[MUSIC]

This short presentation is on the spirit of the common law,

an idea I'm going to link with concepts of due process and fairness.

Now you may remember one of our earlier paragraphs that we were thinking about

from the American case, joined anti-fascist refugee committee.

When we were thinking about that, we were

concerned with this idea that due process, or

fairness in law, and if you want just a brief reminder of at least two important.

Ideas that we linked to, now let's

remember what we were saying about, Lord Bingham's

argument that a judge needs to be

unbiased, fair in that sense, a neutral party.

And that one of the important ideas of fairness, according to Lord Bingham.

I'd think you'd find all the

scholars, judges, commentators in agreement with this.

And that point is is that if there is evidence against a party, that

party should be given adequate facilities and

time to scrutinize that evidence before the court.

The other point that we link this idea of fariness to,

or rather Professor Menkel-Meadow, be used as a point of focus here.

Links this idea of due process or fairness to, is the idea of audi alteram partem.

Which Professor [UNKNOWN] calls the adversary principle.

In other words, the idea that the core needs to hear both sides of a case.

So how can we link those ideas back to the

big idea from the case, remember we were looking at Justice

Frankfurter's argument, in that short paragraph, I'm going to call it

the joint antifascist case, it's just an easier form of shorthand.

Where the argument was the idea of due process

or fairness in law does not have a fixed content.

It changes over time.

And at different historical periods, we'll have different ways of thinking about due

process, even though we may find the different people at different times.

Make use of exactly the same expressions you process.

Arguably, of course, it has a different content.

We need to think critically about this spirit of

the common law, and how it changes over time.

How interpretations of due process change over time.

So, if we go back a long way to Magna Carta, we

can see that there is in Chapter 39 Magna Carta in 1215.

There are ideas linked to due process.

Certainly in a statute of 1354, we have the language of due processing appearing.

And in one of the important commentaries on the common law, Sir

Edward Cooks institutes that the common law written at a much later

period when there was a constitutional struggle in the United Kingdom between

James the first in Parliament, and really events around the late 1620s.

All of this material became active, this

material developed argument a different historical period.

Arguably Magna Carta comes out of tension between the King and his Barons.

That was the context in which the ideas of the law were being developed.

The statute of 1354 comes out to a different context again, largely a

medieval one, one of feudal society okay, using this language of due process.

But, I think it's probably not the case that due

process would be understood as we understand the term now.

I think it would also be questionable about whether or not this idea

applies to, let's say, common men and women as opposed to nobles and barons.

In other words, what I'm trying to say, to go back to my opening argument.

The idea of due process, the concept of due process changes over time.

When Sir Edwin, Sir Edward Cooke makes reference

to due process, to Magna Carte, he does

so within the political context of that time,

the constitutional struggle between parliament and the king.

His references to due process and to Magna Carta have to be understood in this

context, clearly a context that has now

changed from that medieval, that early medieval period.

We'd now arguably be in the early modern period.

I think one can extend this argument still further,

if one thinks perhaps about modern ideas of due process.

Then we'd have to link them to events like the American and the French Revolution.

One thinks of the ideas of due process.

In this historical period in the 1780s the 1790s and how they

become linked to ideas of our rights the rights of the citizen.

If you like in the French Revolution, once

again we'd have to say wouldn't we, that these

ideas are quite, quite different from perhaps those

that Edward [UNKNOWN] is thinking about in the 1620s.

Or, which animate Magna Carta, back in the

much earlier period, back in the, the 1250s.

The idea of due process to stress my main theme here, is thus changing.

It's changing all the time, isn't it?

It's being given a different context, a different meaning.

Linking it to the rights of the citizen

in the late of 1700s suggest a new understanding.

And again, one that we need to be reasonably critical of, I

mean if one things, for instance, of the Dred Scott case in America.

One can see that the idea of equality

before the law certainly does not extend to

slaves, the idea of the rights of men or indeed the rights of men and women.

Is this something of arguably an empty idea or at least an idea that needs to

be completed by a more thorough, a more critical understanding of human rights.

Now, again, perhaps this whistle-stop history tour

of fairness in law leaves a great

deal out, but I think we have

to understand, that the modern, understanding of human

rights, which really is a post-war event, is something that takes place in the wake

of the Second World War, with the

promulgation of the Universal Declaration of Human Rights.

And so, if one reads the Universal Declaration, one sees ideas

of equality before the law that are arguably more contemporary, more modern.

Linked, also, to the dismantling of colonial empires.

The empires of old Europe and Africa and other parts of the world.

Western scholars, historians would argue, that certainly what you don't find

in colonial empires is democracy or the rule of law in

the sense that we might understand these terms today in the

wake of the human rights revolution of the post war period.

A revolution obviously is also linked to the struggle against colonial empires.

Also, arguable to the struggling South Africa against the apartheid

regime which is only arguably over at a much later period.

So, if all of these ideas take us back to the

common law, they take us back to the, the historical reality.

And that is that ideas change.

That once we talk about equality before the law

in the modern period or today, we mean something quite

different from how people understood the term or talked about

it in the 1250s, the 1600s, or the late 1700s.

Those histories are not obviously completely disconnected, are they?

The one history feeds into the other, into

that rich understanding that we have of both,

the reality and the compromises of ideas of

fairness in due process which are characterized as history.

I think the question for us now is how these

ideas of equality and fairness make sense in our world?

To what extend does the spirit of the common law still need to be fought about?

To be engaged with in the ongoing struggle for fairness and equality?

Due Process

English Common Law: Structure and Principles

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