Receiving a comment which is so pertinent that I feel it deserves a wider audience enables me to challenge the spurious claims made by Europhiles that, because we have so many ‘shared values’ with Europeans, we should embrace joyfully their ghastly Empire to spread those values worldwide like latter-day emulations of Cecil John Rhodes.


The comment came from blogger Hatfield Girl whose interesting and crisp blog is “Angels in Marble”. Inter alia, she has an intriguing list of ten heroes which is as eclectic as you could hanker after, two or three of which had me reaching for Wikipedia. She writes:

I wondered if we are so close to the Low Countries after all.

The conflicts between the Dutch and the English discussed so ably by Furnivall in his study of Netherlands India were not merely contention over the control of, or at least access to, the spice trade; there was real diversity of view on the guiding principles of rule that can be summed up as the rule of law and the rule of properly based authority. The first leads to the liberalism and utilitarianism so typical of England and the second, rooted in Roman law, to the European, large state, detailed regulation of the lives of citizens mode.

As Furnivall notes, “In a society so constituted [the former] one may expect material progress and the promotion of capitalist interests, but one must expect also the growth of litigation and, in proportion as the principle on which the society is founded becomes effective, the multiplication of disorder and crime.” He goes on to discuss the restoration of rule by authority by Van den Bosch after Raffles’ introduction of the rule of law in Java threatened both the indigenous and Dutch social power structures, though this is much later of course.

This very different approach to how a society organises itself is still embodied in the English and European cultures and perhaps makes the Low Countries as distant from us now as are the East Indies.

Hatfield Girl has an excellent point, of which I have direct personal experience through my work at the International Criminal Tribunal for the Former Yugoslavia (ICTY). Here the jurisprudence and the Rules of Procedure and Evidence reflect the curious mix of the Common Law and Civil Law that has been necessitated by the presence of Judges on the ICTY Panel from both the great legal systems of the world.

I arrived there ten years ago to be thrown into the deep end of the first multi-defendant International War Crimes Trial since the Tokyo Trials of the late 1940s (one other individual had already been tried and was awaiting his appeal). Fortunately I was able to get going very quickly as the Rules of Procedure and Evidence were essentially those which any Common Lawyer would recognise as features of their own legal systems. There was very little that one would think of being Civil Law orientated.

One consequence of this was that colleagues from Civil Law jurisdictions struggled terribly with the whole manner of adducing evidence, on the one side by examination-in-chief of witnesses and the other side by cross-examination. It was the latter with which they had especial trouble for in many Civil Law systems it is the Judge who questions the witnesses and your question has to go through him. He may then ask the question in a way which neuters the effect of what you were trying to do and, indeed, there is a real chance that he does not have your or your client’s interest at heart, so the question may well get ‘lost in translation’. Thus the Civil Lawyer is wholly unused to the use of a series of well-planned rapier-like questions which may be deployed like a battery of artillery to box in a crucial witness and there flounders like, well, a flounder.

Nor do they feel comfortable with many of the questions that we consider both routine and vital. In a trial for rape in the common law there always comes a moment when you have to ask a question of the victim that is vital to the issue of proof of rape: was there a sufficient act of penetration to amount to rape? There is, like telling people of death in their family, no easy way to do it and you ask it and move swiftly on. If the victim does not get the point at once there can sometimes be an unseemly, but still vital, process of going round the houses until at last you get to where you want to be, so to speak. The Civil Layer recoils at this.

It is said that when the ICTY was in its infancy, two of the Judges, one of them a dolt of a Frenchman in front of whom I later did a trial and who proved himself to be quite the worst judge in front of whom I ever appeared (and I have seen some real donkeys over the years), went, at the behest of the US Department of Justice, to trials in New York whilst on a visit to the UN. By all accounts they were taken to a rape trial where they were due to sit and listen to both examination-in-chief and cross-examination. At the end of the former, however, the French Judge lifted his skirts and swept out with his colleague in tow, declaring: “C’est trop brutal!” [It is too brutal!]. One wonders what he would have thought of cross-examination. Later when I did my case in front of him he was full of imprecations to ‘nuance’ the question: I suppose he must have blanched at how you ‘nuance’ the mechanics of an act of rape….

