The law beneath the law

Brexit baffled some Europeans, but the standard explanations - immigration, sovereignty, bureaucratic overreach - while not wrong, are inadequate. They describe symptoms rather than the underlying condition, which was driven, in part unconsciously, by the very un-European bedrock on which the laws of the Anglosphere rest. This foundation has been described in some detail by Oliver Friendship in his recent Quadrant article "Edward Coke, Common Law Crusader."

Two visions of law

Roger Scruton, in his England: An Elegy, invoked Kant to explain that English common law was not made by judges, any more than was the moral law - which Kant argued was inherently known to all rational beings, and acknowledged even when it could not be articulated. Common law was discovered rather than decreed, emerging from individual cases rather than descending from sovereign diktat; the courts existed to reflect on and consider what was right according to the underlying moral law. The result, as Scruton puts it, was a system of admirable simplicity that provided a paradigm of natural justice unlike anything elsewhere in the world.

This is the bottom-up tradition: law as the organic expression of a people and their culture, shaped by precedent and custom, hostile by its very nature to the planner and the utopian.

Set against it is the top-down tradition, whose European credentials are impeccable and whose influence on the modern world has been immense, though not always benign. In Prussia, Frederick II made it clear in his Allgemeines Landrecht that law is a sovereign project - comprehensive, codified, imposed and not to be challenged. France went further. The Revolution did not merely change the government; it annihilated the pre-existing legal order, with reason triumphant over tradition, the decimalisation of time (which failed) and the guillotine as jurisprudential instrument, before replacing it all with the Code Napoléon. These two nations now drive the European Union, cemented by their shared legal culture. The choking mass of EU regulations that accumulated over forty years of British membership was not an accident. It was the natural product of a codified, top-down, statute-centred tradition being applied at continental scale.

This is what Brexit was fundamentally about - fish quotas, passports and immigration issues were merely players. Even after joining the EU, Britain kept its own currency. What really rested on the decision was the irreconcilability of two fundamentally different answers to the question: what is the law, and to whom does it belong?

It is worth pausing to observe that the top-down tradition did not begin in Paris or Berlin. Its deepest roots are older, and the pattern it follows is remarkably consistent across many different civilisations. The medieval Papacy - temporal sovereign of the Papal States, commander of armies sent against Christian heretics, sponsor of the Inquisition - was the original supranational authority in Europe after the Romans, claiming divine sanction for earthly power and reserving the right to crown each new Holy Roman Emperor. It answered to no parliament, no precedent, no custom of the people. Its law descended from God through Rome, brooking neither appeal nor evolution. The Reformation broke the papal stranglehold in northern Europe, but did little, with its urge to austerity and order, to preserve the common law tradition inherited from the Vikings.

Islam represents a similar architecture in its most complete form. Sharia is revealed law - dictated by God and worried over by scholars, but never truly changing. Europeans mistakenly view the history of Islamic expansion as a series of events driven by different entities: first the Arabs, then the Saracens, the Mamluks, Moors and Turks. But each emergence or expansion was powered by a revived focus on Sharia, with its demand that non-Muslims everywhere must submit, convert, pay tax or die.

This brand of Islam, unless it undergoes a reformation, seems permanently closed to the kind of incremental, case-by-case revision that is the lifeblood of common law. There is no discovery here, only application.

The French Revolution, stripping away the theological justification, preserved the top-down structure entirely: reason replaced God, the Committee of Public Safety replaced the Inquisition, but the flow of authority remained strictly downward. The EU, for all its mundane bureaucratic character, is the latest iteration of the same impulse - comprehensive, codified, and constitutionally resistant to the messy, bottom-up wisdom of peoples and their traditions.

The common law stands against all of these not merely as a legal technique but as a civilisational counter-argument: that justice is not handed down but grown, not imposed but discovered, not the property of the sovereign but the inheritance of the people.

The man who saved it

As Friendship points out, that the Anglosphere has common law at all is largely the achievement of one man, Sir Edward Coke (1552–1634), in overcoming an archetypal top-downer, Sir Francis Bacon. An admirer of Machiavelli, Bacon took an expansive view of royal prerogative and thought lawyers should be "lions under the throne." His project was to codify English law - and his writings are said to have influenced the Code Napoléon. Had he succeeded, England's legal system would have taken the continental path, and the subsequent history of the Anglosphere - its legal culture, its political character, its instinctive suspicion of the over-mighty state - would have been fundamentally different.

Coke's counter-vision was precise: lawyers were not lions under the throne but "umpires between King and subject." The common law answered to no sovereign, as he made clear in Bonham's Case (1608) and in the Petition of Right (1628), where he forced the soon-to-be-executed Charles I to accept that no taxation could be levied without parliamentary consent, no citizen imprisoned without cause, no martial law declared in peacetime. These were not new rights granted by a generous king. They were existing rights - discovered, not invented - already lodged in the public mind since Magna Carta in 1215.