its decision? Fourthly, amidst the many changes of recent decades, particularly in the institutions of government and the regulatory and adjudicative schemes to which they are subject, has some or other feature of public law changed significantly (begging the initial question as to what it mainly was and when)? Lastly, how plausible or persuasive are the various recent invocations of history by public lawyers that are the concern of this article?
Basic questions about the past raised in the process of understanding English public law can readily be answered or illuminated by way of an orthodox historical account. Such an account is here characterised by the care, thoroughness and objectivity of its enquiry, the quality of its evidence, the accuracy with which it is communicated, and its attention to the self-understanding, for example, of those responsible for bringing about legal change, and the reasoning by which they justified it, whether in legislative innovation, the setting of precedent or the evolution of convention. An orthodox historical account of this kind derives its reliability from its character but is subject to constraints of time, resource and interest. It is difficult to produce, particularly where the available evidence is insubstantial, self-understanding is obscure and the extent of past complexity raises the risk of oversimplification.
The constraints and difficulty in making a thorough and reliable historical enquiry ad hoc, on the one hand, and the importance of history in illuminating basic questions about English public law, on the other, have been causes for concern about the general diminution of historical understanding in English constitutional law through the last century and the related paucity of historical studies upon which public lawyers can draw. An account of that diminution and paucity is the subject of another article.Footnote 21 Howsoever most legal historians lost interest in English public law and/or most English public lawyers lost interest in legal history, that diminution and paucity rendered English public law less intelligible and its basic features and development more obscure. They would be reason simply to welcome as a revival of historical study and enquiry the prominent invocations of history to be discussed below, were not most of them occasional, highly selective and full of purpose.
II. Invocations of History in Contemporary Debates
In administrative law, on one side of the debate about the doctrine of ultra vires, Christopher Forsyth sought to confirm and defend, and thus revive, the doctrine as its central principle so as to justify, in general, judicial review of administrative action as the fulfilment of the implied intention of Parliament.Footnote 22 Amidst his various analytical arguments and practical concerns with how otherwise to avoid a statutory ouster clause, there was an invocation of history to explain the judicial review of non-statutory powers such as those of the Panel on Take-overs and Mergers. He invoked Sir Matthew Hale in De Portibus Maris and the early-nineteenth century “lost” case of Alnutt v Inglis to explain that, where there is only one wharf in a port, thus where a monopolistic power is exercised, the common law requires that only reasonable and moderate duties for wharfage be taken.Footnote 23 His use of these authorities, very old and largely forgotten, at least in England, he explained by invoking Calvin's Case in which Sir Edward Coke described common law learning as “scientia socialis et copiosa”.Footnote 24 To Forsyth, the common law was again revealed to be sociable and copious: sociable “in that it agrees with the excellent science of common sense that the great monopoly powers of such non-statutory bodies should be regulated”; copious through its multiplicity of authorities within which “the solution is waiting to be found”.Footnote 25 With a further reference to the antiquated review jurisdiction to quash for error of law on the face of the record, which predated the extension of the ultra vires doctrine to justify judicial review in general, he concluded that, although the doctrine was the main justification of judicial review, it had never been its sole justification.Footnote 26
In modifying the doctrine of ultra vires to maintain it as still administrative law's central principle but drawing on the rule of law and “richer constitutional foundations than the intention of Parliament” to justify the judicial review of non-statutory powers, Mark Elliott has not made Forsyth's historical claims.Footnote 27 History has been nonetheless notable for its absence. Historical explanation of what is a claim to orthodoxy in Elliott's account has been lacking. A historical selectivity, further, has been implicit in that both Elliott and Forsyth have not reconciled with the doctrine of ultra vires, or raised as a relevant issue, the orthodox distinction between review and appeal, which has traditionally been drawn with reference, inter alia, to the inherence of the review jurisdiction in the common law as opposed to the statutory basis for an appeal. On the one hand, Elliott has previously recognised the distinction,Footnote 28 but refers only briefly to the “so-called distinction between ‘appeal’ and ‘review’” in the textbook he co-authors with Robert Thomas.Footnote 29 On the other hand, Wade and Forsyth, in elaborating on the appeal-review distinction in the last edition of Administrative Law, still emphasise “the court's inherent power” of review and assert, without reference to Parliament's intention, that the “basis of judicial review, therefore, is common law”.Footnote 30 Why the traditional doctrine of ultra vires should be elevated above and made to eclipse the traditional distinction between review and appeal is unclear.
On the other side of the ultra vires debate, Paul Craig replied to Forsyth and Elliott's defence by criticising, inter alia, their treatment of history.Footnote 31 Apart from emphasising the doctrine's indeterminacy and Forsyth's dichotomous treatment of statutory and non-statutory powers, he provided a brief but careful historical overview of judicial review's development intertwined with that of the prerogative remedies. In his historical account, Craig referred to a range of leading authorities from the seventeenth, eighteenth and nineteenth centuries and to what secondary literature was available. He repeatedly emphasised how judicial review would have been viewed from the historical perspective of those responsible for its development. In conclusion, he identified and addressed narrowness in the ultra vires advocates' point of view:
An appreciation of the historical foundations for judicial review can prevent a potent form of “temporal parochialism”. It can help us to understand that the orthodoxy of today is less permanent and more ephemeral than might have been imagined. The ultra vires doctrine conceived in terms of legislative intent, which is now regarded as the unshakeable foundation for review, would never have appeared so to Coke, Heath, Holt or Mansfield, nor to many of the other judges who participated in the development of review during this period.Footnote 32
Elsewhere, Craig queried the inattention of the ultra vires advocates to the case law by which judicial review developed.Footnote 33 He conjectured that their response to his query would be to argue that the case law was irrelevant because it predated the emergence of the modern Parliament. In answer to their supposed response, Craig questioned when, even at a rough estimate, the modern Parliament can rightly be assumed to have emerged and the coincidence of that date (whatever it is assumed to be) both with any judicial sense of judicial review's loss of legitimacy and with the references courts began to make from the late-nineteenth century onwards to legitimate judicial review by reference to legislative intent.
