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Master Treasurer, my Lords, Ladies and Gentlemen, my subject this evening is The Common Origins of English and American Law

1. INTRODUCTION

The Millennium Lectures explore our legal system at a time - the arrival of a new millennium - that must be as good as any, I suppose, for a stocktaking. I suppose, also, that you can stocktake by looking backwards or forwards and, if you are a politician as Lord Chancellors have to become, you could try to look in both directions at the same time. So that I will do.

Let me look to America. The American Bar Association's decision to hold its Annual Meeting in London in July, gives me an opportunity to look backwards and forwards, to explore the close ties and common history of our two systems; and to send a strong early welcome to our American friends and colleagues.

When an English lawyer opens a volume of American law reports, his first impression is of familiarity. The details of the law being applied are not always instantly recognisable. It may take a few moments to become acclimatised to the language of anti-trusts or first degree murder. The context of the judgment may require careful reading, because the English lawyer may be referred to a case involving the boundaries of federal jurisdiction, direct judicial review of legislative action or a civil case conducted before a jury.

But, once differences of circumstance have been overcome, there is an inescapable feeling that the American judgment is a familiar product of the common law.

This stems from features deeply embedded in the structure, style and language of Anglo-American judgments (Endnote 1). In structural terms, the analysis will start in the past. The common law judge must always work retrospectively, looking back to previous authority to deduce the current law. This process of restrained activism characterises the judicial function in all common law systems.

In stylistic terms, the judgment will be practical. The common law judge is charged only with resolving the dispute at issue (Endnote 2), and anything said beyond this function is strictly obiter. This narrow function focuses attention on the immediate interests of the parties, and away from broad theoretical constructs or considerations of public policy (Endnote 3).

Yet surely most fundamental to our sense of familiarity is the common language of legal argument. English and American laws classify issues in almost identical, and equally esoteric, ways. The most striking example of this phenomenon may be the trust. It has flourished in the hands of English and American judges, providing a subtle body of jurisprudence that now governs the proprietary consequences of situations encompassing charitable donations, equitable wrongdoing (Endnote 4), insolvency (Endnote 5), and, increasingly, unjust enrichment (Endnote 6). The rules are not identical. It would take a certain amount of research before an English lawyer was comfortable with the principles of the remedial constructive trust operated in America. But the conceptual foundations are indisputably shared, and the division between legal and equitable ownership sits at the heart of Anglo-American property law.

2. HISTORICAL FOUNDATIONS

2.1 The advent of the common law

The reason for a basic affinity between English and American law is well known – English law arrived with the first settlers. During the colonial period, Provincial Charters required all legislation to comply with the laws applied in England, and the ultimate redress of litigants lay with the Privy Council in London. It is unsurprising that the conceptual tools and values of the common law became entrenched in the American legal establishment. Aspiring lawyers came to be educated at the Inns of Court. Over 2,500 copies of Blackstone were sold as the key practitioner text prior to Independence (Endnote 7).

2.2 Independence – a challenge to the common law

The colonial period came to a tumultuous end in 1776, when momentous differences were opened up across the Atlantic (Endnote 8). A network of British colonies became independent states, with great moral and religious diversity. Their cultural transformation was dramatic. (Endnote 9)

An entirely new philosophy lay behind Independence. The 1776 Declaration roundly renounced English tradition. It proposed a fresh start based upon "self-evident truths" and new rights "to life, liberty and the pursuit of happiness" (Endnote 10). The new America was founded upon a culture where the rights of man were paramount, and the absolute elevation of rights was seen as the safest precaution against future tyranny (Endnote 11). Across independent America, state legislatures began to enact Bills of Rights, expressing the common principle that:

This philosophy, culminating in the Federal Bill of Rights, was a radical departure from contemporary English thinking (Endnote 13). Both nations had solid democratic beliefs, under the conviction that government should obey the popular will. But in England, attention was focused on the democratic structure of government. Cromwell had encouraged experimentation with governmental structure, and English lawyers were proud of the mixed monarchy of King and Parliament which had emerged as the triumphant product of the Civil War. This inherent structural emphasis was advanced by the writings of Bentham (Endnote 14). He drove a firm wedge between law and morality and laid weight on the form, not the content, of law making. In this way, the promise by early 17th century judges to annul Acts of Parliament that proved "against common right and reason" (Endnote 15) was soon forgotten, and constitutional reform in the 19^th Century was geared towards structural accountability.

