Book contents
- Frontmatter
- Epigraph
- Dedication
- Contents
- Preface
- Introduction
- Part I Histories
- Part II Themes
- 6 The royal prerogative
- 7 The sovereignty of Parliament and the abuse of power
- 8 The right to be heard
- 9 The separation of powers
- 10 Public law and human rights
- 11 The state and the law
- 12 Standing and “sitting”
- 13 Law without courts: the tribunal system
- 14 The rule of law
- Index
11 - The state and the law
from Part II - Themes
Published online by Cambridge University Press: 05 November 2015
- Frontmatter
- Epigraph
- Dedication
- Contents
- Preface
- Introduction
- Part I Histories
- Part II Themes
- 6 The royal prerogative
- 7 The sovereignty of Parliament and the abuse of power
- 8 The right to be heard
- 9 The separation of powers
- 10 Public law and human rights
- 11 The state and the law
- 12 Standing and “sitting”
- 13 Law without courts: the tribunal system
- 14 The rule of law
- Index
Summary
The state – Hobbes’ Leviathan – despite its political and social solidity, is unknown to the common law. Like much else in our constitution, nobody planned it this way: one might say, as Mr Podsnap said to the foreign gentleman, that it was Bestowed Upon Us By Providence. This chapter considers how the law has come to terms with the state in the course of the centuries.
The state as a legal actor
The British state has no legal personality. Although criminal proceedings and judicial review claims are brought in the Queen's name, civil claims cannot name either the Queen or the state as the defendant. This means that the state cannot be directly sued for civil wrongs done by it or in its name. But since 1947 the Crown has been vicariously liable for torts committed by its officials (who have always been personally liable), and it is ordinarily bound by contracts entered into on its behalf. So long as some name is available in which to sue it – the Secretary of State for this or that, a nominated department, a corporate public authority, or as a last resort Her Majesty's Attorney-General – does it matter that neither the monarch nor the Crown nor the state which they represent can be impleaded by name?
Arguably it does, if only because it illustrates the surprising fact that in the twenty-first century the common law still possesses no solid or unitary concept of the state. Yet, as Janet McLean says:
There is a state tradition in British legal thought. It is contested, adjustable and complex. These features have given it the flexibility to adjust to changes in state institutions and functions.
The rule of law, in other words, depends in part upon the capacity of the common law to adapt itself to its historical and political environment.
- Type
- Chapter
- Information
- Lions under the ThroneEssays on the History of English Public Law, pp. 209 - 228Publisher: Cambridge University PressPrint publication year: 2015