Anglosphere

Myths of Sovereignty and British Isolation, 20. Concluding Remarks

Barry Stocker Current Events, History, Politics , , , , , ,

This series (1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16i, 16.ii, 17, 18, 19) has explored a number of ways in which those who support a very sovereign United Kingdom completely separate from the European Union, and even other European institutions like the European Court for Human Rights, which is attached to the Council of Europe rather than the European Union, are attached to unsupportable ideas about the separateness and superiority of England, Britain or the UK.

What Britain’s past was does not prove anything about where it should be now with regard to European institutions, but it is at least possible to say that claims according to which Britain has always stood apart from Europe are false, and so is any connected claim that Britain is somehow fated by history, geography and national character to stand aside from arrangements made by European nations to share sovereignty.

Britain was connected to the rest of Europe through Celtic culture and language, then through the Roman Empire, then through the Saxon conquest, then partial Viking conquest, then Norman-French conquest, then ties with the Netherlands, then a union in the person of the joint monarch with the Netherlands, then a union in the person of a series of kings with Hanover in Germany, then through constant British intervention in European affairs, land holdings which go back to the Channel Islands (originally French), the remains of which still exist in Gibraltar and sovereign military bases in Cyprus, then through postwar European institutions like the Council of Europe (which loosely groups all democracies, broadly defined) and then the European Union.

The peoples of the United Kingdom of Great Britain are rather less firmly committed to maintaining the existing state than the peoples of France and Germany are, the two European nations usually taken by British Eurosceptics as the negative opposite of Britain in all its glory. There is a distinct possibility that Scotland will leave, with strong separatist tendencies in Northern Ireland and to a lesser but real extent in Wales. So Britain is not uniquely well formed and self-confident as a nation.

As with all other nations, Britain was built through war, state appropriation and the enforcement of a national state system. It is not a country of unique liberty, neither does the Anglosphere of UK, USA, Canada, Australia and New Zealand exist as a uniquely coherent transnational grouping based on medieval and early modern English institutions. The Anglosphere countries are diverse, with different historical experiences, with Britain as the odd one out in the sense that all the other Anglosphere countries are still dealing with the status of indigenous peoples who lived there before the relatively recent history of the Anglosphere states.

Other European states have links with ex-colonies, where the language of the colonial power is still widely spoken. More French people live in Britain than those from the Anglosphere (300 000 versus 191 000). Links with the Anglosphere are certainly quite real and exist quite happily alongside EU membership, so the whole idea of making the Anglosphere something that excludes a European path is misleading in any case.

The historical interpretations referred to in this and previous posts are not contentious. No educated and fastidious sovereigntist-Eurosceptic is going to deny them, the trouble is that a lot of less fastidious sovereigntist-Eurosceptic assumptions about history are not in happy accord with these historical realities, and even the more fastidious are trying to emphasise an unrealistic counter-narrative of British distinctness that goes beyond the normal level of distinctness between major nations. Britain has certainly made its contribution to the history of liberty, civil and commercial society, but is not obviously more blessed in these respects than the other most advanced European nations.

The case against the United Kingdom’s participation in the European Union can only be the case against the existence of a transnational political union for any large grouping of European nations. There are problems with the EU and I can agree with many sovereigntist-Eurosceptics on many of these problems, but if we reject the more myth making kinds of nationalism these are problems I suggest that can be addressed with better, more decentralised and flexible institutional arrangements. India, which has a greater population than the EU, and at least as much diversity of language and other aspects of human life survives.

It is of course difficult to know what Europe would look like without the EU and what good things in Europe are due to the EU, but I suggest that it is not a complete coincidence that the period of the EU has been a time of growing democracy and peace, with many countries taking EU membership as part of the path from dictatorship to democracy. The Euro crisis and the more recent Mediterranean refugee crisis are bringing strain to the EU, but that is what happens to political communities, they encounter problems and survive them if they have robust institutions. The economic problems of southern Europe precede the EU and tensions round migration exist in other parts of the world. Britain has anyway remained aside from the Euro, as have Sweden and Denmark, suggesting that the EU can accommodate flexibility and allow member states with doubts about the most ambitious schemes to stand aside from them. This is certainly the path to go down if the EU is to be a robust political community.

