ICAS Special Contribution

No. 2002-0703-LxG

Common Law Common Bond

Lord Goldsmith

Institute for Corean-American Studies, Inc.

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Biographic Sketch & Links: Lord Goldsmith








[Editor's note: We gratefully acknowledge a generous contribution, with a written permission, of this paper of Lord Goldsmith to ICAS. : sjk]


Common Law Common Bond

The Right Hon The Lord Goldsmith QC
Her Majesty's Attorney General

Magna Carta Exhibit Luncheon
Downtown Club
Philadelphia
3rd July, 2002


INTRODUCTION

Judge Becker, Mr Harmelin, Ladies and Gentlemen

You have demonstrated the most delightful disregard for history in inviting me to speak here in Philadelphia on the eve of the Fourth of July. For as you all know, about 200 years or so ago, Britain's normally harmonious relations with this part of the Americas went through a sticky patch because of a slight misunderstanding over taxes. Indeed, Britain's relations with Philadelphia and the American colonies as a whole deteriorated to the point that you declared independence and British troops occupied Philadelphia for a time. So I hope that your kind invitation to speak to you and my presence here today means that all is truly forgiven.

In that hope I can say that I am delighted to be here, as is Lady Goldsmith. We thank you for your generous welcome and hospitality. I thank you above all for the very great honour you do me and the Government in which I am privileged to serve by inviting me to give this address. On this remarkable occasion of the [re-dedication of Magna Carta] I want to take the opportunity to speak of the common roots of the peoples of the United States of America and the United Kingdom in the common law. I will then move to ask how the common law can help us face the challenges of the year 2002. In particular how it can help us balance the needs of liberty of the individual with the needs to protect our society.

No true lawyer could fail to rejoice to be in Philadelphia. For true lawyers must believe in liberty and the rule of law. And Philadelphia is the city of liberty and the rule of law. As the city of William Penn, who after repeated persecution for his religious beliefs sailed here to found a city of liberty and to become, in the words of Thomas Jefferson, "the greatest Law-giver the world has produced". We too in the United Kingdom have thanks to give to William Penn who, on his return to England in 1684, taught King James II the virtue of greater tolerance and persuaded him to release many imprisoned for their religious beliefs. And as the city where Jefferson himself wrote the Declaration of Independence which remains one of the finest expressions of liberty to be found anywhere in history, providing as Archibald McLeish, the poet and librarian of Congress said, "its proposal for the future of a society in which human liberty could flourish."

And for its unbreakable connection with the Declaration of Independence Philadelphia is also a more than fitting place to celebrate Magna Carta, and our great shared legal and political heritage. For McLeish was right to say that the Declaration of Independence was a part of a political and legal tradition that unites British and American peoples. Thomas Jefferson would have agreed. For he described his Declaration as "the Magna Carta of a new continent."

Indeed, the fact that it was in Philadelphia that the Constitutional Convention was held itself reinforces the claim of the City of Brotherly Love to symbolise our common legal heritage. Not because the break with Britain that the Convention heralded was one of the last acts in a constitutionally joined history. But because the very act of rebellion was founded in that common heritage of Magna Carta and the common law. As Justice Anthony Kennedy has wisely noted:
"The American Constitutional System was inspired by fundamental confidence in law as a liberating force. When we declared independence, we conceived of our cause, we found our identity, we justified our rebellion in legal terms."

The law in which the American founding fathers then had confidence was English common law, brought with the settlers as part of their culture and adapted to suit the social and economic conditions of the colonies. English legal texts were for long of great importance because there were few indigenous texts and no published case reports in the colonies until after the Revolution. When Blackstone published his Commentaries on the Laws of England in the 1760's they became a legal best seller in the colonies, where there was a dearth of legal material and great need of what one commentator has termed "a snappy overview of the common law system". History tells us that so popular was the work that Sir William Blackstone made a fortune; something which could be rivalled today in the world of legal writing I suspect only by John Grisham or Scott Thurow.

Magna Carta itself played a major role in the development of the constitutional thinking in America. Some 150 years before Blackstone the great jurist and judge - and I might add sometime Attorney General Sir Edward Coke had effectively rediscovered Magna Carta and praised it as an affirmation of fundamental law and England's "ancient liberty". The idea of written documents protecting individual liberties took early root in Britain's American colonies, such as in the 1606 Charter for Virginia which declared for immigrants to the New World the same rights as they would enjoy in England. And in the years leading up to the Revolution countless pamphlets and resolutions drew support for their claim of rights from Magna Carta.