Later as we began to grapple with the jurisprudence and the procedural stuff, it became abundantly clear that when it came to having to adapt one’s game when some concept of Civil Law was adopted, it was the Common Lawyers who simply adapted to the new situation. On the contrary, when Civil lawyers had to get their heads round some adaptation (from wherever it came) they almost always got into difficulties and simply could not or would not understand what it was all about. There is a simple reason for this. The Common Law has over its history always been about adapting and changing to meet the needs of the society it serves as that society’s habits, technology, mores and commerce change, the better to meet its needs. This adaptability and flexibility means that, whatever you may read in The Daily Mail or The Sun, the Common Law always has about it a freshness that reflects its constantly evolutionary nature. Civil Law, much older than the Common Law, tends to ossify round a series of Codes which go for long periods unaltered and interpretation of which by a Judge to fit round some new circumstance is simply not done. I, for one, am in no doubt which system is the better equipped to meet the needs of it’s citizens.

This is a strand of that which Hatfield Girl has asserted. In our system the law can be a tool for the Citizen to assert himself against the overweening power of the state, a bulwark against oppression: thus we have a well-developed system of administrative law which has evolved on the back of Joe Public saying, of some high-and-mighty Jobsworth, “You can’t do that!.”

In Civil law systems, the law is there to ensure that Citizens do just what the law allows, no more and no less and that good order and discipline are maintained. It is the handmaiden of the State. That it might be used as the handmaiden of the Citizen would be regarded as revolutionary and thoroughly dangerous.

I take as a further example the question of human/civil rights. What has happened to the McCanns in Portugal is of a piece with all European systems: “Confess and you will only do two years!”, with the unspoken implication that if you do not confess, the sky is the limit. This, as I discovered from professional colleagues in Vienna when I was researching the Civil Law, is absolutely routine. In English law such an imprecation would cause any subsequent ‘confession’ rightly to be ruled inadmissible. Given its universality, I strongly suspect that EU Prisons are filled to the gunwales with innocent people who have thus been induced to ‘confess’.

If one wishes to one may follow, one may follow the strand of law that is now embodied in the Police and Criminal Evidence Act 1984 through the Judge’s Rules to the Criminal Evidence Act 1898 and beyond and thence to the English Bill of Rights and the cases that involved the struggles between Parliament and the King in the period before the English Civil War via the US 1789 Bill of Rights and the US Constitution. Although the French Revolution’s “Declaration Of The Rights Of Man And Of The Citizen” may well have had an influence, it is the Common Law jurisdiction’s principles embodied in these documents which have had the greatest influence and, it may be argued, coming down the scale once more, that there is more of the English Bill of Rights’ DNA in the UN’s Universal Declaration of Human Rights and the European Convention on Human Rights than there is of the short-lived Revolutionary document whose principles were quickly hustled off the scene.

So Hatfield Girl is right on the issue of how we run our societies and how disparate, in fact, are our approaches to nationhood and law, and one acknowledges that absorbing Flanders would prove a real tester. But for the reasons I have given I believe we would do it in workmanlike way and adapt our own polity to the arrival of a Civil Law entity with relative ease. But if France tried to digest us, I am confident that they would make a terrible hash of it.

As for this nonsense about ‘shared values’ it is, as with so much of Advanced Rampant Europhilia, just bosh and baloney.

Speaking of spurious claims, there are some which are made of the EU that are calculated to annoy. One particular canard that is oft repeated as a claim about the efficacy and desirability of the EU which needs to be nailed, regularly, firmly and with a Big Hammer, is the one about the EU having ‘kept the peace’ for the last fifty years. This is as big a piece of tosh as the notion that Bruce Kent and CND (of which most of the present Cabinet were card-carrying members before it behoved them to hide the cards away) winning the Cold War. NATO, led by the USA and firmly supported by the UK, and our possession of nuclear weapons kept the peace for fifty years after the war. The idea that the EU, full of wet blankets like Belgium, ‘neutral’ Ireland, Sweden and Finland, had any significant role in keeping the peace is as laughable as the idea that it should have responsibility for defending the continent in preference to NATO when the Emperor is finally crowned.

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