EU v liberty: It’s all about the law

 

Why does the Brexit result matter to Britons? Because, says Andrew Bates in this Guest Post, the form of law imposed upon Europeans is vastly different to the common law that grew up in Britain. And that is the difference that makes the difference…

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For me, every political issue comes down to this question: "what does this do to advance the liberty of the human individual?"

For me, liberty is the key. It's the safeguard of the principle that every individual is an end in himself and may not be treated as the means to another's (or many others') ends (by coercion). When every individual's liberty is upheld, then all interaction between adults occurs 'by mutual consent to mutual benefit.' Fix liberty firmly in her place and - accompanied by courts and parliaments of reason and not the mystic proclamations of various religionists - we can resolve all the problems that ail us (and drive us to ale ;-)) by debate, persuasion and negotiation. There have been some beautiful words written about liberty, and it's impact on the workings and prosperity of society.

So what does that all have to with the Leave / Remain question? Well, Britain has been governed (and well served) by the Common Law for over 700 years, while Europe's dominant legal systems are, and have long been, various civil law systems – based on things like the Justinian Code and the Napoleonic Code.

So what? Well, this is not just some potato-potahto matter, or even Slovenia-Slovakia matter (as Harry Redknapp would put it). They are fundamentally different systems, in their presumptions about the citizens/subjects, their rights, and their capabilities.
The Common Law holds that we're free to do whatever the hell we like so long as (a) it's not been banned (i.e. rape, murder, theft, fraud, etc.); and (b) we take responsibility for our actions and are liable for the damages our actions may cause others.

The Civil Law presumes no such freedom. The opposite in fact. It presumes we are only free to do that which we have been expressly permitted to do by law. (It is no accident that both Justinian and Napoleon were dictators.)

Stop and think on that for a minute. What does each say about the citizen/subject governed? To me it seems clear that only the British system treats people as adults, and only the British system is appropriate to a free people. The other system is appropriate only to a people living under slavery, people who live by the caprice of their rulers - be they bureaucrats or whatever.

It is a system that could only be favoured by those who favour social engineering, not liberty.

(It's important to note that this difference in legal systems both reflects and reinforces the cultural differences between Britain and Europe. It is why the British resile more than all the others at the screeds of regulations pouring forth from Brussels; they see it as an unwarranted affront to their liberty in a way the Europeans have never conceived. It is common to us Kiwis and you Aussies, and to the Yanks, and to a large extent even the Canadians (it's the French influence, you know) and it's also why we should be pursuing more trade with India, of all the BRICs - but I digress... This is also why Britain is a poor cultural fit in the EU, and will always be a square peg in a round hole there.)

Now clearly, the mainland Europeans have done much to expand the things they are allowed to do and Britons have lost much of their liberties to regulation – for both better and worse and the liberties permitted by both systems have tended towards each other both as their ideas and laws have affected Britain’s (for the worse) and vice versa (for the better). And the drug laws in Portugal and here in NL are more enlightened and free than in the UK.

(And as I said above, generations and indeed societies are not politically homogenous, so there are those in Europe who favour more British-style liberty while there are those Brits among us who favour more European-style intevention, but we can still draw broad - wait for it - generalisations about the British culture as distinct from the European cultures.)

But with every “integration” of European law with Britain’s, and with every new regulation passed, the edicts of the EU civil law system are trampling the principles of our common law system and with it, necessarily, our liberty. We can only restore our liberty by restoring the sovereignty of our common law system – and we may only do that by leaving the EU.

I am not saying we will become the freest nation on Earth in the immediate aftermath of Brexit (if only that were the case!), nor that we won't lurch further towards collectivism in the future, but if we do vote to leave the declining EU and seek greater integration with the world we will at least have a chance of changing our trajectory.

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Andrew Bates is an Enzed living in Britain.

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