Sunday, December 04, 2005

Europe: on building a Demos

Some good feedback so far on our Europe post, and some good, constructive comments. In one of them, Martin ask us to critique his list of objections as well. Martin's first problem:
1) No demos

There does not exist a single group of people in respect of whom the EU could be a democracy.
It was this that prompted me to ask Paul to write up some of the theory behind a Demos Well, I'm going to add to it, this time with some practical examples.

Within living memory, the idea of of a common European shared identity manifest through shared frameworks was a pipedream. The idea that France and Germany would go from perpetual foes to the closest of allies a joke. Yet today it's true. People say that Europeans do not, and can never, think as part of a common culture. Yet on the ground, especially amongst the more recent generations, this common culture is becoming a fact. I don't, for I hope understood reasons, talk about my job much online, but it's no secret that I work for a German travel company in one of the English subsidiaries. I think of the reservations team in Munich as colleagues, am in regular contact, and speak to some of them more regularly than I do people that work in the same building as me. A few of them have become friends.

I travel a lot (more, in fact, than I can afford), and normally combine attendence at a major CCG tournament with a break in and around the area of the event. I can, and do, honestly assert that I have more in common in terms of both interests and outlook with fellow tournament players than I do with many UK based citizens without similar interests. There is no language barrier (English has become the lingua, well, anglais?) and we keep in touch via various message boards, forums and mailing lists. In Italy this year, I shared a hotel room with a German friend who jokes that he has now 'invaded' more EU countries than any other player (true, he's two countries up on me).

While in Greece, I visited friends in Thessaloniki who took me drinking all around town. Last year in Germany, I shared a hotel room in Frankfurt with an Italian friend from Bologna, who is studying for a PhD in Hamburg, and splits his time between the two countries. Our differences, in terms of accent or outlook, are irrelevent, or a simple source for humour.

In Italy the previous year, some Greek friends offered me a lift to Florence after the event in their hire car; they gave me the choice of which music to listen to, and I went through theeir CD collection. Eventually, I found a CD that I didn't own. We listened to that. The principle organiser of the European Championships each year is becoming a good friend, I've stayed at his appartment and attended his wife's birthday party with her family. He's recently started running for election at various German levels, and is a committed European. A common culture is growing, and the internet, as well as growing ex-pat communities in most countries, is helping it.

300 years ago, do we really think that Scots and English felt a common enough kinship to think of themselves first as 'British'? No, but we do now take it as a given. 150 years ago, the United States of American tore itself to part in a civil war; one of the greatest Southern generals, Lee, was at the beginning offered the opportunity, by Lincoln, to command the Union forces; he stayed his decision until his home state, Virginia, decided which side it was on, and went with his state; he was a Virginian first, despite being avowed against the 'peculiar institution'. It is said by historians that the Civil War marks the turning point, the phrase "these United States are" was replaced by "The United States is". Within Europe, another, more recent example. Italy was unified into one country at the end of the 19th century, and efforts were made to create schools all over the country. When teachers from northern parts came to more remote southern regions, it is said the locals found them so hard to understand, they thought they were English!

Europe has a shared tradition, based in part on shared religious origins, but also on common frameworks of laws, alliances and rivalries, occasional wars and long periods of peace and trade. That which links us together is far more important than the differences, which we can remain both proud of and, if we chose, emphasise.

Martin says that Europe has problems because there is no common people for which it can be accountable to. I assert this is wrong. However, if he is correct, then the same is true of many existing EU countries (ask a non-Bavarian German what they really think of the home of Audi, a Castillian Spaniard about the Catalunyans or Basques, even a Scot about the damned English). A demos is there, and growing. It may not be strongly noticeable, but it cannot be ignored.

More on his other points, and also a long overdue response to Ken at a later date. For now, I'm hungry, and then I'm off to enjoy our new, European style opening hours...

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PaulJ said...

Good post.

To elaborate a bit on what I was saying in light of what you've now said, the idea of a demos doesn't have to be a rigid, easily defined union between people. It's a thin idea, more of a concept - we're not talking a Europe of things but a Europe of ideas.

Common culture is key to this, and although Europe has had something like a common culture for a good few hundred years, it is particularly now, with cheap air travel, instant communications, Europe-wide companies - Globalisation - that the average person in Europe is connected to their fellow Europeans in a way never experienced before. And there is common ground - Europe-wide movements for Human Rights, the environment, collectable card games...

When Martin says there is no European demos, well, I'm not too sure you can ever impirically say - here is the demos/there is no demos. It's a notion, something which some people feel and others do not. I think it is there, and I think that Mat makes a good point by sayig it doesn't have to be perfect - it's not like there's uniformity amongst Scots and Brits or Basques and Spaniards just like Mat says. What there is is a sense of Europe and the being of Europe - the very fact that we're here talking about it (would average people 100/75/50 years ago have talked about 'Europe' in such a way?) shows that there is an idea of Europe - and the idea of Europe is the existence of the European demos.

Anonymous said...

That is a point; we do not have a common framework of laws, the continent and the EU use Napoleonic Law, civil Law, Britain’s laws are based on common law or English common law. That is top down as apposed to bottom up, something which our Parliamentarians seem to be working very hard to change, a case in point being the 2003 licensing Act, which you suggest brings “European style opening hours” but that could have been achieved without bringing licensing into civil law.

