The English Difference?

By Geoffrey Gibson

Why are the English so different to and difficult for Europe? A history of the English constitutional story from Anglo-Saxon times to now for the general public or for lawyers. Germans (410-1066) deals with Anglo-Saxon kings and dooms up to the Conquest. The English did not, like the rest of Europe, accept Roman law. Barons (to 1399) covers Magna Carta, on which most subsequent English legal history is just a commentary, and the birth of Parliament and a legal profession. Protestants (to 1603) sees English Home Rule, which legal historians underrate, and the rise of Parliament and the judges. Gentry (to 1776) shows a century of conflict where the Stuart kings faced king-breakers from hell like Cromwell, leading to the Bill of Rights, which the Americans sent back as the Declaration of Independence. Shopkeepers (to 1911) sees parliamentary party democracy as we know it after the crisis of the People’s Budget of Lloyd George and Winston Churchill. Women (to 2014) covers universal suffrage, the accession of women and workers, and the current development of the rule of law. Reference throughout is made to the present, and to events in Europe and the U S. The author is not British, but he has written extensively on the history of law and ideas. The book of 48,000 words is fully annotated.

• Language: English
• Publisher: Geoffrey Gibson
• Release date: Jun 13, 2014
• ISBN: 9781311210418

Geoffrey Gibson

Geoffrey Gibson is an Australian writer living with the Wolf - his dog - in a kind of rural peace one hour out of Melbourne, the home of his football team, the Melbourne Storm. He has practised law as either a member of the Bar or a major international law firm. He has presided over at least one statutory tribunal for nearly thirty years and he has conducted arbitrations or mediations in Australia and the U S. He has published five books before on the theory and practice of the law, A Journalist's Companion to Australian Law (Melbourne University Press); The Arbitrator's Companion (Federation Press); Law for Directors (Federation Press); The Making of a Lawyer (What They Didn't Teach You at Law School) (Hardie Grant); and The Common Law - A History (Australian Scholarly Publishing)). He is now focussing on writing in general history, philosophy, and literature, fields that he was trained in and that he has pursued over very many Summer Schools at Cambridge, Harvard, and Oxford universities. His twelve eBooks so far published include five volumes of A History of the West - The Ancient West; The Medieval West; The West Awakes; Revolutions in the West; and Twentieth Century West; Confessions of a Babyboomer; Confessions of a Barrister; Parallel Trials, Socrates and Jesus; The English Difference, The Tablets of their Laws; The German Nexus, The Germans in English History; The Humility of Knowledge, Five Geniuses and God; and Windows on Shakespeare. The photo is not great, but at least the Wolf comes out OK.

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THE ENGLISH DIFFERENCE?

THE TABLETS OF THEIR LAWS

By Geoffrey Gibson

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Published by:

Geoffrey Gibson at Smashwords

Copyright (c) 2012-2014 by Geoffrey Gibson

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With many thanks to Andrew, David, Victoria, and other tutors at Summer Schools at Cambridge, Harvard, and Oxford.

TABLE OF CONTENTS

Prologue

1. Germans 410 – 1066.

2. Barons 1066 – 1399.

3. Protestants 1399 – 1603.

4. Gentry 1603 – 1776.

5. Shopkeepers 1776 – 1911.

6. Women 1911 – 2014.

Epilogue

PROLOGUE

Men resemble their own times more than they do their father. (Arab proverb.)

If you walk around Parliament House in Westminster, you will see that the English have erected only two statues to their heroes – Oliver Cromwell and Winston Churchill. Now, Churchill saved England, and, some would add, Europe. But Cromwell? A puritan, a king-killer, a dictator, and a mass murderer in the name of God, a nasty foretaste of Osama – at least for most of the Irish, even for those in the uttermost ends of the diaspora. Well, evidently, the English Parliament felt that the English nation owed a singular debt to Oliver Cromwell. What might be the source of that feeling?

England is constitutionally very different to Scotland, Wales and Ireland and even more different to other nations on the Continent. Why? Almost every other nation on the Continent has succumbed to dictatorship, often of a world threatening kind. The English have not known a dictatorship since Cromwell died nearly 350 years ago. (And as we just saw, he has a statue erected to him – which is not something you are likely to see for Robespierre, Mussolini, Hitler or Franco.) Why?

