Text 1 Why legal history is important

­Some aspects of law cannot be understood except through its history. For instance, in the British constitution the House of Lords is part of the legislature. It is also the highest court of appeal. Why should this be?

No one devising a constitution today would choose to confer these powers on the House of Lords. In a democracy, legislators should represent the population as a whole. It should not, like the House of Lords, consist of aristocrats and people appointed for life by the government. Judges should not be part of the legislature. If they are, they are not truly independent.

The House of Lords has this strange combination of powers because the modern House of Lords is the heir of the mediaeval magnates. In the fourteenth century these magnates or peers obtained the right to be summoned to Parliament and to correct errors made by the ordinary courts of law. Their successors have kept these powers in a changed form, though they no longer reflect the balance of forces in Britain.

To explain the powers of the House of Lords historically is not to justify its place in the British constitution today. But the explanation helps to show how law evolves, or fails to evolve. A law for which there was originally a good reason can survive though that reason has vanished. Of course if laws are totally unsuited to new conditions they go under. In western countries the laws that treated women as inferior to men in voting, holding public office, making family decisions, owning property and earning money have over the last century almost vanished. The law has both reflected and helped to further this emancipation.

The House of Lords illustrates the other side of the coin. It does some useful work by amending badly thought-out bills, and has not thwarted the elected legislators in the House of Commons enough to make its abolition a priority. So up to now the House of Lords has survived. Its survival is an example of how laws (in this case a significant part of the constitution) can survive though they no longer serve their original purpose. The survival of laws has something in common with the survival of genes.

Unlike genes, laws are determined by our culture. We can change them. So why do ill-adapted laws often survive? One reason, apart from inertia, is that law aims to provide security, psychological as well as physical. One element in security is being able to know, and feel comfortable with, the formal rules that govern our society and our lives.

So continuity is important, and tells in favour of leaving laws as they are unless they prove utterly unworkable. It also explains why in all systems of law the previous decisions of courts are regularly followed when similar cases come up in the future. If it has once been decided that an elephant is a dangerous animal that decision is likely to be followed, though not all elephants are actually dangerous.

Precedents, as they are called, are important even when they are not formally binding. Not only ordinary people but judges, ministers and civil servants feel more at ease and less open to criticism if they follow past practice, unless there is a strong case for changing it. Justice also requires like cases to be treated alike. So it is not only the laws, but their interpretation, that tends to remain the same.

For historical reasons the laws of different countries can differ sharply. In particular there are differences between the civil law systems of continental Europe, South America and most of Asia and the common law systems of the English-speaking world.

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