Tuesday, August 22, 2006

The system of law

Timmy at the ASI on the difference between Common and Roman law.
We've developed, over the centuries, a system of law (usually called the Common Law system) in which the general presumption is that as long as there is no law specifically against the activity you undertake, it is legal. This is in contrast to the so called Roman Law (sometimes called Continental or Napoleonic) ideal that you may only do those things which are specifically sanctioned by a positive law allowing you to do so.

We could deal with this by becoming a nation of scoff-laws which is how many of our European partners deal with this conundrum, or we could return to the Common Law ideal: the law is there solely to stop us from infringing upon the rights of others and to act as an arbitration system when such infringements are encountered.

The latter is the liberal, progessive and radical option, with the added bonus that if adopted we'd be able to fire many bureaucrats currently engaged in such futile rule-making. That the Nanny Staters, those who do not in fact know the meanings of the words liberal, radical or progressive, are in power and have been for some time is why such a simple solution will not, of course, be adopted.

Quite so.


Prodicus said...

And that's why written constitutions, save where there is no alternative for the salvage of a society in the grip of anarchy (which ours is not - yet) are A Very Bad Thing.

Tom Paine said...

I beg to differ (slightly). I am a lawyer who has practised for half his career in a Common Law country and half in various Civil Law countries. There is a lot to be said for both systems. Amusingly enough, the old saw about "..everything is permitted which is not expressly forbidden.." is taught in Civil Law universities as being a feature of their system too.

You can achieve a well-functioning modern society under either system and freedom has too few allies in the world to trash perfectly good free societies because they have a different legal system. DK lives under a Civil Law system in Scotland and I am sure he would agree that it's Scotland's politicians, not its lawyers, who are to blame for her steady Sovietisation.

Having said that, I still prefer the Common Law because judge-made law fills the cracks between statutes so very efficiently.

It's the traditions that make the difference, not the system itself. Every English Common Lawyer knows that if we repealed all our statutes we would have a perfectly good system, as developed by disinterested judges dealing with practical issues over many centuries. Humanity has not evolved over recorded history. There are not really that many "new situations" which demand new law. When a politician tells you that you are facing a "new reality" he is always after one or other of your freedoms.

Parliament's efforts to supplement and replace Common Law are at best enhancements but at worst disasters - unsurprisingly as they are almost always designed for short-term political benefit rather than improving the lives of the people. Lord Denning -perhaps the greatest judge in the history of Common Law- once slapped me down when I was a young law student for suggesting it was undemocratic for him to be making law. "When I see the standard of people in the House of Commons, young man" he said "I think you should wish that I made all the laws".

Civil Law systems on the other hand all have a "Day Zero" when the constitution under which the current Civil Code was enacted came into force. This leads to a sense that rights derive from the law, rather than from the simple fact of being human. Citizens of Civil Law countries therefore tend to think their rights come from the law - are in a sense a gift of the State. Citizens of Common Law countries used instinctively to appreciate that all laws are restrictions on their native state of freedom.

This instinctive appreciation is being lost for various reasons (probably, but let's simplify it and blame Britain's lousy schools). Hence such stupid comments as one I saw recently on a blog from some idiot who thought we had no "civil rights" until they were granted to us by the EU.

In fairness to my Civil Lawyer learned friends, it was a citizen of the most famous Civil Law country, Montesquieu, who made the definitive statement on the subject of law: "If it is not necessary to make a law, it is necessary not to make a law". I wish Common Law politicians understood that.

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