As soon as newspapers, catering to England’s new urbane peoples, began describing common executions, the crowds attending them were seen as indifferent to their moral message. By the middle of the eighteenth century, execution rituals seemed equally problematic. Critics perceived hangings to be so frequent, so large-scale and so brutalizing to an even minimally refined sensibility as to defeat their deterrent purpose. In 1783, London officials sought to redress these problems by devising a new execution ritual, staged immediately outside the prison and courthouse. Within four decades, this quintessentially urban execution ritual had been adopted in almost all other English counties, even as cities on the continent pointedly moved executions outside urban centres. Yet still executions seemed ineffective. Following a particularly intense crisis in the 1780s, England’s traditional ruling elites sought to preserve the “Bloody Code” by reducing the scale of hangings to historically low levels.

‘Law’ and ‘constitution’, like other concepts we use to make sense of the world, have a history.1 In the case of law, part of that history is the ongoing interplay between two different ideas. One is that law concerns what people should, should not and may do. In other words, law is ‘normative’. Another is that law is a product of human activity. Human beings and institutions can and do make and enforce legal norms.

The history of the relationship between the executive and the administration has been largely invisible to lawyers and constitutional law. The provision of the Magna Carta 1215 in which King John promises to ‘[ ] appoint as justices, constables, sheriffs, or other officials, only men that know the law of the realm and are minded to keep it well’ is not well known.

The year 2015 witnessed celebrations around the world of an event that took place 800 years earlier in a meadow west of the city of London near what is now Heathrow Airport. Then, the main participants were King John on the one side, and leading barons and prelates on the other. They had gathered to sign up formally to a document (which came to be known as Magna Carta) with the aim of forestalling violent rebellion against the monarchy. Eight centuries later, four provisions of the 1297 re-issue of Magna Carta still decorate the United Kingdom’s statute book even though the document was not a ‘statute’ (or, for that matter, a ‘law’) in the modern sense and the surviving provisions are of no practical significance.

In this chapter, the influence of Hellenistic philosophy on Roman law is discussed in terms of method: with the help of the Stoic dialectical methods of classifying and defining the Roman jurists could start to systematise the organically grown output of their civil law and turn the resolution of disputes into a scientific enterprise, producing systematic overviews along the way. In the 6th century CE, the Roman Emperor Justinian took the influential decision that an updated version of one of these accounts itself be given the status of law.

Throughout the Commentaries, Blackstone repeatedly availed himself of comparative legal history. Comparison allowed him to detect the invariable principles of legal experience and organise his systematic exposition of English law around them. This method proved crucial in Blackstone’s treatment of custom, as it allowed him to present the chief source of English common law by addressing the main questions concerning the nature of custom that had been raised earlier by Western jurisprudence. The paper will explore the depth of Blackstone’s engagement with such traditions. In doing so, it will investigate whether custom was understood differently on the two sides of the Channel.

This chapter chronologically traces past legal engagement with the human embryo, from the 13th century, to the end of the 20th century. It does so with a view to demonstrating that a historical perspective is required to understand that process is a key facet of law-making in this area. Notable from this legal history is the law’s persistent efforts to engage with the embryo’s uncertain, processual nature. We cannot fully understand our present legal position without understanding the social, moral, and legal context from which it was born. By looking at the past ‘legal embryo,’ we can see how the law has reached today’s ‘legal embryo’.

To complement the static analysis of duty in Part I, Part II looks at the law’s leading query,“what is (the) law?” by focusing on its dynamic elements. Instead of simply mapping the law through categories, Holmes sought to develop a positioning system that took into account law’s flux. Part II expounds the central theses of The Common Law and brings to the fore the leading conceptions Holmes used to develop his notion of external standards – apperception and triangulation. It looks at how Holmes traced the development of liability from its primitive origins in revenge. Holmes sought to visualize the law’s movement through such artistic techniques as linear perspective and the creation of vanishing points. Holmes’s efforts to introduce dimensionality into law led him to emphasize the notion of the“purely legal point of view.”

This chapter surveys the legal history of the term "due process of law," from Magna Carta, the Statutes of Edward III, and the Petition of Right to the writings of William Blackstone and the opinions of antebellum state-level court cases. It argues that there was no concept of "substantive due process" in the antebellum period. It refutes arguments that due process prohibited class legislation, limited states to reasonable exercises of the police powers, or underwent a change in meaning as a result of abolitionist constitutional thinkers.

This chapter surveys the legal history of the term the "protection of the laws," from the writings of the early natural rights thinkers, the American Founders, and Blackstone to Andrew Jackson and antebellum state-level court cases. It argues that the concept of the "protection of the laws," including the "equal protection of the laws," was narrower thanmodern-day courts maintain: it was about the remedial and protective services supplied by the government and the laws aiming to protect individuals in the exercise of their rights against private interference and private violence.

This chapter explores the historical roots and purposes of the Free Speech and Freedom of the Press Clauses of the First Amendment. It shows that the most of the early conflicts in this area concerned press freedoms. Disagreements over these issues came to a head over the Sedition Act of 1798, which was used by the Federalist Party to jail its Republican opponents. Ultimately, out of this conflict the Republicans articulated a new model of citizenship, rooted in principles of popular sovereignty, which remains central to our system of government today. Freedom of speech, on the other hand, played a very limited role in early history. Regardless of its humble origins, however, the Framing generation agreed that Free Speech, like Freedom of the Press, was an essential element of democratic government. Unfortunately, these rights have often been ignored by our government and the judiciary during times of stress such as the Red Scare and the McCarthy era. Today, however, thanks to the influence of pioneering arguments by Justices Oliver Wendell Holmes, Jr. and Louis Brandeis, there is broad agreement that these rights are essential to democracy and so must be protected.

The ‘ziggy shape’ comes from Stephen Dunn’s poem ‘History’, which is explored throughout the chapter. It engages with Penelope Corfield’s Time and the Shape of History. It sets out the troubles that historians have had in writing about law experience in the past. Using Laurence Sterne’s account of writing history in Tristram Shandy, Chapter 2 explores the narrative shape of history and of the law. The chapter also explores Sterne’s own experience of the law in eighteenth-century Yorkshire.