The Common Law Theory of Everything is nonsense

Here’s a claim that is intuitively plausible, would explain a lot about the world if it were true, and is more than a little surprising. Britain is unable to build houses and infrastructure because of common law.

If true, this would explain the fact that some of the most expensive places to build infrastructure, which are also some of the places with the most severe housing shortages – Britain, America, Canada, Australia, Ireland, but also Hong Kong and Singapore – share basically one thing in common other than the English language: their legal system. Given that the variation in construction costs is primarily institutional (rather than, say, geographical or historical), pointing to the common law as our ur-institution seems to have a great deal of explanatory power.

Like many other claims that purport to predict, delight and surprise in equal measure, the Common Law Theory of Everything is nonsense. Its reasoning is surface-level. It results from a profound ignorance about what the common law actually is. It treats ‘common law’ as magic words rather than a concept with a precise definition.

Among the great democracies, the institutions of England are unmatched for their historical continuity. The Parliaments that were called in the thirteenth century look much like their descendants. The King can trace his lineage to the kings of the West Saxons. But our law has greater continuity still: the green shoots of the common law were planted before the Anglo-Saxons came to England. As the great legal historian F.W. Maitland put it:1

Hardly a rule remains unaltered, and yet the body of law that now lives among us is the same body that Blackstone described in the eighteenth century, Coke in the seventeenth, Littleton in the fifteenth, Bracton in the thirteenth, Glanvill in the twelfth.

…

Beyond these seven centuries there lie six other centuries that are but partially and fitfully lit, and in one of them a great catastrophe, the Norman Conquest, befell England and the law of England. However, we never quite lose the thread of the story. Along one path or another we can trace back the footprints, which have their starting-place in some settlement of wild Germans who are invading the soil of Roman provinces, and coming in contact with the civilization of the old world. Here the trail stops, the dim twilight becomes darkness; we pass from an age in which men seldom write their laws to one in which they cannot write at all. Beyond lies the realm of guesswork.

In the medieval period, there was no such thing as a ‘legal system’. France and Germany were ruled by a patchwork quilt of customs, which might differ from town to town or province to province, often adjudicated by local nobles. England was initially no exception. From the first days of the Norman Conquest the King dispensed justice to his subjects through his court, which travelled around with him. But the King’s justice was reserved for disputes between nobles.

This changed in the time of Henry II, in the mid-twelfth century. Henry had inherited the throne after the Anarchy, a twenty-year period of civil war between King Stephen and Henry’s mother, Matilda. Henry began to send his judges to travel around the country, to hear disputes. This was partly to break the power of the local sheriffs, who had become local tyrants in the Anarchy. It also enabled the King to enforce the concept of the King’s Peace – the idea, still current to this day, that a crime is an offence against the Crown, rather than merely a local matter – by ensuring that crimes were tried by the King’s judges, not local lords who could be bribed.

Justice also became a source of revenue for the Crown. Fines levied would go into the royal treasury; to bring an action in court, the plaintiff had to purchase a writ, which was a document stating the precise complaint the plaintiff was making. And the King’s justice provided a superior product. Rather than legal questions being determined by trial by battle, or trial by ordeal, they were determined by a trial by jury. The writ system also became standardised: the Chancery (the King’s secretariat) developed standard writs, like the writ of debt or the writ of trespass.

The courts also began writing down their decisions. There is a continuous set of records of cases from 1268 to 1535. Over time, lawyers developed the habit of citing previous decisions to judges to persuade them. The doctrine of precedent (whereby, for instance, the decisions of the Court of Appeal bind itself and all lower courts) only developed in a rigid form in the nineteenth century, but precedents had been applied in an informal fashion for more than six centuries before then.

The final piece of the puzzle was the Inns of Court. In 1234, Henry III banned the teaching of law within the boundaries of the City of London. The response of lawyers was to hop across the border and establish right next to the City the four Inns, the Inner Temple, the Middle Temple, Gray’s Inn and Lincoln’s Inn. They were essentially guilds for lawyers. Lawyers learned their craft by apprenticeship, and also through debate: students and barristers would argue mock cases, a practice called mooting, which they still do to this day.