And just as the Declaration of Independence provided inspiration for the greatest declaration of individual liberty of the last 100 years: the Universal Declaration of Human Rights of 1948, so too does the American Constitution find inspiration in the words of an English Charter of over 500 years before; most notably perhaps in the guarantee of "due process of law" in the 5th Amendment. As eminent legal historians and scholars including Dean Griswold have demonstrated, this most resonant of phrases - "due process de ley" in the Norman French - can be traced directly back to Article 39 of Magna Carta and to the promise that

"No free man shall be taken or imprisoned or disseised or outlawed or exiled or in any way ruined, nor will we go or send against him, except by the lawful judgement of his peers or by the law of the land."

These last words, 3 in the original Latin: "per legem terrae" have probably exercised, so wrote the distinguished human rights lawyer AH Robertson, a greater influence on the history of human liberties under the common law than any other text.

It is not only in the love of liberty and freedom that we find a common legal heritage (though that is an important topic to which I want to return). In all areas of the law and legal relations we can find our common heritage, from the laws of contract and tort, through property law and relations between family members, in all areas we share a common heritage. True that there developed many differences between our systems in many areas. The common law was adapted to meet the different social and economic needs of the colonies - such as the fact that the abundance of land and size of the country meant that America had a far higher proportion of people owning some land than in England and a greater interest in legal services of the kind that the middle class are used to: deeds and wills, laws of property, mortgages and contracts for debt. And being larger and more decentralized with no central body which could impose a single uniform standard the laws developed in different ways. Many of the developments here were good and would come back, as I shall want to demonstrate, to fertilise the native legal soil of England. This was not universally true, for example; the legal innovation of the law and practice of slavery was not known to the law of England or the common law.

But though these differences be marked, they should not obscure the unifying principles and features that flow through both our sets of laws: that each has the right to own property and enjoy the fruits of his labour, that contracts made in fair dealing and giving effect to the reasonable expectations of reasonable men should be honoured and, where necessary, enforced; that those who inflict unjustified harm on others or on the community may be required to pay compensation or make good the loss; that the family is entitled to protection by society and the State and that the welfare of children deserves special protection; that we embrace the ideal of democratic government under the law, protecting freedom of speech and thought and respecting personal autonomy. We perceive the same basic values; we respect the same basic rights; and give effect to them through a shared common law heritage which, whilst different and diverse in its detailed elements, as we rejoice in the richness of our diversity, is founded on some basic and fundamental principles. We have a common bond and the common law is glue of that bond.

The extent to which we share common principles and our laws relate to each other was demonstrated in a remarkable series of essays by 50 judges, scholars and jurists from the United States and the Great Britain to celebrate the meeting of the American Bar Association in London in the symbolic year 2000 and published as a lasting monument to that meeting and to our shared heritage. Amongst the most distinguished were Lord Steyn from our House of Lords ľour supreme court- and Justice Kennedy of yours. I was privileged to have been one of the committee chairs which arranged this event, together with former American Bar President Roberta Cooper Ramo.

It may be objected that we share these values and principles too with others who do not come from the common law tradition. Up to point I would not disagree. And growing international standards and norms of behaviour and respect for human rights promise to bring the world closer together in many different ways. But as much I admire, for example, the elegance of the civil law traditions of Europe with its carefully created codes and administrative safeguards and as much as I respect the different legal traditions of other cultures further afield, I still see some special features of the common law which bind us together especially close.

How does one single out the features of such a rich and varied system of law to illustrate its soul and its distinctness?

Is it the value we attach in our democracies to the freedom of expression -guaranteed by the First Amendment? A principle which promotes the self fulfilment of individuals and enables the truth to emerge from the free expression of conflicting views through the route so memorably explained by Mr Justice Holmes more than 80 years ago when echoing John Stuart Mill he declared that "the best test of truth is the power of the thought to get itself accepted in the competition of the market."

Is it the value of equality reflected in the stirring language of the 14th Amendment that the State should not "deny to any person within its jurisdiction the equal protection of the laws"? Or yet some of the core principles that I have mentioned before which protect the right to own property, or to have our freely and fairly engaged contracts to be enforced or protect us from unjustified harm by our neighbours.

