Law, Society, and Economy: Centenary Essays for the London School of Economics and Political Science, 1895-1995

By Richard Rawlings | Go to book overview

13
Judges and the Constitution

J. A.G. GRIFFITH


JOINT AND SEPARATE PURPOSES

In a lecture given to the Administrative Law Bar Association in October 1994, Mr Michael Beloff QC said, that when he came to the Bar in 1968, 'no one was yet called a public lawyer' and that the phrase, as late as 1985 was not altogether approved by the judiciary.1 In the more enlightened circles of academia, we had been accustomed to the words for some time and even had professors so designated. When F.W. Maitland gave his first lecture on The Constitutional History of England at Cambridge in the Michaelmas term of 1887 he entitled it "'English Public Law at the Death of Edward the First'".2 His subsequent four periods were on the state of public law at the deaths of Henry VII, of James I, of William III, and 'at the present day'. The lectures continued throughout the Lent term of 1888. Maitland tells us that Austin in 1873 defined public law as the law of political conditions and subdivided it into constitutional law and administrative law. All of which goes to show that eminent QCs and judges are sometimes over one hundred years behind the times.

Maitland shows how at the centre of each of his periods of English history lie the relationships between the Sovereign, the Parliament, and the judges. The relationships change as the institutions change but nothing replaces these relationships as the central events determining the course of political history. The judges over a long period drew their strengths from the common law which they made and administered. In any conflicts with Sovereign or Parliament it was their principal weapon and they were not above inventing ancient rules to argue their case, as Coke did among others. Today we see the working Constitution under strain for a variety of reasons one of which is the claim presently made by the judges for a more important position in the relationship.

In the 1940s and 1950s the judges were quiescent. Because of the war and the social and economic crises which resulted, government was the dominant force. There were conflicts over property rights under town and

____________________
1
"'Judicial Review--2001: A Prophetic Odyssey'" ( 1995) 58 Modern Law Review 143 at 144.
2
The Constitutional History of England ( Cambridge, 1909).

-289-

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