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Oedipus Lex: Slips in interpretation and law

Published online by Cambridge University Press:  02 January 2018

Peter Goodrich
Peter Goodrich*
Affiliation:
Birkbeck College, University of London
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Extract

This essay addresses a perennial theme within the doctrine of common law. It is that of the Englishness of English law or alternatively, as Nietzsche once remarked, the lawfulness of being English. It is, ofcourse, a well-known and ironic historical fact that English law is a rather confused form oflocal French Law. The most obvious feature ofcommon law has been that for most of its history, it was recorded in Latin and argued and reported in a species of French. When William Camden sought to identify the most distinctive characteristic of the inhabitants of the Island Britannia, the only thing he could find about the origin of the word Britain was the ancient Gallic practice of painting the body with woad: ‘Brith… signifies anything that is painted and coloured over.’

Type
Research Article
Information
Legal Studies , Volume 13 , Issue 3 , November 1993 , pp. 381 - 395
Copyright
Copyright © Society of Legal Scholars 1993

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References

Footnotes

1 William Camden, Britannia sive florentissimorum regnorum, Angliae, Scotiae, Hiberniae chorographica descriptio, (1586/1695 edn) London: F Collins at xxix.

2 Sir John Fortescue Dc Laudibus Legurm Angliae (1470/1737 edn) London: Gosling at 64.

3 Francois Hotman Antitribonian ou discours d'un grand et renomme iurisconsulte de nostre temps sur l'estude des loix (1567/1603 edn) Paris: Perrier at 111.

4 Ibid at 109.

5 Ibid at 134.

6 Dr John Cowell The Interpreter or Booke Containing the Signification of Words (1607) Cambridge: np at 3a.

7 Sir John Doderidge The English Lawyer (1629/1631 edn) London: I. More at 29.

8 Sir Edward Coke A Book of Entries (1610/1691 edn) London: J Streater at A 5 a.

9 William Fulbecke Direction or Preparative to the Study of the Law (1599/829 edn) London: Clarke at 51—52. The long subtitle to the book reads: ‘wherein is shewed what things ought to be observed and used of them that are addicted to the study of the law’.

10 Abraham Fraunce The Lawiers Logike, exemplifying the praecepts of logik by the practise of the common lawe (1588) London: More at 3 a.

11 On the early rules and legislation of the Inns of Court, see William Dugdale Origines Juridiciales or Historical Memorials of the English Laws, Courts of Justice, f o m of Tryals (1666) Savoy: T Newcomb, especially 188—192. See further P Goodrich ‘Eating Law’ (1992) 12 Journal of Legal History 246.

12 The Revenger's Tragedy (1607) London: Eld at lines 49—53: Lussorioso: ‘Why, will that make a man melancholy?’Vindice: ‘Yes, to look long upon ink and black buckram - I went to law in Anno Quadragesimo secundo, and I waded out of it in Anno setagesimo tertio.’ For another dramatic satire of law and lawyers, see George Ruggles Ignoramus or the English Lawyer (1621/1736 edn) London.

13 Sir Roger North A Discourse on the Study of the Laws (1650/1824 edn) London: T Whiteat 7. He remarks a page later that ‘there are other studies more pleasant than law’.

14 William Fulbecke A Parallele or Conference of the Civil Law, the Canon Law and the Common Law of this Realm of England (1602/1618 edn) London: Society of Stationers at B 2 a-b.

15 For representative critiques of common lawyers, see Thomas Wilson The State of England, Anno Domini 1600 (1610 edn) London: Camden Miscellany; John Day Law Tricks (1608/1950 edn) Oxford: Malone Society Reprints; John Warr The Corruption and Deficiency of the Laws of England (1649) London: R Dutton. Excellent secondary discussions are provided by JH Baker (ed) The Reports of sir John Spelman 1978) London: Selden Society; CW Brooks Pettyfoggers and Vipers of the Commonwealth (1986) Cambridge: Cambridge University Press.

16 Richard Head Proteus Redivivus or the Art of Wheedling or Insinuation (1675) London: WD at 272.

17 Sir Henry Spelman Of the Original of the Four Law Terms Of the Year (1614/1684 edn) London: Gillyflower at 99; see also Fraunce Lawiers Logike, supra, n 10, preface.