It was concern over this dichotomy of law bases, which prompted Heath to promise that entry into entry into the EEC would not make our law subservient to code Napoleon. During the passage of the European Communities Bill, absolute assurances were given by Geoffrey Rippon, responsible under Heath, for of negotiating Britain's entry into the European Union. and co-signatory of the Act that took is into the (then) EEC, declared (Hansard, 15 Feb ’72, p270) “The House as a whole may therefore be reassured that there is no question of this Bill making a thousand years of British law subservient to the Code Napoleon” Heath himself said "There is no question of eroding any national sovereignty; there is no blueprint for a federal Europe. There are some in this country who fear that in going into Europe, we shall in some way sacrifice independence and sovereignty. These fears I need hardly say are completely unjustified".
Lord Wilberforce reminded the House of Lords in 1997 what were - and are - the essential civil rights of the British people: "...our essential civil rights, as guaranteed by common law, are the presumption of innocence; the right to a fair hearing; no man to be obliged to testify against himself; the rule against double jeopardy; no retrospective legislation; no legislation to be given effect contrary to international law - an old principle that has been there for years; freedom of expression, and freedom of association...firmly secured already by the common law of this country, and not intended to be superseded nor modified by new inter-state obligations..."
If any part of Corpus Juris were to be introduced in the United Kingdom, the English, now British, common law rights which Lord Wilberforce correctly described as being our essential and constitutional rights, would begin to be eroded and undermined. That, in my humble submission, would be an act of treason against the laws, government and happy constitution of the United Kingdom (Section 1, Treason Act, 1795).
Of course Blair has now repealed the 1795 Treason Act, perhaps wisely, (for him) as there had been attempts made under that act to make our ministers accountable for their actions.

Anonymous said...

Ok. It's a shame that I didn't really give any detail about the "No demos" critique in that old version of the article. It's also a shame that you chose the first question, re the demos, to concentrate on, as it's surely not the strongest of the points I raise.

Anyway. I should have said that there exist no useful instruments whereby any nascent European demos, should it indeed exist, can actually express itself.

But to the points raised:

I'm a little worried about the cultural exceptionalism; is there something rooted in the soil of Europe which distinguishes the culture shared by Europeans from the culture Europeans share with Americans, Canadians, Brazilians and so on?

The Italian story you cite has got to be apocryphal. I went to school in Italy, and have lived in both north and south of it, and doubt there's much more to the story than affected incomprehension and socioeconomic prejudice. Sure, the Italian dialect continuum covers a broader space and has less mutual intelligibility than your average European language, but native speakers of one don't mistake another for a speaker of some Germanic tongue.

To have a demos, I don't think linguistic and cultural factors are all that important, at least, not artistic culture; legal culture and political culture have got to matter a bit, I suppose; I think what you need is a group of people who feel a sense of entitlement to participate in the affairs of a polity.

Not all demoses relate to goverments. Private associations can be democratically run, obviously. Now a club will generally constitute a polity if it's of any size and if it has any internal controversies. The club can acquire and lose a demos: it might start up with members feeling a sense of entitlement to participate in its governance, retain its formal democratic machinery, but end up in the hands of technocrats who discourage members from thinking of themselves as being anything other than paying for a service through their membership fees.

You don't need to feel that membership of a demos is part of your identity. I never felt SRCFian through my onetime participation in the club I alluded to above. I think you just need to feel that you can choose to participate. That's not something people feel in respect of the EU (this is an empirically verifiable assertion).

I think it's false to assert that there is some sort of common framework of law; the EU has or at least had a diversity of legal systems, just like the UK, which has English and Scottish law. There's the French/Dutch-style civilian system, the German system, the Scandinavian system and the insular systems already mentioned. Whereas the English-style systems differ more from the civilian systems than they do from each other, there is still a big difference between French and German style legal systems. I'd take Ken's rather essentialist assertions about "corpus juris" with a generous pinch of salt - common law has been nicking decent stuff from Roman/civil law for a millennium without losing its distinctive character and what's good about it (inductive reasoning, largely), and there has been traffic in the opposite direction.

Globalisation is taking us back to the sort of circumstances which obtained from 1871 - 1914 (when it was easier to move people and objects between different countries); revolutions in communications technology have not been Europe-specific - the whole world has got better connected.

What I said was: "There does not exist a single group of people in respect of whom the EU could be a democracy.", which is not exactly the same thing as "Martin says [...] there is no common people for which it can be accountable to.". The differences are that accountability is not the only important aspect of democracy (though a massively overlooked one, especially by the proportional representation crowd), and this distinction between "no single group of people" and "no common people". What I was trying to get at with "no single group" is the idea that the EU is more a polity comprising national ministers and civil servants and European level officials elected or otherwise, rather than a polity embracing the whole of society. There is EU-level politics, but it takes place between only those people. It's effectively a deal between national executives and judiciaries to adopt a particular set of policies at the national level, with these policies determined by the politics of the EU. This isn't how federalism works in places like the US or Australia, though it might be a little bit like how it works in the PRC or Germany. So there is a group of national demoses, rather than an EU-wide demos.

Anyway, I'd really prefer to talk about my other points, rather than the demos one, which I'll have to refine. The plan is to bandy about my list of objections on the blogosphere and put it through a few more drafts.

Anonymous said...