Craig's own contribution to the ultra vires debate has itself been contentious—challenged as an “argument from history”Footnote 34—and is vulnerable to criticism in places. In arguing that the ultra vires model “constitutes a modern vision of judicial review which does not sit well with our past”, Craig suggested in the alternative a high degree of continuity over several centuries in the history of the common law. Whereas the continuity in the late-modern period he suggested above may be relatively unproblematic, he also referred to Coke's doctrine about the controlling power of the common law in Bonham's Case as laying the foundation for high judicial authority in the interpretation of parliamentary statutes.Footnote 35 Further, he cited the traditional absence of judicial reasoning according to a rigid public/private dichotomy as evidence that there was traditionally no judicial sense of needing to legitimate the review of statutory bodies in particular by reference to legislative intent.Footnote 36 That absence, however, is reason to question the extent of the continuity between the English administrative law of earlier centuries and that of recent decades during which an English distinction between public and private law has been introduced in various ways.Footnote 37 It would be reason, at least, for Craig to qualify his conclusion that the common law's “traditional vision of constitutional and administrative law” should not be regarded “as in any way outdated”.Footnote 38 In its attention to historical sources, however, and the perspective of those responsible for the development of judicial review, Craig's approach to history has been considerably more orthodox than, and distinguishable from, that of the ultra vires advocates mentioned above or the legal and political constitutionalists to be considered below.
In English constitutional law, history has also been invoked on both sides of the debate about the constitution's basic character—whether it is rightly regarded as legal or political.
On the one side of the debate, Trevor Allan, in advocating the rule of law's constitutional centrality, has as his epigraph to Constitutional Justice Coke's famous dictum that “in many cases, the common law will controul acts of parliament, and sometimes adjudge them to be utterly void”.Footnote 39 As an epigraph, it is unexplained but, in the book itself, Allan again cites Coke to show the compatibility of a controlling common law with the Acts of a transcendent Parliament or, in modern terms, of the rule of law with the statutes of a sovereign Parliament. On the main premise that there is no genuine, only a figurative or constructed, legislative intent of Parliament in respect of particular cases, he concludes that there is “no inconsistency” between two apparently inconsistent assertions by Coke: on the one hand, his assertion that “[e]very statute ought to be expounded according to the intent of them that made it”; on the other hand, his assertion that “the surest construction of a statute … is by the rule and reason of the common law”.Footnote 40 Allan's citation of Coke is highly selective. The first assertion quoted by Allan is from a concluding sentence to Coke's treatment of general grants by Act of Parliament, expressed in “generall” not “speciall” words, and was qualified by Coke as follows: “Every statute ought to be expounded according to the intent of them that made it, where the words thereof are doubtfull and uncertain, and according to the rehearsall of the statute; and there a generall statute is construed particularly upon consideration had of the cause of making of the act, and of the rehearsall of all the parts of the act”.Footnote 41 Thus Coke specifically presented the common law's rules of construction as applicable to “doubtfull and uncertain words” and a “generall statute”. By implication, clear and particular statutory provisions were to Coke not similarly open to interpretation according to the rule and reason of the common law. In omitting Coke's qualifications to his first assertion, Allan imputes to Coke support for general interpretive latitude however clear and particular the statute, thus turning him into useful authority. It is interpretive latitude that accords with Allan's own approach to interpretation, by which he seeks to reconcile the rule of law and Parliament's sovereignty. Allan's invocations of history, here and elsewhere, have attracted criticism from various points of view.Footnote 42
On the other side of the debate about the constitution's basic character, Adam Tomkins has expressed a contrasting view of authorities such as Coke. He has discounted Coke's famous dictum in Bonham's Case and other famous seventeenth century cases such as Prohibitions del Roy Footnote 43 and the Case of Proclamations Footnote 44 as illustrative of the common law's professional self-interestedness and preoccupation with property rights, in short, of the failure of the common law constitution to hold the Crown to legal account.Footnote 45 The use of history by Tomkins in Public Law and Our Republican Constitution has been to provide an alternative.Footnote 46
In his earlier work Public Law, Tomkins expressly adopted a historical perspective on the separation of powers in particular.Footnote 47 The fundamental historical separation upon which he focused, however, was not that by which the courts have become independent of the Crown in conventional English legal thought but the separation of the Crown from Parliament so as to leave Parliament as the central constitutional forum for the exercise of an accountability that is political not legal. The strength of his historical claims was commensurate with that of his contemporary purpose. He claimed to offer “a more historical perspective” than other writers on the separation of powers cited by him, and his argument was that “today's English public law does indeed continue to reflect its seventeenth century heritage”.Footnote 48 His historical perspective was on “a separation of power which is designed to facilitate accountability”, the subject of half of his book.Footnote 49 His account was highly selective. He recognised, for example, Magna Carta's significance for Parliament's control of taxation although it was later acquired and not actually established by Magna Carta. He did not similarly acknowledge the significance later acquired by Coke—inter alia, through his confrontations with the Crown and the historic common law cases cited by Tomkins—as a symbolic champion of judicial independence and articulator of the self-understanding of common lawyers.Footnote 50 His alternative account is in contrast with a conventional account that might, for example, stress the role of legalism and common lawyers in the seventeenth century, including the many lawyers who contributed to the drafting of the spate of reforms before and during the interregnum, resulting in the lasting abolition of various prerogative courts and culminating in a historic settlement that consolidated the position not only of the Crown and Parliament but also that of the common law courts.