I believe a fair claim could be made for all of these. But I prefer to focus on another: the role of law and lawyers and of judges in both our systems.

Firstly, the rule of law and due process of law. This is the very basis of our free society. That no-one, government, corporation or individual is above the law. As Lord Denning, one of our famous modern and most innovative judges put it; "Be you never so high, the law is above you." Every citizen and person in the land, I would suggest, feels that this is the basis of society; that there can be no interference with our liberties, no imposition on us made, without the authority of the law and only in accordance with the requirements of the law. Coke in his Institutes interpreting those key words "the law of the land" and "due process of law" declared that

"Every oppression against law, by colour of any usurped authority is a kinde of destruction .. and it is the worst oppression that is done by the colour of justice."

Today's citizen might say simply say to a policeman or civil servant "Who says you can do that? By what authority?" Very different language but the meaning is the same; the citizen feels now as part of our culture what Coke meant. The same is not always true of other cultures where one's rights are simply what the State allows and not, as we have come to know all rights except those limited by properly enacted law.

Secondly, the role of judges and lawyers. My hypothetical citizen would have gone I suspect to say "And if you can't show me the authority, I'm going to take you to Court."

I believe that it would now be almost universally recognised throughout the world that protection of the rule of law requires that the law be applied by an independent impartial and competent judiciary. So much is guaranteed by many international and regional conventions and national constitutions. So the common law is not unique in insisting on the impartial administration of justice.

But it has a tradition in the type of persons chosen to be judges, typically distinguished and experienced practitioners of the law rather than specially trained and appointed career magistrates as in many other countries and a technique for adjudication which is special to the common law. Unlike the civilian law system's reliance on the careful compilation of codes of law the common law has relied instead on an incremental process of development of the law based on the precedent value of judge made law. The law is developed through the decisions in individual cases, the reasoning in each case often fully spelled out, proceeding by analogy on a case - by - case basis, striving to find the principle to be derived from earlier cases, each case potentially acting as a precedent both for other cases of the same type and for other cases which follow in a different but analogous area.

This is the source of its enduring strength. In all legal systems the enduring tension - the constant duality - is between the necessity for stable predictable rules and the universal desire for justice in each individual case. The common law seeks to accommodate the duality at the outset, developing its rules case by case so that gradually and over time general principles do emerge. Thus the judges concentrate on the attainment of pragmatic justice, anchoring their decisions in custom and experience. So it has been said that "the lifeblood of the law is experience not logic."

This process means that the judges in common law countries acquire and use the same tools of legal reasoning and deduction: finding the ratio or central principle of the case, recognising points of distinction and reconciling apparently incompatible decisions. Again the common law judges do not have a monopoly of these skills but in a system where the precedent is the code and not another decision of a court, they are not of the same value or importance.

It is these shared skills that mean that we continue to influence and shape each other's legal systems. Though we have not shared a common court for over 200 years our law continues to be cross pollinated by each other as judges, lawyers and scholars draw inspiration and help from decisions in another common law court. The cases in which the US Supreme Court has, for example, returned the compliment of the value US law has had from English decisions are legion: in our developing law of privacy for example where our highest courts have drawn heavily on decisions such as City of Chicago v Tribune and New York Times v Sullivan; in the field of economic loss by negligently performed professional services where the House of Lords found much help in the seminal decisions of the great Justice Cardozo in Ultramares v Touche and Glanzer v Shepherd (and interesting to note the House of Lords decision itself was then itself relied on by the Court of Appeals of New York in a further development of the law - and so the process of cross pollination continues); and notably in the field of judicial review of administrative action where we have borrowed heavily and lately to pursue what is now a robust and effective system for controlling the Executive to what the law allows.

There is a third feature to which this process gives birth. It is my view the genius of the common law: to be able to develop as society develops and as social and economic conditions change. The common law is flexible precisely because it does enable new situations to be fitted into the old law through this process of reasoning by analogy on a case by case basis. Many changes are too great for judges alone to accommodate. And the Legislature has other very good reasons to legislate in all fields. But the judges can allow change gradually to occur. Consider for example how our laws of equality have been adapted to meet new differentiations and demands by our citizens; or the laws of tort to meet the new ways of causing damage on a massive scale that first industrialisation and later newer technology could bring; or development of the laws of contract and restitution to meet more sophisticated economic circumstances and global methods of doing business or transferring funds.