England, then, ended up with a legal system that was centralised in London, around the King’s court and the Inns. The rules of procedure and substantive law were standardised. Previous cases were authority for new cases. And lawyers learned the law as a trade through a period of apprenticeship, rather than as an abstraction. All of these things are as true today as they were in the medieval period. The common law was then spread through the British Empire to the colonies, which then adapted it to their own local circumstances, and which have for the most part preserved it after independence.

A final note about the common law. The method of the common law is essentially inductive. Legal rules develop bottom-up from real-world disputes. In theory, this could leave aspects of the law in a maddeningly uncertain state, waiting until a case finally comes to court which can test the principle. In practice, the basic rules have been certain for centuries, and legal uncertainty only really prevails in questions that are esoteric even for lawyers. But this means that the common law is easily able to adapt itself to changing circumstances. It also means its spirit is essentially pragmatic: every common law rule finds its origin in the real world, rather than in the Platonic world of deductive logic.

Common law contrasts with civil law. In this context2 civil law refers to the law of much of continental Europe, which ultimately descends from Roman law. Rome, it has been said, conquered the world three times – first through her armies, then through Christianity, and finally through law. In the sixth century, the Byzantine emperor Justinian commissioned the Corpus Juris Civilis, a codification of Roman law. Following Justinian’s wars of conquest, the Corpus was implemented in western Europe, but after the conquered territories were lost it was forgotten.

In the early medieval period, different places in Europe therefore used their own customary law, much as England did. This changed, however, with the rediscovery of the Corpus in the eleventh century in northern Italy. The early medieval universities began to study it systematically, at a high level of abstraction, much as they studied theology or mathematics. It was from the very start driven by scholarship, and a process of top-down deductive reasoning from a set of abstract principles, quite unlike English common law.

In the later part of the medieval period, civil law gradually spread out of the universities into the courts of continental Europe. It had several appeals. It was a more rational, sophisticated system than the patchwork of local customs: it contained rules governing what evidence was admissible in court, a law of contract, and a regime of property rights. It also enabled kings to exert their power over feudal lords. Lawyers, loyal only to the king, would apply a much more centralised system of law. And the maxims of the civil law, “what pleases the prince has the force of law” (quod principi placuit legis habet vigorem) and “the prince is not bound by the law” (princeps legibus solutus est) enabled kings to justify an absolutist conception of power.

This was followed by the great civil codes of the modern era. On the eve of the French Revolution, the law of France was a mess; while the civil law provided the general ‘grammar’ of the law, the actual substantive rules differed so much that Voltaire quipped “a traveller in France changes his law almost as often as he changes his horses.” Napoleon changed all that. In 1804 he introduced the Code Napoléon, a single legal code for all of France, written in French, which was supposed to destroy the relics of feudalism and prevent the judges from legislating and thereby building up an alternative power base to the emperor. The French civil code was followed in 1900 by that other great code, the German Bürgerliches Gesetzbuch. Both codes have survived revolutions, wars and regime changes to remain (with amendments) in force today.

England, uniquely in Europe (and unlike Scotland) was able to resist Roman law in the crucial period between about 1150 and 1300. Probably the most important reason is that we had no need for it: English common law already provided a centralised system of law.

Another reason is that we were ‘vaccinated’ against it: civil law did have some intellectual influence on English law, but it was mostly in the superstructure, not the substantive content of the legal rules. As F.W. Maitland put it, “great maxims and a few more concrete rules were appropriated, but on the whole what was taken was logic, method, spirit rather than matter.”3 Lawyers occasionally speak in Latin, a habit from which we are nowadays discouraged, which reflects the influence of Roman law, but the Latin maxims do not have the same authority as they would in continental Europe.

A final reason was the structure of the legal profession. Oxford and Cambridge did teach Roman law (and still do), but refused to teach English law, seeing it as a craft that was beneath them. Practising lawyers therefore continued to learn in the Inns, caring much less about theoretical beauty than about whether their client could win the case.

