If two parties can’t agree on terminology, they can’t agree on anything. This basic rule is vindicated every time I talk to my French friends about politics or law.
Take the rule of law, for example. I’ve never been comfortable with that notion, if ‘law’ is left unmodified by ‘just’. Yet with the unqualified way the term is commonly used, one may get the impression it’s synonymous with virtue.
However, the two most diabolical regimes in history, the Soviet Union and Nazi Germany, both had laws galore.
Nazi Germany, for example, enforced Nuremberg Laws, prohibiting on pain of death marriages between gentiles and Jews. Those laws ruled all right, but they had nothing to do with justice.
And the USSR Criminal Code contained Article 70, under which lending a friend a mimeographed copy of, say, a Solzhenitsyn book carried a penalty of up to seven years of hard labour.
All such laws are described as ‘positive’, which means they’re vectored from the state downwards, and their justice is wholly dependent on the moral and intellectual integrity of those at the top.
This brings us back to Roman law, a subject I touched upon yesterday. That positive law arrived in France with the Renaissance and gradually assumed the exclusive role it still plays today, having been refined – or rather exacerbated – by the Napoleonic Code.
That represented a drastic departure from the legal concept prevalent during the millennium of the Middle Ages. The French and proto-French didn’t then widely use the word ‘law’ in the secular context. The word they preferred instead was ‘custom’.
Now the rule of custom takes us away from positive law and gets us close to common law, as practised in the Anglophone countries under the influence of their erstwhile English metropolis.
Unlike positive law, the English Common Law is vectored upwards. Rather than relying on the wisdom and virtue of lawyers and lawgivers, it rules by paying heed to millions of legal precedents accumulated over centuries.
In essence, this means that at the core of English jurisprudence lies the Judaeo-Christian doctrine of original sin. The underlying assumption is that, because man is fallen, he’s fallible, and therefore his judgement isn’t always safe.
Starting from this premise, the English Common Law tries to protect individuals from arbitrary rulings by judges and magistrates. One could argue that, by doing so, it also reduces the epiphanic effect that a brilliant legal mind could have on proceedings.
In fact, my French friends, some of them lawyers, often make that argument, if not in so many words. To them, the compromise implied in the English Common Law is unacceptable. To someone who regards prudence in such matters as a greater virtue than brilliance, it’s not only advisable but uniquely advisable.
Implied in Roman law is what we today call statism, the primacy of the state over the individual. Justinian’s Corpus Juris Civilis was an imperial code designed to strengthen, or rather revive, the central power of Rome.
Though produced in Christian times, the code has distinctly pagan antecedents going back to Hellenic times. In those days, to simplify ever so slightly, the polis meant just about everything and the individual just about nothing.
Public interests trumped private ones, and an individual’s worth was judged in terms of his usefulness to the polis. Laws were designed on that understanding, including laws that turned women into strictly their husbands’ chattels.
In the same spirit, the Greco-Roman civilisation accepted slavery as natural, and that institution shouldn’t be confused with medieval serfdom. A serf was a man; a slave was a possession, not drastically different from livestock.
Christianity changed all that by teaching the inherent value of man, thereby altering his idea of himself – and consequently of the desired interaction between himself and the state. The spiritual revolution that caused the change was by far the most sweeping in history – and in that sense the Renaissance was counterrevolution.
It revived Greco-Roman antiquity with all it entailed, including the inherently centralising Roman law. (Slavery, steadily disappearing throughout the Middle Ages, also made a comeback, culminating in the nineteenth century.) That’s why to the French ear the word étatisme has no negative connotations that its English equivalent has for us.
The French are conditioned by their history to accept the dominant role of central authority. In fact, one could say that, rather than being progressive, modernity is regressive, leapfrogging Christendom in a backward jump to land smack in the middle of pagan antiquity.
Nowadays this affects us as much as the French, but at least in England some rearguard conservative action is possible. In France it isn’t, which is why conservatism in our sense of the word doesn’t exist there.
One can’t argue persuasively that relying on the state’s good offices is a factor of political stability. If England has had roughly the same constitution since the 1688 Dutch occupation, otherwise known as the Glorious Revolution, France has had 17 different constitutions since 1789.
And the number of different laws spawned by those constitutions is uncountable. What is patently obvious is that this system doesn’t foster a visceral, intuitive respect for the law – of the kind the English used to have predominantly and still have residually.
That’s why in England rioting still isn’t accepted as a valid way of settling political disputes – and that’s also why so many Englishmen are intuitively suspicious of the big national state.
That suspicion logically carries over to the rejection of the even bigger supranational state, the EU. By voting for Brexit in unprecedented numbers, the British communicated their misgivings about a political contrivance based on voluntarism and no precedent whatsoever.
This viscerally conservative feeling animates the British opposition to the EU. In France, however, those on the Right, like my French friends, adore the EU, and the opposition to it comes mostly from the anarchic Left.
The French and the English have much common ground in matters cultural, but not political. That’s why we naturally belong together at a dinner table but not within the same state – and both my French friends and I realise this.
Alas, our powers that be don’t.
In one concise piece, you highlight the one fundamental principle which renders our ancient system of law completely incompatible with membership of the EU. I have been arguing this point for years – and not enough noise was made, at the time, over Blair’s Human Rights Act – his capitulation to the Napoleonic code – as well as his politicisation of the judiciary through his conversion of the ancient office of Lord Chancellor to ‘the justice secretary’ – an office now held by an MP, rather than a Law Lord.
Incidentally, at least two of my French, lawyer friends get it.
One is a particular fan of our system and she recently said to me that she found our principles – that rights are unalienable and one has the right to do what one wants, providing we are not preventing someone else doing what they want – is where real ‘liberté’ lies.
The British have lost self-confidence, which is never a good sign. Hence we no longer appreciate what historically has been history’s most successful constitution. The French and others who favour positive law, in the form of Napoleonic Code or some such, naturally love drawing written documents: everything that comes from the fecund minds of their lawyers has to be written down lest it might be forgotten. Hence their assorted Constitutions, Declarations, Acts and other pieces of scrap paper. The English, on the other hand, used to believe that a constitution has to be written in people’s hearts. If it is, a written document is superfluous; it it isn’t, a written document is useless. That understanding, along with many others, has been lost.