No, sorry you are wrong there is a distinct difference between English Common Law and EU Law, it is rather clouding the water to offer differences between other EU states laws! That is not the point, EU law is based on Code Napoleon, Corpus Juris, what have you. It is at compleate variance to English Common Law, you cannot borrow a piece of top down law (Corpus Juris) and impose it onto bottom up law and retain the special characteristics and freedoms that English common law has. English Common Law has safeguards within it to ensure that the government cannot override the wishes of the people, it is these safeguards which this government in particular have been removing, it is not government law it is our law, the peoples law. What we are witnessing is nothing less than the total destruction of English Common Law.

We have a system of government that has evolved over centuries based on the belief that we the people have unquestionable rights that no government may remove, these rights are not at the gift of the state, in fact the first duty of the state is to protect those rights. A government that does remove or limit those rights is in fact acting illegally, and we owe no allegiance to that government, or to that state, until those rights are returned, the only way such an illegal state can impose its will is by force.

It suits the EU and its acolytes to suggest that the EU has no common framework of laws; that each state within the EU uses its own system; that a compleate falsehood; the EJC applies EU law, which is one body of law, as that body overrules all other systems then we are being forced to accept EU law, and that will be the case for as long as we remain members of the Union, eventually of course it will become legally impossible for us to leave the union.

Anonymous said...

(quotations in bold - blockquote not available :( )


I've been told to respond to Ken, which I was going to do anyway.

Ken, I should begin by stressing my hope that we're on the same side, i.e., eurosceptic. I believe the EU is a threat to democracy, civil liberties, the rule of law, our prosperity, and the continued existence of the better bits of the common law anywhere in England, Wales or Ireland; accordingly I want not just UK withdrawal but the abolition of the EU as well. I don't believe that the EU will be fixed within any reasonable proportion of the remaining forty years of my working life, though if it were fixed (and my objections are sufficiently deep and varied as for this to mean an unrecognisably different EU) then I wouldn't object to the UK's membership, just as I don't disapprove of our membership of NATO or of the extremely close interpentration between the UK and US governments during the Second World War.

What I wish to deny is that the EU has any inherent or essential "nature", that there are some things about it which just cannot change. I think that position is as absurd as the pretence some Europhiles affect of being unable to imagine any circumstances in which the UK would be better off outside the EU, a position which also relies on the false notion that some things are not changeable when really they are.

The EU has a character, a most disagreeable one at that, but not an unchanging "nature" (except inasmuch as it's always going to be a club of countries in and around Europe).

I don't really like being told "No, sorry you are wrong there is a distinct difference between English Common Law and EU Law, it is rather clouding the water to offer differences between other EU states laws!" when that's hardly what I said. I never said anything about the difference between EU and English law, only about the differences between English law and the various continental systems. I was saying this to contradict the assertion (not made by either of us) that Europe had ever had a common framework of law. So I said that the continental civil law systems weren't even as close to each other than as often supposed, but I did take care to say "the English-style systems differ more from the civilian systems than they do from each other", and by the "they" in that sentence, I meant the civil law systems. I didn't really mention EU law in that paragraph at all.

You say: "EU law is based on Code Napoleon, Corpus Juris, what have you." The only sensible way to interpret that is as though you hadn't put the "what have you" in there - it's really unhelpful as you could be saying that EU law is based on some other things in addition to the two you list. Given your previous sentence was nitpicking what I'd said, that's hardly playing fair.

My problem is not with the fact that you don't actually state with certainty what EU law is based on, it's that you don't say what it means for EU law to be "based on" something else. I'm not sure that what you're trying to say actually depends on our getting to the bottom of what this means, but an explanation would be nice.

"you cannot borrow a piece of top down law (Corpus Juris) and impose it onto bottom up law and retain the special characteristics and freedoms that [common law] has."

What are the inherent / unchangeable characteristics of Corpus Juris and common law which make this true? Is Corpus Juris inherently "top down"? What does that mean?

"English Common Law has safeguards within it to ensure that the government cannot override the wishes of the people"

Erm, what safeguards are these? Hasn't common law existed for eight centuries or so, rather longer than the wishes of the people have been taken into account in our lawmaking? More broadly, you say safeguards to ensure, as though there were some sort of "purpose" subsisting within the law. Isn't asserting that particular laws have a "purpose" which ought to be respected (as distinct from their texts) one of the worst features of the continental civil systems that you obviously don't like, and one of the things historically absent from the common law, and undermined by the need to give effect to EU legislation in real world situations?

When did common law become the "people's" law that you claim it to be? Which people, and how did these people resolve conflicts between themselves as to what the law should say? (etc, etc)

If we're witnessing the destruction of English Common Law, it's only being destroyed within the EU. Outside the EU, the common law is alive, well and in rude health.

"We have a system of government that has evolved over centuries based on the belief that we the people have unquestionable rights that no government may remove"

Nonsense. It is in fact a virtue of our system that its evolution has not been "based" on anything at all. Not for us the ringing declarations of abstract general principles unworkable in the real world yet promised unto every man as his birthright, which disfigure written constitutions the world over. Sounds frightfully Napoleonic to me. I don't think any particular belief or principle has been the "base" of the evolution of our system of government. It just happened by people following or failing to follow conventions laid down by their predecessors.

