Tuesday, 12 January 2010

So much for English Common Law ... as usual the EU is not mentioned once

The divergence of Britain from the Continent can be traced to Bonaparte's greatest victory 200 years ago. In Book III of "War and Peace" that Tolstoy memorably describes the Battle of Austerlitz — "the battle of the three emperors." This was the greatest victory of Napoleon Bonaparte's career. At the time, it seemed far more important than his navy's defeat at Trafalgar two months before. By routing the combined armies of Austria and Russia, Austerlitz enabled Napoleon literally to redraw the map of Europe, conjuring up a new Confederation of the Rhine from the Baltic to the Alps.

Moreover, by obliging the Austrian Emperor Francis to renounce the title of Holy Roman Emperor, Napoleon snuffed out an institution that had been at the heart of Europe for more than a millennium.

Napoleon's idea of Europe was double-edged. On the one hand, he overthrew decadent dynasties such as the Bourbons of Naples and established what was to become the model for Continental legal systems, the Code Napoléon. Later, in exile, he claimed that he had "wished to found a European system, a European code of laws, a European judiciary" so that "there would be one people in Europe." Yet, at the same time, Napoleonic Europe was without question an authoritarian empire.

What finally killed Napoleon's Europe was the fatal combination of the English Channel and the Russian winter. Nevertheless, it proved impossible to restore the old pre-Napoleonic Europe.

Napoleon fell; Bonapartism lived on, with the civil code and economic dirigisme as perhaps its most enduring legacies. Now it is back in the UK backed and imposed by the EU as usual (that is one of the 'minor' consequences, one of the footnotes, of signing the Lisbon Treaty), and as usual not a word is being said about this in the newspaper. Not a single 'EU' is mentioned in relation to uprooting of English Common Law. What to say? It is again one of those where you are completely at loss for words. Think back at the greatest men of our history and ponder what they might have replied on stumbling upon this revelation; that the corner stone of England is being chucked out just like that. It should be said that I strongly disagree with Mr. Berlins who wrote this post on the issue over at the Guardian. I will echo instead what Fausty said on the subject.

An illustration of the difference between Common Law and the Code can be seen in the understanding of "Rights." In the Anglosphere, there are a core set that pre-date the existence of the civil power and cannot be diminished by it (Jefferson's "Life, Libery and the Pursuit of Happiness.") The Code acknowledges no rights save those spelled out in the Code itself. Rights are thus a creature of the Code and therefore malleable by whoever has the power to amend the Code.

In Common Law you are assumed innocent until the state proves you guilty. In the Code you are presumed guilty until you have proven otherwise.

Ask yourself this; what is more important £6 million or a man's freedom? They are of course claiming that this is done to save money, their primary argument - to have the audacity to even suggest that money is an issue it outrageous. It is the responsibility of the state to prove that one or more of its subjects have acted outsides the confines of the law and failing to do so the subjects must be set free. Furthermore if the confines of the law are not adequate then the laws are changed for better implementation by elected representatives of the people, not the practise of law. You know of course where this will lead, more cases will use the Code under the guise of "cost savings" and hey presto our freedoms are set in stone - that in itself is a contradiction, an oxymoron of colossal importance. Freedom is a liberty, we are born free, if you write down that it is a freedom to be born free then it is not a freedom anymore. You have defined what the concept means, you are introducing guidelines and rules for the implementation of the word and then you make it into a law and a law is a rule which prevents freedom. The more laws the less justice, and the primary purpose of the Code is to ensnare and trap our freedom.


Edward said...

It is not strictly true to say that an accused person is guilty until he proves his innocence under the Napoleonic/Roman law system.

However, it does rather feel like it because the system is INQUISITORIAL and not ACCUSATORIAL. An examining magistrate can hold a suspect in "investigative custody" without charge whilst he satisfies himself that there either is or is not evidence to bring a case to a court with a trial judge - by which time, everything is usually neatly tied up. It is a stage of procedure unknown to Common Law.

Of course, as a suspect is being interviewed by an examining magistrate (a judicial officer) in private, he does not have to be produced in open court. So Habeas Corpus is not part of the system.

There is no "double jeopardy" rule in most ROman systems. The prosecution can appeal against acquittal. This is happening at the moment to two young lads from Derby. They were hauled off to jail in Latvia for several months under a European Arrest Warrant (no prima facie evidence required). They now have to return to Latvia as the prosecutor appealed against their acquittal in the lower court.

13th Spitfire said...

Good comment, I will reply to it in full later. But I must ask you in what sense is your first paragrah incorrect about the Roman (Napoleonic) code of law?