Structural considerations never assumed such singular importance in the America, for two reasons. First, it is argued that late 18^th-century America was a more egalitarian society, in which the need to protect the people from the ruling classes was less immediate than in an aristocratic England (Endnote 16). The most pressing need in America was to establish a legal framework that accommodated the country's great cultural pluralism. An instrument laying down the substantive entitlements of each party was essential for this purpose. Secondly, American federalism itself provided a highly effective structural control against tyranny. Montesquieu had already identified that smaller territories were less likely to be ruled despotically. Most importantly, the legal framework of federalism provided its own constitutional checks and balances that reduced the need for artificial structural safeguards (Endnote 17).

It is for these reasons that Americans saw the entrenchment of basic substantive rights as the safest guide to liberty. On this side of the Atlantic, fair democratic process became the touchstone of English liberty. While Jefferson was uniting a nation behind the slogan; "No taxation without representation", England was moving towards the Great Reform Act.

2.3 Meeting the challenge of independence

2.3.1 Reasons for the reception of the common law

But the common law survived in America as a "necessary and safe guide" (Endnote 18) in a turbulent time when states could not be expected to produce instant new laws, nor strong new legislative institutions. So Blackstone prevailed. His compilation of laws was both convenient and familiar to American practitioners (Endnote 19).

But the explanation runs deeper. The unique talent of the common law in post- Revolutionary America was its principled flexibility, without the need to engage the politics of codification (Endnote 20).

The commentaries of Chancellor James Kent, "the American Blackstone" (Endnote 21), became staple practitioner texts, "rolling through the decades before the Civil War like a juggernaut" (Endnote 22).

But common law methodology and philosophy was ideally suited to Independence (Endnote 23). Coke and Locke wrote of the common law as a libertarian institution within which a strong, independent judiciary protected individuals from monarchical extremes. The significance of Entick -v- Carrington (Endnote 24 ) was not lost on Jefferson. He saw the common law as espousing the rights-based philosophy that the War of Independence had sought to achieve (Endnote 25). Government according to law was an obvious foundation stone for a new state with respect for the rights of man.

So independence did not quell the common law tide. It established the need for the active and effective judiciary which lies at the heart of any common law system.

2.3.2 The protection of rights and the democratic imperative

But there were major differences in the protection of liberty. English law set a course of collective democracy, recognising that "every citizen has a right to do what he likes, unless restrained by the common law or by Statute" (Endnote 26). Liberty was to be maintained by ensuring that those restrictions were democratic and fair. Post-Revolutionary Americans set a course of individual rights, stipulating that every citizen has a core of basic rights that trump common law or statutory intervention.

3. THE IDENTIFICATION OF CONSTITUTIONAL RIGHTS

3.1 The sources of constitutional rights

3.1.1 Legislative and common law constitutionalism

At first sight, any constitutional comparison between England and America is difficult. The United States is governed by a written constitution, the triumphant product of Independence. The United States is a federal structure. The Constitution of the United States incorporates a written Bill of Rights.

It places great symbolic weight on human rights. It elevates the basic rights of man to supreme constitutional status. It also lays down in general terms the principles of good practice that are to prevent Federal interference with individual freedoms - such as the freedoms of speech, expression, religion, assembly, protest and peaceful domestic life.

To date, no such bold statement appears in the constitution of this country. English law observes rights as residual, comprising the range of conduct that has not been in terms cut down by statute or common law rules. Fundamental tenets have had to be expressed by the judiciary as a matter of common law.

I do not say that respect for basic freedoms has passed English law by. The writ of habeas corpus is a very early example of common law constitutionalism upholding the right to bodily integrity, and has often been expressed as a constitutional right to liberty (Endnote 27).

More recently the judges have asserted common law constitutional rights. Take the recent decision of the House of Lords in Simms (Endnote 28), in which prisoners successfully challenged a government policy of preventing visits by professional journalists. Two constitutional rights – the right to freedom of expression and the right of access to justice – were at stake, and were attributed by Lord Steyn to "the principle of legality.":

So an incomplete picture would be to assert that English constitutional rights are a product of the common law and therefore residual; whereas Amercia's derive from a single written statement.

3.1.2 Reducing the divide – the common law origins of American constitutionalism

America itself readily identifies itself with the libertarian traditions of English constitutional history - Magna Carta, the 1628 Petition of Rights and the Bill of Rights of 1689 (Endnote 29). So many of the "self-evident truths" of Independence, trace their origins directly to existing common law principles including habeas corpus and the rule of law (Endnote 30).