As to unquestionable rights, why should anything be outside the permitted scope of democratic debate, freely conducted? I don't like the sound of "unquestionable". Who gets to decide what is unquestionable, and what keeps them honest?

"A government that does remove or limit those rights is in fact acting illegally, and we owe no allegiance to that government, or to that state, until those rights are returned, the only way such an illegal state can impose its will is by force."

So there's some special extra law --- presumably not the European Convention on Human Rights? -- which says which laws are legal? Some brooding omnipresence in the sky? Where did this law come from, and how do people find out what it is? Why should it have any effect on me if I can't look it up in the library the way I can with real statutes and case law?

"It suits the EU and its acolytes to suggest that the EU has no common framework of laws; that each state within the EU uses its own system;"

Well, when they're trying to justify some misbegotten harmonisation measure, yes, they do like to point to diversity and fantasise about its elimination. But part of the justification is often a sly assertion that local laws, adopted by each nation or region according to its own needs, have some unspecified commonality and are mere imperfect reflections of a united whole; that's the claim I object to.

"the [ECJ] applies EU law [...] as that [body of law] overrules all other systems then we are being forced to accept EU law, and that will be the case for as long as we remain members of the Union,"

EU law, in its own terms, does override national law. But any properly dualist country (UK, Ireland, Germany, Poland) will treat national and non-national law as existing separately from each other, and say that EU law only takes precedence over national law within a country because that country's national law says so. With our all too flexible constitution, this has proven no problem in the UK, but it's a huge problem in Germany, where the Constitution ("Grundgesetz") says that certain rights of individuals cannot be abridged, by the Government, the German Parliament, or the Courts (sounds like you'd love this, from what you've said above!). The Bundesverfassungsgericht (a senior court) has said that there is therefore no power for the Government or Parliament to give effect within Germany to any EU law which contravenes the rights in the German Constitution, whatever the ECJ might say about the supremacy of EU law (if only we had hardline judges like that in the UK!)

The Poles have recently announced that there are some aspects of EU law they're basically going to ignore (presumably something to do with their Constitution too).

Who gets to decide the question of which court gets to decide whether EU law is supreme within a given country is a potentially explosive issue.

"eventually of course it will become legally impossible for us to leave the union."

I'd love to hear what the conditions for the legal impossibility of withdrawal might be. Is this something which could just magically happen over time, or would there need to be some specific event or enactment or court decision?

Anonymous said...

Martin, you make some interesting comments; please forgive me if I do not reply for a day or two; pressure of work.

However on one point briefly;

The internationalist, pro EU supporters methods have always been to underplay the significance of the steady erosion of our sovereignty. The final point you make is of course quite true there would be indeed need to be “some specific event or enactment or court decision” how would this happen? Quite simply we begin to see the possibility of this occurring by reading the EU constitution which although now on the back burner as a compleate document, is in fact a constitution which sets the EU up as an independent actor on the world stage, and makes us full citizens of the EU, with commitments the same as the citizen of any other state, this constitution makes it clear that we the peoples of the EU states consent to this, and contains in the preamble the specific words that;-

“GRATEFUL to the members of the European Convention for having
prepared the draft of this Constitution on behalf of the citizens and States of
Europe, WHO, having exchanged their full powers, found in good and due form, have
agreed as follows:”

Let us now assume that we in Britian select a Parliament that wishes to repeal the 1973 act of accession to the Union, as is their right, and is in fact the main plank of the argument against the loss of sovereignty. But hold on a moment, we have already agreed to exchange our powers for those in the EU, so how is the ECJ going to rule, we are EU citizens, the fact that we are also British citizens is not significant at this point because we have accepted that the EU will become our State we have exchanged our powers. So therefore the ECJ could well decide that the British government was acting outside of its authority.

Yes the EU constitution does contain the clause which gives a state the right to withdraw and the method by which this can be achieved. The very fact that this clause is in the constitution is actually passing a power that has been retained by the British parliament to the EU and setting conditions on that right, conditions which could well be changed in the future. A sovereign nation state would not pass the power to higher authority to withdraw from an international treaty in this way.

Parliaments power to withdraw from the Union was never intended to be permanent as can be seen by referring to the report SOVEREIGNTY AND THE EUROPEAN COMMUNITIES FCO 30/1048 - 1971

(v) It will be recognised that the more the Community considered is developed
as an effective wide-ranging and democratically controlled organisation the
more Parliamentary sovereignty will be eroded and the less important external
state sovereignty will become. The ability and the ultimate political right
in the last resort to withdraw will remain for a very considerable time though
it may come to have mainly theoretical significance. In that last resort
the ultimate sovereignty of the State will surly remain unchallenged for
this century at least. Meanwhile it will continue to be important to stress
the potential gains in real international influence (albeit indirect) through
participation in the Community's policies and to contrast this with the highly
formal and technical nature of the "sovereignty" that will be eroded.

Anonymous said...

Hello again Ken, good to see I don't seem to have annoyed you too much with my rather harsh criticism of your position.

I'm pretty sure the "having exchanged their full powers" or whatever the language is -- these things often go on to say "found in good and due form" -- is typical diplomatese, meaning "the signatories of this document are pretty sure that each one of us is actually empowered by his government to negotiate or sign on their behalf". I think it refers to the powers of the actual human beings signing the treaty, as distinct from the countries or peoples they represent.

