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The Supreme Court Justices: Lord Mance (fifth from left) has said that being a common lawyer in the EU can be “lonely”  ( ©Victoria Jones/PA Wire/PA Images)

The common law is perhaps the single most distinctive feature of the condition of Englishness. Together with our language, it is at the heart of what makes us different from the nations of continental Europe. We tend to take it for granted. But like anything else that is taken for granted, it is useful periodically to inquire into its health and future. As the United Kingdom prepares to leave the European Union, now seems a good time at which to do so.

The future of the common law, like the future of an individual, is inseparable from its past. The character of our law is inextricably linked to our national history — a statement truer of England than of any other European country (but not the United States).

England, unlike its neighbours on the continent, was unified before the Norman Conquest. (Scotland was of course an independent country, and it developed a body of law which is quite separate to this day.) It was Henry II who started the wheel in perpetual motion which generated the common law — meaning the law common to the whole realm. He introduced a centralised system offering superior procedures and more effective remedies than those available in courts which had previously applied local customary law. The new regime was overseen by itinerant judges, backed and sometimes accompanied by the King, travelling the country by horse to administer unitary justice. They were from the start men of the highest quality.

The common law was and remains the aggregation of the decisions made by those judges and their successors. It was initially rendered coherent by internal discussion, and then by the doctrine of precedent, whereby (broadly speaking) later judges were required to follow legal rulings made by their predecessors. Common law is judge-made law, and for present purposes (though not strictly accurately) is treated as including the rules of equity developed in parallel by judges in the Court of Chancery that had emerged by the 14th century. (The two were largely fused in the 1870s.)

It follows that an inquiry into the future of the common law engages two conceptually distinct elements: the law itself, and the judges who have created it. From an early stage, the common law was defined not just by what it was, but how it was made. The rule of law — the protection of the individual from executive oppression, exemplified in the remedy of habeas corpus — was indivisible from the standing and independence of the judiciary. Lord Goff, a former law lord, has gone so far as to argue that the distinguishing feature of the common law is not its substantive rules but the “form . . . of our law . . . our judicial system and our procedure . . . in its broadest sense, together with our methods of legal reasoning”. The health of the common law is thus inseparable from the condition of our judges.
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