To this day, England has resisted the influence of Roman law. Henry VIII’s attempt to introduce it was stymied by the influence of the Inns of Court, which by this point were extremely powerful institutions. We still do not have it; the Supreme Court just last year heard a case about (among other things) whether a principle of Scots law which was derived from Roman law was a valid part of English law.4 Although the rule that a living author could not be cited in court is long gone, the Supreme Court pays rather perfunctory attention to the writings of legal academics. The authoritative statement of the law is contained in case law, not commentary.

From this historical overview, it should be obvious why the Common Law Theory of Everything is nonsense. Why should it matter whether the law was developed by judges applying customs that trace their lineage to the German forests, or whether it originates in a civil code that traces its origins back to ancient Rome? People who argue for the influence of common law notably fail to point to a single common law rule which could actually explain Britain’s (or America’s, or Hong Kong’s) higher infrastructure costs and inability to build housing.

Occasionally the argument is made that the common law has a greater attachment to private property than in other systems. This is curious, given that strict property rights are generally regarded as a feature of all legal systems, and constitutional protections of private property are found in, for instance, the German Basic Law.5 It is also a ludicrously imprecise claim. Is it referring to the specific concept of ownership adopted by each legal system? Or the degree of absolute security of tenure possessed by a freeholder? Or the remedies available when a property right has been violated?

Indeed, it is arguable that common law countries are in one important respect less attached to private property than other legal systems. In England, the compensation for compulsory purchase is the purchase price of the property plus compensation for the inconvenience of moving, usually 10%. In America, you get the purchase price alone. In Sweden, however, the compensation is the value + 25%, and in Japan, compulsory purchase is extremely rarely used, with land readjustment, a much more pro-property rights mechanism, usually taking its place.

We have no more luck when we look at public law, the branch of law which (loosely) governs the relationship between the citizen and the State. In England, the main concern of judicial review is to ensure that public power is exercised in accordance with the law.

Certainly, this idea has a longer pedigree in England than it does on the Continent. Magna Carta stated that the King could not strip a man of his rights except by law; the jurist Bracton stated in the thirteenth century that “the King must not be under man but under God and under the law.” In the early seventeenth century, in the Case of Proclamations6 (which, entertainingly, was about the King’s attempt to prohibit new buildings in London) Sir Edward Coke established that James I could not change the law. The King’s being subject to the law was finally settled following the Glorious Revolution in 1688. This is the intellectual origin of modern judicial review.

But, even though the civil law once said that the King was above the law and could make law himself, that is no longer the case in any modern country. France has judicial review, too, and indeed has a more coherent system of administrative law than England does. The principle that the State is subject to the law is now recognised in every civilised country.

English judicial review does clearly produce some ludicrous outcomes, such as decisions to grant planning permission being overturned because the wrong piece of paper was put on the Secretary of State’s desk. For the most part, however, the problems are with the underlying law which judicial review is enforcing. There are issues with judicial review itself around the margin, but this can hardly be developed into a coherent theory of the inferiority of common law.

Indeed, common law ought really to be more friendly towards decisive government action. The English courts are extremely reluctant to subject administrative decisions to scrutiny on their merits: to the extent that the courts do review decisions on the basis of whether they were a proportionate means of achieving a legitimate end,7 it is thanks to the influence of EU law and the case law of the European Court of Human Rights. Our courts do not wish to usurp the role of the executive, and certainly not of Parliament.

Finally, the actual rules which govern planning and infrastructure are almost entirely statutory. Since at least the postwar period, we have been living in the age of statutes: the common law exists as the underpinnings of our legal order, and provides the general ‘grammar’ of the law, but the vast majority of legal rules owe their existence to legislation.

The entirety of England’s planning system is statutory. At common law, a person has the right to build whatever they like on their land, subject to restrictive covenants or their causing a nuisance to their neighbours. The planning system precisely reverses that presumption: nobody has the right to build anything unless they are given planning permission. The same goes for environmental law: although common law developed an intricate set of rules around property in animals, it did not care about conservation. The laws that make it harder for us to build are creatures of statute.