Again, in his more recent work Our Republican Constitution, Tomkins selects from the multiple legal and political strands of thought in the seventeenth-century revolutionary struggles a republican parliamentary strand of political thought.Footnote 51 He relies heavily on Quentin Skinner's account of the emergence of a neo-Roman notion of freedom as non-domination in seventeenth-century English politics.Footnote 52 His historical claims are again strong, purposeful and in service of the present. He claims that constitutional practice was “profoundly influenced by republican ideals” in the seventeenth century and that he is seeking “not to invent but to revive” the political constitution.Footnote 53 His reliance on Skinner is seemingly unaffected by Skinner's own presentation of his work as a corrective to modern historical accounts in which “the constitutional debates [about the royal prerogative] of this period have too readily been treated as if they were couched entirely in the language of the common law”.Footnote 54
The use of history by Tomkins has provoked fierce criticism from Martin Loughlin.Footnote 55 Loughlin criticises the leap made by Tomkins from the seventeenth century to the twenty-first century—a leap over centuries when the role of republican thought was marginal or certainly far from profound. To Loughlin, Tomkins has produced “a Romantic argument of retrogressive progress” akin to the use of Coke by the common law constitutionalists.Footnote 56 Loughlin argues strongly against the use of history as “an ideological weapon” or “like a trump card in a game of whist”.Footnote 57 While expressing some understanding of the inclination of lawyers “to be thoroughly presentist in their treatment of history”, he stresses the “obligation to try to maintain the canons of historical coherence” for fear that constitutional scholarship loses richness and “be converted into some adversarial contest”.Footnote 58
Loughlin has himself made a substantial and sustained contribution to the historical understanding of public law. He did so first in Public Law and Political Theory and has done so again in his two recent works, The Idea of Public Law, where he sketches his pure theory of public law, and The Foundations of Public Law, where he further develops that theory by way of a detailed historical account.Footnote 59 He has not been engaging in the debate between the English legal and political constitutionalists above, in which he is uninterested as such,Footnote 60 but his use of history in his two recent works shares with their use two basic features. The one is a strong sense of purpose; the other is a high degree of selectivity, particularly in his first work, but also in his second despite its depth, breadth and detail. His main purpose “has been to uncover the foundations of public law, especially as the subject has evolved in Britain”.Footnote 61 That purpose has been reformist, even radical, in the British context, where Loughlin views “much of what passes for received wisdom in the field” as “unfounded”.Footnote 62 A high degree of selectivity is evident in two basic ways: his particular use of Machiavelli in the first work and his general use of sources in the second.
In The Idea of Public Law, Loughlin uses Machiavelli to explain the “brokenness of politics” and its mediation.Footnote 63 For Loughlin, politics is broken in being characterised not by consensus but by conflict arising from “an unbridgeable gulf between governors and governed”,Footnote 64 between the world of the prince and the world of the people portrayed in Machiavelli's letter of dedication to Lorenzo de Medici at the start of The Prince.Footnote 65 The conflict is mediated by more partisan politics on one level, and, on another, by the less partisan “prudential method” of public law expressly conceived by Loughlin as “a juristic interpretation of Machiavelli's thought”.Footnote 66 For its persuasiveness, Loughlin's use of Machiavelli is heavily dependent upon the comparability, on the one hand, of Machiavelli's two separate worlds, that of the prince and that of the people in sixteenth-century Italy, and, on the other hand, of today's multiple levels of government, forms and agencies of governance and the complex architecture of power to which they give rise.Footnote 67
In The Foundations of Public Law, Loughlin's selectivity lies not in his invocation of any one source but his focus, not on English or British sources, but the general European sources by which the ideas and practice of public law have emerged “through a common European discourse”.Footnote 68 He explains that “English (later British) ideas and practices were crucial” in that discourse, especially in its formative period, but that “the concept of public law has remained suppressed in British legal practice for much of the last 250 years”.Footnote 69 He argues that the British are therefore now “obliged to re-connect with the mainstream of the European tradition of public law”.Footnote 70 His purposeful use of history is explained and transparent but not without difficulty from an orthodox historical perspective. That difficulty is his dismissive attitude to self-understanding in the British context. That “much of what passes for received wisdom was unfounded”Footnote 71 was the very reason for his focus on conceptual aspects in The Idea of Public Law, where his dismissive attitude is also expressed in various other places.Footnote 72 In The Foundations of Public Law, he is still dismissive (although not of the early formative English/British contributions). He acknowledges that the concept of public law has been suppressed for more than two centuries but claims none the less that the case for British exceptionalism is “misplaced”.Footnote 73 His impressively ambitious aim is to correct more than two centuries of misplaced exceptionalism and unfounded legal thought and practice in relation to government. He does so by looking elsewhere—elsewhere in Europe and, inter alia, at Machiavelli's two worlds of the prince and of the people—perhaps necessarily qualifying his earlier admonition “that there can be no elsewhere which underwrites our existence”, or perhaps redefining its terms and thus narrowing its implications.Footnote 74
Why certain English public lawyers have been using or invoking history is an important but difficult question but can only briefly be dealt with here. Central to the explanation would seem to be an interaction between the traditional common law and the growth, and relatively recent recognition, of public law. On the one hand, those working in the common law tradition, considering, for example, the utility of the ultra vires doctrine in legitimating developed administrative law, or elaborating on legal constitutionalism to accommodate public law, have been exploiting the common law's resources to the full—its abundance of historic authorities and also its history—in ways familiarFootnote 75 in the common law tradition. On the other hand, recognition of public law, in the common sense of the law governing the use, allocation and control of state power, has drawn attention to the political, normative and social significance of its legal issues. Attracted by those issues have been various public lawyers (mainly in academia but also in legal practice) strongly motivated by political, normative and social concerns. Those concerns have been both sources of dissatisfaction with existing public law and reasons to reform it, inter alia, by reshaping its history, and thus our sense of the outcome, in the reconstruction of historic authorities or reappraisal of historical sources.
What is at stake constrains liberality or openness towards the many kinds of history that have been writtenFootnote 76 and the many uses to which history can be put. Whatever the historical explanation for the recent turn to history by certain English public lawyers, the history invoked, particularly in the debate between the political and common law constitutionalists, has gone well beyond history to understand English public law. It has been history to reform it by reviving, for example, the traditional doctrine of ultra vires, Coke's controlling common law or seventeenth-century English republicanism. History to reform English public law has been a cause for concern expressed in the fierce criticism it has provoked from particular, historically minded, public lawyers. Sources of criticism of particular uses have been their high degree of selectivity, a certain lack of orthodoxy—“bad historical claims” that fail to meet our “obligation to try to maintain the canons of historical coherence”Footnote 77—and a lack of transparency of what, for example, has been presented as an exercise in interpretation.Footnote 78 To these may be added the often largely unexplained abstraction of ideas, dicta or practices from a remote past for use in a very different present. Orthodox legal historians may be forgiven for suspecting that, in a past where angels fear to tread, English public lawyers have been walking to pick the odd cherry along the way or, indeed, to find cherry trees to unearth, replant and revive.
