Where We Are: The State of Britain Now
Roger Scruton (1944-2020) was a well-known British intellectual and an expert presenter of Hegel, Kant, and other philosophers. Scruton was also a great commentator on that most counter-intuitive of all legal traditions, the English Common Law.
The chapter, “The Roots of British Freedom,” appears in his 2017 book Where We Are: The State of Britain Now. This may be the best historical essay on a legal tradition with two strange features: first, the Common Law exists independent from the state; second, the Common Law is “discovered” from situations and precedent.
As Scruton explains, the Common Law system “protects rights not by explicitly stating them…but by burying them in the procedures of the court.” Criminal defense lawyers in particular are familiar with this notion that the procedure is the protection: the presumption of innocence and the system of appeals are indispensable tools to the defense. Many of these Common Law protections evolved over time and were enforced by judges before they are ever “created” by state statute.
But in what sense does a law “exist” before it is officially created by the state? Scruton provides an answer (in an earlier chapter): “The law of England was conceived as the law of the land, and not of any king, court, or government that had taken temporary charge of it.” This idea could use more explanation, even in this book. It seems under the Common Law that communities may change, but nonetheless the rights and duties thereof accumulate over time and adhere to the land. It becomes “something objective, permanent, and part of the furniture of the country.” The state has to uphold laws that are to some extent independent of it; and the state itself is subject to the common law, at least in the sense that it has the duty to enforce it.
Of course, the state can override parts of the common law simply by passing contradictory statutes, which the judges must then enforce. But Scruton points out that throughout English history, the sovereign was expected to enforce rather than alter the common law, protecting people’s long-evolved rights. He implies that statutes were traditionally meant to be supplements to the common law, not replacements.
The “law of the land” is not invented but “discovered” by judges. English law’s insistence on precedent is a firm stance in a philosophical battle between empirical and a priori reasoning. According to this philosophy, statutes alone cannot predict what a just outcome would be in every situation, but will tend to “bend [the parties involved] to the will of the state.” The situation itself dictates what a just outcome should be to an impartial judge; the judge attempts to “do justice” to the parties, not to an a priori rule. These situations and their rules aggregate over time to form the “law of the land.”
Scruton later discusses the importance of these concepts to equity and the law of trusts. To this day, he argues, it is easier to form entities in Common Law jurisdictions than in continental Europe. The book draws contrasts with rival systems, such as civil law, and EU treaty law. It clearly favors the traditional English system. Readers may or may not agree, and some lawyers and law professors find the Common Law strange and untidy. But this book provides the most iron-clad case for preserving it.