The law of England and above all the common law, was once considered something fine and unique-independent of and superior to other legal jurisdictions. That unique body of law is now mutating into something else and many people are worried. Those people fear that specifically English doctrines, standards and methods of legal thought are being inexorably Europeanised so that a precious piece of our identity is disappearing.
The fear is not entirely misplaced. Decisions of the European Court of Justice (the highest court of the EU in Luxembourg) and the European Court of Human Rights (part of the Council of Europe which applies the European Convention on Human Rights from Strasbourg) have imposed many policy changes on unwilling British governments (see details at end of essay).
Nor is it necessarily wrong to think that the eroding of a national legal culture may weaken a country's sense of identity. As Durkheim first pointed out, law is an expression of national value and, when one considers the differences between the English common law and the code law of continental Europe, it can even be regarded as a measure of national thought processes. One plausible reason that Scotland has retained enough identity to support devolution when Wales has not is that Scotland has retained its own legal system. What is less clear is how much these changes have to do with European integration and how much to do with a worldwide convergence of legal systems as a result of globalisation. It is also unclear whether these changes could or should be resisted. Does national legal autonomy make sense?
But first let us consider the contrast between the common law and the code law systems. A code law system means a legal system where all the law in a particular area is contained in a single coherent text, deliberately legislated by the national parliament. Such a document is meant to be comprehensive and to act as a constraint on judicial autonomy. Common law, by contrast, is judge-made law. Originating in early medieval England, the common law consisted originally of decisions by the king's judges applying specific royal writs to complaints brought before them in an ad hoc way. Slowly the mass of local customs were melded together into a rough and ready set of solutions for common problems, applied more or less uniformly throughout the realm. Much of the art of pleading before these judges was procedural, because of the doctrine that there is "no cause of law without a pre-existing remedy." The skill of the advocate lay in finding a way to make one of the existing writs apply to his client's particular grievance. The skill of the great judges was similar-slowly extending the coverage of the procedures and occasionally inventing new ones to fit the problems commonly brought to court. Common law was and still is incremental. The discipline and method is that of precedent. If a previous similar case has been handled in a particular way, the next judge in the process "applies the precedent," using the sheer fact of the prior decision as authority for his, borrowing the original logic and justification. Over time this practice became a rule: prior decisions were binding.
English law was piecemeal and atheoretical. Judicial decisions were not logical deductions from general principles, but practical solutions to specific problems, growing with no concern for consistency.
At no time was this common law the only law in England. Indeed it was precisely because the common law rather rapidly became hidebound, over-technical, and full of procedural limitations to justice that the other great English legal system, the laws of equity, grew up alongside it. This originated in the practice of appealing directly to the king for relief where the common law had no mechanism to help or where common law rules seemed unjust. Such appeals were handled for the king by his chancellor-at that time always a leading churchman, or by his assistant, the Master of the Rolls, a title still used for the head of the Court of Appeal. Equity worked by seeking direct moral justice in situations where the correct legal answer, if there was one, might seem unjust. But it sought to do justice in the context of a specific case rather than to apply rules. Inevitably, rules developed, but they were always more in the nature of generalised moral principles from which the correct answer could be deduced, rather than the crystallisation of fixed remedies. Nevertheless, in method and approach, equity has much in common with code law, or with Scottish law still heavily based on Roman law from which code law is derived. In 1875, the equity and common law courts were fused in England and all courts allowed to give both equitable and common law decisions.
Since the late 19th century, parliamentary legislation or statute law has been the most important source of new law in Britain. In theory, the most a judge can do with a statute is to interpret obscure language. Once "parliament has spoken" the courts are forbidden to create new law in the area. The trouble is that some sense of common law being superior to statute law has survived; English judges tend to operate as though there were two distinct branches of law and have made little attempt to develop them into a coherent whole. From a European perspective, there is both too much free-wheeling in developing common law precedents and a reluctance to make statutes work as the legislators intended.
Everywhere English law is piecemeal; devoid of general principles. The law of negligence, for example, lacks anything like a simple and all embracing doctrine of when people should be liable for accidentally hurting others. (It has been described as looking more like European criminal law-criminal law is everywhere a hodge podge of things nations have found necessary to forbid and punish.) But on the continent, there are general principles of negligent liability, capable of being stated in a few lines of codes. That should be the case in England as well.
