Napoleon’s heritage

Even those of us, like me, who consider Brexit would be a disaster for the UK have to admit that the UK and the rest of the EU often do not get on very well.

One of the main reasons for that is legal.

Whereas British, or rather English, Law is Common, Continental Law is of Roman origin and was optimised by Napoleon. (Scottish law, testament to the years of ‘la vieille alliance’, is a hybrid but in modern times shares much more with the English system including, of course, the same Supreme Court).

Common Law is based on common practice in the community and precedent. Roman Law was spread by the Catholic church, which is still an organisation not noted for its common consent. This was later adopted, refined and codified by Napoleon who spread it to all his conquered territory.

Roman Law is an inquisatorial system where the judge is charged with discovering the truth – a system that exists in the UK only in Coroners’ offices, where Coroners are, generally medically as well as legally qualified and this basic inquisatorial system is designed to serve medical, not legal requirements. (The Coroners’ origin is not related at all to Roman law and in fact relates to the “Crowner’s” interest in untimely deaths because they represented potential windfalls for the crown. Where the coroner suspected homicide or suicide, the crown could claim the perpetrator’s estate.)

Common Law is, in contrast, adversarial, where the judge makes his decision after having heard both sides of the argument. Both systems now use juries – though, in inquisatorial systems, these were added following the example of the Common Law.

As an aside it is difficult now to decide on the advantages or disadvantages of each system and we cannot realistically suggest that either are ideal, but there is a logical case to suggest that because, in an inquisatorial system, the judges are working closely with the police on a regular basis police corruption is less likely to be discovered, whereas opposing advocates usually have every incentive to explore all aspects of an arrest.

Interpretation is the nub of our differences. Continental decisions are true to the French Revolutionary ideals and effectively ‘La Déesse Raison‘ is invoked and French legal decisions are arrived at through ‘la logique’ – effective reference from and application of, the Napoleonic Code. English legal decisions are, unsurprisingly, arrived at through practice and precedent, (though much of English law too, is very gradually being codified).

So different attitudes persist. Practice and precedent usually allows some flexibility. Law written on tablets of stone from on high – or even Rome or Napoleon – generally does not.

That is its problem. The solution is usually a slight of hand. Thus, rather as we might all agree that lying was wrong, yet still agree that a ‘white’ lie is permissible as the circumstances are extenuating and justify an exception, so exceptions to the rigidity of the law can come to be justified.

I’m not religious, but my impression is that this is not uncommon in Catholicsm – indeed the regular confessional must surely encourage, if not by design then certainly by accident, a certain amount of everyday sinning. You have, as I understand it, to go to confessional before attending mass. And so I imagine you need to find some sins – even when none spring to mind – if you are to attend. Catholics can sometimes respect the law without obeying it, whilst to British ears that is no respect at all. British laws are passed usually on the basis that there is enough agreement that they will not be fall into contempt.

So the heritage of the Napoleonic Code is as if it had come down from on high and then the priests (lawyers) interpret it to the flock. Sometimes when it doesn’t suit the flock it is interpreted in a different way.

I’m not suggesting our European colleagues are all sinning Catholics, and of course the Netherlands, Northern Germany and pretty much all points north are Protestant, but nonetheless, they were conquered by Napoleon and in consequence, this is part of their cultural background.

It is usually suggested that casuistry, a case-based method of reasoning is what Napoleonic Law does when it wants to distinguish cases and findings, but in fact this is out of the English legal textbook – it is a method to highlight and work around two conflicting points of view. It is the case in question related to other cases.

For inquisatorial systems “situationism” or “situation ethics” is the solution. It too focuses on cases. But situation ethics views circumstances as unique and isolated rather than as having a broader context. Basically looking at the particular and disregarding the whole. So the idea is that avoiding that particular law is permissible when the situation is unique, even if, possibly, it has to be undone later. This is especially relevant when the legal situation is national expediency.

Indeed the Germans – yes, not the French – did this effectively with Deutsche Post. The goal of internationalising and broadening Deutsche Post was achieved – and 9 years later they had to repay some monies (which must explain their sell off of DHL – quickly reversed in the UK at least – by buying UK Mail!) So objectives achieved – if slightly reduced.