Also, the grund norm of the rule of law, not expressed in the written constitution of America, is born out of the common law. Nor is the written Constitution of America an exclusive statement of rights. Principles of common law constitutionalism frequently bridge the gaps. I pass over Marbury -v- Madison. There are many other instances. In 1974, one of the turning points of the Watergate scandal – the issue whether President Nixon was obliged to disclose the contents of conversations with his advisers – came before the Supreme Court to determine the scope of Presidential privilege at common law (Endnote 31). More recently, the Court was asked to consider whether Congress could lawfully veto executive action, on which the Constitution was silent, but on which the separation of powers doctrine had much to say (Endnote 32).

3.2 The interpretation of constitutional rights

So, the written part of the American constitution is critical, but not an exhaustive, source of rights. There are precepts, but they have to be judicially interpreted.

Take Roe -v- Wade (Endnote 33). The Supreme Court had to consider the validity of a Texas law heavily restricting the availability of abortions. The law was struck down as a violation of the right to privacy contained in the Fourteenth Amendment. The judgment was radical in two ways: not only did it make a considerable extension of the right to privacy, but it adopted a tone that was almost legislative, specifying the date of foetal viability as the point where the right of privacy could legitimately be curtailed.

On any subsequent occasion that the Supreme Court has been faced with the abortion issue, reference is necessarily made to Roe -v- Wade as a starting point for analysis (Endnote 34). Thus the scope of the American right to privacy is no longer defined by the Fourteenth Amendment alone. Instead, the content of the right is marked out by a subtle combination of constitutional language and common law precedent.

So, as in Simms here, a broad right is identified in both cases as a principle of good constitutional practice. Then the interpretative function of the common law takes over, and the commonalities of English and American law regain their relevance as the court interprets the right and defines its scope. The similar legal reasoning, language and principles of substantive constitutionalism all modify the content of constitutional rights on both sides of the Atlantic (Endnote 35).

3.3 Towards a legislative statement of rights in England

Finally, let us note that our law is set to move even closer to the American model. >From October, legislation will provide a formal source of basic rights in England. The Human Rights Act will identify essential constitutional values and set them on a proper democratic footing. While judicial interpretation will remain key to defining the scope of these rights, future English judges will have at hand a clear legislative statement, a single source that will raise the prominence of human rights throughout English law.

4. THE PROTECTION OF CONSTITUTIONAL RIGHTS

4.1 Direct protection of rights in public law litigation

Let me first look at public law on both sides of the Atlantic.

4.1.1 The common law origins of administrative law

Administrative law is a full-blooded product of the common law on both sides of the Atlantic. Marbury -v- Madison established that judicial review is inherent neither in federalism nor in a written constitution, but stems from two common law tenets: the rule of law; and the separation of powers.

The rule of law is the foundation of rights enforcement in both countries. Individual liberties may only be upheld by acceptance that "the King shall not be subject to men, but to God and the law: since law makes the King" (Endnote 36). The subordination of government to law explained why the courts could invalidate the Secretary of State's warrant for the search of Entick's property, and compel the delivery of Marbury's commission. I quote Chief Justice Marshall: "it is the province and duty of the judicial department to say what the law is".

So the search is for balance: the judicial branch must set itself boundaries that are sensitive to the dangers of usurping the executive or legislative function (Endnote 37).

4.1.2 Review of executive action – common constitutional concerns

To keep check on their constitutional role, Anglo-American courts rely upon two particular concepts. They may be labelled "interest orientation" (Endnote 38) and "agency autonomy" (Endnote 39).

"Interest orientation" is how judges avoid acting as legislators. Common law methodology is inherently interest-oriented. So there are strict standing rules. The courts of both countries require public law litigants to establish, in the words of the Supreme Court, "a sufficiently concrete and particularised or imminent injury" (Endnote 40). Thus the enforcement of rights is only effected by those directly concerned. Courts must refrain from granting a legal remedy where the appropriate solution is political (Endnote 41). Exceptionally, in both jurisdictions, public interest groups may bring actions to compel executive respect for human rights, but the qualification rules for these bodies are strict: they must be established, authoritative and truly representative of the public interest (Endnote 42).

The second restraint in both countries is "agency autonomy". This ensures that courts do not interfere improperly with the decisions of other branches of government (Endnote 43). Both systems uphold this principle by their strict distinction between appeal and review, avoiding consideration of whether the decision was substantively right. The questions asked in judicial review are confined to the legality of the decision in accordance with legal limitations on the decision-maker's powers: the "fig-leaf" of ultra vires (Endnote 44).

