On Friday 4 March 2016 Sir Stephen Sedley delivered the 2016 CPL Sir David Williams Lecture entitled "The lion beneath the throne: law as history" at the Faculty of Law, University of Cambridge.
Sir Stephen Sedley used his lecture to explain the way in which the past is properly used in the development of the contemporary law. He looked at some of the ways in which the law of England and Wales has over the centuries reinvented itself.
What created legal history was what the profession itself, both bench and bar, set about making of a judicial decision, rather than the decision itself. One example was Anisminic v Foreign Compensation Commission (1968). The orderly development of public law was secured by successive Treasury Counsel and what they were prepared to argue. If the applicant could establish an error of law, the Crown would not argue that it was justiciable only if it vitiated the decision-maker’s jurisdiction. It became accepted in effect the old divide between jurisdictional and non-jurisdictional error had collapsed. This change came about neither by legislation nor by precedent but by an organic process in which the law’s practitioners and its exponents have agreed on which way the common law should be travelling and have found a serviceable if not particularly suitable vehicle to transport it. One of the great strengths of public law in Sir Stephen’s years both at the bar and on the bench was that Treasury counsel would, if necessary, put the development of a principled body of public law ahead of the need to win a particular case. He further illustrated the point with cases such as Entick v Carrington.
Sir Stephen also pointed to illustrations of where the professional development of case law had been much less positive. The law on regraters and the approach of lawyers to the law of the Interregnum of 1649-1660 showed how valuable ideas from the past could be lost in professional re-interpretation of history. He concluded that, without history, there is no law. But lawyers have a professional responsibility to ensure that they have a right interpretation of the legal past.
The Sir David Williams Lecture is an annual address delivered by a guest lecturer in honour of Sir David Williams, Emeritus Rouse Ball Professor of English Law and Emeritus Vice-Chancellor of Cambridge University, hosted by the Centre for Public Law (CPL).
More information about this lecture, including other recorded formats, a transcript, and photographs from the event, is available from the Sir David Williams Lecture pages on the CPL website.