- Neglected works in intellectual history JHIBlog
- Is that you, John Galt? JD Mullane, Burlington County Times
- European law and the myth of English exceptionalism Michael Krauss, Law & Liberty
- Myths of sovereignty and British isolation Barry Stocker, NOL
The last post focused on the distinction between civil and common law, with regard to Britain’s position as a common law country in contrast with the civil law tradition of the rest of Europe. The promise at the end was to move onto laws, charters, and constitutions in this post. However, I have found it necessary to discuss the idealisation of common law further and look at how a large part of this looks back to a world which is lost, regardless of predominant legal system as societies have roughly speaking moved from customary law to ‘juridification’ (state centred comprehensive law penetrating all social relations), and then the world we live in now of the administrative state.
The British sovereigntist and Eurosceptic position tends to emphasise a supposed unique British exception from the statist rationalism of civil law, in the ‘common sense’ of the accumulation of law arising from judicial precedent in the decisions of judges in previous cases. This supposedly British exception looks rather challenged when we consider the thoughts of the influential German philosopher Hans-Georg Gadamer in his 1960 book Truth and Method. Gadamer refers to French rationalist Enlightenment in contrast with a German form of Enlightenment based on the original understanding of ‘prejudice’.
Prejudice, in Gadamer’s account, did not begin as a negative term for the constraints of false assumptions, but in a legal process in which the court forms a preliminary opinion in an early stage of proceedings. For Gadamer this represents the continuity of custom and the communal sense of justice in contrast to abstract rationalism. What he describes is not the same as the common law tradition, but represents another way in which the apparent underlying advantages of common law can appear in another system.
The idealisation of common law is really a claim to prolong the role of custom in law into the age of state statutes and deliberately constructed legal codes. Not that an age can be identified in which pure custom operated and no state created laws existed. It can be said that laws used to be less in number and articulated in terms of defending the wisdom of ancestors as part of a generally shared sense of justice.
However, the destruction of such a world, which depends on accepting fictions about the harmonious origin of laws outside the interests of power, was not from the triumph of civil law. The heroic moments of civil law in the process that leads from 1789 French Revolution through constitutional monarchy, republic, and Bonapartist autocracy, are the product of the decay of traditional societies in which localised and regionalised kinds of authority operated in ways which mixed statute and customary law, and where even in conditions of political autocracy the state ruled over either a very small community unified by common experience, or larger units which aggregated such communities rather than enforcing a very uniform and unitary form of sovereignty back by a hierarchical bureaucratic-military state machine.
There were of course elements of the latter, as in the eleventh century Norman Conquest of England, but even this established only a minute state machine by modern standards, which recognised the ‘privileges’ and ‘liberties’ of the City of London, the church, the barons, and so on. The idea of civil law is generally traced back to Rome, bracketed by the Twelve Tables of fifth century BCE Rome and the Corpus Juris of Civilis (often identified with the Institutes which form just one part of it) Justinian promulgated in the New Rome of Constantinople in the sixth century CE.
This civil law prevailed in Roman Britain for four centuries as it did from the Rhine to the Euphrates. The Roman world, including the Greek empire governed from Constantinople, that emerged in the sixth century, was nevertheless a world of localised traditional authority in which central state institutions were more like connecting threads rather than an all inclusive structure.
The Middle Ages saw a process of juridification, as Roman law continued in the church and was revived for the state, in which the uniform administration of justice became strong enough for a system of dominating unifying state military-bureaucratic power to emerge underneath sovereignty that was beginning to become more distinct from the person of a king (or occasionally the persons of an aristocratic assembly).
All European states went through a process, which has been implemented elsewhere, leading to what is now known as an administered society, administrative state, biopower, and all the other terms referring to the inclusive, comprehensive and unifying power of state law and state bureaucracy in relation to society. This was simultaneous with the development of capitalism as a dominant economic system working through unified national markets and trade between states.
A lot of what is said about the difference between common law and civil law represents a wish to return as far as possible to go back to a time before administered societies and even before juridification. There is no time at which law was purely traditional and consensual and no current possibility of even approaching that ideal. Concerns about the administered-juridified society have to be addressed with that world.
The common law tradition might or might not on average be better than the civil law tradition from that point of view, but common law is not what its strongest defenders wish it was and it is not obvious that civil law states in northern Europe including Switzerland, the Netherlands and Denmark, and in a slightly more qualified but real way, Germany are doing worse for liberty and prosperity than the English speaking common law countries. France, the homeland of modern civil law, is itself not doing at all badly compared with most countries in the world as it is and certainly in terms of human history.
For the next post the intention is to finally get onto charters and constitutions.
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