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Law and Rights

Common law

The system of law which developed in England is called the common law. It became a worldwide system because of Britain’s conquests and expansion overseas. It operates in Australia and in the United States, Canada, New Zealand, Malaysia and India. The common law is the great rival or alternative to the system which derives from Roman law which operates in Europe, South America and Japan. That is called the civil law.

The common law in England was established by judges appointed by the king and operating in courts the king had created. So it is not ‘common’ in its origin. It is called common because it established one law – the common law – for the whole kingdom.

The kings who set this process going were foreigners, the descendants of William, Duke of Normandy (a part of France), who conquered England in 1066. This conquest was not a large-scale invasion; it was a take-over at the top by William, who became king, and his followers who became the chief landowners. The establishment of the common law was one way they strengthened their hold on the country and ran it more efficiently.

England was already close to being a single country and it had been made completely so by Duke William’s thorough conquest. All the English were subjects of the new kings. European countries were still a patchwork of semi-independent princedoms and dukedoms. Princes and dukes had subjects, but these people were not subjects of the king, only the princes and dukes were. The process of creating a single law began much later in Europe using the rediscovered Roman law. The French kings of England, beginning their unification earlier, had to work with the materials to hand.

The people of England were Anglo-Saxons, descendants of the Angles and the Saxons, the German tribes who invaded the island after the fall of the Roman Empire. Their law was more folk custom than law, and varied from place to place. The new kings did not interfere directly with it. The old local courts continued to operate. The kings set up an alternative system by sending royal judges on circuit through the country to hear cases. They used the old laws and ironed out their differences by keeping in touch with each other and following each other’s decisions. To know what the law was you had to know what the judges had decided. The common law works by precedent. The reports of particular cases – volumes and volumes of them – are today the basic tools of a common law lawyer. The starting point for a civil law lawyer is the code of law, the law as it has been defined in one place at one time.

The king’s judges carried over from the old courts the use of ordeals to establish guilt or innocence. The accused were obliged to grasp a burning hot piece of iron and walk so many paces. If after three days the wound was healing they were innocent; if the wound was festering they were guilty. Or they were thrown into water. The person who did what was natural and sank was innocent; a floater was guilty. These practices were all approved by the church. The priests were actually in charge of the ordeals. The ordeal of grasping the iron took place in church during mass. Ordeals were pre-Christian, but the church had accepted them and declared that they allowed God to determine guilt or innocence.

In 1215 the pope declared that priests were no longer to supervise ordeals. There had long been doubts held in the church about them and these had strengthened as the rational methods of Roman law became known. Without the priest’s blessing, ordeals were worthless because they would no longer give God’s verdict. The king’s judges then turned to a practice which had operated in parts of France, the jury. The jury at first were to say from their own knowledge of local people and events whether the accused were guilty or not. It was some time before they became, as they are today, a group who assesses the evidence given by other witnesses.

Juries could still be in trouble themselves if the judge thought they gave a verdict against the evidence. It was not until 1670 that the jury’s right to decide any way they liked was established. This is an important democratic check on the law. When political reformers and rebels have enjoyed some popular support, government attempts to punish them have failed. The rebels from the Eureka Stockade who were tried for treason were all freed by Melbourne juries. Our criminal laws today can only be enforced if juries will convict people of breaking them.

In the old courts justice had been designed not so much to try individuals as to settle feuding between families and clans. If a man had been murdered, his relatives went to court to get a compensation payment from the relatives of the man who did the deed. There was a scale of charges. A great landowner might be worth ten times a small farmer. In these courts, people were very definitely unequal before the law.

In the new courts, murder and other offences were treated as disturbing the king’s peace and the individual offender was punished. Much less notice was taken of the status of offenders and victims. Of course a great noble would be treated more carefully than a poor man and a nobleman charged with a crime might refuse to show up at court. Or if he showed up, a jury would be too scared to convict him. But nobles in England had fewer legal privileges than they enjoyed in Europe. This enabled the principle of equality before the law to develop in the common law courts.
Equality before the law

In the new courts the procedure for deciding cases was a carry-over from the old. One person accused another. The accused denied the charge. The matter was not settled now by an ordeal, but by both sides putting their story to the jury. It was a form of battle. This is the adversarial system which still operates in our courts. It is very different from the inquisitorial system of the Roman civil law. Civil law judges don’t watch while the two sides spin totally different stories. They are in charge of the process from the beginning and they ask the questions to find out what happened.
Adversarial system