As to withdrawal, currently, sovereign states can withdraw just by denouncing the treaty. Non-sovereign states can get out by having their sovereign withdraw them on their behalf (Denmark's autonomous territory of Greenland got out this way, and Jersey and so on never joined). Under the existing treaties, the government of a member state which was about to leave the Union would have its veto on all sorts of things; the Constitution proposes restricting the use of the veto by the departing government, on the arrangements for its country's departure.

That looks like bad news. To my mind, it makes leaving harder, as you lose your vote on the terms of your departure. I think it's a misreading of the Constitution to say that either it enables member states to leave whereas previously they couldn't leave, or that it prevents them from being able to decide to leave at all.

Anonymous said...

Yes I would agree that the EU is changeable, in fact I would go further and say that it is essential that it does change, EUphiles would also take the same line. Unfortunately the change they want is one of ever closer union, ever closer enmeshment of the individual states in the working of the Union, so that eventually they will no longer be recognisable as independent sovereign states, but as part of a United States of Europe. I should say that I see nothing inherently wrong with the peoples of a group of countries agreeing to pool their sovereignty and thus supposedly becoming a stronger force in the world. The but is; the peoples, and not some self appointed elite that ride roughshod over the rights of the people in order to forge their USE.

The British politician in particular, (the same is not true of the Continentals) since the beginning of our involvement in the union have held out the fig leaf of change for the better, within the Union, as justification for ever closer union. At every passing of more sovereignty to the union we have been told exactly the same story, which boils down to the concept that we have got to be at the centre of the Union to bring about this change. At best we can agree I hope, that we have achieved nothing more than a slowing down of ever closer union, we have made no impact whatever in changing the direction. I liken this to a coach full of people arguing about the speed of travel, rather than the eventual destination, whilst they remain on the same road the destination is certain, only the time of arrival is in question.

I accept you affirmation that you were not discussing EU law, please accept my apologies for misunderstanding. My point however is that of the two basic types of law the EU and the continent in general have a different base than we do in Britain. This in itself is a cause for concern as ever closer union impacts directly on our style of law and our relationship with the state.

If I may; last year the EU Commissioner for transport suggested that the police forces of the EU states should have the power to stop and breathalyse motorists at random, not particularly important in itself, we all agree that drink diving is not acceptable, however such a law giving the police these powers would undermine one of the basic concepts of our law. In Britain under Common Law we are innocent until proven guilty, we do not have to prove our innocence, we are in law innocent, the police have to prove that we are guilty, in other words they must suspect us of committing a crime before taking action, they cannot just at random stop us and ask us to prove our innocence.

Code Napoleon, Corpus Juris Civil Law and now EU Law are all of the same base, if we for the moment ignore Islamic Sharia law, that leave two basic law systems "Common Law" of the Anglo-American legal tradition and Roman Law.

Our Common Law, as far back as 1215 with Magna Carta, states that a citizen can only be judged by his peers (Section 39). These rights protect the individual against arbitrary conviction and imprisonment. Our Common Law recognises several vital rights to the citizen:
• The right of Habeas Corpus (that the accused must be taken to a public court within a very short period of time, usually 24 hours, and the accusers must produce their evidence then and there).
• The right to Trial by Jury at which jurors can in fact even disregard the law if they think it would give an unjust conviction. The jurors are thus 'sovereign'.
• If found innocent, the accused cannot be tried again on the same charge ('double jeopardy').
• In other words our process is 1) suspicion, 2) investigation, 3) arrest, 4) charge.
2. Under the Continental system, known as the Inquisitorial System (often loosely referred to as the Napoleonic system) things are quite different:
• In Europe the sequence of events is 1) suspicion, 2) arrest, 3) investigation and 4) charge. In other words the citizen can be arrested and imprisoned without anyone having to produce any evidence against him. There is therefore:
• No Habeas Corpus so one can be imprisoned for very long periods (weeks, months, occasionally years) without any evidence being produced against you.
• No right to Trial by Jury as their system involves judgements being made by a career judiciary who are the judges and prosecutors and who are, to all intents and purposes, 'colleagues' (a quite separate body of lawyers makes the defence and are often treated as inferiors).
• In most instances the accused can be tried a second time for the same offence, since the prosecution has the right of appeal against acquittal.
The European Parliament has voted to consider the introduction of Corpus Juris ['body of law'], to establish a common judicial system throughout the European Union.
We only have to read our newspapers to see that all of those distinguishing concepts of code Napoleon are now being introduced into Britain with an attendant destruction of the concepts of Common Law. The right to trial by jury is being removed; Lord Stephenson suggested that Juries be prevented from finding against the evidence in the interim, until trial by jury was removed completely. Habeas Corpus of course is being removed with the recent extension of the time the police are allowed to hold terror suspects without charge, and of course this years ruling in connection with the European Convention on Human Rights and the governments answer to that ruling means that this applies to all of us. Double jeopardy has already been removed, I belive that the first retrial of someone who has already been acquitted, is to take place early next year. These are not separate unconnected events but all stem from the need to make British Law compatible with EU law.
Simply, top down means the state is supreme, god gives power to the king, and he passes that power down to his subjects the divine right of kings etc. It is the state which gives rights to its citizens, it however also retains the power to remove those rights in the interest of the state. See the EU Charter of Fundamental Rights which permits limitations on the rights and freedoms set out in
it to "meet objectives of general interest recognised by the Union."