The basic point in this series has been that nothing makes British history separate from European history, so that questions about membership of a European political community which pools sovereignty are not answered by looking to a supposed distinct and superior history. Britain is part of Europe and always has been and has frequently shared sovereignty in some way with some mainland European state. Past history does not exclude Britain from Europe and trans-national European institutions, which may or may not be appropriate for Britain and other countries, for reasons in the here and now. As far as history determines Britain’s place, the appropriate place is Europe.

Myths of Sovereignty and British Isolation XIX, Charters and Constitutions

Barry Stocker History, Law, Liberty , , , , , , ,

The last post discussed the historical role of law. This post finally delivers the promise to discuss constitutions and charters. The sovereigntist Eurosceptic position in Britain standardly includes an elevation of Magna Carta into the greatest document ever in human liberty or, in more moderate versions of this position, certainly the greatest since it was issued in 1215 and the fount of all worthwhile liberties ever since: blessing Britain and countries which might be considered off shoots, like the USA, Canada, Australia and New Zealand (the ‘Anglosphere’), with a unique appreciation of liberty and parliamentary democracy.

While Magna Carta is of course a remarkable document and the moment it was issued was a remarkable historical moment, these claims are a distortion. It was a Latin document issued under duress during civil war conditions, the duress applied to the king by barons, at a time when the the English aristocracy and monarchy was distinguished from the great body of English by use of the French language and holdings in France.

Magna Carta has nothing to do with parliamentary democracy, it refers to a council of 25 which barons might form if they found the king to be misbehaving, and does not refer to a standing representative body but rather something more like a right of insurrection against a ‘tyrannical’ monarch. This has no more to do with parliamentary democracy than a variety of councils and assemblies existing across Europe at this time, and rather less than some.

Though Magna Carta is dressed up in the language of reasserting traditional rights, this does not make it the expression of a distinctly English or British love of rights based in tradition rather than innovation as the sovereigntists standardly claim. All demands for rights across Europe were expressed in that way at that time, and for centuries before and centuries after. The French Revolution itself started as a demand for ‘restoration’ of rights. The language of restoration is of course frequently a cover for innovation, an attempt to justify innovation by denying what it is.

Magna Carta was the innovatory product of political struggle, not the writing down of the unchanging liberties of old England. The same goes for the struggles for parliamentary power in the seventeenth century which frequently took on the deceptive form of ‘restoration’ of a Magna Carta which was already supposedly a restoration. It is even more fantastical to see the US Constitution as the outcome of Magna Carta, which does not stop many Anglosphere sovereigntist Eurosceptics doing so.

The history, or histories of liberty, is the accumulation of many interacting events, charters and theories in many countries. The growth of British parliamentary power took place in that context as did the US constitution and the Declarations of the Rights of Man and Citizen, which took place during the French Revolution. Like the French Declarations, Magna Carta exists in different versions so there is no pure origin text of liberty in either place. Rival French and Anglosphere attempts to proclaim the priority of either are particularly absurd. These are documents separated by hundreds of years and many other factors.

We cannot imagine modern liberty without either source, though both sources are flawed and open to challenge. The last thing thought and politics based on liberty needs is some sacred unchallengeable text as foundation, inevitably distorting understanding of the varied contexts and sources of liberty, and inevitably distorting our understanding of how ‘sacred’ documents had a source in power politics and political economy. There is no immaculate liberty born outside of struggles over power and appropriation of wealth.

The writing down of liberties in a legal document itself, particularly one that has a special, difficult-to-overturn foundational status, places some constraint on liberty, on how some people now and even more in the future might have some different ideas about liberty and see the earlier document as constraining.

It is certainly the case that a strongly entrenched document like the US Constitution deprives later generations of the liberty to re-imagine liberty and it is certainly the case that such a Constitution conflicts with the common law tradition exalted by British sovereigntist-Eurosceptics, according to which law progresses through the way judges build gradually on earlier cases to interpret statutes and formulate principles of justice.

Clearly a strongly entrenched Constitution with a Bill of Rights added does not come from common law, though it may try to capture some of the principles supposed to be widespread in common law, and must heavily constrain common law judges. The idea of a Constitution standing above politics, constraining it according to pure justice, has at least in the United States made the membership of the Supreme Court and its decisions a matter of constant political contention.