In this way, the concept of jurisdiction assumes a centrality in administrative law, recognised by the House of Lords in Boddington's case (Endnote 45). So also in the focus of the Supreme Court in Chevron -v- Natural Resources Defense Council (Endnote 46). The Court was asked to consider the validity of environmental regulations, passed by an executive body under primary legislation (Endnote 47) that permitted the licensing of newly modified sources of air pollution. The regulations set up a comprehensive scheme, requiring an entire plant to be licensed as soon as any part of it was modified. The applicants objected that the regulations were unlawfully broad. In exercising its power of review, the court was careful to avoid discussion of the merits of the regulations. The judges' sole consideration was whether the regulations complied with the intention of Congress and fell within a "permissible construction of the statute". The court was entitled to ask whether the regulations had been made on a "rational basis" as rationality was a limitation that Congress would clearly wish to impose. But regulations that were rational and legally accurate could not be challenged in a court of law. Our approach may be more "hard edged". If a statutory provision conferring powers on a body has one specific meaning only, which the statutory body did not follow, then it is not saved, even if its interpretation was reasonable or possible. On the other hand, if the provision lays down a criterion so flexible or imprecise that its application could rationally leads to different conclusions on the same facts, then it is only an irrational application that can be struck down (Endnote 48).

4.1.3 Judicial review of legislation – a major divergence of practice

Thus no court, whether in England (Endnote 49) or America (Endnote 50), will undermine the autonomy of executive agencies by investigating the merits of a decision. Decisions may only be challenged if they infringe a superior rule of law. Here this dictates that the enforcement of constitutional rights must stop at the level of parliamentary legislation (Endnote 51). Constitutional rights have traditionally been taken from the common law, and respect for the democratic imperative has resulted in the self restraint of English judges in attempting to impose common law rights over the express will of the legislature. (Endnote 52)

In the United States, of course, it is very different. Like Parliament, Congress also represents an elected legislature giving effect to the popular will. But the laws of Congress are not the supreme laws of the United States. These are contained in the written Constitution of 1789, an instrument that delegates sovereign power from the people and the states to Congress, and entrenches basic rights at the heart of its provisions.

Let me recall how, in 1785, Justice Iredell expressed the nature of American constitutional review:

Therefore, Americans have no difficulty in holding any legislature bound to respect the principles of human rights. These rights form a superior body of democratically created law, and constitute an express restriction on constitutional legislative authority.

So, Britain has made its Parliament supreme to achieve individual freedom through democratic procedures. America has achieved freedom more directly, by expressly limiting the power of the legislature to ensure compliance with basic substantive precepts. Yet still American judges have by their decisions demonstrated their self restraint in determining the proper allocation both of constitutional powers and judicial process (Endnote 53).

Take Dred Scott -v- Sandford in 1857 (Endnote 54). Dred Scott was a slave. He sought freedom under a Missouri law, known as "once free, always free". This well-established rule granted liberty to any man who had previously resided in a free state, but gave no protection to Scott – the Supreme Court of Missouri simply overruled the principle on hearing his case. He then made an appeal to the Supreme Court, but his appeal failed on the ground that it had no jurisdiction to intervene. First, blacks had no standing to bring actions before the Supreme Court: as the principle of racial segregation meant that United States citizenship was reserved to whites. Secondly, slavery was an issue in which Federal authorities, including Congress, were powerless to intervene: the Constitution made no reference to slavery when delegating power to Federal institutions. The Missouri Supreme Court had declared Scott to be a slave, and the US Supreme Court was bound to recognise this.

Dred Scott cannot be dismissed as an extreme example. Its influence lasted for a hundred years until the Supreme Court finally reversed its position on racial segregation in Brown -v- Board of Education in 1954 (Endnote 55). So it must stand as a powerful illustration of constitutional sensitivities imposing severe limitations on the enforcement of rights.

4.2 Wider respect for constitutional rights

4.2.1 Human rights and the interpretative process

Let me return to judicial interpretation as an essential driver in the definition of rights. In both countries, statutes are interpreted consistently with the language to achieve the greatest respect for basic rights that can be achieved. Here our doctrine of Parliamentary supremacy has focused attention on interpreting, not challenging, legislative decisions. Simms (Endnote 56) is a good illustration.

