The Common Law of England and Wales is one of the major global legal traditions. In order to understand the common law, we need to deal with its history, and the development of its characteristic institutions like the jury, judge made law, parliamentary sovereignty and due process. We also need to ask some critical questions. What role does democracy play in the development of the common law? To what extent are human rights central to the modern common law? How does the common law of England and Wales relate to the law of the European Union? Answering these questions will give us insights into the current challenges the law faces and its possible futures.
After the Civil War
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來自 University of London 的課程
English Common Law: Structure and Principles
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從本節課中
Week One: Dead Kings and Presidents: A Brief History of the Common Law
Week one introduces you to the history of the Common Law, from armies and kings through to modern family life. We will journey through the evolution of the Common Law to the system we see today. By the end of this week, hopefully you'll understand more about: 1. Understand some of the process involved in the Justice System 2. Understand the history of the development of the common law.
與講師見面
Professor Adam GeareyProfessor of Law
School of Law, Birkbeck College, University of London
[MUSIC]
Okay, so, where are we?
So far, we've done a great deal of work on British history, and what we could call
British Constitutional history, but we still have quite a long way to go.
Now this is something of a problem, because we also have a lot of other
things that we've got to do on this course looking at law, legal structures,
legal institutions.
So I think the best way of dealing with what we have to do is as follows.
We've got up to about the Civil War, to the mid 1640s.
I suggest that what we do is deal with the period,
the centuries between the 1640s and now, in almost a series of bullet points.
Why are we doing this?
I just want to get some sense of the transformations,
the important points in British political and constitutional history.
Now, of course, this touches upon the law but
it's also something of a historical and cultural backdrop to the law.
The two things are clearly bound up together.
But in dealing with these kind of bullet points, I think I want to concern myself
with this backdrop, the backdrop, the cultural, political backdrop, and
how that, if you like, also draws our attention towards the law, so these
transformations, legal transformations, also political transformations,
historical transformations and cultural transformations.
The other issue obviously if we're dealing with this massive amount of historical
time is that any choice of major moments is bound to be somewhat arbitrary.
So let me just declare that first of all.
I'm fairly sure that given any standard history of Britain,
these events would figure, but
I just thought it useful to preface what I'm going to say with these points.
So the key thing that I think I want to draw our attention to are a number
of important factors which move us, if you like, from the early modern period,
the period of the Civil War through to the present day.
Let's call that the modern period.
So one of the things that we could in terms of if you like historical set of
themes here, what we could note in general,
is that there is a degree of continuity to British political and
social institutions that if perhaps quite peculiar, certainly if our other points
of comparison are countries in Western Europe or even to the United States,
in other words, developed Western US democracies.
The point I want to stress, perhaps,
is that we have a degree of historical continuity and development from,
again, let's say the Restoration of 1660, so when Charles II returns to
the throne after the trauma of the Civil War right through to the present day.
This is just mixed and quite peculiar.
A lot of literature, a lot of ink has been spilled on trying to explain
this peculiarity, but for our purposes we could just make a couple of observations.
Perhaps the British get their Civil War out of the way relatively quickly.
I mean certainly,
if one compares the British Civil War with the American Civil War in the 1860s, one
can see that the trauma of civil war is in some senses much more distant in Britain.
I suppose the other point, obvious one, is that Britain is an island.
It's an island off Europe and this has meant that the various political
traumas of war, invasion that characterize, say, French and
German history, are perhaps less true in relation to British history.
The other point, and this connects to some of the things that we've been thinking
about, is the fact that the state
in Britain is perhaps centralized at relatively early point in British history.
Historians disagree, but we could say perhaps by the 1200, 1300s,
we have the form of a central state, which it takes relatively longer to
achieve in the other countries that we've been talking about.
We also have a degree of sovereignty or
constitutional development that's linked to territorial development.
So in other words we can speak of the United Kingdom by about the the mid-1800s,
so they were in the act of union with Scotland.
We have, in other words, a centralized, unitary state.
And this is, I think, important to our story and to our backdrop, here.