Bottom up means power flows from the people up to the top, it is the people who have the power and the state is for the service of the people, inbuilt into this are those safeguards, which ensure the state does not have the power to force its will. It is the peoples law because, if a we can only be punished when fund guilty by a jury and that jury can find against the evidence, then the state is powerless to impose its will, an unjust or unacceptable, law will fail because the juries will refuse to convict, so no matter what laws government may introduce they can have no effect if the people do not agree.

A division of powers of state, the police may not act alone, they must convince a magistrate that they have just cause before taking action against an individual if they do act they must justify that action within a very short time (Habeas Corpus). No part of the state can act alone hence the two houses of Parliament the separation of the judiciary from government the consent of the Monarch for any laws that are passed, A monarch who can only rule after taking an oath to uphold our laws and traditions.

Unquestionable rights i.e. beyond the power of government, yes these rights exist, the right to life, to property to free association to free speech, who gets to decide? These rights come about through tradition usage or custom, they predate written laws or statute laws ,and predate parliament, hence they are beyond the scope of parliament, furthermore Parliament may not take these rights into written law/ statue law, and then repeal the statute and remove the right, repealing the written law does not remove the original basic right. You do not need to visit a library to know that you have the right to life, to breathe to choose a partner to find shelter, food you do not need to visit a library to know that it is wrong to kill another human you know these things without laws but by tradition that have been passed from mother to child from the beginning of our association with each other.

Anonymous said...

Hi Martin, I would agree with you assessment of the leaving clause, however I would take issue with you interpretation of preamble, the ECJ has already used the preamble to inform its decisions, also in this case it is quite clear that there is a division between the states and the citizens of those states.

Anonymous said...


I don't think there's much disagreement between us on the question of the way the UK public was led into the EU. My views on the matter would differ, I expect, if politicians had been upfront about what would happen. The UK is a sort of mirror image of what happened in the Continent: politicians were dishonest about what the consequences of joining would be, but did obtain a democratic mandate for membership, albeit one effectively obtained under false pretenses. In some continental countries, by which I mean the Six EEC founder member states as opposed to Scandinavia, politicians were up front about what they were doing, but never got a democratic mandate for it.

Apart from the two referendums in France and the one in Holland, I don't think the founder members really had much of a formal democratic expression of consent for European integration. Those referendums are all quite recent, too.

I think the "style of law" thing is an important point, but it's really hard to speak truthfully about it in abstract general terms. The specifics of these matters are so complex and hazy as almost to preclude any generalisation at all. The differences between legal systems are more of a matter of styles and tendencies rather than any sort of categorical separation. I used to be a big fan of the thesis of Pierre Legrand, a (French?) Canadian law professor who claimed there was an epistemological chasm between common law and corpus juris -style civil law. This difference was said to consist in the mental worldview of the lawyers, and relate to the style of logical reasoning: for English common law, it was inductive - extracting the general rule from the series of specific cases (how Islamic law used to work, too), with principles crystallising out of this process over time, and for Civil law, deductive, extracting specific rules for dealing with each case from a body of general principles laid down by the legislator. While there's some truth in that it's an oversimplification. To get to the bottom of it, I consulted David Howarth, a law lecturer at Cambridge University who knows about comparative law whom I met through campaiging against ID cards. He recommended a couple of books and papers, and sure enough, Legrand's thesis is really an exaggeration. Furthermore, it's not going to motivate the average man on the street.

I think these sorts of concerns are better kept out of the foggy debate about the essentials (if any) of particular legal systems, and applied more broadly. It's a matter of attitude about public authority: we tend to think of public action as requiring some sort of justification, and from my dealings with European Commission officials, I get the feeling that they don't share this attitude. I don't get that feeling when dealing with public institutions in the UK, Ireland or Australia. In practice, this leads to a the attitude of which the following is an example: that, say, Internet commerce will not be possible without having been provided for by prior legislation. This sort of category error gives rise to a lot of the mistrust of Europe, as the attitude is so alien to our way of thinking.

"a law giving the police these powers would undermine one of the basic concepts of our law"

Well, all this does is confirm me in my view that these basic concepts are either not as basic as we thought they were. While a law authorising the police to engage in random breath testing of drivers is being debated, I'd expect it to be scrutinised much more heavily because it was a departure from a general principle (though the general principle here seems to be that one can pass along the Queen's highway without interference, rather than of the presumption of innocence).

You still decline to say what you mean by the "base" and being "of the/a base" in relation to legal systems.

I'd be wary of relying too much on Magna Carta 1215 for support for trial by jury. The Magna Carta in force is the 1297 version, and most of it has been repealed. The "judgment of one's peers" thing in c37 is the procedure, whereas what was revolutionary was that it was judgment according to the "law of the land" (lex terrae, or somesuch phrase), implying that these men would decide according to the customs of the kingdom, with less power for the King to alter these laws unilaterally. It was my impression that Magna Carta 1215 actually undermined jury trial somewhat - after all, it was a foreign import from Normandy operating effectively as an opt-out from other more traditional modes of trial, for people who were favoured by the King.