Inquisitorial system

Gradually the king’s courts attracted more business because the power of the king’s name settled a case more definitely. After several centuries the old courts faded away. The common law judges built up the precedents which fixed the law on property, goods and liberty. They also set the rules to make sure a trial was fair. The most important rule was that you were innocent until proved guilty. The development of the common law was set in motion by kings, but it was not the king’s law; it was more deeply rooted, more organic; it was the law of the land.
Fair trials

The kings developed a rival court system which was much more fully their own. These were the prerogative courts which the kings used to enforce their policy and to deal with powerful subjects who might defy the ordinary courts. Here there was no jury, no right to cross-examine witnesses or even to know who they were. The most famous of these courts was the Star Chamber, whose name is still a symbol of arbitrary power.
Star Chamber

The common law courts attempted to stop the expansion of the prerogative courts. One weapon they had was the writ (or order) of habeas corpus (which is Latin for ‘you have the body’). The judges could send a writ of habeas corpus to the authorities holding subjects for trial in the prerogative courts. The writ requires that the body being held be produced in court so that the judges can decide whether the person is being held lawfully or not. If the court decides that the imprisonment is illegal, the person is set free. The court would not always come to this decision or even always issue a writ. The king was someone judges had to fear since he chose them, promoted and dismissed them and the common law judges could not completely deny that the law did give the king prerogative power.
Habeas corpus

The power of the king over the courts was fought out during the seventeenth century at the same time as the battle between king and parliament. Charles I made his church policy even more unpopular by enforcing it through the prerogative courts. Pyrnne, who wrote about the bishops as a cancer in the church, had his ears cut off by the Star Chamber. The King imprisoned on his sole authority landowners who refused to lend money to him. Five of them applied to the common law court for a writ of habeas corpus, which was granted. The court then heard the argument and decided for the King. This decision and the support of the court for the King in the ship money case was truly alarming. To accept the prerogative rights of the King was one thing; for the King to get the common law courts to support him in raising money without parliament was another, for these courts were the defence of the Englishman’s property and liberty.
King versus courts

When parliament had Charles at its mercy in 1640–1, it got his assent to laws which abolished the Star Chamber and all the other prerogative courts. This ban still applied when the monarchy was restored after the civil war. James II ignored it and opened a new prerogative court to deal with church matters. This was closed down by the Bill of Rights in 1688 when James was excluded from the throne and parliamentary supremacy established.

Charles II continued as his predecessors had done to imprison people on his own authority. To avoid them being released by a writ of habeas corpus he arranged for them to be sent to Scotland or Ireland or the Channel Islands where the court had no authority. This loophole was closed by parliament in 1679. The Habeas Corpus Act obliged courts to issue the writ and made it illegal for the government to evade it by shipping prisoners out of the country.

Habeas corpus came to be regarded as the great defence of English liberty. Its reputation soared when in 1771 a slave about to be shipped out of England to Jamaica obtained a writ of habeas corpus and was set free by the court. Though the judge had not gone so far, his judgement was taken to mean a slave was free once he was on English soil. Habeas corpus is still in Britain and Australia the protection of the citizen against illegal arrest and detention. When in war- time governments do want to detain people without trial, they have to get parliament to suspend habeas corpus.
Habeas corpus made secure

The king’s power to control what happened in the courts was removed completely by an Act of parliament in 1701. The judges once appointed were to remain in office so long as they did their job properly. They could no longer be dismissed at any time by the king. If they were to be dismissed it had to be by a vote of both houses of parliament.
King loses power over law

Making law and dispensing justice had been two of the great functions of monarchy. By the end of the seventeenth century in England there was a monarchy which could do neither. Only parliament could make law and only the common law courts with their independent judges could dispense justice.

This is the system which was established in Australia with self-government. Our judges are appointed by the governor-general or in the States by the governor, acting on the advice of ministers. Once judges are appointed they are secure in their job. They can be dismissed only for bad behaviour if both houses of parliament agree. This means that judges are independent of the government which appointed them.
Independent judges

According to the principle of separation of powers, the judiciary should be separate and independent both from the body which makes the laws (the legislature) and the body which administers them (the executive). We follow this principle much more clearly in regard to judges than in the matter of the executive government (where ministers sit in the parliament).