18 Judith Drake An Essay in Defence of the Female Sex (1696) London: Roper at 140–41.

19 For a classical statement of this view, see Sir John Davies ‘A Discourse of Law and Lawyers’ in Le Primer Reports des Cases and Matters en Ley Resolves B Adjudges in les Courts del Roy en Ireland (1615) Dublin: Frankton.

20 J Fortescue-Aland ‘Preface’ in Sir John Fortescue The Difference between an Absolute and a Limited Monarchy, as it more particularly regards the English Constitution (1471/1714 edn) London: Private Distribution at iv.

21 Sir Roger Coke Justice Vindicated (1660) London: T Newcomb at 21, 98.

22 The most influential discussion of this theme is in Richard Hooker Of the Lawes of Ecclesiastical Politic (1593–7/1676 edn) London: R Scott. Specifically on manners, see Calybute Downing A Discourse of the State Ecclesiasticall of this Kingdome, In Relation to the Civill (1586/1633 edn) Oxford: Turner.

23 For a general history of contempt, see Sir John Fox The History of Contempt of Court (1927) Oxford: Clarendon Press. For an interesting contemporary discussion of related issues, see A Olowofoyeku ‘The Crumbling Citadel: absolute judicial immunity derationalised’ (1990) 10 LS 271.

24 (1318) Coram Rege Roll no 233, in Sayles (ed.) (1955) 74 Selden Society 79.

25 Bruce v Rawlins (1770) 95 Eng Rep 934.

26 Sir Thomas Smith Dc Republica Anglorum (1583/1906 edn) Cambridge: Cambridge University press.

27 Max Gluckman The Ideas of Barotse Jurisprudence (1965) London: Routledge and Kegan Paul.

28 Attia v British Gas plc [1987 All ER 455.

29 Ibid at 456.

30 Ibid at 456 g-j.

31 Mc Loughlin u O'Brian [1982] 2 All ER 298.

32 Ibid at 304 f-g.

33 Ibid at 3–4 f-h, cited and approved in Alcock and others u Chief Constable of South Yorkshire [1991] 4 All ER 907.

34 Mc Loughlin v O'Brian, op cit, at 302 f-g.

35 Ibid, respectively at 302—303, and 31 1 e. Compare the broader rule in Jaenrch u Coffey [1984] 54 ALR 417, at 457 (per Deane J).

36 Owens v Liverpool Corporation [1938] 4 All ER 727.

37 Ibid at 730 f-g.

38 John Smith The Mysterie of Rhetorique Unvail'd (1657) London: E Cotes at B 4 a.

39 Attia v British Gar at 464 c-d.

40 Ibid. at 464 e-f.

41 Watts and another u Morrow [1991] 4 All ER 937.

42 Ibid. at 940 j.

43 Ibid. at 955.

44 Semayne's Case (1605) 5 Co Rep 91.

45 Thomas Wood Institutes of the Laws of England (1720 edn) Savoy: Sare at 735–736.

46 Ibid at 652.

47 Entick v Carrington and three others (1756), in State Trials (1813) London: Hansard, vol xix at 1030.

48 Ibid at 1066.

49 See J Selden Titles of Honour (1614) London: W Stansby, at 4 a: ‘For one not like his parents is, in some sort, a monster, that is, not like him that got him, nor any other of the ascending or transverse line.’

50 Sigmund Freud ‘Mourning and Melancholia’ in Collected Papers vol iv (1925/1948 edn) London: Hogarth Press at 153.

51 That it is often women who have suffered psychiatric harm is a point that was noted by Mackinnon LJ in Owens v Liverpool Corporation, op cit at 930. The home is legally the gynaeceum and is identified primarily with the mother.

52 Fortescue J, 1458, YB 36 Hen VI 25 b-26.

53 Court Dress: A Consultation Paper issued on Behalf of the Lord Chancellor and the Lord Chief Justice (1993).

54 See Dugdale Origine Juridiciales, op cit at 118 a-122 b. See also JH Baker The Order of Serjeants at Law (1984) London: Selden Society.

55 The source is Sir Christopher Wray Lord Chief Justice, cited by Dugdale, op cit at fol 120 a.