Why study legal history?

by Benjamin Ong

Why study legal history?  After all, the law — not only the common law, but also any legal system which values certainty and equality before the law — inherently takes a historical approach in the sense that it takes into account the past.  Thus, in Manchester Corporation v Manchester Palace of Varieties [1955] P 133, the fact that the Court of Chivalry had last sat some time in the 1700s did not prevent the same Court from deciding a case in 1955: ever since the law had established the Court of Chivalry, there had arisen no law abolishing it.  Determining what the law is or how it should be applied is a historical enterprise, whether the history to be looked at is from two centuries ago or from two weeks ago.  Isn’t all the history of, say, constitutional law already part of an undergraduate Constitutional Law course?

But it is not true that all we ever need to do is to compare yesterday’s textbooks and law reports; rewrite them, mutatis mutandis; then rebrand them as today’s.  Looking at, say, a modern textbook on land law would tell us about the history of what we now call an estate in fee-simple absolute in possession, or, at most, the history of the idea of “ownership” of land; but it would not tell us about the nature of land itself: is it an object of legal rights? or is it a device to link together different subjects of legal rights?  A layperson, or even a legal practitioner, may wonder what it is about a large clump of soil that might make it “against the nature of land” (as opposed to merely contrary to law) for land to pass to a heir by will (Re Lord Dacre of the South (1535) B&M 127, 131); but the legal historian starts with the idea that, if law is supposed to, as Raz says, provide a pre-emptive reason for action, then, from the point of view of subjects of a legal system, the nature of any thing is virtually indivisible from the law surrounding that thing.

The history course I studied last year was officially titled “History of English Law”, but perhaps it should have been called “English Legal History”, for legal history is not only the history of the law, but also a type of History (in the sense that one may be said to ‘be interested in history’ generally), as are, say, military history and social history.  Thus, the rule in Hadley v Baxendale (1854) 156 ER 145 (which is the leading rule on remoteness of damage in all contract law cases in Singapore) is not only a statement of legal principle, but also one of economic policy as it was in England in 1854: on the account of Danzig, ‘Hadley v Baxendale: a study in the industrialization of the law’ (1975) 4 Journal of Legal Studies 249, Mr Baxendale’s business was a common carrier to whom applied “a politic establishment, contrived by the policy of the law, for the safety of the persons, the necessity of whose affairs oblige them to trust these sorts of persons” (Coggs v Bernard (1703) 92 ER 107, per Holt CJ) — but, given the way the case was pleaded, no higher duty than was “necess[ary]” for the “affairs” of merchants.  The true foundation of the rule in Hadley v Baxendale, which the Singapore Court of Appeal said was required for the technical reason of “distinguishing between the rules and principles relating to remoteness in the law of contract and those in the law of tort, respectively” and preventing a “confusing conflation between contract and tort” (Robertson Quay Investment v Steen Consultants [2008] 2 SLR(R) 623, [71]), thus lies not only in law and the history of law, but also the history of England — in social fact.  Might the law on remoteness be different today — would, perhaps, the Singapore Court of Appeal have been less critical of the reasoning in The Achilleas [2008] 3 WLR 345 in a case like MFM Restaurants v Fish & Co Restaurants [2011] 1 SLR 150 — if it had been either less common for merchants to outsource the task of delivery or so much more common that the law of agency was not, on Danzig’s account (at 260) “underdeveloped” in 1854?

Perhaps not if we take the “law on remoteness” to consist purely of statements such as “either arising naturally, i.e. according to the usual course of things, from [the] breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties… as the probable result of the breach of it”, and classify “naturally”, “usual”, “reasonably be supposed”, and “probable result” as matters of fact.  But this would be artificial and not very useful, for, if such a general statement could be termed ‘a law’, then we may as well say that all law may be distilled into a single very general principle (which will probably contain words such as “justice” and “equity”).  Rather, when we study law, even contemporary law, we do not study only the words of statutes and judicial decisions; we study all the details of the operation of the law.