In terms of some of the brief points to take us, to move us between
the Restoration 1660s and the present day, I think the first point I already
mentioned, but I can stress, is the idea that we have a constitutional settlement
which is largely in place by 1688 with the Bill of Rights.
In other words, what we find here is the form of constitutional monarchy
which roams through from 1688 to the present day.
We could, perhaps, associate that with a degree of political stability as well,
which again may explain the continuity of
these institutions in British political and social history.
So the first point that we're trying to carry forward then is the idea of
the stability of government and the stability of constitutional monarchy.
There's of course, relative stability, but
I think if we think of these comparisons, we could perhaps make that point.
The second point which perhaps brings us more up to the present day
is the fact of colonialism and the end of colonialism in the period after 1945.
Clearly the empire comes to an end depending on the historians you read.
We could either start that period of formal colonialism from about
the mid-1600s onwards.
It's arguably over in the wake of the Second World War, so an important
element of our backdrop here is the fact that we have had a colonial period,
and we entered a post colonial period after the Second World War.
I think the other thing, and this is perhaps in terms of if we are set in
London, which is slightly closer to home, is relates to Ireland, the fact
that there is an Irish War of Independence in the 1920s, the Partition of Ireland,
the Civil War in Ireland, the ongoing troubles and the Good Friday Agreement.
That idea, if you like, of the nations that have been forcibly included,
to some extent, within the United Kingdom is an interesting point,
given the active union with Scotland in the 1800s.
And the fact that Scotland very nearly became independent,
if you know anything about contemporary British politics.
We can see that this issue, certainly in relation to Scotland,
is a live one, how that will play out, nobody knows.
I suppose the other key thing to bear in mind in this whistle-stop
tour of British politics and constitutional history Is
establishing of the welfare state in the period after 1945.
And I personally would link that to the recognition of trade unions in
somewhat earlier period.
To me these are the fundamental building blocks of the modern British state,
alongside the extension of the franchise,
because clearly one of the legal and political points that we need to
carry forward is that we are looking at a modern developed democracy.
If you look at the development of democracy, one of the key dates is
the Reformat, the Great Reformat of 1832, which expands the franchise,
includes more and more people, hence the number of people who can vote.
That process is arguably complete
in the years after the First World War when women gained the vote.
So in other words, if what we're trying to account for here is the modern nation,
which is a relatively stable political democracy, then I think those are the key
dates that really take us through a number of centuries of British history.
Last thing I'd like to say is obviously the relationship of Britain to Europe.
Now, some of the lectures deal with this,
so this is just a theme I want to outline at this point in time.
Britain joins Europe, if you like, it goes through various names, the Common Market,
what have you, in 1972, and still is committed to Europe, although again,
if you are aware of British politics, you'll know that this is a live issue in
British politics, and there is a referendum on
membership of the EU coming in the next year or so.
So again, I'm not a soothsayer.
I don't know how that is going to go, but for the most part,
it's important to note that one of the distinctive features
of the modern British state is its part of the European Union.
A great deal follows from that.
The other key point of reference is the European Convention
on Human Rights which is actually drawn up by common lawyers,
in the period directly after the Second World War.
It's not until the Human Rights Act of 1998 that the Convention
is made part of British law.
We talk about that in the lecture, so I'm not going to go into the detail here other
than to say what marks the largely unwritten constitution of the UK is now,
for the moment, a committment to human rights, in other words,
that catalog of rights that is contained within the European Convention.
Again, those reading the British press, following the British news,
will know that the present conservative government has a manifesto pledge.
The idea that they were going to get rid of the Human Rights Act,
this is another one to watch.
Who knows how this one will play out,
certainly a great deal of opposition to this idea.
Let me then try and summarize and say where we are.
We've been thinking about the important, significant, historical,
cultural, legal moments that define the modern British state.
Whatever those historical patterns are, whatever those themes that are playing
themselves out in British history, for my money, we're perhaps entering a really
interesting period, particularly fraught and intriguing period of political and
social, and indeed, constitutional history.
