Common law vs civil law – Brexit, society & culture

farnaby

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In commentary on Brexit I see more reference than usual to common law versus civil law, with Brexiteers in particular fondly promoting the virtues of the former e.g. Jacob Rees-Mogg

Jacob Rees-Mogg speech: 'Brexit - One Year To Go' - full text - Leave Means Leave
The British constitution is an object of great beauty. It is entirely democratic, but has built in protections against raw populism. …

The common law fits in with this, as it is a human system based on precedent and historic understanding, and can only be changed by specific statute, this provides both continuity and flexibility. It avoids arbitrary or bureaucratic rule.

The European Union is based on a different approach to government and a separate understanding of how the state ought to work. This is not necessarily better or worse but it has always been hard to graft one on to the other.
You can also see this in the writings of Roger Scruton, whose “Green Philosophy” I thoroughly admire without agreeing with much of its content. In it he almost exclusively favours bottom-up approaches to environmental problems – grounded in Burkean, British “little platoons” of local organisations steeped in a history and culture of common law. He deplores EU top-down target-setting – emerging from the culture of civil law – as ineffective and dangerously distorting.

Thirdly the attitude of people to government data-gathering apparently differs in the two systems – common law countries tend to be suspicious of and resistant to government databases (as we are) whereas continental European societies are more trusting of government. (Interestingly, this is reversed for private company data gathering).

Having lived in the UK I have to dismiss the Rees-Mogg and Scruton positions. I see no love (or even understanding) of common law among the general populace, while the UK govt seems as centrist as any modern state – the failure of Cameron’s Big Society concept adding evidence for this – and local solidarity (the aforementioned “little platoons”) is disintegrating from a low base. It seems to me to be nostalgia for a lost or imagined English middle-class past.

What do the denizens of pie think?
Was the common/civil law split a cultural cause of Brexit? It can perhaps be seen in the British narkiness toward ‘overbearing’ EU regulations.
Are common law societies fundamentally/culturally different from those with civil law?
If so, what implications for Ireland as the only remaining EU country with a common law system?
 


GDPR

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That sounds like booshwah to me.To give you one example, its unlawful to require details of peoples sexual orientation, ethnicity or religion on European censuses as that would breach privacy legislation. When I explained to European colleagues that the UK collected the data in order to target resources, they laughed and said "A likely story!"

Europeans have long memories and very recent history of profoundly untrustworthy regimes so they are no innocents about central govt.

Where do I think there is a difference is on Brexodus. The Europeans see it primarily as a matter of negotiating within the rules ie the Treaties, and the British think of it as haggling in a bazaar. Sure youll drop the price. Umm, they wont.
 

livingstone

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I think the link between common law or civil law on the wider culture of a nation are probably overblown.

The common law tradition and the UK's unwritten (or at least uncodified) constitution are intimately linked: they both stem from a belief that a patchwork of various evolutions is more effective than a single code. There is certainly something to that when your nation and its (broad) legal system has survived for centuries, and civil and political rights have broadly been protected and evolved for a long period of time. The flip side of it, of course, is that any Parliament can simply decide to eliminate those civil and political rights; though it's an interesting question of UK Constitutional theory as to whether Parliament's sovereignty would extend to abolishing itself, or abolishing elections entirely (I'd say probably not).

But I don't think that any of that - interesting though it is - explains differences in culture or national mindset terribly well. The failure of the Big Society, for example. There are plenty examples of EU countries with small, community based organisations or groups delivering social goods rather than relying on a top down provision. There are also plenty areas in the UK (and Ireland) where that is absent but desperately needed. I just don't see any real coherent pattern that can be explained by reference to common law.
 

Tribal

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There's probably a greater sense of security in everyone having to carry ID in civil law societies that is missing in the UK and the USA. Back in the day when most people travelled no more than five miles from their home on any day it was easier to feel secure where everyone knew eachother or could at least be vouched for by common associations. Even though we have the same principle our much smaller scale and fewer access routes makes it much harder to sneak in and hide successfully for very long. A lot of illegals have usually overstayed a legal visa.

