I’m currently working on the third edition of a legal encyclopaedia. My co-authors and I are discussing how to reference COVID-19. The legal, political and social changes have been so profound and far-reaching that it could easily be mentioned on every page. The current plan is to include a detailed discussion at the start, recalling how different things have been and continue to be because of the virus.
The changes to our lives have been and will continue to be extraordinary. The way in which law has been used and the effect of that law has been so different from the ordinary – both in terms of how it has been made and what it has said, the values it has embodied, the freedoms that it has taken away.
It has been bold and it has quickly shown that another way of doing things – a new legal normal – can come into being. It has shown that received wisdoms, ingrained ways of doing things, previously unquestioned values can be put aside. This has applied both to the lockdown measures themselves as well as to the measures lifting lockdown.
What impact could this have upon law reform going forward?
In English Law in the Age of Black Death Robert C Palmer attributed the wide-ranging and profound legal reforms of the fourteenth century – mostly in the common law courts – to the Black Death and its aftermath.
What is noticeable then and can be grasped now is the boldness and scale of the change.
Usually law reform is pretty timid and conservative. It’s about moving pieces on the chess board, building slowly on what has come before. There can be radical change but this is exceptional and even then it rarely questions the foundations of law.
But the response to COVID-19 shows that this does not need to be the case. It shows that other dramatically different ways of doing things is possible. It shows that the law can move faster and can be different.
This could inspire a bolder approach to law reform going forward. Both in terms of what can be done and how it can be implemented. Law reformers can seek a ‘new normal’.
(Of course, I’m not saying that imposing authoritarian restrictions on our freedom is a good thing. What I am saying is that ‘thinking the unthinkable’ can be a good thing. And that the COVID-19 crisis has shown that change on a larger scale is possible)
It may be questioned whether a public health crisis is needed in order for law to be able to offset its inherent conservatism.
There are other ways of gaining the same insight. Comparative law showing how things are achieved differently over space is one such way. It is often under appreciated that Legal History can also serve as a form of comparative law: showing how things have been done differently over time.
However, these approaches are not currently at the centre of legal education.
My new book, Subversive Legal History: A Manifesto for the Future of Legal Education, due to be published next year by Routledge, argues that Legal History needs to be at the beating heart of the law curriculum for this very reason.
Legal History can and should be subversive, questioning every line in the law, every ingrained distinction, every piece of received wisdom and every sacred cow. Legal History shows that the current law is an authored construct rather than a universal, autonomous inevitability.
A subversive approach to Legal History shows that legal reform is possible on a wider scale. The law wasn’t always the way it is now and so doesn’t always have to be that way.
As Frederic Maitland put it, Legal History provides ‘the lesson that each generation has an enormous power of shaping its own laws’. Teaching Legal History ‘would free them from superstitions and teach them that they have free hands’.
COVID-19 has thrown the rule book out of the window and could lead to a legal radicalism not seen for sometime. This can be uncomfortable and might make us cling for what we know, the old normal, but this would be misguided.
There’s a chance now more than ever to be bolder than that, more ambitious than that, more inclusive than that. And Subversive Legal History needs to be an important part of our toolkit.