Elsewhere English law, in contract for example, is often cumbersome and over-complex because old rules are retained for far too long; this causes injustice, so the lawyers craft ways around or, too seldom, parliament steps in. The classic case here is the rule of "privity of contract," which forbids a third party to sue A if A breaks a contract he made with B to do something for that third party. This has, very recently, been partially ameliorated by statute. The reform was first suggested by the Law Reform Commission in 1937. By contrast, in continental legal codes the doctrine of contract was based on a general theory of the moral obligation which follows from promising something, rather than a series of separate rules of contract crafted at different times to suit specific economic conditions.
English law reports are full of English judges openly admiring the German law of contract and wishing they could apply it. Yet this enforced insularity is not, in fact, true to the spirit of the common law tradition. Until quite late in the 19th century, our courts were surprisingly open to influence from leading jurists on the continent.
Just as critics of "Europeanisation" are prone to over-stress the role of common law in English law, they all too often assume that the whole of continental Europe is governed by one legal code. The non-existent single code is usually thought to be Napoleon's. But even in France Napoleon only gave impetus to a process of codification of local rules that had already started before the revolution and which did not come to fruition until long after his death. Although French influence is common in many continental jurisdictions, it is only one amongst several. The rival to French code law, preferred by Japan among others, is German. (There are important areas in which English and German law differ less, though one is code law and the other common law derived, than French and German code law.)
It is true that continental legal codes all share a common ancestry in Roman law, as developed in the medieval universities and influenced, as in England, by canon law. None the less in the end a legal code is just that-a codification of rules, laws, local usages, business practices, the teachings of great writers-all the possible sources of ideas on how to govern human relations. These were brought together, unified in form, thought through, the best practice distilled and then legislated. Although the common law and code law usually produce more or less the same results in specific cases, it is claimed that code law is more politically legitimate because it is the result of an intentional act by a legislator, though the legislator has not always been a democratic parliament.
One of the ironies of the critique of the Europeanisation of law is that the people who object to it are often the same people who objected to judicial activism in Britain when the courts got in the way of Conservative governments, as they did so often in the 1990s. Yet the continental distrust of judges being involved in politics is much greater than in Britain. In France, in particular, judicial creativity is much less legitimate. The French have still not entirely lost their distrust of judges, stemming from their pre-revolutionary role. And even though the French equivalent of a constitutional court, the Conseil Constitutionel, has become a powerful political actor in the last 30 years, its role is still limited.
The formation of judges also reveals interesting similarities and differences in the two systems. Unlike in Britain, where judges are usually appointed from successful trial lawyers, a continental judge is someone who enters the judiciary after a post-graduate course, making his or her way up a clearly demarcated hierarchy. This tends to produce much more literal-minded judges who are less enthusiastic about the creative aspects of judging. While Britain has its "old boys network" for judicial appointments, the continental system has its biases too. It is the executive branch of government which oversees judges' careers and one is not likely to advance rapidly by being over-bold in finding against the government. The weakness of such a career judicial system is demonstrated by the fact that continental countries choose a different mechanism for appointments to their constitutional courts-usually appointing outsiders such as ex-politicians or law professors.
While it is true that judges are less active in code systems that does not mean that the law is an automated process-with a judge just looking up code entry 3.097.56 and applying it. No legal system could work in such a fashion. In fact, legal codes are just very big statutes. In some areas, English law is itself fairly well codified-the Law of Property Act 1925 is a huge statute which did, in one particular area, what the continental codes did overall. It collected most of the common law and equity rules and rewrote them into a coherent whole. Our judges have interpreted and fine-tuned the 1925 act so that a full understanding of it now requires both a knowledge of the text and of hundreds of cases involving it. Similarly, continental judges have interpreted and developed the articles of their codes, and a knowledge of what in French is called La jurisprudence-the decided cases, the arguments of academic experts, the legislative record-all combine with the text of the code to make up the law on any question. But there is a big methodological difference. Continental law knows no rule of precedent. Past cases are important, but they are at most "persuasive"-they never bind the court. (Hence the continental unease about the way the ECJ almost invented a precedent system in its early cases.) English law is still deeply precedent constrained. The House of Lords is allowed to overturn its own past decisions-although only since it gave itself that power in 1966. Judges, however, are loath to do so.
Some aspects of incorporating European law are clearly troublesome. The development of different legal systems is never going to be completely parallel. Thus for example Britain had legal controls over insider trading long before Europe saw the necessity, and British law has had to be adapted to more recent conceptions of how to carry out such a task. In other areas Europe has relied heavily on Anglo-American models. Indeed, European corporate law-not to mention international trade and commercial law-looks more like something that has been drafted between London and Washington than between Paris and Berlin. Italy has adopted Anglo-American trust law and several other European countries are thinking of following suit.
