The Concept of the Prevailing law
The law is what people can get away with without being prosecuted in a court of law for their actions as a criminal or a civil misdeed. Statuatory Laws are instituted to control people’s demands and wishes in the regulation of society. If citizens can get away with increasing demands and acquisitions in their quite natural quest to determine and assert their rights without facing punishment from a court of law through the actions of the police or any civil legal proceedings, that is the acceptable process in society for the establishment of precise rights relating to a particular issue of societal concern. It is only when individual cases are brought to the court under specific laws for prosecution before a Judge that the results of those deliberations on a citizen’s actions deliver the precise law in practice as a precedent upon which other citizens can then make their next decisions in society on the very same issues. This is because the statuatory law establishes the principle whereas individual cases have specific circumstances for which the law needs to be tested periodically.
The statutory law may not have been changed to reflect the underlying change in the mood and norms of a society concerning decency and morality. This is for the Law Commission of a nation to update periodically. A fundamental principle of justice is that one cannot apply today’s standards of citizen’s conduct retrospectively to yesterday’s world in judging whether a crime had taken place in the past: those actions have to be assessed under yesterday’s laws as they were applied. To establish the precise application of the law in order to establish the prevailing law of the day as the precedent it is not only necessary to examine how the statuatory laws changed between the eras in question but also to look at the individual cases that were brought before the courts at the various intervening periods. If no precedent exists in grey areas of statutory law because individual actions have not been tested in a court of law there is no sound basis for judgement of retrospective criminality and any such allegations and charges should be dismissed.
The application of the concept of ‘prevailing law’ is particularly problematical in the current police investigations in the United Kingdom of sexual ‘crimes’ of a bygone era. Unless rape and underage sexual misdemeanours of specific circumstances were challenged and tested in a court of law in a specific previous period under particular criminal statutory laws, there are no firm guidelines upon which to determine what behaviour people could have legally and hence rightfully got away with when trying to assert their rights under the prevailing statutory law. In the absence of legal precedents the correct judgement would be to assume that the actions of the persons charged with particular offences decades later must have fallen within the prevailing law of the era in which the citizen’s conduct took place. This is because we must assume that the prevailing law of a day that prosecutors and judges are responsible for interpretating and implementing took into account the public mood and the norms of the society under which a statutory law was being enforced.