An insistence on basic rights is also key to the development of the common law (Endnote 57) This is clear to be seen from the judgment of the House of Lords in Derbyshire (Endnote 58), where the law of defamation was developed consonantly with the principle of freedom of expression, to prevent local authorities bringing libel actions.

4.2.2 Wider respect for rights throughout Anglo-American law

But it has to be acknowledged that our approach to the construction of statutes, and judicial precedent, is typified by technical and literal reasoning (Endnote 59). Judges often rail in vain against unpopular common law rules, because their hands are tied by precedent (Endnote 60). Privity of contract doctrine presented an unpopular restriction on contractual autonomy for most of the twentieth century, but judges could go no further than express their dissatisfaction with the rule – the weight of common law authority could not simply be ignored (Endnote 61).

The American approach has traditionally paid more direct concern to the immediate interests of the litigating parties. In the words of Roscoe Pound:

So, American judges enjoy greater flexibility in the application of legal rules to suit the demands of individual cases (Endnote 63). Common law rules may be overruled if they are substantively dubious (Endnote 64), or likely to be overruled in the Supreme Court (Endnote 65), or if circumstances have changed since the previous decision to render the rule undesirable in modern times (Endnote 66). We might say that all this must be at the expense of certainty.

This argument should not be pressed too far. We can cite examples of American judicial restraint (Endnote 67), or English judicial activism (Endnote 68), in the development of rules to protect individual interests (Endnote 69). Here, we have seen great judicial activity in private law - unjust enrichment for example - (Endnote 70), and judges are beginning to acknowledge more openly their role in shaping rules of law (Endnote 71). But the general mood of the law displays a difference of emphasis, suggesting that the language of rights is not here as deeply imbued as in America (Endnote 72).

Take an example of our more rigid, approach from the private law of negligence (Endnote 73). Public authorities rarely owe a private duty of care to individuals in the exercise of their general statutory duties (Endnote 74). So, many actions brought against public authorities are struck out since it is not fair, just or reasonable to impose a duty of care. This practice was successfully challenged before the European Court of Human Rights in Osman -v- United Kingdom (Endnote 75). It was found that a general exclusionary rule would amount to a denial of a litigant's right of access to justice.

In Barrett -v- Enfield London Borough Council, (Endnote 76) the House of Lords accepted this reasoning. It declined to strike out a claim against a health authority for causing psychological problems to a child in its care. Although the child's case "faced considerable difficulties", (Endnote 77) the child was at least entitled to have his arguments of public policy investigated at a full trial.

But we have also seen more restrictive judgments that confine the Osman principle to its narrowest and most formal limits. In Palmer -v- Tees Health Authority, (Endnote 78) the Court of Appeal struck out a claim against a health authority where it was alleged that its negligent supervision of a diagnosed psychopathic had led to the murder of a child. Osman was carefully distinguished. One line of reasoning (Endnote 79) held that the real factor lying behind strike-outs against public authorities was not public policy, but proximity. As the European Court in Osman had only attacked strike-outs based on public policy, the principle of access to justice could be neatly sidestepped by reclassifying the legal issue. The other reasoned judgment (Endnote 80 ) acknowledged the technicality of these subtle distinctions, but found instead that Osman applied only to strike-outs based on general, rather than specific, public policy concerns.

Such literal, technical judgments in the human rights field would be rare in the United States, where respect is accorded not only to the wording, but also the spirit, of rights. Roe -v- Wade reveals a greater willingness by the American judiciary to classify issues as raising questions of human rights, and a great sensitivity in their application. Here there is some evidence of an inclination to deny that rights are in issue at all.

4.3 The Human Rights Act - increased awareness of rights in England

Finally, the Human Rights Act will do much to reduce the gap between England and America. The large number of cases brought against us in Strasbourg show that our law's emphasis on collective democracy has too often failed to protect individual liberties. The fundamental point is that "freedom under the law" ignores that the law, common law or statute, can deny or defeat basic human rights. In October the Human Rights Act will come into force and will provide a clear statement of fundamental rights with sufficient democratic credentials to be directly upheld by an English court.

It will prioritise rights throughout our system, and will require any departure from principle be conscious and reasoned. Also judges are given strong interpretative powers so far as possible to read and give effect to legislation in a way compatible with Convention rights.

As in America, judges will be able to derive constitutional rights from a single source that will enable more effective judicial activism across a range of issues, but ever tempered by judgment and restraint.

