The Politics of the Common Law: Perspectives, Rights, Processes, Institutions

by Adam Gearey, Wayne Morrison, Robert Jago

The Politics of the Common Law is an introduction to the English legal system that places the law in its contemporary context. It is not like other conventional accounts that simply seek to describe institutions and summarise details. The book is a coherent argument, organised around a number of central claims. Can today's common law be characterised as a series of emergent practices that articulate the principles of human rights and due process? The common law is presented as historical experience; the authors present the perspective that we are in the opening of a new chapter. The argument examines the impact of the European Convention on the structures and ideologies of the common law, and suggests that there is now a general jurisprudence of human rights stemming from the Human Rights Act. The Human Rights Act has also led to more pronounced judicial intervention into politics, and is precipitating a debate on the forms that the rule of law should assume in contemporary British democracy. Equally important is the function of European Union law, and the extent to which it is also committed to due process and the rule of law. These themes are read into civil and criminal procedure, and broader concerns about the tensions between the requirements of economics and the demands of justice. Can a revitalised common law address a plural, post-colonial future?

Genres: Law, Nonfiction

432 pages, Paperback

First published August 19, 2008

About the author

Adam Gearey is a Professor of Law at Birkbeck, University of London.

Reviews

[Phillip Taylor · Rating 5 out of 5]

OUR CONTEMPORARY COMMON LAW UNDER SERIOUS ACADEMIC POLITICAL SCRUTINY

A review by Phillip Taylor MBE, Barrister-at-Law, Richmond Green Chambers

It always amazes me that many students and lawyers assume that judges don’t play politics because the reality is that they do… justified by the words “common law” and “policy”!

However, the beauty of our common law system is that the judges don’t do it overtly, so this book succeeds in answering its basic question- can a revitalized common law address a plural, post colonial future?

I came away from the authors’ conclusion that the answer is ‘yes’. It is ‘yes’ because the subject has rightly been ‘reinvented’ and ‘re-orientated’ by them, giving what we all know as a ‘legal system’ or ‘legal method’ both some coherence and foundation which seemed to be lacking before the Human Rights Act 1998 appeared and changed the legal landscape.

For this reason, I welcome the book as a major statement on a twenty-first century evaluation of common law as our own legal system becomes more entwined in EU law, and global legal and financial issues (most certainly the financial ones) appear so much more relevant to all than they once did (in the summer of 2008).

I was reading this book during the annual Human Rights Law Conference which Justice run each year with Thomson Reuters. I heard many speakers referring to what I see as the main thrust of this work - an evaluation of the general jurisprudence of human rights emanating from the 1998 Act in our current common law context.

Jack Straw introduced the 1998 Act, and he has now become our Lord Chancellor (in a reorganised post) whilst I write this review. Straw remains very proud of his achievement which he reminded the Conference he considers (rightly) as being one of the main lasting legacies of the Labour Party’s current term in office from the last three Parliaments - a singular “big” achievement for the Blair and Brown governments as they have changed the face of law in Britain forever.

OPENING THIS NEW CHAPTER

Gearey, Morrison and Jago recognize that the Act has created a more pronounced judicial intervention into politics which is to be expected with its review of administrative actions in the public sector since the Thatcher years. The greatest value of the book for me is that it places our picture of the common law in its contemporary context and reviews our criminal and civil procedures although none of the authors are practising lawyers (probably a good thing, too!)

I found the book highly informative with 16 chapters on jurisprudential themes, each of which examines the pressing issues of the day- especially the tensions between the requirements of economics and the demands of justice.

It is quite a deep book requiring a basic grounding in legal method, and I would advise learners to have some knowledge of our legal system before reading it otherwise it will be hard going for some. To me, its greatest value is to be found in placing the common law with each of its historic links covering the four themes they employ: (1) an engagement with the cultures of the post-colonial common law; (2) the notion of judicial practices; (3) an engagement with the notion of procedure or process and (4) human rights.

The common law will always be born out of historical experience (mainly precedent) by its very nature. So, I came away from this book reminded of some of my old political campaigns, mainly against anti EU factions, and I tried to consider the useful practical implications of this work which have opened up a new chapter for all of us: and there are many as the debate opens up.

What Gearey, Morrison and Jago have achieved here is the forerunner of a new, stronger debate on the value of the common law in a post Human Rights Act 1998 age which will be upon us shortly as we review the new Green Paper on a ‘Bill of Rights and Responsibilities’. We will need to place this debate which has begun here in its new context with the EU, and globally, as the new century takes hold and some of our main legislative codes merge as the main challenge to a globilisation of legal institutions one day in the future.

[Christel Lim]

Interesting, but I haven't really finished it. Read a few chapters. Not the kind of book that one would excitedly jump into...