UK & EU Common and Civil Law, Consequences of Difference

Or Why don’t Greeks have to wear hard hats.

I’ve been trying to put into words something. Something about the way the UK inflicts EU ideas onto the British public in a way that the continentals never have to their own people.

If you have ever wondered why the Spanish and the French fail to follow all the rules you seem obligated to, read on. Kevin has written the best explanation I’ve yet seen for this odd phenomenon.

From Kevin Beach

This is a bit of a drift and a ramble, but it’s actually very relevant to the UK’s position in the EU.

For years, long before the referendum, I often found myself explaining to people why Britain had such difficulty with some of the EU laws. It goes back to 1066 and all that.

England is the predominant part of the UK, both geographically and in numbers. It became finally united as a country in the early 11th century, a few decades before the Norman Conquest. When William I parceled out the land, he found that England was already developing a system of laws that were becoming common throughout the land. William adopted it with some Norman additions.

A hundred years later his great grandson, Henry II, set about structuring the legal system, so that there was greater uniformity among the decisions of his judges, who traveled from town to town, dispensing justice. The period from about AD 1000 to AD 1180 can be regarded as the birth and consolidation of the system of traditional and judge-made laws, which we now call the English Common Law. It is still an important part of the body of laws in England and Wales, in both parts of Ireland, in many of the American states and throughout most of the Commonwealth. Scotland, though, never came much under its influence.

The Common Law’s main feature is that it is “common” – uniform – throughout the country. It had to be applied consistently throughout the realm. This meant that the judges’ decisions were vital and came to be regarded as law in themselves, forming the legal doctrine now known as Judicial Precedent. What a senior judge applied in one place had to be applied by the other judges in their courts. (It is still like that in English law, in which the decisions of the Supreme Court, the Court of Appeal and the High Court bind the judges of all courts dealing with the same points.) To achieve the greatest possible justice in the courts, Acts of Parliament and other laws promulgated from the centre had to be framed in detail and liberally, with an eye to as many possible outcomes as possible.

Meanwhile, on the Continent, the Holy Roman Empire had grown up as a successor to Imperial Rome in the West and had centralised some of the government. And in Constantinople the eastern part of the Roman Empire flourished. In the 6th century the Emperor Justinian had codified the laws that Byzantium had inherited from Rome, and they formed the backbone of the region’s laws until Constantinople fell to the Saracens in the 15th century. The Church also applied adapted versions of them in the parts of Europe that were pulled into the rule of the Holy Roman Empire, from AD 800 onwards.

By the pre-Renaissance period, versions of Roman law had spread over most of continental Europe, and Scotland, while England remained almost totally immune from it because of the successful development of its Common Law. The Roman law countries tended to call their system the Civil Law (as opposed to Church Law), and the main international distinction between legal systems today is between the Common Law and the Civil Law.

The Roman political and legal mind was quite different from ours. The Imperial system believed in absolutism, with laws promulgated as part of the authoritarian gift of the Emperor to the people. They therefore tended to be legislated from a position of unbending high principle, leaving the administrators and judges to interpret them liberally and as the occasion required, with each judge reinterpreting the written law as he saw fit each time.

The upshot was that England had well-drafted laws, considered liberal and complete at the point of enactment, applied strictly and uniformly in the courts, while the Roman/Civil system, spreading over the continent, had the opposite: rigidly framed laws that were sometimes little more than statements of principle, applied liberally and sometimes randomly in the courts.

The early EEC laws were drafted by lawyers from Civil Law countries and followed the Civil Law style, laying out principles for interpretation, instead of detailed laws to be obeyed to the letter. When the UK joined, with England as its predominant part, its Civil Servants and lawyers were used to the Common Law way of interpretation. The result was that we were suddenly subjected to rigid Community laws interpreted in a rigid manner by the British courts, which was never how it was meant to be. On the continent, noticeably in France, an unappealing law would be met with a Gallic shrug and a very liberal Roman Law interpretation, bequeathed to them through their “Code Napoleon”. The Germans would be very efficiently lax in their interpretations, and the Italians would just say [imagine stereotypical stage Italian accent here) “Hey. Look, we invented the system. It’s ours to play with, okay?”

The legal careers (including mine) that were young when we joined the EEC have now mainly run their courses. New generations of British lawyers are doing the business these days, trained in European law and its different interpretations. Things have got much better, but no UK government has ever begun to admit the mess that earlier interpretations of the rules go us into. I often wonder how we would have got on with EU law if Henry II and his successors had not been so uptight about legal uniformity …….