The answer to those two questions will lie in the make-up of the English nation, that is, its constitution. That constitution in turn is to be found in the history of England. The common law of England is part of the history of England, and ultimately, the constitution of England rests on its common law. To some extent – to a large extent – an inquiry into the common law or the constitution of England is an inquiry into history. That inquiry is the subject of this book.

A nation is like a cricket club – it is a group of people who have come together for a purpose. If you wanted to start a cricket club, there are two ways you could go about it. You could just get together a few starters at the pub or the ground and then play it by ear – someone would be responsible for arranging the ground, and the wicket, someone for getting bats and balls, and then you would arrive at some kind of decision as the need arose. To the extent that this kind of club operates on rules, it will be little more than reflecting on how things have been done before. When people are uncertain about how to proceed, they take comfort from seeing how a question has been answered before. The force of the past – the attraction of following precedent – operates just as fully on us as it did on Pavlov’s dog. This is how the tradesmen went about presenting their play in Midsummer Night’s Dream – it was a very amateur affair, but the tradesmen and their audience enjoyed the performance.

The other way to get the club going would be to write up rules in advance for how it would be conducted. These could be called a memorandum or articles or charter of association or perhaps incorporation, or the document might just be referred to as the ‘constitution’. The document would legally bind all members and say who could be a member, on what grounds a member might be expelled, and what those who were to run the club had to do. People may want to believe, and some would be heard to say, that any question arising about running the club should be answered by looking at the constitution. They would say that only the rankest amateur, only the most delusional optimist could fail to prescribe affirmatively for the future, but just wait like Mr Micawber to see what turns up, and then react by searching their memory to see what has been done before – that is, to proceed in the future according to the precedents of the past. Planning is all, they say.

The advocates of the laissez faire mode of club would make at least two answers. First, they would say, only people who are at best mad and at worst dangerous believe that their grip on humanity is so firm that they can predict the future and safely prescribe universal answers for it. Probably the most charitable example they would offer would be Lenin. Then they would say that people who rely on a written text – say in business, or in union relations, or even in religion – to the exclusion of all else make them very nervous. To this day, English people make judgments by reference to the spirit rather than the letter – as in the phrase, ‘it’s not cricket.’

In determining how they should proceed together as a nation, the English have emphatically preferred the first option. Probably alone in the world, they have stuck with it. If you have grasped that essential distinction, you will be well on the way to answering our questions.

Robespierre quoted Rousseau, and Lenin quoted Marx, both with at least affected reverence, but the immediate effect of English philosophy on English constitutional development was minimal. If one of those battling the Crown in 1215 or 1641 had sought to read out from a tract of any philosopher – English or other – he would have risked mortal injury to his reputation, if not his person. The different way that English and Europeans look at making their general law and their constitution reflects a basic difference in the way that they regard the study of reasoning that we call philosophy.

The English tend to proceed on the footing that our knowledge comes from what we experience of the world. The word experience in more than one meaning is crucial. You look to see what is going on – then you proceed by trial and error. An absolute or final answer is very suspect. We call this the empirical approach.

In Paris, Berlin, and Rome, they preferred the rationalist approach. Here they put more emphasis on the mind and the abstract. You think through the question and then you apply the rules of logic – the unforgiving rules of logic – to get the answer. If an answer is dictated by the rules of logic, it must be right.

You see at once how different – how opposed – these two approaches are. Paul Johnson saw a similar friction between Chaucer and Dante – ‘an English concentration on the concrete and practical, as opposed to the abstract.’ The two different ways of thinking are reflected in the very different approaches of the two greatest legal systems. Roman law was based on codes and texts. It was imposed from above with occasional encroachments from below. Scholars celebrated its formal, logical elegance. As we shall see, the English proceeded largely by judge made law, a body of case law built up by trial and error – by experience. The law was generated from below with encroachments from above (the Parliament). Scholars were aghast at its snakes and ladders structure.

The common law of England is a term that we use to refer to laws made by judges by applying the doctrine of precedent (which has as its essential premise the proposition that like cases should be treated alike). This part of England law originally came from the customs of the people. The common law would derive mainly from decisions of courts supplemented by statutes, but it never became codified.