Most importantly, the Act will provide a form of enforcement that is sensitive to English constitutional arrangements. Judges must still refrain from hearing a direct challenge to the content of legislation, but they will be enabled formally to question the compatibility of legislative acts with human rights. Ministers of the Crown will also be subjected to new duties in the promulgation of legislation, required to make formal declarations that their proposed legislation in their judgment complies with basic human rights.

5. CONCLUSION – TOWARDS A COMMON FUTURE

So, Master Treasurer, is there a conclusion? Common law methodology lies at the heart of English and American law, even in areas, such as the constitution, where American arrangements appear to be very different. Both countries have long traditions of protecting basic liberties, but there have been differing philosophical and cultural influences on the legal structure. In both countries the common law has delivered basic doctrines that facilitate the contrasting approaches of both systems.

The common law's capacity to respond to localising influences explains how both systems recognise differences of substance within strikingly similar legal frameworks.

Yet localising influences are diminishing (Endnote 81). The problems that will confront Anglo-American law in the twenty- first century are no longer parochial; they are of international proportions. The old common law concepts must soon be developed to encompass issues such as genetic reproduction and regulation of the Internet. Mutual guidance will inevitably be sought throughout the common law world. Our House of Lords is already beginning to look to American experience with increasing regularity when considering the response of English law to novel problems, such as sanctioning the withdrawal of life support from hospital patients in a permanent vegetative state (Endnote 82) or fixing the boundaries of increasingly intrusive comment on the lives of public figures (Endnote 83). This tendency can only be expected to grow with the progressive convergence of cultural and scientific influences across the world.

The Human Rights Act provides a fine example of the ways in which English law can benefit from American experience. In October, our law will finally make the transition to the rights based system that has existed in the United States for over 200 years. We have come to accept that American experience shows that a written declaration provides a more certain safeguard of individual rights than procedural democracy through a sovereign Parliament, indispensable though that is.

The British and American legal systems stem from common principled roots. We have gained, and continue to gain, each from the other. The links between us celebrate the quality of the common law and the institutions which underpin it: an independent judiciary, an independent legal profession, and our unshakeable commitment to the rule of law, without which no genuine democracy can exist.

Endnotes:

I acknowledge my indebtedness to Neil Beresford, Barrister-at-law, for his invaluable assistance in the preparation of this lecture.

1. A. Taylor von Mehren, Law in the United States: A General and Comparative View (Kluwer, 1988), p.5

2. NB: there is no provision of the United States Constitution that specifies the function of the judge in litigation. This is taken for granted as governed by the common law.

3. C. Harlow, American Influences on Judicial Review, in Loveland (ed), A Special Relationship: American Influence on Public Law in the UK (Oxford, Clarendon, 1995)

4. See especially the judgment of the Privy Council in AG for Hong Kong -v- Reid [1994] 1 All ER 1

5. See, e.g. Re Kayford Ltd (In Liquidation) [1975] 1 WLR 279

6. This emerges clearly from the judgment of Lord Browne-Wilkinson in Westdeutsche Landesbank Girozentrale -v- Islington London Borough Council [1996] 2 All ER 961

7. R. Pound, The Development of American Law and its Deviation from English Law (1951) 67 LQR 49

8. R. Stevens, Public Lecture given to British Institute of United States in Boston in April 1983, The Journal of Legal History, -v-6 (Dec 1985) 336

9. Miller, op cit at pp.99-116

10. For the extent of unpopularity of English law, see P. Miller, The Life of the Mind in America (1965), pp.99-116

11. As evidenced by the diary entries of John Adams, second President of the United States. Diary and Autobiography of John Adams, vol.1, Diary, 278 (27 Dec 1765) (L.H. Butterfield ed., 1962)

12. Quotation from the Virginian Bill of Rights, drafted by George Mason shortly after the 1776 Declaration of Independence

13. P.S. Atiyah & R.S. Summers, Form and Substance in Anglo-American Law, (Oxford, Clarendon, 1987)

14. See particularly his influential Fragment on Government, published in 1776

15. per Coke CJ in Dr Bonham's Case (1610) 8 Co Rep 113b, 118a

16. H. Steele Commager, The Empire of Reason, (Weidenfeld & Nicholson, 1978), p. 203

17. Steele Commager, op. cit., p. 192-3

18. Chancellor James Kent, 1 Commentaries (1826), at p.341

19. A. Taylor von Mehren, Law in the United States: A General and Comparative View (Kluwer, 1988), p.7

20. See, e.g., D'Hauteville -v- D'Hauteville (rep. Miller, Philadephia (1840)). As the Pennsylvania courts sought to determine the competing interests of maternal and paternal custody on separation, the approach of the English courts was closely scrutinised (although ultimately rejected). For an illuminating discussion of this case, see M. Grossberg, A Judgment for Solomon: The D'Hauteville Case and Legal Experience in Antebellum America, (CUP, 1996)

