Theme: Constitutional Order

WHY ANGLOS THINK EUROPEAN BUREAUCRACY AND LAW IS IDIOTIC

1. There is only one law and that is property. All else is an application of that law to circumstance.

2. Every man is sovereign and equal before the law

3. The members of the state are merely members of the polity who have taken jobs administering the polity.

4. We ‘battle’ before the court, and jury, with arguments, and the jury (really) can nullify laws or decisions at will.

5. Judges discover violations of the one law creating decisions that become applications of, and records of, that law.

6. This law is PURELY EMPIRICAL (scientific) method of continuously discovering what not to do, without determining what we should do.

7. This law adapts immediately without administrative intervention or process to changes in circumstance and technology.

8. Under this system of law anything not illegal is legal, and moreover, law may not be applied retroactively: where there is no law there is no crime.

9. Under this system of law, we have very little constraint on people but more conflict in courts as a result, so we trade maximum opportunity for cooperation for higher chances of conflict we must defend against if we err.

10. MOST IMPORTANTLY: To govern we only need to prohibit crimes. The ‘market’ and the court does the rest of its own self regulation, purely empirically not theoretically.

The real difference? Because we could trust anglo judges and the french couldn’t trust french judges. Now the answer to that question of why is fascinating. Judges are just professional lawyers in Common law, not political or state bureaucrats. (the best generals were soliders)

The European Union And The Common Law

By Dr. Gary K. Busch

There are many reasons why the European Union has failed in its task to create a system of democracy, fairness and transparency in its internal dealings. These include political corruption, economic ineptitude and the elites adherence to the religion of federalism among states and citizens whose agnosticism to that faith is proven at every referendum. The political and economic vacuity of the European bureaucrats is a heavy burden for any organisation to bear. However, despite the manifold failings of the leadership of the EU, the root cause of its incapacity lies elsewhere.

There is a fundamental problem which has beset the European Community since its inception the conflict between the common law and the Roman-Dutch civil law of the Continent.

THE COMMON LAW

In essence, the Common Law legal systems are in widespread use, particularly in England where it originated in the Middle Ages, and in nations or regions that trace their legal heritage to England as former colonies of the British Empire. It is a system of law which is founded on case law and precedents. This Common Law was developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action. The fundamental principle is that of the continuity of the law and the root belief that it is unfair to treat similar facts differently on different occasions. The body of precedents developed through prior adjudication binds future legal decisions on similar points of law.. In cases where the parties disagree on what the law is, a common law court looks to past presidential decisions of relevant courts. If a similar dispute has been resolved in the past, the court is bound to follow the reasoning used in the prior decision (this principle is known as Stare Decisis). If, however, the court finds that the current dispute is fundamentally distinct from all previous cases (called a “matter of first impression”), judges have the authority and duty to make law by creating precedent. Thereafter, the new decision becomes precedent, and will bind future courts.

This system of Common Law is the source of law in England, the United States, Canada, New Zealand, Australia and the former British colonies in Asia, Africa and the Caribbean. This Common Law distinguishes itself from Statutory or Regulatory Law promulgated by executive branch agencies pursuant to delegation of rule-making authority from the legislature and is generally anterior to these statutory or regulatory laws. The Common Law arises from the traditional and inherent authority of courts to define what the law is, even in absence of an underlying statute, Most criminal law and procedural law; most of contract law and the law of torts; and court decisions that interpret and decide the fine boundaries and distinctions in law promulgated by other bodies relies on judges taking evidence in an adversarial proceeding and delivering a judgement which establishes the strictures of the ensuing law. This body of common law, sometimes called “interstitial common law,” includes judicial interpretations of the Constitution, of statutes, and of regulations, and examples of application of law to facts.

This Common Law system is very different that the civil law system which prevails in Europe. Common law systems place great weight on court decisions, which are considered “law” with the same force of law as statute for nearly a millennium, common law courts have had the authority to make law where no legislative statute exists, and statutes mean what courts interpret them to mean.

By contrast, in civil law jurisdictions courts lack authority to act where there is no statute, and judicial precedent is given less interpretive weight which means that a judge deciding a given case has more freedom to interpret the text of a statute independently, and less predictably. For example, the Napoleonic code expressly forbade French judges from pronouncing general principles of law.

CIVIL LAW

Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections which are referenced. Conceptually, it is the group of legal ideas and systems ultimately derived from the Code of Justinian, but heavily overlaid by Germanic, ecclesiastical, feudal and local practices as well as doctrinal strains such as natural law, codification, and legislative positivism. Civil law proceeds from abstractions, formulates general principles, and distinguishes substantive rules from procedural rules. It holds legislation as the primary source of law, and the court system is usually inquisitorial, unbound by precedent, and composed of specially trained judicial officers with a limited authority to interpret law. Juries separate from the judges are not used, although in some cases, volunteer lay judges participate along with legally trained career judges. European civil law relies on the notion of codification. The concept of codification was developed as conforming to a political ideal which required the creation of certainty of law, through the recording of law and through its uniformity.[iii]

The principle of civil law is to provide all citizens with an accessible and written collection of the laws which apply to them and which judges must follow. Where codes exist, the primary source of law is the law code, which is a systematic collection of interrelated articles arranged by subject matter in some pre-specified order, and that explain the principles of law, rights and entitlements, and how basic legal mechanisms work. Law codes are usually created by a legislature’s enactment of a new statute that embodies all the old statutes relating to the subject and including changes necessitated by court decisions[iv]

There are many differences between the Common Law and civil law, much too abstruse for this analysis. For the purpose of analysing the conflict of laws within the European Union a simple concept will suffice. This was recited to me by the new head of the Legal Division of the European Economic Community in the early 1970s. I was researching and writing a television documentary for the Canadian Windows on the World� (CTV) called The New Europeans. The legal head was a British lawyer. He said to me, This European Community will never work. English law says that whatever is not illegal is permitted. In Europe, if something is not specifically permitted under some codified rule, than it is illegal. He went on to say that not only must everything be specifically permitted it has to be permitted uniformly throughout the Community. That is why there are so many directives, guidelines and rules set up by the EU which govern all aspects of economic and political life. All these rules must be the same throughout the EU. Most of the time taken up by the EU (except for the profitable business of allocating subsidies, allowances and quotas) is spent dealing with the minutiae of governance.

This is why the EU is bogged down by pettifoggery and why the English cannot fathom what these bureaucrats are about. If it isn’t illegal than one should be free to do it. It certainly makes sense to Americans, Canadians, Australians and others.

This conflict of laws is equally a challenge to multinational companies attempting to pursue their aims in the EU. Much of what is taken for granted as legal and permissible in other parts of the world is differently construed in Europe. This is repeated in Africa where ex-British colonies are often in conflict with ex-French, Spanish and Portuguese colonies. This issue is an important factor in the current debate on the imposition of a tax on financial transactions. It is a dilemma for those involved.

Ultimately there is no solution to this dilemma. Perhaps a separation of the Common Law countries from the civil law bureaucracies is inevitable. To quote Marx, it contains the seeds of its own destruction.

[i] Garner, Bryan A. (2001). A Dictionary of Modern Legal Usage (2nd, revised ed.). New York: OUP.

[ii] Neubauer, David W.,and Stephen S. Meinhold. Judicial Process: Law, Courts, and Politics in the United States. Belmont: Thomson Wadsworth, 2007, pg.28.

[iii] Smits, Jan (ed.); Dotevall, Rolf (2006), Elgar Encyclopedia of Comparative Law, “63: Sweden”, Edward Elgar Publishing,

[iv] Neubauer, David W.,and Stephen S. Meinhold., op.cit.