Roman law did not have case law - that to common lawyers is like saying that you can have science without experiments. The Roman law that spread over Europe was seen to be codified. The Code Napoléon is an example. The difference in world view is beyond calculation. For example, you will find in some civil codes in Europe an express prohibition on judges following previous decisions. This law is there because its makers believed it is fundamental that there be a division between the law-making powers (the legislature) and the dispute-resolving powers (the judiciary). They do not want unelected people like judges making the law.

The intellectual distinction can be seen as far back as Plato and Aristotle. Plato erected great castles out of his dialogues, most alarmingly in The Republic, which he said were logically entailed by the premises – even if the outcome looks like a fascist nightmare. Aristotle sought to proceed by looking at the world as it is, and then describing it practically and methodically. He may sound altogether less grandiose or threatening. He said at the beginning of one of his most famous works: ‘We must be content, then, in speaking of such subjects [politics and ethics] and with such premises and to indicate the truth roughly and in outline, and in speaking about things which are only for the most part true and with premises of the same kind to reach conclusions that are no better…for it is the mark of an educated man to look for precision in each class of things just so far as the nature of the case admits…’ That proposition, well over two thousand years old, could be the credo of the student of the English constitution. It is in English eyes certainly the mark of an educated person not to look for precision where you cannot find it. The English subscribe to intellectual modesty.

English philosophers have very little to do with French or German philosophers. You will not hear or read much French law or philosophy in English. Why? It is playing a different game or, if you like, speaking a different language. Rousseau, for example, was a European thinker using the techniques, language and style of a rationalist trying to talk, at least in part, to British empiricists. It would be hard for him to talk to a British empiricist like Hume. You may as well send a Bundesliga soccer team to play Rugby against the Harlequins at Twickenham; or ask an advocate from the Paris Bar to argue a case at common law before the Royal Courts on the Strand; or ask a common lawyer to argue a point of law under the Code Napoleon in the Cour de Cassation; or ask a student of El Greco to paint like Rembrandt; or serve an oxtail casserole on a crêpe meringue.

In the upshot, French and German thinkers concerned themselves in the highest level of rational speculation. It was called metaphysics. The English think metaphysics is worthless nonsense. The English concerned themselves with the limits of empirical knowledge that descended into minute inquiries about language. The Europeans regarded this exercize as silly and worthless. The great German, Immanuel Kant, tried to bridge the gap; each side wants outsiders to regard its output as worthy; but if you ask either side to point to a lasting contribution to humanity, you may be met with a shifting of feet and little more. The American Founding Fathers would dabble a little in philosophy, but only for window dressing.

For us it is enough to notice the English suspicion of intellectuals, and of anyone claiming to have the answer. They will seek to justify a legal course not by reference to its pedigree in logic or even learning but by answering the question ‘Will it work?’ Still today, you know you are losing before a common law judge if your argument is said to be ‘subtle’, ‘clever’, or, blackest of all, ‘ingenious’. (A current put-down is ‘nuanced’.)

When we speak of the constitution of a nation, we speak of the laws that say how the government of the nation is to be conducted. For just about the entire history of the English nation, its government has revolved around a monarch. We refer to a king or queen as the Crown. We tend to divide government into three functions – legislative, executive, and judicial. All those functions were performed by the Crown at the beginning of our story, with far the most emphasis on the executive – although the early monarchs would not have noticed any difference. In the early days the first object of the king was to preserve the peace within the realm, and preserve the realm against foreign attack. The Channel deterred mass invasion. The first object could be assured by gathering arms. Even during the Bronze Age, weapons had been developed that could accommodate an armed lust for mass destruction. We are speaking for the most part of people who believed in the literal truth of the Bible, and the Bible says that the soldiers of the war-like Joshua massacred 12,000 men, women, and children in a day.

So, we look for a time in England when they have a strong royal power, strong enough to keep the peace – the peace of the King as it was called – and to hold the realm secure. We can look for this in the realm of Henry II (1154 – 1189), the alleged murderer of a saint, but, more importantly for our purposes, the Englishman with the best title to the term, the father of the common law. If we say that royal power has then peaked, and that the subject and the realm have such safety