21. J.T. Horton, James Kent: A Study in Conservatism (1939), Ch.7 and Kent, 1 Commentaries (1826), p.471

22. P. Miller, The Life of the Mind in America (1965), p.156

23. M. deWolfe Howe, The Migration of the Common Law to the United States of America (1960) 76 LQR 49

24. (1765) 19 St Tr 1030

25. M. White, The Philosophy of the American Revolution (OUP, NY 1978), Beitzinger, The Philosophy of Law of Four American Founding Fathers, (1976) 21 Am J Juris 1

26. Attorney-General -v- Guardian Newspapers (No. 2) [1990] 1 AC 109, per Lord Donaldson MR

27. For the status of habeas corpus as a constitutional right, see the judgment of Lord Atkin in Eshugbayi-Eleko -v- Government of Nigeria [1931] AC

28. R -v- Secretary of State for the Home Department, ex parte Simms [1999] 3 WLR 328 See also R -v- Lord Chancellor, ex parte Witham [1998] QB 575

29. O'Day, Understanding Comparative History: Britain and American from 1760, (Open University, 1997)

30. Beitzinger, The Philosophy of Law of Four American Founding Fathers, (1976) 21 Am J Juris 1

31. United States -v- Nixon 418 US 683 (1974)

32. Immigration & Naturalization Service -v- Chadha 462 US 919 (1983)

33. 410 US 113 (1973)

34. See, e.g., City of Akron -v- Akron Centre for Reproductive Health, Inc 462 US 416, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983) and Webster -v- Reproductive Health Services 492 US 490, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989). The case was confined, although not formally overruled, in Planned Parenthood of Southeastern Pennsylvania -v- Casey 112 S.Ct. 2791, 120 L.Ed.2d. 674 (1992).

35. Another example of external influences on the definition of constitutional rights in the United States may be found in the case of Dred Scott -v- Sandford (1857), discussed below

36. Bracton, quoted in F.W. Maitland, The Constitutional History of England (1908), p.100

37. Lord Irvine of Lairg, Judges and Decision-Makers: The Theory and Practice of Wednesbury Review, [1996] PL 59

38. See generally C. Harlow, American Influences on Judicial Review, in Loveland (ed.), A Special Relationship: American Influence on Public Law in the UK (Oxford, Clarendon, 1995)

39. See generally P.P. Craig, Jurisdiction, Judicial Control and Agency Autonomy in Loveland (ed.), A Special Relationship: American Influence on Public Law in the UK (Oxford, Clarendon, 1995)

40. Lujan -v- Defenders of Wildlife 504 US 555 (1992)

41. In Lujan -v- Defenders of Wildlife, the US Supreme Court was faced with a challenge to environmental legislation brought by members of environmental lobby groups. They argued that a new Endangered Species Act should be extended to apply outside the territory of the United States. The petitioners were denied standing to challenge the decision, on the ground that their claim was "a generally available grievance about government" that should more properly be heard in a political arena, not a court of law.

42. See, e.g., R -v- S/S for Employment, ex parte Equal Opportunities Commission [1995] 1 All ER 545

43. See P.P. Craig, Jurisdiction, Judicial Control and Agency Autonomy in Loveland (ed.), A Special Relationship: American Influence on Public Law in the UK (Oxford, Clarendon, 1995)

44. C.F. Forsyth, Of Fig Leaves and Fairy Tales: The Ultra Vires Doctrine, the Sovereignty of Parliament and Judicial Review [1996] CLJ 122

45. Boddington -v- British Transport Police [1998] 2 WLR 639

46. Chevron, USA, Inc. -v- Natural Resources Defense Council, Inc 467 US 837 (1984)

47. The Clean Air Amendments Act 1977

48. R v Monopolies And Mergers Commission and Another, ex parte South Yorkshire Transport Ltd [1993], WLR 23, per Lord Mustill at page 32 C-H

49. See R -v- Secretary of State, ex parte Hargreaves [1997] 1 WLR 906, where the Court of Appeal restored orthodoxy by refusing to hold a public body bound by any substantive legitimate expectations.