It is always said that British regulations are gold plated but this is to misinterpret the desire of the legislature not to be bound by an earlier precedent. And their further desire not to enact laws that have insufficient definition and thus compliance not to bring them into contempt. Indeed British industry, if not either the Conservatives or the ‘Daily Mail’, has been largely supportive of this point of view.

So there you have it – the vague, joking, practical British misunderstand the cerebral, abstract-thinking, direct talking, French, whose legal system all of our EU colleagues have adopted. Britain and Ireland are the only Common Law systems in the EU so it must be that the Catholic tradition is why Ireland is more tolerant of EU ways.

This doesn’t mean we should be leaving – we should simply understand each other better. And that goes especially for our legal systems. Which are particularly involved in what the Brexiters call ‘regulation’.

When many EU Member States grant much more State aid per head within existing rules than the U.K. does, Mr Corbyn should take heart. After all state aid rules do not seem to stop our Scandinavian neighbours running their economies in a rather fairer way than our own.

But then they were conquered by Napoleon.

 

Comments

  1. Sean Danaher -

    Peter

    thanks. On a point of Catholic teaching: confession is not necessary before attending mass but you need to be in “a state of grace” before receiving holy communion. This means you shouldn’t have sinned significantly since your last communion, a few venial sins might be OK but certainly no mortal sins.

    Sex outside marriage is definitely a mortal sin hence “Living in a state of sin”.

    I’m not sure which method is better, common or Roman law. There certainly have been some high profile cases “The Birmingham Six”, “The Guildford Four” and the “Bloody Sunday” civil rights march in Derry, where there were major miscarriages of justice.

    Hillsborough of course stank also; had the same establishment coverup written all over it.

    There may be similar miscarriages of Justice in the Roman Law system but I am unaware of them.

    Ireland has long looked at the continent as an ally in its help against the enemy England and to some extent Scotland also. I thought those days were over, but relations could sour again over the Irish Border. Another blog coming by the end of the week!

    Regarding Germany, the North and East tend to be Protestant and the South and West Catholic. W Germany used to be majority Catholic but after reunification it is close to 50-50. W Germany essentially absorbed E Germany so maybe it has a bit of a Catholic culture as well, but you can extend the analogy too farr

    1. Ivan Horrocks -

      Sean, ditto the Netherlands where the south tends to have a catholic heritage.

  2. Andrew -

    The British always had a reputation – indeed were grudgingly admired for – their pragmatism. Statements of principle are all very nice, but what really matters is that it needs to work, or to be made to work, *in practice*.

    The widespread magical thinking and counterfactual rhetoric associated with Brexit – I am tempted to say “fake news”, but “lies” would also do: £350m per week, taking back control, have your cake and eat it, they need us more than we need them, no deal is better than a bad deal, vassal state, etc etc – seems to have poked some serious holes in that.

    The common law and civil law start from different places, but the way the law is applied is often quite similar: discerning principles from earlier law (cases or legislation), inferring the facts from the evidence, applying those derived principles to the inferred facts, making distinctions between situations, deciding which of several conflicting principles to apply, in short doing justice.

    1. Peter May -

      I agree that the British were grudgingly admired for their pragmatism. Not, I’m sure for much longer – that’s what comes with putting a bunch of fantasists in charge.
      As for the law I do agree that generally doing justice is the aim – though Lord Denning is supposed to have remarked that judging was much more difficult for him, as his colleagues were only trying to administer the law, whereas he was tring to dispense justice.
      But I do think that viewing the circumstances as unique and isolated from the usual is not a mindset that would be found in the English legal system – indeed quite the reverse: however unusual the subject the some sort of precedent will be found.

  3. Ivan Horrocks -

    An interesting blog, Peter. Thanks. I particularly liked the section on catholics and sinning. I’m not religious either, but my wife was raised a catholic so I was going to ask her about this – but Sean has put us right, anyway.

    On a related point, any fans of the French TV series ‘Spiral’ will be very familiar with their system and the role magistrates play in it. Mind, you if half of what you see on Spiral is based on fact it’s certainly not a system free of bias or ‘untoward practices’ – to put it politely.

  4. Ian Stevenson -

    Napoleon didn’t conquer Scandinavia. One of his Marshals did become King of Sweden.

    1. Peter May -

      Not strictly, but one way or another it was subdued into subservience!

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