The invention of Sherlock Holmes was in response to the sense of hysteria of crime being out of control when no one knew who was coming and going in the rapidly sprawling metropolis of Victorian London. The idea that the plod had at their disposal super crime solvers like Sherlock was a welcome fantasy, probably no different than the need to believe in spacemen during the cold war.

Nigeria has recently been taking IDs a step further by linking it to a money account to get cash out of the criminal market. There have been calls for something similar for all EU citizens to have a free acc into which benefits and tax returns could be placed no matter where they are across the union.

Usually with these things it's sometimes those coming from behind that make the greatest leaps forward, India even used retina scans for issuing welfare payments to stop woman being dependent on their husbands that withhold their entitlements.

It's funny that the very thing that the UK rails against may be what they end up with in a security state because they refuse to establish a civic duty to be identifiable.
 

farnaby

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That sounds like booshwah to me.To give you one example, its unlawful to require details of peoples sexual orientation, ethnicity or religion on European censuses as that would breach privacy legislation. When I explained to European colleagues that the UK collected the data in order to target resources, they laughed and said "A likely story!"

Europeans have long memories and very recent history of profoundly untrustworthy regimes so they are no innocents about central govt.
Having a Finnish spouse I'm exposed to the Nordic European side of things and they have an extremely trusting attitude to data - with details of other people's income being searchable, something we would absolutely balk at. But yeah, can see many other EU countries not having that attitude.

Where do I think there is a difference is on Brexodus. The Europeans see it primarily as a matter of negotiating within the rules ie the Treaties, and the British think of it as haggling in a bazaar. Sure youll drop the price. Umm, they wont.
Very good point.
 

GDPR

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Having a Finnish spouse I'm exposed to the Nordic European side of things and they have an extremely trusting attitude to data - with details of other people's income being searchable, something we would absolutely balk at. But yeah, can see many other EU countries not having that attitude.



Very good point.
Where I see legal differences shaping the attitudes of politicians (not Joe/Josephine Soap who quite rightly regards whatever legal system they have as just like the weather, nuffing they can do anything about ) is very much connected with the Brexit Balls-Up.

1. The UK, almost uniquely, does not have a written constitution or constitutional supreme court, so British ministers just dont get that you MUST comply with the code.

2. The UK supreme court (which replaced the House of Lords/Law Lords) almost always defers to parliament as the source of law.

3. The EU on the other hand can act only according to the Treaties.

4. Michel Barnier is entirely restricted in his negotiating position by the Treaties - he cannot cut anyone a sweet deal. Its up to the UK to propose solutions that are legal and feasible.

5. The British task should be damage limitation within the constraints of the Treaties. Instead they think they can get a new deal.

Anyone who understood Civil Law which is the basis of the European Treaties would realise the current British position is simply unworkable.
 

ger12

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We're very pro European.

As a common law country too :lol:
 

farnaby

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4. Michel Barnier is entirely restricted in his negotiating position by the Treaties - he cannot cut anyone a sweet deal. Its up to the UK to propose solutions that are legal and feasible.

5. The British task should be damage limitation within the constraints of the Treaties. Instead they think they can get a new deal.

Anyone who understood Civil Law which is the basis of the European Treaties would realise the current British position is simply unworkable.
Doesn't this apply more to Cameron's attempt to extract concessions from the EU prior to the referendum? He and they were fully constrained by the treaties in that situation where he did not see the UK leaving the EU.

In terms of Brexit the UK is acting as a future outsider to the EU so it sees the deal as a blank page, many aspects of which do not conflict with the treaties and are up for debate (you might include citizens rights in this category for example).

In cases where what the UK wants affects the application of the treaties in the remainder of the EU, the point may be that the UK does not see its role in negotiations as having to tease out the implications of hundreds of dense pages of treaty text; the EU happily fulfils that task anyway.

Perhaps you could give some examples?
 


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