5 - Comparing Then and Now

Summary

This chapter continues with the differences between then and now and explores the difficulties of an evaluative comparison. The question is approached in terms of the rule of law, as now understood. In terms of accessibility, efficiency and fairness, in the sphere of civil justice the scales seem to be evenly balanced between the two periods. The criminal law, on the other hand, is now more protective of the accused and less severe; the removal of the death penalty, however, has led to the removal of some of the older safeguards. A meaningful comparison of the substantive content of the law in both periods is hindered by the intervening social changes and by changing attitudes to property and personal autonomy. The transformation of family law is a case in point. Nevertheless, the ultimate conclusion is that the law under two Elizabeths is in essence the same organism, facing similar challenges, and tackling them in recognisably similar ways. Much of what we regard as achievements of modern enlightenment should in fact be credited to the lawyers of the sixteenth century and the common-law heritage.