In his famous Rede lecture of 1901, Maitland posed the question why the medieval law of England survived the period when (as he said) old creeds were crumbling everywhere and Roman law was pushing German law out of Germany. Much controversy has reigned since Maitland's time not only about his conclusions and his evidence, but also about the precise gist of his question—since it is not wholly clear what assumptions he was making about the nature of the so-called “Reception” of Roman law in Europe or about the extent to which the medieval common law really did survive in England. It is not the purpose of this paper to provide yet another interpretation of Maitland, but rather to re-examine from a different viewpoint the subject which he opened.

“The law is no stranger to the philosophy of ‘As if’. It has built up many of its doctrines by a make-believe that things are other than they are.” In writing these words, Benjamin Cardozo could easily have had in mind the English law of evidence. For a number of its rules can be seen to proceed upon postulates about human nature and about the structure of the world which are unverified and, one has reason to suspect, all too seldom accurate. This paper will examine one of the more arresting examples of this phenomenon, section 1(f) of the Criminal Evidence Act 1898, where English law adheres to a doctrine which, it is feared, derives from a blend of misconceptions and wishful thinking.

The recent decision of the House of Lords in Titchener v. British Railways Board (which will be considered below) is a reminder of the uncertainty that strangely still surrounds the defence of consent or volenti nonfit injuria to an action in negligence. It is clear that the defence at least includes the case where there is an agreement, not necessarly constituting a contract, between the plaintiff and the defendant under which the plaintiff foregoes, in advance, a claim for negligence which might otherwise accrue to him, i.e., the plaintiff agrees that conduct of the defendant which would otherwise be actionable will not be so. The principal uncertainty is whether the plaintiff's mere voluntary exposure of himself to a danger already created, or likely to be created, by the defendant's negligence can give rise to the defence of volenti, either on the basis that such conduct of the plaintiff constitutes the requisite agreement to forgo a claim, or on the basis that no such agreement is necessary. This and other problems in regard to the nature and scope of the defence will be considered in this article.

“… for it is impossible that one should be Judge and party, for the Judge is to determine between party and party, or between the Government and the party; and an Act of Parliament can do no wrong, though it may do several things that look pretty odd;”

City of London v. Wood, 12 Mod. 669, 687, per Holt C.J.

“And forasmuch as the legislature always have justice and truth before their eyes, and their false recitals (if there are any) are made upon false information, from thence it follows that they do not intend any one to be concluded by such recital grounded upon falsehood, for he that says to the contrary affirms that their interest is to oppress men wrongfully, which is indecent to be said of them, and he who insists that some shall be concluded by such falsehood, impugns the intent of the makers of the Act, and in that the Act itself, for the Act is nothing else but the intention of the makers of it.”

The Earl of Leicester v. Heydon (1570) 1 Plowden 384, 398.