The Challenges of the year 2002

As we turn to consider the challenges of our present days and the years that lie ahead, this flexibility of the common law, this ability to adapt to meet the changing circumstances, this genius for balancing in a just and proportionate way the competing rights of different interest groups, is one of the treasured assets that our tradition gives us.

The great success story of the 20th century, after the horrendous events of the Holocaust; the widespread abuses of human rights that were perpetrated on a catastrophic scale by totalitarian governments whether of the right or left; and two World Wars, was the rapidly accelerating development of the natural sciences and technology, coupled with increasing stability and prosperity in many parts of the globe. But since the end of the Cold War, Western liberal democracies such as the US and UK face a new threat: that which results from the phenomenon of "failed states" , political fanaticism/religious fundamentalism and the present scourge of international terrorism.

For the US and UK, our status as liberal democracies and law-based states means that we approach the legal challenges of the war on terrorism from a shared perspective, and from a shared belief in the rule of law and due process of law.

11 September was a heinous attack not just on the United States but on all civilised countries. When America is attacked, all our values are under attack. Just as you stood by us during World War II, Britain stands with you and will not let you down. Prime Minister Tony Blair stated unequivocally immediately after the unspeakable outrages of the l1th September that the British people stood "shoulder to shoulder" with their American friends. Since then he has been a particularly close ally of President Bush. The United Kingdom has played, and continues to play an active and prominent part on the conflict in Afghanistan and in helping to build and maintain a coalition against international terrorism. It has been a vocal and visible ally. Our strong and visible cooperation with the United States, ready to stand up, like the USA, for what we believe to be right and to protect vulnerable people at risk had already singled out the UK for particular threats from Al-Qaeda before l1th September. Our actions since then have plainly only increased that risk. There can be no illusions. After the United States, British interests at home and abroad are more at risk from international terrorist attack than for other countries.

In dealing with the post-ll September threat that faces the US and the UK, we are very conscious of the tension between the needs of national security and the duty of the state to protect its people, on the one hand, against the right to individual liberty, on the other. The dilemma, or rather the challenge, is to ensure the protection of society and our national security, while not abandoning the very values which we are fighting to protect.

We have of course had to confront these issues in the United Kingdom. Although we already had in place anti terrorism legislation focussing on the funding, membership and training of terrorist groups, we believed it necessary to enact, as did many other countries in the post l1th September events, a further Anti-Terrorism, Crime and Security Act. The Act bolsters security in the United Kingdom, for example, by providing law enforcement agencies with vital information to target and track terrorists by requiring carriers to provide information about passengers and freight, and by enabling telecom companies and internet providers to retain data - not content - that can be accessed under existing legislation for terrorist or criminal investigations; by imposing tougher penalties for people seeking to exploit the events of September l1th, for example, by committing offences motivated by hatred of particular religious groups or by perpetrating hoaxes, and by cutting Terrorists from their funds. One of the more controversial steps relates to the treatment of persons within the country who have no immigration right to remain and who are suspected of involvement in terrorism and pose a threat to national security. In relation to these persons we have a difficulty. Under our immigration laws we have the right to deport them because they have no right to be in the country but we are prevented from carrying out the deportation because of obligations under our international obligations, notably, under the European Convention of European Rights to which we have adhered for many years and which became, with our recent Human Rights Act a part of our domestic law. Where they would face death, torture or inhuman and degrading treatment if returned to their country of origin, those obligations prevent us sending them back. So we are faced with a choice: either to leave them to roam free in the country - which is an unacceptable risk given the heightened threats since 11th September - or to detain them unless they will voluntarily leave the country. Under these new powers, 11 people have so far been detained and two, having been detained, have voluntarily left the country.

But even in taking and using these powers our commitment to the rule of law and to the values of our democracy remain. There are important safeguards under the Act, of which the most important in this context is the right of full judicial scrutiny by an independent judicial body presided over by a senior judge. However, there were good reasons why we could not allow these decisions to be made by our normal process of judicial review. We could not, for example, allow to be deployed in open court secret intelligence information, the disclosure of which might endanger the life of an undercover source or compromise, through the revelation of security methods, our ability to get early warning of impending threats. We would not have wanted, however, to take the line of declining in those circumstances to allow for any review at all by the courts. Indeed there would have been real problems in complying with our new Human Rights Act if we had attempted to do so.