How not simply to dismiss but to enhance history that is strongly motivated, selective, reformist in purpose and oriented to serving the present is to be sought below in what shall be differentiated and explained as thoroughly deliberative approaches to history, both orthodox and unorthodox.
III. Using Legal History to Liberate Legal Thought
To the historically minded public lawyer who doubts and mistrusts much of the history to reform English public law as illustrated above, but is also reformist (or radical) in point of view, an orthodox approach is available. It is exemplified in several uses of history in debates about English public law. It is a legal history to liberate and is doubly deliberative. It is deliberate, and aims to enhance deliberation by liberating legal thought. That from which it seeks to liberate is variable and variably related to reform. In its variable objectives, at least three different kinds of such history can be distinguished.
The first kind of legal history to liberate is that which seeks to liberate us from the tyranny of the old, from the sway or the hold of the past, by explaining the historical context of some legal text or institution and showing how that context has disappeared or otherwise changed, rendering the text or institution obsolete or unsuitable. An example of such history would be a historical account of executive-minded decisions in cases such as Amphitrite, Carltona or Duncan v Cammell Laird as wartime decisions and thus unsuited to maintaining the regular legal accountability of government in peacetime.Footnote 79
Legal history to liberate from the old and antiquated may have as its preoccupation a present ruled or paralysed by the past. In his famous words “[t]he forms of action we have buried, but they still rule us from their graves”, Maitland expressed that preoccupation.Footnote 80 He presented the role of the historian “as that of explaining, and therefore lightening, the pressure that the past must exercise upon the present, and the present upon the future” and added that “[t]o-day we study the day before yesterday, in order that yesterday may not paralyse to-day, and to-day may not paralyse to-morrow”.Footnote 81 Although his history varied considerably in subject, tone and sense of purpose,Footnote 82 Maitland seems initially to have been drawn to history in part through dissatisfaction with the medieval encrustations around English real property law. He had experienced them as a conveyancer, and he expressed his dissatisfaction in his first published article.Footnote 83 For Maitland, the historian's freeing of the present from the hold of the past was accompanied by a historical sense of the power of each generation to shape its own law.Footnote 84 He expressed an acute consequent sense of responsibility for the present: that it is not those in the past who made the law but “we who are guilty of our own law” where we do not change what has become anachronistic, obsolete or nonsensical.Footnote 85 In his constitutional writings, a legal history to liberate is most clearly evident in his ridicule for the conception of the Crown as a corporation sole—“no ‘juristic person’ … either a natural man or a juristic abortion”—of medieval obscurity and destined to be replaced and fall into disuse.Footnote 86
Legal history to liberate from the old and antiquated would have complemented several of the uses or invocations of history that are the concern of this article. Central to it is a thoroughly critical approach to continuity in the common law. It would have contributed particular sensitivity to what might be antiquated or anachronistic in reviving, retaining or invoking, for example, the distinction between review and appeal, the doctrine of ultra vires or another older or more traditional justification of judicial review.Footnote 87 It is, further, a kind of history by which to justify a conclusion that is dismissive of particular antiquated features in the approaches and self-understandings of common lawyers and that warrants looking elsewhere for help and inspiration.Footnote 88
The second kind of history to liberate is that which seeks to liberate us from the tyranny of the new, and is conservative rather than reformist in long-term effect or implication. The novelty might have originated in another jurisdiction or might be a new or developing domestic doctrine dressed up as old and said to be orthodox. It might seek to liberate by demonstrating that the novelty lacks the historical context for it to be sustained, the context in which it is necessary, workable or appealing. Paul Craig's opposition to the relatively recent advocacy of the ultra vires doctrine as English administrative law's central principle is illustrative. His own, alternative, account of judicial review's historical foundations is a history to liberate from “a potent form of ‘temporal parochialism’”.Footnote 89 Legal historians have themselves occasionally warned against constitutional novelties and dangers. In discussing the constitutional theories of sovereignty current in his day, Holdsworth for one advocated the comparable use of what he called “effective legal history” to avert the danger of teachers and students of law being “blown hither and thither by every wind of doctrine”.Footnote 90 Sir John Baker for another, from a historical perspective on the many constitutional changes of recent years, has portrayed the constitution as having now become “subject to the same kind of incessant tinkering and experimentation as the management of hospitals or railways”.Footnote 91 History to liberate from the tyranny of the new, however, is not necessarily conservative in implication. The lack of context for what is new but necessary or highly desirable might be good reason not to reject the novelty but radically to transform the context.Footnote 92
A history, rational in its attempt to reform English public law or liberate it from the old or the new, might make little difference in a context of prejudice, hidden and barely perceived assumptions, constructive or convenient ambiguities, stable contradictions appealing to disparate sentiments, and irrational comparisons, whether with other jurisdictions or long-gone periods of a remote past. In short, legal history to reform and liberate might, in a particular context, be rendered ineffective by legal culture, for want of a similarly serviceable but less difficult concept.Footnote 93 Appreciation of the role of prejudice and its implications for the development of English administrative law were, for example, expressed by S.A. de Smith. He briefly explained how an English imitation of the Conseil d'État's administrative jurisdiction was “precluded by three centuries of tradition and myth” around the historic encroachments upon the jurisdiction of the common law courts.Footnote 94 For De Smith, they were the outcome of the seventeenth-century constitutional struggles, on the one hand, and Dicey's account of the French administrative jurisdiction, on the other, by which new “prejudices were added to the old”.Footnote 95
The third kind of legal history is one that seeks to liberate legal thinking from the hold of tradition, myth and prejudice. Quentin Skinner has described history as offering “a kind of exorcism” from bewitchment in our believing the inevitability of “ways of thinking … bequeathed to us by the mainstream of our intellectual traditions”.Footnote 96 Legal history might similarly seek to expose and illuminate legal cultural prejudices and assumptions by explaining their historical development, thus bringing them into deliberation and open debate where, subject to rational and normative assessment, they might more readily change or be adapted. Such history, through its concern with what is prejudged or assumed—with what may therefore be barely evident—is immensely challenging. Although for that reason it is often avoided or neglected, it may be crucial in clarifying the receptivity and adaptability of the context for a reform to be practicable or its strategy effective. It may similarly be crucial where a particular source of authority or group of related sources has been elevated or over-relied upon, resulting in a hegemonic but insufficient historical account. One feasible response is to widen the sources that are readily available;Footnote 97 another is to turn to other sources. In the uses and invocations described above, Loughlin's Foundations of Public Law illustrates this third kind of history to liberate. Loughlin turned away from the modern British sources that reflected and perpetuated the suppression of the concept of public law in common law practice and theory. He turned instead to the general European sources by which the idea and practice of public law emerged “through a common European discourse”.Footnote 98
History to liberate legal thought from the old, the new and what we might too readily assume is relatively orthodox and is available to public lawyers dissatisfied with the existing state of English public law. The uses and invocations of history in the debates about English public law described above are relatively unproblematic where and in so far as they exemplify it. Many of those uses, however, have been affected by two features of the English legal context, which are as problematic as they are fundamental. The one is the traditional whig use of history in the common law and its legacy in legal thinking about the past; the other is the preoccupation of lawyers with authority—its use, interpretation and subversion.