The law always evolves. At a time of rapid internationalisation and Europeanisation it is logical that parts of our legal system should change to reflect that. One of the most striking legal reforms of recent years was the 1993 decision of the Law Lords in Pepper v Hart. In this otherwise unexciting tax case, the Law Lords took it upon themselves to change a small but significant aspect of the British constitution. Until then, it had been a clear rule of English law that courts could not look at Hansard to see what had been said in debates when they had to interpret the proper meaning of a statute. Only the words in the statute itself could be considered. Many had, for years, thought the rule idiotic. It is not followed in any other major liberal democracy, where recourse has always been made to parliamentary material in such a situation. How are we to interpret this constitutional change? Is it an example of English law being forced to give up one of its long established idiosyncrasies under foreign pressure? Of course not. Adopting "best practice" from anywhere in medicine, business or law is only prudent-and is how the common law itself used to operate.
Furthermore, judges and lawyers in the developed world are professionals who live similar international lives, attending conferences and colloquia all over the world which promote the convergence of practice and theory. I was recently struck by a citation used by a leading continental law professor to support a point on the need to homogenise laws on corporate governance. He cited, approvingly, a position paper issued by CalPERS-a huge US investment fund and known as a very active investor. What CalPERS thinks the law on corporate governance should be is a matter no prudent legal system will ignore.
Perhaps the oddest feature of recent English legal development is the effort some judges put into denying European influence, or to finding a common law route to a result that would follow more obviously from a decision of the ECHR or the direct application of the European Convention (now incorporated into English law). But what is important is not whether English law is modified under external pressure but how competently it is done and in what spirit.
There has recently been a good example of this. In 1995, the Law Lords handed down a very restrictive interpretation of when public authorities were liable for their negligence. It was in line with a protectiveness the English courts have always felt for local authorities, police forces, health authorities and such like, whom they have systematically helped avoid liability to citizens injured through bureaucratic incompetence. The Court of Appeal used this precedent to strike down many attempts to get recompense. In the 1997 case of Osman v the United Kingdom a particularly egregious use of this non-liability approach got to the ECHR. The case concerned the failure of a police force to take seriously threats to the life of a teenage boy who was later murdered. His family had failed in their attempts to sue in the English courts because of the doctrine of non-liability. The ECHR held that Britain had deprived the family of their right to a fair trial. They held that Britain could not grant blanket immunity to police forces or other public authorities.
Continental public law is characterised by a finer balancing of state and individual interests. Applied to our system of judicial review, it will certainly lead to public authorities losing more frequently than they have in the past. At the moment, judicial review of administrative action is the primary way a citizen can involve the courts in his or her conflict with the state in any of its myriad forms. But getting judicial review granted, that is getting a court to agree to review an administrative decision, is far easier than getting it to side with the individual. The state has been protected by a doctrine, known as the Wednesbury Rule, which effectively meant that the administrator being challenged had to be shown to have acted irrationally, rather than simply wrongly. Most experts, (including the Lord Chancellor in his speeches during the parliamentary discussion of the human rights act) think the courts will now engage much more in substantive judgements on the actual rights and wrongs of the decisions complained of.
There are those who regard judicial review with great suspicion, seeing it (at best) as a blunt weapon. In part this may stem from the fact that the British do not have recent experience of active administrative law. Until perhaps the late 1960s English courts were very passive when it came to dealing with the government. (The late 19th-century courts were happier to deal robustly with erring government.) In contrast, most continental countries, above all France, have made up for a rather passive ordinary judiciary with a very active, separate administrative law judiciary.
The distinctions between different categories of law are not always the same on both sides of the channel. Is public law and administrative law the same thing? Are both of them the same as constitutional law? What, for that matter, is the difference between civil and criminal law? As public or administrative law is best described as a law regulating the relations between the state and the citizen, why is criminal law not a branch of public law? It is possible in many continental jurisdictions for a civil complaint to be attached to a criminal trial, with the judge and jury who pronounce on criminal guilt then going on to award civil damages. The easiest working definitions for our purposes here are that constitutional law sets the citizen against the legislator; public and criminal law sets the individual against the executive; civil law sets the individual against the individual. But these boundaries are permeable-one of the things we do not yet know about the human rights act is whether it might come to apply between individual citizens, rather than only between the individual and the state. And is the House of Lords destined to become a constitutional court rather like those in continental systems with written constitutions?
