Common Law and Personal Liberties
From Common Law Methodology v Law Reform by LJM Cooray (1985)

The major personal liberties enshrined in modern democratic constitutions and legal systems are, to a great extent, derived from common law principles evolved in Britain. These principles have been drawn from and influenced by many sources including European philosophers of ancient Greek and Rome, the Renaissance and post-Renaissance period.

Professor A V Dicey in his "Introduction" to the Study of the Law of the Constitution 9th ed (London, 1952) pp 200-1 described the right to individual freedom as

"part of the constitution because it is inherent in the ordinary law of the land" and "one which can hardly be destroyed without a thoroughgoing revolution in the institutions and manners of the nation."

He focussed on the importance of the judge-made common law.

We may say that the Constitution is pervaded by the rule of law on the ground that the general principles of the Constitution (as for example the right to personal liberty or the rights of public meeting) are with us the result of judicial decisions determining the rights of private persons in particular cases brought before the courts; whereas under many foreign constitutions the security (such as it is) given to the rights of individuals results, or appears to result, from the general principles of the Constitution.

The common law rights are a product of long evolved social values which are judicially articulated and interpreted.

"Its roots strike deep into the soil of national ideas and institutions" — C K Allen, Law in the Making 7th ed, (Oxford, 1964) p 71.

These rights (it used to be argued) are ingrained in the national psyche and conduct and command respect. Such universal respect is essential to these rights as they coexist with the sovereignty of Parliament.

Some of the common law liberties have from time to time been formally declared. Thus the Magna Carta of 1215 guarantees that

"no free man shall be taken or imprisoned or dispossessed or outlawed, or banished, or in any way destroyed... except by the legal judgement of his peers or by the law of the land".

The Habeas Corpus Act of 1641 provided that no man could be put on trial except before the Courts

"by due process and writ original according to the old law of the land".

This was the freedom from arbitrary arrest. The Bill of Rights of 1689 guaranteed free elections to Parliament and prohibited excessive bail, excessive fines and cruel and unusual punishments. Among the other rights recognised by the common law and enjoyed by the people were the right to be informed of reasons for arrest, the right to a fair trial and the right to be presumed innocent until proven guilty.

The common law respected private property. The right to private property supports all other political and civil rights. In particular, political rights lose much of their effectiveness where the right to private property is denied. At the political level, the exercise of freedoms such as those relating to expression, association and religion is difficult, if not impossible, without independent sources of income or wealth. In societies which deny the right to hold, enjoy and productively use private property, citizens are dependent for their for their employment and livelihood on the government. They have, therefore, no capacity to oppose the government or to exercise their fundamental political rights.

A free news media cannot operate without freedom to own and operate machinery and property. Religious freedom is often meaningless without the right to own property (Church buildings). Private education is impossible without lands or buildings. Elections are meaningless where individuals are largely or totally dependent on government.

The alternative to private property is government property. Government owns and controls individuals to the extent it owns and controls property. Feudal and communist systems illustrate the truth of this simple and basic proposition which is so easily overlooked.

Colonial migrants who enjoyed and cherished these rights established them in other parts of the world in which they settled. In the United States, these rights formed in part the foundation of a Bill of Rights incorporated in the Constitution. The Americans, however, made a radical departure from tradition by making Congressional power subservient to these rights. In Australia there was no attempt to entrench these rights in the Constitution and they continue to operate as part of the inherited common law tradition subject to statutory restrictions.

As mentioned before, these rights are grounded in the way of life of the community and are given recognition by the courts. In the absence of formal constitutional protection only a strong national commitment to these rights can save them from legislative invasion.

Unfortunately, in recent times, the crucial importance of these rights has tended to be forgotten in the course of searching for ad hoc solutions to social problems. This tendency has been the result of the pursuit of particular goals by special interest groups in disregard of long term damage to the foundations of liberty. Even persons who recognise the importance of these rights in their general application sometimes urge departures in relation to matters of particular concern to them.

Thus moral crusaders advocate the denial of rights to particular types of offenders. Social reformers in seeking to eliminate forms of discrimination down play the common law rights to free expression and free association. Modern regulationists even agitate for restrictions affecting the rights of property, privacy and livelihood. The end result is that agitation for short term solutions weakens the carefully evolved framework of rights which alone can ensure the long term survival of human liberty.