The law beneath the law

The stakes could not have been higher. As Friendship rightly notes, the winner of this conflict would determine the legal structure not merely of England but of its future empire - and hence of Australia, Canada, New Zealand, the United States, India and many smaller British Dominions. Coke won by a slender margin, and his vision remains buried in the subconscious of the Anglosphere.

What made it possible?

But why did the people living in this small group of islands off the edge of Europe think like this? Why did they not stay with top-down? Part of the answer lies in a series of remarkable historical moments. One was the celebrated episode of the Danish king Knut - Canute as we know him - who ruled much of England. His courtiers' sycophantic flattery drove him to the English shore around 1025, where he commanded the tide not to overwhelm his royal shoes. It did not obey, of course, and he smiled at the consternation on the faces of his courtiers: even a king as powerful as he had no divine authority over nature. Then came the Normans, descendants of Vikings with their idea that laws should be determined through public gatherings at meetings they called Things - a tradition still preserved in the world's oldest parliament on the Isle of Man.

The tradition surfaces also in Ukraine, from around 860 AD, when it too was ruled by the Vikings, or Varangians. The Slavs living and fighting around Kiev invited the Rus, as they were called, to "rule over us and judge us according to the Law." That the law was paramount is apparent from the reported custom of ringing a church bell to summon citizens - or perhaps just the nobility - to a gathering called the Veche at the cathedral steps, to hear and vote on proposed changes to the law, much as they still do on the Isle of Man. The Cathedral of St Sophia in Kiev was begun in the early eleventh century, over 300 years before St Basil's in Moscow. When Ivan III took control of Novgorod in 1478, he carted the Veche bell off to Moscow to signal that the old democratic way of doing things was at an end.

Apart from losing control of the lands they had long settled, our Anglo-Saxon forebears acquired not only a Viking view of the law but the use of French at court and in the churches and monasteries developing across Europe. The common people stuck to Anglo-Saxon words for their farm animals - cow, bull, pig, sheep - which became French on the plate: beef, pork, mutton. Then came Shakespeare, who converted the somewhat old-fashioned diction of Middle English into Early Modern English. So what, I hear you say. But this commingling of two disparate ways of thought helps explain what is perhaps the Anglosphere's greatest contribution to the modern world.

For over a millennium, European scholarship - theology, philosophy, science and law - was conducted in Latin. This was not without advantages; Latin provided precision and universality, allowing an Italian and a Scandinavian to discuss a new idea on equal terms. But it was a dead language, frozen, owned by the Church and the universities, fundamentally unsuited to the empirical, observational demands of an emerging scientific culture.

English solved this problem in a way no other European language could, because English alone had absorbed both great streams of Western thought simultaneously. Its Germanic, Anglo-Saxon backbone provided directness and concreteness - the language of observation, of things, of blood and bone and fire. Its Latin-Romance overlay provided the vocabulary of abstraction and classification - circulation, ossification, combustion. A writer in English could describe in Germanic and classify in Latin, often in the same sentence, without switching languages.

When the Royal Society was founded in 1660 and declared its commitment to plain English - rejecting the ornate Latinity of the academy - it was not abandoning precision. It was replacing a dead vessel with a living one that contained everything Latin offered, plus the empirical grounding of Anglo-Saxon directness and simplicity. Francis Bacon, ironically, had helped make this possible: his insistence on direct observation and plain speech in natural philosophy planted a seed that his legal philosophy would have poisoned.

The consequence was that English became the language in which modernity was largely thought - science, commerce, constitutional law, and the common law tradition exported across much of the globe in the baggage of empire. This was not merely historical accident, it was the fruit of a language capacious enough to hold two civilisations in productive tension.

The Anglosphere inheritance

For Australians, this history is not antiquarian. The common law is not a British eccentricity we inherited along with cricket and warm beer. It is the foundation of the legal and political culture that distinguishes the Anglosphere from most of the rest of the world. Its influence - despite the general absence of a written constitution - survives in many countries once part of the Empire. The system of parliamentary democracy that grew from English common law carries with it a respect for the rule of law and the rights of individuals that remains central to functioning liberal democracies, as Lord Sales argued in his Robin Cooke Lecture in New Zealand in 2024.

When an Australian court reasons from precedent, when habeas corpus protects a citizen from arbitrary detention, when a judge discovers the law rather than applies a code, Coke is present. When an Australian instinctively distrusts the bureaucrat with the clipboard and the comprehensive plan, that instinct has a philosophical lineage traceable through Scruton and Burke to the medieval common law courts.

The threat, however, is not only external. Friendship makes a point that deserves emphasis: the enemy of common law in the Anglosphere is not only Brussels-style regulation from without. It is the domestic addiction to legislation from within. More statutes do not mean better government. They mean the gradual displacement of judge-discovered, precedent-grounded, culturally-embedded law by the planner's vision of what society ought to look like. Westminster and Canberra are both capable of that displacement without any help from Europe.

The conservative task - in Britain as in Australia - is to understand what common law is, why it must be preserved where possible, and what is quietly lost every time a new statute substitutes legislative certainty for judicial wisdom.

Coke understood this. He spent a career fighting for it, was imprisoned for it, and ultimately prevailed. The least his Anglosphere heirs can do is remember why.