IV. Using Whig History and the Ample Resources of the Common Law
Whig history is characterised here not by its normative substantive content or implication (liberal or whig, for example, as manifest in the nineteenth-century English context) but by its method. Characterised as an account of the past in the terms of the present—a story of its progress to the present or of what in the past is of special significance in the present—whig history shares various methodological featuresFootnote 99 with several of the recent uses or invocations of history in the debates about English public law. They include a high degree of selectivity (or abridgment), a strong sense of purpose, assumptions of continuity and orientation to the needs, purposes and judgments of the present. In the process, however, by which history was professionalised from the late-nineteenth century onwards and became defined by its treatment of sources in their own terms and context,Footnote 100 whig history was discredited, in part, through the influence of Herbert Butterfield's telling criticism (inter alia, of its abridgment, oversimplification and orientation to the present).Footnote 101 In the history of ideas, Quentin Skinner has elaborated further on the deficiencies of historical accounts dominated by understandings of the present and thus contributing to what he calls mythologies of doctrine, coherence and prolepsis.Footnote 102 One of his illustrations is searching into Coke's famous dictum in Bonham's Case for the developed US doctrine of judicial review, and then readily finding it there in embryonic form.Footnote 103 Another is “too readily ‘seeing’ the ‘modern’ elements” in Machiavelli's thought “that the commentator is now programmed to find”.Footnote 104
Despite the discrediting of whig history as history, “the tendency for all history to veer over into whig history” (because it is necessarily retrospective and selective in some degree) is fully recognised and remains a commonly voiced caution for historians.Footnote 105 It is also of particular relevance to lawyers when looking to the past but oriented to the legal problems of the present, especially in the common law tradition. That tradition was long characterised by a thoroughly whig view of the common law's antiquity, and common lawyers have continued to express a strong sense of continuity with its distant past.Footnote 106
How to understand (so as then to assess and enhance) the way in which an account of the past is used in legal argument to further a present reforming purpose will be sought below in a dictum of “almost the extreme example of the whig interpretation of history”.Footnote 107 It is a dictum of Sir Edward Coke, who was a leading exponent of the common's law ancient origins, and is credited with remoulding it to be fit for later purpose in a formative period.Footnote 108 The aim here is to seek insight into certain reformist uses of history in the more marked features of an extreme example of whig history at work in the common law.
A. Per Causam Cognoscere in Coke's Dictum
A clew to the working of Coke's whig history in the common law and that of those he influenced is the following passage from Coke on Littleton:
Littleton in this Chapter hath often said, and the reason is, which is worthie of observation, for then we are truely said to know any thing when we know the true cause thereof. Tunc unumquodque scire dicimur, cùm primam causam scire putamus. Scire autem propriè est rem ratione et per causam cognoscere.
Felix, qui potuit rerum cognoscere causas.Footnote 109
In this passage, containing references to Aristotle 1 Metaphysics and Virgil 2 Georgics, Coke's emphasis is upon ratio or reason rather than upon causa or cause as something different from ratio. Shortly after stating that “[t]he reason of the law is the life of the law”, Coke uses the main dictum Scire autem propriè est rem ratione et per causam cognoscere to explain Littleton's references to reason. Then, in applying the dictum, he refers to a legal reason, or a cause in the sense of a reason as a matter of legal inference.Footnote 110 In the main dictum, however, causa is additional to ratio, and causa or cause bore two other meanings, which can be traced back to Aristotle's doctrine of the four causes, both of which are relevant to, and are reasons for the relevance of Coke's dictum to, historical explanation or understanding of legal rules and of the institutions and principles of government.Footnote 111 One such relevant meaning of cause is that which produces an effect or, through human agency, occasions something intentionally or unintentionally (the efficient cause in Aristotelian terms). The other such meaning, now generally obsolete, is of cause as the purpose, object or end of action (the final cause in Aristotelian terms). It is that second meaning in particular that can be used to shed light on Coke's whig history. In the passage above, before stating the main dictum, Coke presented primam causam as “the true cause”.Footnote 112 In using his historical learning to develop the persuasive arguments by which the medieval common law was remoulded or further refined, Coke was inclined to “equate what was true with what was useful”,Footnote 113 and what was useful served a purpose, object or end.
The classic example of Coke's whig history was his celebration of Magna Carta. Despite its miscellany of chapters and provisions, serving disparate ends and responsive to varying interests, Coke put it to simple use in furtherance of a singular purpose. To him, the “statute of Magna Charta is but a confirmation or restitution of the common law”.Footnote 114 The common law was therefore something all the more to be upheld, revered and continually refined. The basic reconstructive features of his celebration of Magna Carta were, first, the abstraction of a causa or purpose from a complexity of facts, secondly, the ex post facto imputation of the causa as the prima causa or principal purpose from the perspective of the present rather than that of the past and, thirdly, the actionality of the causa as a motive, or reason of principle or policy, for acting. That reason for acting was, in the instance of Magna Carta, that the restitution of the common law revealed its ancient and enduring value as something therefore to be maintained, revered and continually refined by each new generation of common lawyers.