No attempt at a system of liberty can avoid tensions between different sources and understanding of liberty. Unfortunately the Eurosceptic-sovereigntist position largely tends to overlook this, or like someone looking at the Sun, cannot have it directly in its gaze without serious damage. The elevation of common law tradition, Magna Carta, and parliamentary democracy is the elevation of different things which in some sense must always be part of liberty, thinking of the general principles of judicial independence, institutional harmony, and representative government. However, as they conflict there can be no perfect version and no reason to think English, British or Anglosphere solutions can be regarded as above all others and with nothing to learn from the law-governed democracies of mainland Europe.

Next week, the end, a final summary.

Myths of Sovereignty and British Isolation XVII: Common and Civil Law

Barry Stocker History, Law , , , , , , , , , , , , , , ,

The last post referred to the need to investigate ideas about law and related ideas in discussing Britain’s relation both with the Anglosphere (USA, Canada, Australia, New Zealand) and with the rest of Europe. The big issue here is Anglosphere common law tradition versus Roman or civil law tradition in the European mainland and indeed most of the world outside the Anglosphere. Common law in this context refers to judge-made law based on precedent versus civil law referring to statute laws based on the will of the sovereign. Statute laws are laws instituted by the state, in writing, in public explicit acts of law making.

Judge-made laws based on precedent refers to the ways in which judges, using a general sense of justice, make judgements according to that sense of justice with the precedents of previous relevant judgements shaping the sense of justice along with the whole set of laws and their general principles. Civil law judges look at the text of statutes, as do common law judges, but apparently the latter category of judges are also concerned with the mixture of precedents and general spirit of the laws.

There are certainly some real differences between common law and civil law traditions, but how straight forward are these difference? The phrase ‘common law’ itself comes from the codification and national harmonisation of laws undertaken by French-speaking kings of England, after William, Duke of Normandy, conquered England. So the phrase ‘common law’ itself refers to the opposite of what common law has come to mean: the English legal tradition since the High Middle Ages has come out of conquest by an external power. We can argue about how far Anglo-Saxon laws and judicial formalities survived the Norman and Angevin re-codification, but there is no denying that the re-codification happened and that nothing now survives from the Anglo-Saxon era.

England started off in the earlier Middle Ages where all of post-Roman Europe stood, that is Roman law had collapsed and Germanic tribes introduced their own laws in conquered territories, where some elements of Roman law survived in the canon law of the church. The Roman law system itself reached a peak with the final codification undertaken under the Emperor Justinian in Constantinople during the sixth century. The transformation of the eastern part of the Roman Empire into a Greek empire included a decline in knowledge of Latin so understanding of the definitive law text was limited, but survived in the Empire including the last Roman-‘Byzantine’ holdings in Italy.

Knowledge of Roman law increased in the thirteenth century, in association with the growth of new universities where legal education played a very large role. England was not outside this process, but it is fair to say that it was less influenced by it than some continental powers, particularly France. The process of Revolution and Bonapartist rule, from 1789, produced a large scale deliberate construction of law as a unified system based on the will of the sovereign (whether elected assembly or absolute monarch) with regard to the laws, which was exported to other parts of Europe in the Revolutionary and Napoleonic wars.

The British commitment to common law was not entirely consistent since Scotland has always retained some differences from England in its legal system, which place it closer to the civil law tradition, at least compared with England. In the United States, there was a parallel to the French republican and Bonapartist experience of redesigned institutions in the process of adopting first the Articles of Confederation and then the Constitution of the United States, which unified the thirteen British colonies in a common structure.

The difference between French and American constitution making is often held to be that the French constitutions claimed that laws are the will of the people and the product of nature, while the American constitution is designed to disperse any idea of a single political law-making will between the different branches of federal government and the ‘several states’. However, the preamble to the US Constitution refers to ‘we the people’ and therefore asserts that it is the product of a single political will of the people in the union.

While the US Constitution does not refer directly to good laws as the work of nature, there were shared underlying assumptions in France and the US concerning the ‘natural’ status of good laws, good political institutions, and justice. It is at least true that the US constitution federalises rather than centralises, while the French process of about the same time ended in a very centralised state. This cannot be the difference between common and civil law systems though, since there are federal civil law states like Germany and Switzerland and unitary common law states like the UK and New Zealand, though the UK has been evolving in a more federal direction, if in a rather ad hoc and limited way, since the turn of the century.

Next, laws, charters and constitutions