(In the area of jury trial legal harmonisation is happening with no external pressure. Continental countries are not so bereft of juries as is usually thought, though the trial judges typically sit in with the lay jurors. But the British government's plans to replace jury trial-even for cases where a two-year prison sentence is possible-with a relatively junior judge sitting with two lay magistrates seems further from the common law tradition than the typical criminal trial in France.)
The lamenters of foreign influence are apt to highlight the 1998 human rights act, which incorporates the European Convention and requires English courts to keep an eye on developing jurisprudence in Strasbourg. This act, the importance of which we can only guess at, for the first time makes it possible for English courts to challenge the validity of parliamentary statutes. To be sure, no court will actually be able formally to invalidate a statute. Instead they can issue a declaration that a statute, or part of it, is in breach of the European Convention. If such a declaration is issued, the law for the time being continues in force, but the government is empowered to amend it by a fast-track procedure in parliament. It will be a brave government which defies the Law Lords and refuses to amend an act that has been so publicly denounced.
In fact as long as we cling to a constitutional doctrine of complete parliamentary superiority, as we do, no ordinary act can bind a future parliament. Thus there was no constitutional bar to David Blunkett suspending human rights for terrorist suspects recently. What is more interesting is that the very existence of the act forced Blunkett to acknowledge what he was doing, and brought him under considerable parliamentary and judicial suspicion. It must be doubtful that his opponents would have succeeded in preventing him introducing his controls over religious hatred had the human rights act not increased our awareness of such issues.
One of the most striking early cases under the act was a fight between the proprietors of Hello! magazine and OK! magazine caused by Hello! publishing photographs of the Michael Douglas and Catherine Zeta-Jones wedding which OK! had thought it had tied up in an exclusive deal. The press was anxious about this case because it centred upon its fear that there might be a legally defensible right to privacy. Such a right to privacy is one of the things that English courts might find, or be forced to find, following the incorporation of the Convention. Such a right exists on the continent, famously in France. Was this foreign right going to be enforced on the English? The judgements in the case seemed to tend that way. But what is most striking is Lord Justice Sedley's judgement, which seems nearest to granting such a right. And it is an impeccable account of how the right follows from existing English legal doctrines.
Constitutional and public law is the main area where English law is being Europeanised. Those areas of law are the most visible, which leaves the impression that English forms of justice are in retreat. But, as we have seen, the flows of legal influence are far more complex-in the field of business law, continental Europeans often feel swamped by Anglo-Saxon models. Also, as we have seen above, European influence is sometimes reinforcing existing traditions within English law. The human rights act, for example, does provide some new rights, but there are many areas-for example protection for suspects in criminal cases-where existing English legislation provides more than the European Convention. None the less, the act will undermine the traditional deference of the English courts to public authority. The basic doctrine has been to avoid "replacing the judgement of the official with that of the judge." European public law knows no such self-limitation and, with doctrines like "proportionality" now part of English law, our courts will shift to a primary concern to protect the citizen's right, rather than administrative convenience. Is this contrary to the spirit of English law? I would prefer to see it as a European catalyst to a return to the historical traditions of English law, after a century of judicial conservatism in relation to public authorities.
English law is coming under more pressure to change, and from more and varied sources, than it has for centuries. The great virtue of the common law is its flexibility. The main evidence of this flexibility has been its absorption and adaptation of foreign legal devices. Seen in this light, nothing is happening which is not characteristic of the common law down the ages. It is managing to change itself, and on its own terms. The best of the common law will remain. It really is just legal business as usual.
EUROPEAN LAW
EUROPEAN COURT OF JUSTICE.
The laws of the EU are the directives and regulations issued by the commission, supplemented by ECJ interpretations. European directives are closer to the decrees issued by continental governments than to parliamentary statutes, leaving room for variation in national application. But although the form of laws may look alien to the English, the ECJ itself has tended to operate and publish opinions which look more like those of an English appellate court than a comparable continental court?a system very like the use of precedent has emerged.
EUROPEAN COURT OF HUMAN RIGHTS.
Britain was one of the countries that established the ECHR in 1951, but it only incorporated the Convention with the human rights act of 1998. Since 1966, British citizens have been able to seek redress against the state at the ECHR. Britain has lost many cases?from Sikh motorbike riders to restricting the use of corporal punishment on children. The court allows a ?margin of appreciation? to ensure that national practices are not interfered with more than necessary to produce a Europe-wide standard of respect for human rights.