Prominent figures in the development of English constitutional thought have used history in ways similar to that of Coke in his celebration of Magna Carta. The seventeenth-century statute by which the Star Chamber was abolished is illustrative.Footnote 115 Amidst the complex circumstances of its abolition, the statute itself provided various reasons. They were the existence of “proper Remedy and Redress” in the common law courts, the Star Chamber's burdensome procedures which had been found to be “the Means to introduce an arbitrary Power and Government”, its interference with civil cases and the resulting uncertainty “concerning Men's Rights and Estates”.Footnote 116 Amidst the various stated reasons for abolition, whereas Blackstone imputed the enactment of all judicial power to be independent of the Privy Council effectively as its prima causa or principal purpose,Footnote 117 Dicey identified its preclusion of arbitrariness and an administrative jurisdiction in a triumph for the English rule of law.Footnote 118 Blackstone and Dicey contributed retrospectively to the reforming process by reconstructing the Star Chamber's abolition, that is, by turning it into reform that advanced judicial independence on the one hand and the rule of law on the other.
Several of the examples of history to reform English public law, detailed above, may also be understood in terms of Coke's dictum. They involve the abstraction of a causa and its ex post facto imputation as a principal purpose in service of a contemporary reform agenda. What is abstracted and imputed to have primacy is, in one example, endorsement of unqualified interpretive latitude by Coke as authority for interpretivist reform. In a second example, it is the separation of Parliament's power so as to confirm the centrality of the Crown's political accountability to Parliament and, in a third, the inauguration of a concept of freedom upon which to found republican constitutionalism for today.Footnote 119
In history to reform English public law, reconstruction through the abstraction of purpose and the imputation of its primacy is not per se problematic. If the reformer's abstraction and imputation are apparent, they can readily be assessed and their quality and importance debated accordingly. They only become problematic when the reformer, whether through normative commitment or ideological conviction, perhaps facilitated by lingering ambiguity in the meaning of cause (as existed in the meaning of both causa and cause), presents the imputed causa or cause (in the sense of purpose) as if it were the historical cause (or it is so understood), that is not in the sense of purpose, object or end but in the sense of that which occasions or produces an effect. The outcome is a kind of historical functionalism by which an imputed purpose is presented (or understood) as an inherent function in the historical production of actual effect. Its imputation then becomes unclear or indistinct and, as such, difficult to challenge or properly assess, other than by way of an alternative historical account that is thorough in its treatment of complexity. An alternative account of that kind is produced only with difficulty and may not be available or forthcoming. Until it is forthcoming, the functionalist account stands, deriving historical legitimacy from its claim to historical actuality and perhaps rivalled by others in a bare contradiction of functionalist historical claims. Further, when the alternative account is produced, it will, through its treatment of complexity, necessarily contradict the functionalist account, negate its historical actuality and thus deprive it of historical legitimacy. The functionalist account lacking transparency, on the one hand, derives historical legitimacy that is not readily challenged and, on the other hand, loses much of it when it is. The dilemma is reason for transparency in the deliberative use of history, advocated here and further elaborated on below.Footnote 120
In the reform of English public law, several of the invocations can be understood as uses of whig history. They are presented here as defensible to the extent they have been transparently reconstructive and are readily enhanced to the extent they have not. There is, however, the problem posed by the second fundamental feature of the legal context in which history is invoked. That feature is the preoccupation of lawyers with authority. Maitland famously claimed that a “mixture of legal dogma and legal history is in general an unsatisfactory compound” and explained it by way of a challenging and restrictive law-history dichotomy.Footnote 121
B. The Logic of Authority and the Logic of Evidence
In his inaugural lecture, Maitland contrasted the lawyer's logic of authority with the historian's logic of evidence:
That process by which old principles and old phrases are charged with a new content, is from the lawyer's point of view an evolution of the true intent and meaning of the old law; from the historian's point of view it is almost of necessity a process of perversion and misunderstanding. Thus we are tempted to mix up two different logics, the logic of authority, and the logic of evidence. What the lawyer wants is authority and the newer the better; what the historian wants is evidence and the older the better.Footnote 122
Maitland's treatment of the basic contrast was brief. Although the thrust of his argument was that law and history were incompatible in “their material, their method, and their logic”,Footnote 123 he did not provide a comprehensive account of his law-history dichotomy. It may be complemented in one respect and supplemented in another so as further to understand the scope of its restrictive implications.
On the one hand, a further lawyer's logic of function or preoccupation with practical legal purpose, distinct from that of the historian, was at least implicit or assumed in Maitland's own treatment of the lawyer's attitude to authority. Preceding the contrast, he explained the knowledge lawyers want—for example, “not, save in the rarest cases, a knowledge of medieval law as it was in the middle ages, but rather a knowledge of medieval law as interpreted by modern courts to suit modern facts”—in terms of practical necessity and value for the lawyer's purpose.Footnote 124 Maitland suggested that the confusion of the logics of authority and of evidence was only a temptation and the task of avoiding it attainable but difficult. Express recognition of the lawyer's logic of function helps explain the difficulty, that is, why or how the logic of evidence is usually perverted in pursuit of the logic of authority. In the abstract, the lawyer's logic of authority and the historian's logic of evidence are distinguishable but they are not kept distinct in practice. There, in the exercise of the lawyer's function, new, old or historic authorities, in being interpreted or invoked in legal argument, are made to serve the lawyer's practical legal purposes. Express recognition of the lawyer's logic of function has a further implication. In academia, the academic lawyer's logic of function is distinct from that of the practising lawyer. If or when not wanting authority “the newer the better”Footnote 125 but ideas or inspiration, or perhaps insight into legal thought or practice from an external historical or sociological point of view, the academic lawyer follows a very different logic of function, thus not constrained by the dichotomy.
