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.

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.

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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