It seems surprising, given the modern prominence of judicial review of governmental acts, that no panoptic history of the public law of England and Wales exists. By public law I mean the body of law, embracing both administrative and constitutional law, by which the state is regulated both institutionally and in its dealings with individuals. This book does not fill that large space: it is, rather, a series of test drillings into a landmass. The vertical drillings are thematic attempts to trace their topic from early days to the present. The horizontal ones (which are not sequential) take a stratum of time and examine developments in public law within it.

The public law of Scotland does not form part of the history which this book examines. Neither the union of the two crowns in 1603 nor the union of the two states in 1707 brought the English and Scottish systems together. Rather than risk trivialising or misrepresenting Scottish public law, these essays treat it with a respectful silence.

History and law

The distinction between the writing of legal history and the making of it was astutely described by Geoffrey Wilson:

That seems a harsh thing to say about a profession which sets great store by the accurate citation of precedent, but I think it is true. From Magna Carta to Anisminic by way of Entick v. Carrington, the common law and the constitutional culture of which it forms part have adopted not the letter of the law but the meanings which it has become appropriate to find in it. The zeitgeist is at least as potent as the scholar.