Our solution has been to arrange for full judicial scrutiny by a special body, the Special Immigration Appeal Commission, already used, although adapted, in a special category of immigration appeals in relation to people posing a national security risk. This body is able to hear part of the evidence behind closed doors and so avoid our security risks. But the process is so fashioned that it meets the needs of the difficult situation whilst committing fully to our traditional views of the rule of law. The Commission is constituted as a court of record with a right of appeal to the Court of Appeal on a point of law. It is presided over by a senior judge, one of the judges indeed who would have heard a regular judicial review. Although certain material cannot be disclosed to the detainee (although much is) it does not go without being tested. A special advocate is instructed who is provided with all the material and is given the job of testing it rigorously before the Commission, albeit in closed session, and of representing the interests of the detainee there. And the detainee's own Counsel is entitled fully to participate in all the open sessions.

There is thus the fullest judicial scrutiny, adapting only where essential to do so because of our other legitimate concerns not to compromise the safety of our agents or of the British people. Our commitment to the rule of law in which the lawfulness of executive action is tested is evident.

Indeed there is a key court challenge taking place later this month in which I will personally appear to put the Government case to test if these powers are compatible with the obligations we have under the European Convention.

This issue illustrates the balance that we have to strike. I believe that we have struck it right and certainly that it is justified to place these restrictions on liberty of a few individuals in respect of whom there is well grounded suspicion of connection with terrorism -even though the evidence is not enough or is not available (because we do not permit certain intercepted communication intelligence to be deployed in court) to prosecute. But it also illustrates that it is possible to strike that balance by adapting the precise rules of the traditional common law approach to meet the strong demands of the moment. The flexibility of the common law to enable effect to be given to the statutory scheme is key. Of course, the civil rights v security issue is an even bigger one here in the States. I know how difficult it must be to deal with. As two advanced democracies I hope we can learn from each other so that together we move forward in ways that both protect our security and uphold the values that Britain and the US hold dear.

So the need to consider that balance raises an issue with which the common law has always had to grapple: how to grapple with the different interests of different groups. These can increasingly be posed in terms also of a clash between different rights. We have long accepted that very few rights are absolute and that the exercise of many require to be balanced against the rights of others, the interests of the community as a whole or indeed against other rights. Freedom of expression and privacy, for example, are two sides of a coin; one man's freedom of expression to say what he likes about another man interferes with that other man's right to privacy. Governments have always had to weigh the risks to the many of the few. But the chilling modern techniques of terror - the inhuman use of aeroplanes and innocent people as bombs - or the evil targeting of commuters or office workers without warning - places a clear responsibility on government to act. To balance the right, if you will, of the individual from arrest or detention against the right of the innocent man, woman or child to protection from sudden death or maiming and their families from the cruel loss of their loved ones.

As it has before, the common law tradition and its lawyers and judges will help us find that balance. Not through a slavish adherence to old rules. Magna Carta was never the inflexible and unchangeable laws of the Medes and Persians. Reflect, for example, that the criminal trial jury, so often traced back to Magna Carta and its call for "judgement of his peers" did not in fact exist at the time the Charter was pronounced. But through the flexible and pragmatic application of principle to the changed circumstances before us that has ever been the genius of the common law.


Conclusion

In conclusion, Mr Chairman, I would like to underline the closeness of the British and American peoples. It is a closeness which we can measure in the centuries from the fields of Runnymede where King John ceded to the barons in the Great Charter the freedoms we regard as our shared birthright to the hills of Tora Bora and Kabul. It is a closeness to be found in the Bill of Rights, in the spirit which underlies the Declaration of Independence and the American constitution, and in our joint dedication to the rule of law. It is a closeness to be found in the genius of a shared legal tradition which must now help us find the right solutions to face the great challenges of today, balancing our respect for individual liberties with the need to protect the peoples of our two countries. Our common law is I believe our common bond, as much, perhaps more than our shared language.

It has been a privilege to address you.



Last update 1/30/2009 jdb


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