27th January 2023
Over at my new Substack for the last few weeks I have been posting (what I like to call) an “essay” on a significant historical case.
Such cases are (for me) fascinating as each one shows what happened when law, litigation and public policy met at certain times and places in the past – almost like postcards of intellectual history.
With historical cases, however, it is important to remember that the litigants and the courts were not dealing with the case for the benefit of historians and other later observers.
Litigation is (usually) an immensely practical affair, with those involved focused on immediate concerns – the recorded judgment is a by-product of their joint endeavours.
And almost all judgments – and the hearings that precede them – are not inevitable.
A case only goes to trial or appeal because of certain decisions by the actors – decisions which could have gone differently.
In civil cases, there could have been settlement; in public law cases, there could have been a reason why a claim would not have been made; in criminal cases, there could be an early plea of guilty.
One misleading view which can come from reading too much academic law is that decided cases are somehow the perfect state of legal practice – whereas, in reality, cases that ever get to trial and a published judgment are a rarity.
Indeed, the key question to ask about any published judgment – especially in civil cases – is: how the hell did this case end up in court?
But even though the cases exceptional they can show us things about the times and places where they were decided.
Was this area of law uncertain? Why did both parties risk going to trial rather than settle? Did the parties not only disagree but also have radically different world views? Was the court having to deal with something which was new or not usually contested? And so on.
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The first of essays was on Malone (1979) – which is for me the one case from the last fifty years which signified the most about our constitution.
That was the case where government counsel (seriously) submitted to the court that it was open to the state to interfere with the rights of a citizen, as long as there was no law to prevent it.
(This was an application to the state of the classic liberal sentiment that one can do as one wishes, as long as there is no law against it.)
The government’s eventual defat in that case, when it went to the European Court of Human Rights, led directly to the placing of the state’s intelligence and security powers onto a statutory basis.
The second essay was on the origin of Wednesbury unreasonableness – the notion from a 1948 case that a public body can make irrational decisions, as long as those decisions are not so unreasonable that no public body would make them.
The third essay was about an example from as far back as 1610, where the court in Dr Bonham’s case said that there were limits to what could be done with an Act of parliament.
Tomorrow’s essay will about perhaps the most significant case in trade union history: the Taff Vale judgment of 1901 (case report here), where there was a clash of those two contrasting world views: individualism and collectivism.
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I know that these essays, being for paid subscribers, are not free-to-read for some of my followers, but I do seek to post free-to-read topical legal commentary here almost every weekday. These essays are less (immediately) topical, and they do help subsidise the time and effort and opportunity cost of the daily commentary. And the essays even encourage me to write in multi-sentence paragraphs, like this.
So please do subscribe to the Substack if you can, and each week we build up a view of the haphazard and interesting way our law has developed over time, and this may in turn help us understand the present.
And any suggestions for historical cases for future essays welcome.
(Please note that the essays are also made available to Patreon and Paypal supporters – as nobody should pay “twice” for my drivel.)
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David, first thank you for the time & expertise you apply to this blog; it is very much appreciated.
In your latest email you invite suggestions of where to turn your beady eye and I would like to suggest/request a topic.
Cases in recent history variously concerning matters of personal autonomy, consent, a duty/obligation to provide relevant information and the reasonable expectation of privacy such as Dica, Brown and even Campbell and others regarding personal information, all share an area of relevance (at least I believe so) with issues of exposure to/ingestion of /infection with noxious substance, contagious disease, foreseeable harm etc etc, particularly when viewed in the context of Covid-19 as regards causation, duty of care and the neighbour principle. Indeed duties arising from that principle and owed, eg to visitors to one’s home (welcome or otherwise) could be argued to far exceed covid precautions expected of the everyday person.
I wonder whether you would consider taking a look at the precedents and positions established in the earlier cases and how they might inform developing expectations of and by both State and individual, regarding the ongoing suppression/containment/elimination of infectious diseases and the consideration of personal rights, in a future which will almost certainly entail more outbreaks of various contagions?
(Try saying all that in one breath. Phew!)
I qualified in law but the continuation of physical and onset of mental disabilities meant I never practiced.
Your expert view would be greatly appreciated and would make for great reading I’m sure.
Many thanks.
Well, I am sure the judges in the Taff Vale case followed the law very exactly. Framed in the best traditions of a master/servant relationship they could not do much else, nor would have wanted to.
Seems to have a resonance with today’s hints from the Tories that they might toughen up UK labour law – with a view to not paying the nurses, train drivers, ambulance drivers, teachers etc etc etc. A further resonance with the Taff case is the possibility that even if the Tories change the law tomorrow they will be out of power next year and Labour would most likely reverse their legislation. History rhyming perhaps.
If we push the notion a little further, within a decade of Labour gaining power in 1906 political turmoil had resulted in the Liberals being in power and our country was at war. Let us hope the rhyme will not stretch that far.