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Following on from previous posts about the value of legal history to modern private law - FWIW, here are a few examples where I think legal history has been important to changing the law or helping us understanding how it developed. A thread...
(1) Lord Wilberforce's reliance on C17th and C18th chancery cases to uphold the trust in McPhail v Doutlon [1970]. By keeping an opportunistic eye on the old cases, Wilberforce was able to usher in a major reform of the law of trusts.
(2) Similarly, Lord Cross' reliance on C18th 'poor relations' cases allowed him to uphold a charitable trust for poor employees in Dingle v Turner [1972].
(3) Denning's ex tempore judgment in High Trees: Denning's time as editor of White & Tudor's Leading Cases meant that he was abreast of the c19th cases from he was able to fashion the doctrine of promissory estoppel.
(4) The examples in (1)-(3) show reliance on the (sometimes) more flexible C17th, C18th and C19th equity cases to justify reform of the modern law or application of some pre-existing principle to a new context. This is the very essence of a legal historical analysis.
(5) By equal dint, just as an awareness of legal history can aid reform and help avoid error, so an absence of historical context can cause the opposite effect. Here are two examples involving statutory interpretation which come to mind:
(6) In Prest v Petrodel [2013], the UKSC forgot about the existence of s60(3) LPA 1925. That section might have been relevant owing to its previously being misunderstood in Lohia v Lohia (2000) as concerning resulting trusts. In fact, it merely abolished the old resulting use.
(7) Lord Toulson misunderstood the purpose of s 61 Trustee Act 1925 in AIB v Redler. The last time it was properly applied was in Re Pauling's ST [1964]. Little attention has been paid original purpose of this section when it was passed in 1869 in s3 of the Judicial Trustees Act
(8) Without an appreciation of history, we can become unmoored from the precedents from which modern principles are derived. Good rationales for technical rules are forgotten & legal certainty in undermined when the law is reformed without understanding what is being abandoned.