On the other hand, Maitland's account of the contrast between the lawyer's logic of authority and the historian's logic of evidence does not elaborate on the practising or academic lawyer's everyday logic of resource that is usually but not exclusively directed at existing legal authority. Legal resources may principally be sources of authority but need not necessarily be authoritative, at the time in the particular jurisdiction where they are used, to be of use, especially to an academic lawyer. Although lacking much or any real persuasive authority such as to warrant being cited as such, wide-ranging comparative and historical materials may be searched for ideas, approaches, examples and inspiration, also by the practising lawyer in developing or adding to the “luster”Footnote 126 of arguments with which to address practical legal problems that are infinitely variable in content and complexity. Whereas historians have as their preoccupation sources and a logic by which their varying reliability as evidence is assessed, lawyers have what are more accurately described as resources from which legal authority is derived as well as what may only be useful legal ideas, approaches and arguments with potential applicability and only possible future authority. In using historical materials, the academic or practising lawyer may be following a logic, not necessarily either of authority or of evidence, but of resource.
The scope of historical resources, and their past and present relevance both to the practising and to the academic lawyer, were illustrated by David Johnston in his inaugural lecture.Footnote 127 He showed how Roman law rules, doctrines and explanations were used, and still are used, in both the civil law and the common law, to help explain, resolve or illuminate problems. His diverse examples included limited liability in business, suing for pre-natal injuries and establishing ownership of cell-lines in biotechnology cases. In the debates about public law described above, certain uses of historical resources have been comparable. Christopher Forsyth for one invoked Sir Matthew Hale's dictum in De Portibus Maris and stated that its availability revealed the common law's scientia copiosa.Footnote 128 Trevor Allan, for another, invoked Coke as endorsement for interpretive latitude in developing his broader argument that interpretive latitude in the common law affords the court “in the context of any particular case … almost always ample resources to avoid genuine constitutional conflict” between Parliament's sovereignty and the rule of law.Footnote 129
For a practising or academic lawyer openly to find and present legal authority, develop ideas and arguments, and derive inspiration from wide-ranging resources, whether current and domestic or historical and comparative, is not at all problematic in itself. In following the logic of resource, especially when working as an academic, the lawyer can readily avoid Maitland's law-history dichotomy. Only where the use of resource is misrepresented or otherwise lacking in transparency does a pitfall remain for the reckless or the unwary. If the lawyer is inspired to develop, for example, an idea or approach from the historical resource, and then elevates, alters or otherwise reconstructs the resource to provide authority and nonetheless presents its reconstruction as historically evident (thus not the outcome of inspiration and deliberation), the lawyer confuses all three logics of resource, of authority and of evidence. The lawyer reconstructs the resource, misrepresents its authority and confers upon the reconstructed idea or approach false historical legitimacy. The lawyer is then producing the “unsatisfactory compound” of “legal dogma and legal history” of which Maitland warned.Footnote 130 The lawyer's use of the resource might provoke unease, but its misrepresentation or latent reconstruction, supposedly authoritative and historically evident, might well enjoy widespread acceptance. It would, further, be difficult to contest other than by finding other authority, which may not exist, or by reconstructing and misrepresenting whatever can be found in another unsatisfactory compound of legal dogma and legal history, in a debate restricted to a contradiction of competing claims to supposed authority.
In history to reform English public law, the common law's ample historical resources are open to use (and abuse), as is its traditionally whig historical approach to the past. Their use can be defended provided it is transparent and not misrepresented. How their contribution to debate might further be enhanced by also being thoroughly deliberative is suggested below.
V. Towards Deliberative History
The three orthodox histories to liberate legal thought from the old, from the new and from what we might too readily assume were described above as deliberative. They are deliberative in being deliberate and in seeking specifically to enhance deliberation by liberating legal thought. By deliberative history is here meant history that is, first, deliberate in its method and, secondly, transparent and open to debate. It is, thirdly, deliberative in the thoroughness with which it considers, explains and addresses the problem of historical transposition where it arises, for example, in deriving ideas and arguments from the past for use in the present. Each of its features has the potential to enhance history to reform English public law.
First, history to reform that is deliberate in its method is enhanced in two basic ways. On the one hand, the choice of methodological approach, the selections made and the purposes to which uses of the resource are put, all benefit from deliberation. On the other hand, methodological choices are then more fully known and understood by their author and can readily be made transparent. Their detection is not then left to chance and the insight of others, and their adequacy is readily debated, assessed and enhanced.
Secondly, history to reform, in using either whig history or the ample resources of the common law, must at least be transparent if it is facilitate open and wide-ranging debate, as argued above. As history, it is highly selective and purposeful. As law reform, it is reconstructive of ideas, approaches and arguments from historical resources for a reformist purpose. If transparent in selection, purpose and reconstruction, it can readily be challenged, corrected or complemented for reasons of adequacy, desirability and the availability of other selections, purposes and reconstructions. In short, transparency ensures that the use or invocation of history is itself open to debate and deliberation.
To ensure transparency of reconstruction, what is needed is often little more than a minor reformulation or change in presentation. One example would be Adam Tomkins' overall argument that the “separation of power English-style” between the Crown and Parliament with its heritage in the seventeenth century “is a separation of power which is designed to facilitate accountability”.Footnote 131 It could readily be reformulated to clarify his reconstruction and its purpose. In the reformulation, Tomkins could make clear that his overall historical account is selective in its emphasis upon a particular separation of power—of Crown from Parliament—because that separation facilitates or is indispensable to the working of political accountability through Parliament. Tomkins would then be justifying his focus on a particular separation of power and would avoid treating the purpose or function he attributes to the English separation of powers generally—facilitating accountability to Parliament—as the English separation of powers definitive historical explanation. Another example would be for Trevor Allan to acknowledge that Coke restricted his claim that “[e]very statute ought to be expounded according to the intent of them that made it” to the interpretation of “a generall statute” and “doubtfull and uncertain words”.Footnote 132 He could then present his use of Coke's approach to statutory interpretation, not as an interpretation of Coke, but expressly as a correction or necessary reconstruction that is justified, for example, by the consistent generality of modern statutes and, perhaps, a modern (or post-modern) recognition of the usual or inherent uncertainty of statutory words when they are applied to particular contexts.Footnote 133 No longer then would Allan be treating the authority he derives from Coke as if it were historically evident, expressive of Coke's own stated theory of interpretation.