“[C]ommunis opinio among lawyers”, too, after all, “is evidence of what the law is” (Manchester Corporation, 149) — in particular, it can evidence custom, and “[i]f custom is a law-creating fact at all, then even the validity of statutory law can be abolished by customary law” (Kelsen, Pure Theory of Law (2e, 1967, trans. Knight), 213).  And even if common practice does not amount to customary law, it still plays a role in the development of the law.  The opinion in Re Lord Dacre that “no land is devisable by will, except by custom, since it is against the nature of land to pass in such a way”, was due not only to the function of the system of inheritance in preventing “greedy and covetous persons” from defrauding people who were “visited with sickness in their extreme agonies and pains” or who lacked “good memory or remembrance” (preamble, Statute of Uses 1536, B&M 132) — wouldn’t such a risk have existed in relation to valuable chattels as well? — but also (rather more spuriously) because King Henry VIII was losing revenue because the widespread practice of using schemes involving what are now called trusts to avoid what was essentially a system of inheritance tax.

Thus, the statement that “the highest authorities have always recognised that the subject is entitled so to arrange his affairs as not to attract taxes imposed by the Crown, so far as he can do so within the law” (IRC v Fisher’s Executors [1926] AC 395, 412, per Lord Sumner) is not only not strictly true; it is not even a simple application of the principle of the rule of law; and it not only represents particular historical facts that influenced tax law, but also a particular historical view of what “the law” is, viz. that it is (at least in the context of tax law) the words contained in the statute books rather than the ‘spirit of the law’.  Can section 15AA of Australia’s Acts Interpretation Act 1901, which mandates that “In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation,” and the virtually identical section 9A(1) of Singapore’s Interpretation Act, really be said to be progressive (as they were suggested to be by their respective legislatures), as opposed to just different?  Should such interpretation rules apply in different ways to different types of written laws, e.g. penal statutes and tax statutes?  If so, why?

It is this sort of debate that the study of legal history helps us to appreciate more richly.  It is one thing to imagine that there could conceivably be an alternative to our system of law, but quite another to know that there used to be such an alternative — and on the very same land which we now occupy, too — which was taken seriously by judges and lawyers.  Indeed, the latter reveals that inherent in the word “alternative” is the idea that our present system is ‘normal’; whereas, in fact, it is sheer arrogance to believe that something that is normal is therefore perfect for all time.  The requirement that conveyancing fees be paid to Singapore’s Housing and Development Board (as opposed to merely administrative fees to the land registry) to transfer a government-developed flat may be said to be at odds with saying that the flat is “owned”, but there was a time when there was nothing odd about the practice of charging money for permission (as opposed to just recompense for administrative trouble) to transfer one’s interest in land; and, besides, why should ownership of an HDB flat be the same kind of ownership as ownership of private property?  The truth we risk forgetting is that contemporary law — even judge-made law — is, at least in part, a product of social fact, and is often, even if ostensibly absurd or illogical, only as ‘absurd’ or ‘illogical’ as history itself is.  Studying legal history reminds us that, whenever the law appears to neglect principle, perhaps we should begin by reconsidering our idea of the principles.

Moreover, a law is not just a statement of what the law is; a law is a historical source to be studied, whether it dates from 1535 or from 2014.  The modern practice of law is inevitably the creation of legal history; it may well be beneficial for the contemporary lawyer to bear this in mind.  Someday, legal history lecturers in universities in England might conclude that Gregg v Scott [2005] 2 AC 176 was decided the way it was because of the developments leading up to the present rules of civil procedure to the effect that (to put it loosely) once someone pleads certain facts and makes a claim of a particular type on those facts, he/she is stuck with them as the case goes up to the senior courts (as noted in Fordham, ‘Loss of chance — a lost opportunity?’ [2005] SJLS 204, 207, fn 9, Baroness Hale opined at [206]-[208] that, had Mr Gregg’s “extra pain, suffering, [etc.]” been “explored before the [trial] judge”, he might have recovered for these — but they could not have been so explored as, according to the doctors’ estimates, Mr Gregg would more likely than not have passed away by the time the case went up to the House of Lords).  They might discuss the policy reasons behind these procedural rules.  Some of their students might wonder who on earth could ever have come up with such a system.  Some might go on to embark on extensive studies of the interaction between rules of procedure and tort law.  They might publish books which, a few decades later, might in turn be read by legal historians who wonder why on earth people picked a few topics in law, seemingly at random, and titled them collectively ‘tort law’.  And so on.

The study of legal history, in short, is not just about the substance of the law as it was in the past; it is not just about the past; it is equally the study of the present.  It therefore assists us in refining our ideas about jurisprudence and of legal method.  It teaches us not only to answer legal questions, but also to question legal answers and, indeed, legal questions themselves.