Stephen Sedley

‘So, then,’ says a founding father, quill poised, to the founding fathers around him in Gary Larson’s cartoon, ‘Would that be “Us the people” or “We the people”?’ If deciding what to write is tough, interpreting what gets written is tougher. Turgid texts need unravelling; obscure provisions need deciphering; occasional nonsense needs correcting; perfectly clear texts may be impossible to apply to novel situations. These and other quotidian exercises are the subject of judgments and commentaries which try to bring ordered methods to bear on the translation of a text into an outcome – that is to say, on trying to give a law its proper effect.’‘

There is no reason in theory why the current relationships between legislature, courts and executive government should not continue indefinitely. The tensions between the component elements of the state have never in three centuries reached the point of fracture; indeed, because each element depends on the others, there is a governing incentive not to let this happen. If such à balance were to be upset, it would almost certainly be from outside: at its crudest, by a coup; at its most insidious, by the absorption first of government and Parliament and then of the judiciary by an initially legitimate but unscrupulous political force. In constitutional terms this was the story both of the Soviet Union and of prewar Germany: the turning-point in each case was the collapse of freestanding political, administrative and judicial institutions into a unitary state machine controlled by a single party. No prescriptive document can stem such a tide: the Nazis simply swept the Weimar Constitution aside, while Stalin’s 1936 Constitution was a living lie. But democracy is not like an electric light, either on or off: it can flourish, or it can be cramped and distorted. Its ability to thrive is more often a question of degree than of kind.’

There is a fairly obvious sense in which the law conditions or even determines, rather than simply reflects, a society’s shared sense of right and wrong (or – which is not the same thing – acceptable and unacceptable). The clearest instance in this generation has been the equality legislation, which has not simply placed on the statute book a prohibition against discrimination on grounds of race or gender, but has generated a fundamental change in the common sense of what kinds of conduct and language towards one’s fellow citizens are acceptable or right. This is statute law at its best – picking up and consolidating an incipient and fragile change of social mood, giving it legitimacy and backing it with legal redress. We have certainly not eliminated racial and sexual discrimination, but few would dispute that things would be markedly worse without the legislation.’

It is conventional wisdom, at least among lawyers, that the Constitution of the United Kingdom is in its essentials the creation of the common law – an accretion of legal principles derived from judicial decisions which determine for the most part how the country is to be run from day to day. Apart from the historic texts – Magna Carta, the Bill of Rights – statutes were until this century regarded, by lawyers if not by Parliamentarians, as dangerous reefs in the great ocean of the common law, to be observed chiefly in order to circumnavigate them. During this century the body of statute law has broken the surface at many points, forming sometimes small islands – such as the unnecessary but minor incursion of the legislature into the judge-made law of judicial review – and sometimes great land-masses like the modern law of real property, supplanting the common law and equity, or whole continents of social and economic provision for which the common law itself has no remit.