Thirdly, common to the uses of history to reform English public law is a varying degree of remoteness of the past, where an idea or approach is derived, from the present, where it is to be applied. Where the past differs significantly from the present and the remoteness is therefore considerable, the legal transposition from past to present is comparable to legal transplantation between jurisdictions.
The hazards of transplantation from one jurisdiction to another have long been recognised, debated and viewed in contrasting ways in literature on the use of comparative law as a tool of law reform. On the one hand, legal transplantation has been viewed as uncertain and hazardous—“un très grand hasard” in the words of Montesquieu—necessitating knowledge of context, as Otto Kahn-Freund explained and illustrated with numerous examples from private and public law in his influential article.Footnote 134 On the other hand, successful borrowing from other jurisdictions, particularly in the reception of Roman law, has been viewed as extremely common as a source of authority and ideas and as an opportunity for reforming the transplant, the success of which has been said not to depend on much knowledge of its original context.Footnote 135
A leading way of reconciling the opposing views of legal transplants has been to distinguish between transplantation and cross-fertilisation—transplantation as a direct and mechanical transposition between legal systems, which is of questionable effectiveness, and cross-fertilisation as the indirect promotion, through an external impetus, of careful internal legal evolution to suit context.Footnote 136 Comparativists have accordingly discounted the significance of transplantation or borrowing as such and have emphasised the deliberative advantages of an external legal impetus in domestic legal development. These include “genuine dialogue in search for inspiration”, expanding the “argumentative horizon”,Footnote 137 triggering “internal enquiry” and encouraging “more serious thinking about one's own system”.Footnote 138 To maximise these deliberative advantages and to avoid cross-fertilisation degenerating into mechanical transplantation, attention to the following considerations would seem necessary: first, the doctrinal ramifications of an external impetus; secondly, its theoretical implications; thirdly, institutional and procedural competence in accommodating the legal effects of the impetus; and, fourthly, cultural differences between the interacting legal systems.Footnote 139
History to reform English public law has much to learn from the comparative literature on legal transplants and cross-fertilisation in its promotion of methodological caution, deliberation and rigour in law reform. For various reasons that literature is of special relevance here. It is a literature about reform by way of transposition, and historical transposition of an idea or approach from the past to the present involves a change of context, as do legal transplantation and cross-fertilisation. Historians have therefore had reason to speak comparably, for example, of the past as “another country”, of the “alien elements” of an argument dissolving “into misleading familiarity” and of the “risks” and “hazards of institutional history” encountered by the historian trying to embrace “the alien thought of other ages”.Footnote 140 In that comparative law literature, legal transplantation has been said to be more difficult the closer is the transplant to the power structure in its original context, and is therefore more difficult in public law,Footnote 141 and when history is invoked in public law. Further, the comparative law literature is itself also about the use of history in that the frequency of successful borrowings has been demonstrated with particular reference to the reception of Roman law, in which borrowing was, in overall outcome, historical rather than comparative, that is a borrowing from jurisdictions of the past rather than borrowing from jurisdictions elsewhere in the present.Footnote 142
To approach historical transposition with the methodological caution and rigour developed in comparative law to maximise deliberation and avoid mechanical transplantation would require consideration of neglected issues that have been causes for concern in history to reform English public law, as described above. First, doctrinal ramifications would need to be considered, such as implications of the ultra vires doctrine's revival and modification for the orthodox distinction between review and appeal.Footnote 143 Secondly, the transposition's theoretical implications would need to be considered, such as the accommodation of Coke's express or implicit theory of statutory interpretation and its compatibility with modern (or post-modern) theories of interpretation. Thirdly, institutional and procedural competence would need to be considered, such as the adequacy of Parliament's existing mechanisms of accountability if its historical separation from the Crown is to be seen as the central separation of power in the constitution's development. Fourthly, significant cultural differences between past and present, which affect the transposition's practicability, would need to be considered. Affecting the uses or invocations of history above would be, for example, cultural differences of attitude to Parliament and its sovereignty, interpretive practices, ideas of freedom and the interrelations between governors and governed. Further, in history to reform public law, transparency of selection, purpose and reconstruction in transposing is also required, as emphasised above, for an additional reason of particular relevance to such history: unlike the different jurisdictions of today, the legal past and present of a single jurisdiction are readily confused, or simply identified as one and the same, with an assumed or selected common, continuing, identity.
Through transparency and attention to the considerations above, history to reform English public law would not then be subject to an orthodox legal historian's suspicion that cherries are being picked or their trees transplanted. It would avoid the narrowing of constitutional debate to a contradiction of functionalist historical claims to be rejected or corrected by orthodox legal histories if or when they become known or available. Rather, it would involve the opening up of debate to thorough deliberation on wide-ranging issues raised by the suggested historical transposition. Deliberative reform through retrospective inspiration would then be to ill-considered transposition in the reformist use of legal history what careful cross-fertilisation is to mechanical transplantation in the use of comparative law as a tool of law reform.
VI. Helping to Change the Legal World in Various Historical Ways
Legal history is not only needed to understand basic English public law but also, if transparent and deliberative, of use to reform it. Orthodox historical approaches are available to help liberate our legal thinking form the tyranny of the old, from that of the new and, where necessary and insofar as is possible, from the hold of what we might prejudge or too readily assume. The now unorthodox whig history and ample historical resources of the common law can also be of use, and their uses defended if transparent, and further enhanced if also thoroughly deliberative.
After several decades during which legal historians have provided careful, modest and impressively nuanced historical accounts but seldom of public law, many pragmatic, politically driven or normatively inspired public lawyers might seriously doubt the practical, political or normative value of much legal history. They might be tempted to claim that legal historians have only helped to understand or interpret the legal world in various ways but the point is to change it, or at least help resolve the legal disputes that are its professional preoccupation. To that challenge, certain English public lawyers, in the recent turn to history, have opened up ways to respond. It is a turn that warrants a cautious welcome. Although their uses of history have mostly been occasional, highly selective and full of purpose, they can readily be enhanced to address the criticism they have attracted. Both historians and historically minded public lawyers can show what difference history makes, whether by way of orthodox historical approaches or other uses of history that are both transparent and thoroughly deliberative in their attempt to reform English public law.
