With input from experts in the legal profession, Clifford Hill reflects upon some of the judicial issues involved in the Referendum debate.
The British justice system is incompatible with the system of justice operated by the European Court. That is the verdict of senior lawyers in Britain who have first-hand experience of dealing with the European Union. Problems arise from the fundamentally different traditions of law between Britain and continental nations.
British legal tradition is based upon biblical principles. Above the state entrance to the Old Bailey, Britain's Central Criminal Court, are inscribed the words:
"Defend the children of the poor. Punish the wrong doer".
These words are based upon Psalm 82:3 which says, "Defend the cause of the weak and fatherless; maintain the rights of the poor and oppressed".
Common Law Tradition
The British traditions of law, based upon the Common Law of England1 (going back to the days of Magna Carta), are rooted in the Bible. Justice is considered on a case-by-case basis rather than in conformity to some abstract concept of law.
English Common Law is an unwritten law which has been evolving for many centuries. It reflects the common customs of the kingdom and is based upon reference to previous judgments. Precedents are formed as the number of judgments increase on a particular issue and these become guidelines for judges in deciding similar cases.
Changes in society sometimes trigger new issues in law. Common law judges are free to depart from precedent to establish a fresh judgment, thus setting a new precedent. This demonstrates the dynamic character of Common Law which is always changing in order to be relevant in a changing society.
English Common Law is unwritten, dynamic and flexible - relevant to a changing society - and has developed along biblical lines.
European Civil Law
In contrast to British Common Law, European Civil Law is a system based upon ancient Roman law in which judges resolve cases by referring to established principles. The Emperor Justinian in the sixth century AD formed a collection of ancient pagan Roman law.2
The Napoleonic Code in the Historical Museum of the Palatinate, Speyer. See Photo Credits.This became the basis of the 'Code of Justinian', which in mediaeval times quickly spread throughout the countries which now form the western part of the European Union. Local statutes and customs were codified in order to form a harmonised body of law throughout the continent. Historically only England remained apart from this until Britain joined the European Union.
Roman law had its origin in pagan and Imperial Rome and during the 18th and 19th centuries its codification was influenced by atheistic and humanistic ethics derived from revolutionary France. This system of Civil Law was adopted by most continental countries producing a strong measure of unification which was adopted by the European Union, replacing national differences in law with international practices.
Since the 18th Century, political leaders in Europe have regarded legal codes as necessary instruments for establishing national unity and enforcing central authority. Napoleon's objective in the 'Napoleonic Code' was to secure his conquests and this code became the basis of the legal systems of some of the founding members of the European Union such as the Netherlands and Belgium.3
By contrast, European Civil Law is based on established principles and codes collected over the centuries and influenced by both pagan and atheistic societies.
Comparing Civil Law and Common Law
There are fundamental philosophical differences between these two systems of law.4 For example, the 'Law of Evidence' which is an integral part of Common Law has no counterpart in the Civil Law practised in the European Union because there is no such thing as 'inadmissible evidence' in continental Europe.
Most continental countries separate their administrative courts, from those that deal with criminal cases and private law disputes. Under Common Law all kinds of disputes are determined in the same courts, in order to apply the same rules of fairness and justice.
In England a fast growing area of law is 'judicial review' which, on a daily basis, challenges the actions of politicians and quangos, thus holding our Government accountable to law.5 It is difficult to imagine this happening on the continent under the philosophy of Civil Law. Civil Law systems usually uphold all contractual promises and then enforce penalty clauses. In England Lord Denning in the post-World War II period pioneered a system of justice whereby contracting parties would be protected when the contractual terms are deemed to be unjust.
Another difference between Civil Law and Common Law systems is in terms of personnel. Under Common Law judges are drawn from barristers with many years of practical experience in dealing with justice whereas under Civil Law they are usually career bureaucrats serving the state. Trial by jury is an essential element in Common Law where it is the right of individuals to be tried by their peers. This is not often used in civil law on the continent where cases are decided by professional judges. In some continental countries laymen are used but not as jurors but as lay judges alongside professional judges.
There are fundamental differences between Common Law and Civil Law, which mean different attitudes to evidence, courts, jury and personnel.
What of the future?
The continental system of law adopted by the European Union is imperial and uniform and allows no differences for national law. The EU constantly sends out a stream of legal regulations which change our laws and bind our Parliament and our courts. Even our criminal law is not safe from EU interference and we are not able to deport convicted criminals to their countries of origin who appeal to the European court on grounds of the infringement of their human rights.6
In the article by Viscount Tonypandy that we published last week, he referred to the famous case of our Fisheries Act being declared illegal by the European court which overrode legislation passed by our elected Parliament. This effectively destroyed the livelihoods of our fishing fleets working in our own waters from Cornwall to Scotland.
It is the declared intention of the Commissioners of the European Union to move towards closer and binding integration. If Britain remains in the EU, our entire system of justice will be threatened. The threat is from two sources: from the mass of legislation that seeks not only to regulate but to standardise all the member nations of the European Union, and from the decisions of the European court which override national laws of member states.
In a federal Europe, towards which the EU is moving, the system of law that will be imposed upon us will be interpreted by judges who bind our judges by their decisions and there will be no room for our traditions of Common Law.
In a federal Europe, the system of law imposed upon us would leave no room for our Common Law traditions.
Our national heritage, based upon concepts of law drawn from the Bible, will be swept away by the European Union. We must ask ourselves whether it is more important to ensure that justice before God is shown to all people or whether we merely administer man-made laws.
On the 23 June 2016 we will be faced with a choice similar to that offered by Joshua to the people of Israel, whether or not to put our trust in God. He said "If you forsake the Lord and serve foreign gods, he will turn and bring disaster on you and make an end of you." He added the declaration: "But as for me and my household, we will serve the Lord!" (Josh 24:20 and 24:15).
References
1 See Common law, Encyclopaedia Britannica.
2 Codex Justinianus, Wikipedia.
3 See The Napoleonic Code, Encyclopaedia Britannica.
4 For differences other than those mentioned here, a useful discussion can be found here: The Common Law and Civil Law Traditions, University of Berkeley, California.
5 See Judicial review in English law, Wikipedia.
6 EU laws 'prohibit UK from sending foreign criminals home'. BBC News, 7 June 2016.