I think the assault by the present Government on the legal traditions of this country is not strongly connected with the desire of some of the more rabid Europhiles to introduce civil law across the EU, but derives rather from their lack of fidelity to principle and reasoned argument, and a determination that the ends justifies the means, particularly when the means are in the hands of the good and well-intentioned. Too many Labour and Liberal parliamentarians cleave to the view that an old law is a bad law, just as too many Conservatives feel that an old law is a good law. My view is that good laws tend to be old laws, rather than the other way round, simply because they last, though this is only a generalisation. The disastrous Statute of Frauds goes back to the 1600s, and some of it is still in force. I note that you don't provide much substantiation for your assertion that the undesirable developments in (against?) the common law derive from the EU in some way.

We're not going to agree on this "natural law" / unquestionable rights stuff. I disagree with natural law, and you probably don't. I don't think natural law is a reasonable description of our legal system. I see no evidence for anything in it being constant, unchanging, unchallengeable, unquestionable, etc. I reckon the natural law people lost the debate about a hundred years ago, and that their arguments have been appropriated by libertarians, socialists, Christians and indeed anyone who wants their particular point of view to be regarded as unchallengable and their policies hardwired into the rules that citizens are expected to obey.

I don't think it is always wrong to kill. What about self-defence? What about defence of another? What about mistakenly defending another who was actually the aggressor? What about the Trolley Problem, when whatever you do leads to someone dying? What about the case of Dudley and Stevens, who killed the third man in their boat so that they could eat him to survive? What about shooting people who were threatening your life but are now trying to escape, so that you can discourage others from doing the same in future? What if those fleeing had changed their minds and wanted to repent and redeem themselves?

These are moral questions, but some of the questions which law might resolve are morally indifferent, such as what side of road everyone should use (as distinct from whether everyone should use the same side of the road). As the questions become more complex and the scope of disagreement between reasonable and sincere people grows, it becomes more obvious that there can be no natural answer to these questions, only one determined by arbitrary human activity.

Natural law doesn't work, doesn't exist, and hinders the case against the EU by bringing it into disrepute. So I'm sorry, but I really must disagree with you on this. I'm sure we can agree on general ends and means of what to do about the EU, even if our motivations differ.

Anonymous said...

I do not suggest that Common Law is “constant, unchanging, unchallengeable, unquestionable” It is the very opposite, Common law is a result of a natural order which first solidified into custom and then into law, while no one can point to the origins of our traditional moral rules, their function in human society should be evident. Common Law is a slow moving, evolutionary sort of thing; it is not under the command of any single generation. It is not the product of some single group or political perspective or ruler, it can and does move with the times, if slowly, however it recognises basic rules rights/ freedoms/ morals, that are necessary for a consenting society. Basically it is the concept that you may not do unto others that which you are not prepared to have done to you. If you do not wish to be attacked in the street it naturally follows that you may not therefore go out into the street and attack someone else.

It is the states responsibility to protect those rights and freedoms for all of us, we do not need the state to decide those rights, and we certainly do not need the state to grant those rights.

But I feel we are becoming bogged down in confusion over this, especial when we start to confuse Roman Law, Statute law and Common Law. There is a very basic difference between Common Law whether it is written or unwritten and Roman Law. As I have tried to explain Roman Law is state law, the other, peoples law. Roman Law says that final sovereignty lies with the state, Common law that it lies with the people, Roman law tells us that which we may do, Common law that which we may not.

That is not as you suggests simply a matter of attitude it is the vary basic difference which forms the attitude; we are innocent, so therefore we do not have to prove we are, as opposed to we are only innocent if we can prove so.

The recent incursion on our rights to trial by jury, the freedoms of the jury, the right to silence, Habeus corpus etc are direct assaults on basic English Common law rights, no longer is it the situation that we must be proved guilty before being punished, we must in fact, very often prove we are innocent to avoid punishment. This is becoming ever more evident as we have the leading police officer in the country Sir Ian Blair now calling for even greater powers for the police, he wants his officers to have the power to punish without any form of trial, yes appeal is available to the citizen, but this is after the fact, it is an appeal against an already imposed punishment. These are Roman Law precepts, as such they are at compleate variance to English Common Law, which clearly says we may not be punished unless and until we are found to be guilty, (*see below) in other words the police must actually prove that we are guilty before we are punished.

If you are however right, that there is very little difference if any between the systems one is tempted to ask what on earth Geoffrey Rippon was talking about, or even the relevance of his statement “The House as a whole may therefore be reassured that there is no question of this Bill making a thousand years of British law subservient to the Code Napoleon” Obviously both he and the House of Commons could see a clear distinction between our Legal System and that of the Union. Perhaps in the intervening time the distinctions of the two systems have become blurred, which rather gives the lie to the statement.

In reply to your earlier point 8 Dec.
With regard to the constitution “It is in fact a virtue of our system that its evolution has not been "based" on anything at all.” And your subsequent dismissal of Magna Charta; it would appear that your theory of the British Constitution, Parliament is sovereign, Parliament being defined as the combination of Crown, Lords and Commons. Whatever these three agree on enacting has the force of law. Parliament, whatever Acts are made in Parliament are to be regarded as the supreme, unquestionable law of this country. We have no written constitution, nor any formal division of powers, nor any supreme court charged with upholding some entrenched bill of rights. Instead, the latest expression of parliamentary will is law. This I belive is the orthodox or recently accepted argument for the way our system of government works, the latest incumbents in the Houses of Parliament have by power of their votes an absolute carte blanche to do anything they wish to make any laws they desire.

