The Common Law and European Law Pass As Ships in the Night

The Common Law and Brexit

Ted Malloch
BreitbartLondon

It is inane to ignore the distinction between common law and civil law or between the English definition of Rule of Law and the European Rechtsstaat. The two are radically different.

This is directly challenged by the Brexit vote, wherein citizens of the UK voted to secede from the European Union for a reason. There should be no turning back.

Under the European Union, life has become increasingly regulated by legislation issued, centralized, and administered by Brussels. The EU is “not merely an economic union” but is intended to “ensure social progress and seek the constant improvement of the living and working conditions of their peoples,” thus it has encompassed the continental conception of Rechtsstaat, wherein government is conceived of as an enterprise, as opposed to, a civil association. This is a world apart.

EU legislation is proposed and drafted by the Commission (consisting of EU officials nominated by the Parliament, who are not elected) and then passed by the EU Council and Parliament. EU legislation comes in two forms:  Directives and Regulations. Directives order a member country or countries to adopt legislation according to certain parameters. Regulations, once passed, are immediately effective without implementing legislation. . . . 

U.S. businessman Ted Malloch, Donald Trump’s potential choice as envoy to the EU, speaks to The Associated Press during an interview in London, Thursday, Feb. 9, 2017. Malloch said the bloc is anti-American and the U.S. will try to build bilateral relationships with European countries instead. Ted Malloch says the U.S. is “critical and suspicious” of the EU project. He says “we would prefer, certainly in the Trump administration, to work with countries bilaterally.” (AP Photo/Frank Augstein)

The Brexit vote surprised and astonished people in Europe and around the world who could not – and still cannot – understand why citizens of the United Kingdom would vote to secede from the European Union.

 If, however, as the legal scholar professor Nadia Nedzel suggests, one understands not just the current problems the British citizenry believe the EU has caused them, but also understands the historical, cultural, and legal disconnect between the UK and the Continent, that decision becomes and remains entirely comprehensible.

Prior to the vote, respected British philosopher Roger Scruton anticipated three possible reasons British citizens might vote to separate the United Kingdom from the European Union. His first reason was that the English have had a different attitude towards the European Union: unlike the Continent, most of which had been occupied by the Nazis, the English had successfully defended their sovereignty and freedom, so their motives in joining the European Union were entirely different from those of Germany, France, and the other European states.

Roger Scruton, British philosopher and political scientist attends the 16th Forum 2000 Conference held under the auspices of former Czech president Vaclav Havel focusing on Media and Democracy, on October 22, 2012 in Zofin Palace in Prague.  (Photo credit – MICHAL CIZEK/AFP/Getty Images)

Next, Scruton posited, that sense of sovereignty has been challenged by the European policy of Freedom of Movement because English has become the world’s second language.  A small country, England is now more densely populated than other European countries by the influx of over 500,000 immigrants per year, who are able to function because English is their second language, and who compete with the English for jobs and housing.  Consequentially, Scruton theorized that many of those who would vote for Brexit believed that the European Union’s Freedom of Movement policy cost England its right to secure its own borders, and thus jeopardized the island nation’s sovereignty thereby harming British citizens’ economic welfare and opportunities.

Scruton also posited a third potential reason for a vote in favor of Brexit: England’s unique legal system and its traditional understanding of the relationship between citizen and government.

Scruton pointed out that Britain’s legal system was built up from below and is structurally completely different from other European nations. In Britain, individuals traditionally bring disputes to courts, and impartial judges then ‘discover’ the law (rather than create it).  Parliament may thereafter ratify such decisions, but often does not.  This means that British law has two characteristics distinct from civil law systems: law is based primarily on conflict resolution and built up from below by the accumulation of decisions made in individual disputes and is not typically based on legislation.

The common law manages conflict; it does not totally resolve it. The common law historically recognized that the primary remedy a court can grant is money, and that it is not always a complete remedy. This is true of the U.S. as well, as recognized by James Madison in Federalist 10.  The purpose of government is to manage conflict (Madison’s factions), not to eliminate interest groups and not to subsume them in a ‘general will’.

Leader of the United Kingdom Independence Party (UKIP), Nigel Farage (C) speaks during a press conference near the Houses of Parliament in central London on June 24, 2016. (Photo by GLYN KIRK/AFP/Getty)

Because of this difference in approach (conflict management versus legislation) EU-imposed law inspires rebellion on the part of the British who do not accept law that is imposed either from above or from outside their country. European skills are focused on creating uniform standards, not on resolving conflicts. Consequently, Scruton argued, many Brits view EU regulatory law as producing as many conflicts as it resolves.

A major British polling company questioned voters on the day of the referendum, and found that Scruton was largely correct: voters’ primary concern was an objection to EU law and legislation followed by sovereignty/immigration/economics. Nearly half (49 per cent) of those voting to leave said the biggest single reason for wanting to leave the European Union was that they believed that legal decisions about the United Kingdom should be taken in the United Kingdom. A third of those voting to leave the EU indicated that their primary concern was immigration/economic opportunity.

Pundits often refer to “The Western Tradition.” However, this is a fiction – as there is no one Western scholarly tradition. England and the rest of the United Kingdom (and the U.S., if not all English speaking peoples, for that matter) have historically had a different understanding of how law should be created, as well as a different understanding of the relationship between man and government than does the civil-law-based Continent.

As the renown legal scholar, Dicey described it, “the Anglo-American [Rule of Law] is a spontaneous growth so closely bound up with the life of a people that we can hardly treat it as a product of human will….” The civil law tradition is similarly connected with its own Continental history, which is entirely different.

It, therefore, behooves all concerned to make the legal break between the European Union and the UK as swift, clean, definitive, and certain as possible. There should be no halfway house, transition period, or rule from European courts in these British Isles.

Theodore Roosevelt Malloch is a scholar, diplomat and strategist whose memoir is DAVOS, ASPEN & YALE: My Life Behind the Elite Curtain as a Global Sherpa.