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The tension that still exists in the Common Law & is being played out between @JolyonMaugham & @joannaccherry & @BorisJohnson at this moment : “Coke CJ claimed the jurisdiction to correct ‘errors & misdemeanours extrajudicial... or any other manner of misgovernment’ ... 1/
... Lord Ellesmere C objected ‘...he doth as much insinuate this court is all sufficient ... to manage the state ... as if the King’s Bench had a superintendency over the Government itself.’” Baker ‘An Introduction to English Legal History’. While most of the arguments 2/
here & elsewhere have tended to focus on what the law is, based on past decisions, it needs to be remembered that precedent has been established not only by what the law is but what it ought to be 3/
“the capacity of the common law to adapt to changing social and economic conditions” of which Lord Bridge spoke in British Leyland v Armstrong Patents has, e.g. allowed that 4/
“the law should develop novel categories of negligence” albeit “incrementally and by analogy with established categories, rather than by a massive extension” Caparo Industries v Dickman. The relief being sought may be new but what Boris Johnson is seeking to do is also new. 5/
The capacity of the Common Law to change, allowed the courts, through the prerogative remedies, to take the power of the Crown & use it, first to give relief from lesser injustices, &, therefrom, to develop remedies against the injustices of the Crown itself. 6/
Absolute Monarchy has been transformed into Constitutional Monarchy by the development of the rule of law; it would be sad were the end result of these cases to be that the law should choose to say “Hold enough” and leave us with an Absolute Primeministocracy instead. 7/
I end on this thought, it is Coke who is revered not Ellesmere. 8/8