If even accidentally, some section of a Road Traffic Amendment Act should abolish the Magna Carta, the courts will be obliged to enforce the later Act. Parliament is sovereign in a manner that no other legislature now existing approaches.
There was a time when the internal balance of Parliament might have served to check what can only be called an elected dictatorship. But, during the past hundred years, these balances have failed. The Lords have been denuded of powers, The Monarchs power has been passed to the executive, The Commons has had its power to hold the rulers to account removed, because with a very few exceptions, they owe their seats to party machines that reward pliability. In short there are no controls that limit untrammelled power of the latest elected party, the only safeguard we the people have is the one unwritten parliamentary agreement that one government may not make a law that binds a subsequent parliament.
This is the state of affairs we are supposed to accept as a form of government that has been so successful that it has been transferred to every other English speaking country in the world, as a basic form of democratic government.
However this claiming of absolute power of the elected state has now been brought into question; in 1995, the Government had made a law to criminalize the use of the English system of weights and measures and to impose the metric system in its place. A market trader in Sunderland was prosecuted for selling bananas by the pound. However, the law by which he was punished had been made under the enabling clause of the European Communities Act 1972; and this, his lawyers went into court to argue, had been accidentally repealed at least in part by the Weights and Measures Act 1985.
According to what seemed the settled doctrine of our constitution, in which any conflict between Acts is resolved by giving precedence to the most recent, the metrication law would be struck down as ultra uires. Since the 1985 Act allowed the use of English measures, no power to abolish their use could be admitted from the 1972 Act. But this otherwise obvious conclusion could not reached. That would have entailed the political and diplomatic necessity of admitting that the country was in fundamental breach of the Treaty of Rome since the passage of the 1985 Act. The only other alternative seemed to be for the judges to claim that the European Communities Act was uniquely exempt from repeal, and that formal sovereignty had passed out of the country.
What the Judges did, however, was to decide the case on their own motion. Without having heard any submissions on the point, they revived the apparently obsolete doctrine of fundamental law. There were certain laws, they said, so important either to the structure of the Constitution or to the protection of liberty that they occupied a special place. They could be amended or even repealed by Parliament, but only if Parliament should first make this explicit. No implied amendment or repeal would be recognised. The European Communities Act was placed among these fundamental laws together with all the great constitutional statutes of our history The Magna Charta and the 1689 Bill of rights amongst them.
The implied repeal in the 1985 Act was ignored, not because the European Communities Act had passed sovereignty to Brussels, but because that Act was, by the rules of our own Constitution, given a special but not supreme status.
While the metrication law was upheld, this judgment was the first legal victory for the forces of conservatism. The significance of the judgment is that it prevents the politicians from shredding the Constitution by stealth. Under this judgment, they can still shred it, but only by openly acknowledging what they are about.
Let me clarify what has been done. Under the old doctrine of parliamentary sovereignty, all Acts of Parliament were absolutely binding on the courts. Any conflict was resolved by taking the more recent Act as an amendment to or repeal of the earlier. Since 2002, we have three classes of Act. There are constitutional Acts, which can be amended or repealed only by the explicit wording of a later Act. We have ordinary Acts, which can be impliedly amended or repealed, but until then are absolutely binding, unless they touch a constitutional Act. And we have Acts made under the Parliament Acts, which are not absolutely binding, but may be reviewed by the courts, and even set aside if they do not comply with the procedure laid down by the Parliament Acts.

So we now have a situation where English Common Law is again growing teeth as a protection against government powers, many of the recent acts which undermine our Common Law rights are being challenged, and because our parliamentarians do not want to face the consequences of their ignoring the self protecting written parts of our constitution, they are in every case backing off from forcing the issue. So we have people who understand this, defending against the statutory fines imposed by government for such things as parking tickets, late tax returns etc. In each case the government have refused to peruse the case and have dropped their claim.

(*)As the Bill of Rights is still statute law, and as the Bill of Rights reiterated the Magna Charta claim to our basic common Law rights, the government is bound to either bite the bullet and repeal that act, or face the growing consequences of not doing so. Of course the Bill of Rights is self protecting, in that it was an act of settlement, and if a government were to try to repeal it, that would by the acts own definition be an illegal act.

It could of course be argued that the Bill of Rights was passed by a parliament that was itself illegal; there is no real answer to that point, except to say that it might well have been, by the terms of the preceding government under the authority of Charles 1st, but if that is the case, then every parliament and government and Monarch since 1689 have also been illegal. We must therefore live in a revolutionary state, and have since we beheaded the last person to the claim divine right to rule this country.

I do not know why you wish to withdraw from the EU other than the obvious, which you have already stated, but for me it is part of a process of returning power to the people, so that we may dictate, by our own actions the laws we must obey, it is about making our government truly accountable to the people, I do not see the reason for exchanging one unaccountable and unelected government in Brussels for an unaccountable but elected government in Westminster. The EU has the effect of placing power in the hands of the executive, I am about retuning power to the people and then to our parliament in that order.

Anonymous said...

G'day Ken,

good to see you're still posting in this thread and that the swivel-eyed Europhiles have given up trying to match us ;)

I'm not going to have time to respond before Thursday or thereabouts, just letting you know. What's your email address? (mine is on my website)

Anonymous said...

Having had another look, you've basically conceded my points, so I don't need to respond.