50. See Rizzo -v- Goode 96 S.Ct.598 (1976). Various citizens of Philadelphia brought a class action, alleging police brutality. The local court found that constitutional rights had been violated, and ordered city police officials to draft a complaint procedure consistent with "generally recognised minimum standards". The Supreme Court struck this judgment down: it infringed the "latitude" necessary for a local administration "in the dispatch of its own internal affairs".

51. R -v- Ministry of Defence, ex parte Smith [1996] QB 517

52. This principle is made particularly clear by Lord Hoffmann in R -v- Secretary of State for the Home Department, ex parte Simms [1999] 3 WLR 328

53. The clearest statement of these principles emerges from the case: Rescue Army -v- Municipal Court of Los Angeles 331 US 459, 67 S Ct 1409, 91 L.Ed. 1666 (1947)

54. 19 How (60 US) 393 (1857)

55. In Brown -v- Board of Education (1954) 347 US 483

56. R -v- Secretary of State for the Home Department, ex parte Brind [1991] 1 AC 696

57. Attorney-General -v- British Broadcasting Corporation [1981] AC 303, per Lord Fraser of Tullybelton at 352

58. Derbyshire County Council -v- Times Newspapers Ltd [1993] 1 All ER 1011

59. A. Tunc, The Not so Common Law of England and the United States [1984] MLR 150

60. Woodar Investment -v- Wimpey Construction [1980] 1 WLR 227

61. Although, of course, statute has intervened with the Contract (Rights of Third Parties) Act 1999

62. R. Pound, The Scope and Purpose of Sociological Jurisprudence, (1912) 25 Harv LR 489, 515

63. See, e.g., Comunale -v- Traders & General Ins Co 321 P 2d 768 (1958). For the position in English law, see Cross, Precedent in English Law (3^rd ed., Oxford, Clarendon, 1977), Ch. III

64. State -v- Baker 15 Md App 73 (1971)

65. Kniffin, Overruling Supreme Court Precedents: Anticipatory Action by United States Courts of Appeals (1982) 51 Fordham LR 53

66. Lemle -v- Breeden 51 Hawaii 426, 462 P 2d 470 (1969): discarded common law rule of caveat emptor for residential tenancies

67. Maki -v- Frelk 85 Ill App 2d 439, 229 NE 2d 284 (1967): no judicial reform to contributory negligence rules, because this was a matter for the legislature

68. Witness the radical economic loss cases from Anns -v- Merton LBC [1978] AC 728 through to Murphy -v- Brentwood DC [1991] 2 All ER 908. Or even the recent leaps in the English law of Restitution, where English judges are openly "abrogating" (Lord Goff) and "ending" (Lord Hope) old common law rules: Kleinwort Benson -v- Birmingham CC [1998] AC

69. The anti-abortion cases following Roe -v- Wade 410 US 113 (1973) (e.g., City of Akron -v- Akron Centre for Reproductive Health, Inc 462 US 416, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983) and Webster -v- Reproductive Health Services 492 US 490, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989)) demonstrate that American courts are equally capable of becoming caught up in their own unpopular precedents.

70. See, e.g. the abolition of the mistake of law doctrine in Kleinwort Benson -v- Birmingham CC [1999] AC. An interesting mix of private and public law is also to be found in the judgment of the House of Lords in Woolwich Building Society -v- IRC [1993] AC

71. Lord Reed, The Judge as a Law Maker (1972) 12 Journal of the Society of Public Teachers of Law 22

72. P.S. Atiyah & R.S. Summers, Form and Substance in Anglo-American Law, (Oxford, Clarendon, 1987)

73. See N. Beresford (2000) 116 LQR 24

74. The principle is stated at its clearest in Hill -v- Chief Constable of West Yorkshire [1989] 1 AC 53

75. [1999] 1 FLR 193

76. [1999] 3 WLR 79

77. The words of Lord Slynn

78. [1999] All ER (D) 722

79. The judgment of Stuart-Smith L.J.

80. The judgment of Pill L.J.

81. Kahn-Freund, Uses and Misuses of Comparative Law (1974) 37 MLR 1

82. Airedale NHS Trust -v- Bland [1993] 1 All ER 821

83. Times Newspapers Ltd -v- Derbyshire CC [1993] 1 All ER 1011. See also Reynolds -v- Times Newspapers [1999] AC

 

 

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