However, in the common law system judges do more than decide whether the laws passed by parliament have been obeyed. Much of the law is still common law, law as it has been laid down by judges. In these areas, as new circumstances arise and values change, the judges decide matters in a different way. A thousand times it has happened that if judges decided strictly according to precedent, they would do what seemed like an injustice. So in a small way, and occasionally in a large way, they make law.
Judges’ role in law

Ordinary people become famous when a judge does something unusual in a case they have brought because it goes into the Law Reports and becomes a precedent in future cases. Mrs Donoghue, a Scottish woman, is the most famous shop assistant in history because of the 1932 case Donoghue v. Stevenson. Mrs Donoghue was at a cafe with a friend. The friend poured her some ginger beer which she drank. When her friend poured her some more, a rotten snail plopped into her glass. The sight of the snail and the effect of the bad ginger beer made her sick.

Mrs Donoghue took Stevenson, the maker of the ginger beer, to court. She ended up in the highest court in the land, the House of Lords, which ruled in her favour. On the law as it stood, she should not have won because there was no contract between her and the maker of the ginger beer. Her contract was with the cafe proprietor. Only parties to a contract can sue each other. But in this case Mrs Donoghue had been made ill, no one could have checked the contents of the bottle because it was opaque, and since the bottle was sealed it was clear that the snail had come from Stevenson’s. So the court decided that Stevenson did owe a duty of care to the people who would eventually drink his ginger beer and that Mrs Donoghue was entitled to compensation. This was a landmark case in the development of consumer law.

Until quite recently judges and legal scholars argued that judges did not make law. Even when they seemed to be doing so, they were simply declaring what the law was in a new situation. A new school of legal realists say this is a fairy tale. Judges are not legal technicians making sure that the law takes its true course. No matter how detached they are, the views and values of judges will affect what they do and to any legal problem there are a number of answers. The law is an open system managed by human beings.
Do judges make law?

Gladys Tybingoompa dances outside the High Court, December 1996.
The Wik people became famous when they won native title over their land: Gladys Tybingoompa dances outside the High Court, December 1996.

Campbell/The Sydney Morning Herald

The legal realists have won the debate. Some of them go further and say judges should be more active in creating law, especially when parliament has been reluctant to change the law. In controversial matters parliament is sometimes happier to leave change to the judges. In three States in Australia the laws on abortion were changed by judges who widened the circumstances when abortion would not be illegal.

If parliament does not like what the court does, it can overrule the court. It is a rule of our system that statute law (passed by parliament) prevails over common law. But our faith in judges will be eroded if we believe that judges not only make law, but make it up any way they like. The sensible realists are now debating what guidelines judges should follow when they are making law. What they decide has to grow out of previous law. The law is open, but it must remain a system.
Statute law

A stricter application of the separation of powers would reduce these problems. The French revolutionaries, who believed passionately in this principle, wanted parliament to lay down laws which were simple and clear. All citizens could know them and judges would only have to apply them.

They would produce a code of law whose authority would be the will of the people rather than that of an emperor or king.

The code was actually drawn up by Napoleon, the military dictator who took over from the revolutionaries and gave France much of what the revolution had promised – except political liberty. He regarded the code as his greatest achievement. It was a worthy successor to the great Roman code and it embodied much of Roman law. Napoleon’s code is still the law in France and it provided the model for the codes of other European countries. All these now rest on the authority of parliament. Of course where there are codes judges do not merely apply the law; the law has to be interpreted in the particular case, but judges do not, to the same extent, change the law.
Napoleon’s code

In England and Australia when parts of the common law have become too complex, parliament has reformed or replaced them. But there has never been any interest in changing over to the civil law system. The common law has been seen as the protector of property and liberty. The High Court has recently continued this tradition when it ruled that a trial was unfair if the accused did not have a lawyer and that the evidence of a single policeman would not be accepted. The Supreme Courts in the States now hear cases where citizens claim they have been denied natural justice.
Australia’s system

Our system of courts, like the parliament, took shape a long time before democracy. There is a democratic element in it – the jury. There is a very strong liberal element – the courts are independent and a check on government. Judges are trusted with great powers because it is known they will use them to protect the citizen. This does not mean our system is perfect. Legal reformers have recently been looking at the civil law. If our judges were more in control of cases and proceedings were less adversarial, justice might be quicker and cheaper.

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