The planning system also does not work much like common law. Common law is based on a set of discrete, certain rules which interact with one another in ways that are nearly always knowable in advance. The planning system is discretionary, and is supposed to involve the weighing-up of different factors (“material considerations”), where it is impossible to say a priori how much weight will be given to any of them. It all depends. Documents like the National Planning Policy Framework, the central Government’s statement of planning policy, owe their force not to any common law principle or even any express statutory power, but instead to the Secretary of State’s “overall responsibility for oversight of the planning system.”8 The role of the courts is limited to ensuring that planning powers are exercised lawfully; but they do not wish to substitute their judgement as to where the planning balance lies for that of the professional planner or the politician.9

The final argument, made by economist and author Dan Davies, is that the common law is adversarial, which makes it harder to navigate the regulatory environment around planning.

The argument goes like this. Britain’s planning system involves a developer proposing a project, which is then scrutinised for its compliance with planning and environmental law. At this stage, the system becomes a game between the developer and the people who want to block it. Because it is very hard for the developer to know in advance what holes the project might fall into, they are incentivised to engage in defensive practices, showing that they have identified every single issue in advance to head off any possible challenge that could sink the project. This is why the planning documentation for the Lower Thames Crossing has cost more than it has cost the Norwegians to build the world’s longest road tunnel. They also engage in expensive mitigations like bat tunnels which go further than what is strictly required, but which do massively reduce risk.

The suggestion is that we could instead move to a collaborative approach, along the lines of many continental European countries. A more powerful State with a central view of the project takes a proactive approach to the project, pre-emptively identifying issues and working with the project’s developers and objectors to iron them out. There is no longer a need for pre-emptive risk aversion: the only problems that are identified in the planning phase are genuine, rather than hypothetical.

To be clear, I am not impugning Davies’ concrete proposals, although I think they are necessary but not sufficient to get Britain building the infrastructure it needs. I am merely taking issue with his lampooning of the common law.

Adversarialism has nothing to do with common law. To the extent that the general public knows anything about the differences between common and civil law, they tend to be in possession of two factoids.

1. Common law is ‘judge-made’, while civil law is entirely based on a code, which is imprecise but directionally correct.

2. The common law is adversarial. Claimant and defendant (in non-criminal cases) or prosecution and defence fight it out, each side putting forward the strongest form of its own case. Neither judge nor jury can investigate the case on their own, and they are wholly reliant on the case which the parties put forward. On the other hand, civil law systems, we are told, are inquisitorial: the judge actually interviews witnesses and manages the case, much like a bureaucrat.

It certainly is true that the procedure in common law countries is adversarial. It is untrue that this is unique. Italian criminal trials have been adversarial since the late 1980s. French criminal trials are still inquisitorial, but when it comes to non-criminal matters, the French courts are actually quite adversarial. If the claimant does not raise a breach of contract, for instance, the court cannot do so of its own motion. French judges are more active in managing how the case proceeds – but English judges have had much more active roles in case management ever since 1998.

There is no necessary connection between common law and adversarial procedure. We use the adversarial system for historical reasons, but it is perfectly possible for the common law to be applied using inquisitorial procedure; indeed, the Family Court in England is quasi-inquisitorial. We have ended up with this adversarial system not for legal reasons, but by accident of history. To the extent that our adversarial planning system reflects any deep institutional continuity, I think it says more about our relationship with the State than our common law inheritance. To the extent that there are commonalities between the English-speaking countries, it is more a reflection of the way that we learn from each other: our shared language and cultural cringe means that Ireland is more likely to look to Britain and America than it is towards Spain or Poland.

Taking issue with what can be most charitably described as a throwaway comment written by somebody whose expertise lies elsewhere might be taken as pedantic, and in one sense it is. But the common law deserves more respect than that. It is a precious part of our civilisational inheritance, which has for centuries been a guarantor of liberty and the rule of law, first in England and later in her daughter countries. And it is a reflection of English culture. It relies on pragmatic empiricism, rather than elegant, sweeping theoretical edifices. Most importantly, it is actually the law. What it is not is a set of magic words.