17th April 1997: the date of the seminar when Corpus Juris was launched – twenty years later: 17th April 2017 – a jubilee of sorts …
During the referendum campaign, the Remain side made much of what we called “Project Fear”. If we voted to leave, they said, “We would be driving off a cliff”, “plunging into the unknown” ,,, etc etc.
Actually, the boot could have been, and should have been, on the other foot. If we had voted to Remain, there would have been a lot more to be afraid of.
We would surely have been sucked into a vortex that most people in the UK were and are only dimly aware of. A better image would have been that of the Titanic: staying on board would have dragged us into a watery grave as the ship was ripped open by the iceberg. This image was indeed used occasionally in the debate, and the iceberg ahead represented the coming crisis of the euro, economic stagnation, the political backlash from excessive immigration, creeping islamisation…
However there was, and still is, a deeper danger, not dependent on current crisis situations.
A “Remain” victory would have been taken as a complete acceptance by the British people of the entire EU project, lock stock and barrel. We would have been swamped by an alien legal system, and subjected to direct foreign rule.
From the start, the EU project was always about building a single State, called Europe. This aim was masked, especially in Britain, by a purely economic presentation of the project – it was even called The Common Market at the time of the first referendum in 1975 and for years after our entry.
I have been living in Italy for the best part of fifty years now. When Delors unveiled his plan for a single currency at the end of the 1980s, I realised that the plan to build a single State, with sovereign powers transferred from the members to the centre, was serious. For I knew that the right to mint coin was a right of sovereign princes, and had been since time immemorial. If you held this right, you were a sovereign, if you had to use someone else’s coinage, you were ultimately a vassal.
I also realised that if they were going to have a single State, it would have to have a single government with tax-raising powers, a single army, navy and air force, and a single legal system with powers of enforcement. I published this prediction in my first article in Bill Cash’s The European Journal (editor – the excellent David Matthews), in November 1993.
This prediction was based on logical, theoretical considerations. Living in Europe and working as a journalist I had realised that continental countries, like Italy, had a very different constitutional set-up from that of the UK. In particular the system of criminal law was completely different.
And the function of criminal law in any State is not just about catching criminals, as we tend to think in the UK. A crucial feature of any State is that it is the only body in a society that has the right to use legal violence on the bodies of the citizens, forcing them to do things against their will. This is obvious in matters like raising taxes. And the handle for regulating this fearsome power lies in the criminal laws used in a State.
I have described elsewhere (e.g. here, and the links in that page) in some detail the profound differences between our system, based on Magna Carta, and those used in continental Europe, derived from the Holy Inquisition, whose essential methods were adopted and adapted by Napoleon, in particular the drawing together of the functions of prosecution and judgement. Napoleon’s codes underlie the inquisitorial criminal law systems used in continental Europe to this day.
In short, personal freedom is assured for us in Britain: by our laws on Habeas Corpus, under which nobody can be arrested and imprisoned without a swift hearing in open court where he can demand that the evidence against him be exhibited; by a mode of trial where the verdict is given by an independent jury of his equals; and if it is a verdict of Not Guilty, the prosecution cannot appeal against it. And by the fact that the powers of investigation, arrest, preliminary hearing, committal to trial and decisions on bail, conduct of the prosecution in court and judgement on verdict and sentence, are sagely divided up between different counter-balancing bodies, the police, the lay magistracy, barristers who act for the prosecution and for the defence, juries, and the presiding judge is an old barrister who has acted both as prosecutor and defender in his time. This finely-tuned mechanism is all intended to give balance and ensure fairness to the defence, to compensate for the far larger investigative resources available to the prosecution and the police. It is this system that keeps people in Britain free from arbitrary arrest and lengthy imprisonment on no evidence or charge. For us it is so normal that we do not even think about it, like breathing air.
Under the Napoleonic-inquisitorial systems used in continental Europe, in contrast, all the above powers of jurisdiction are concentrated in the hands of a career judiciary of salaried legal officials, whose members will be prosecutors and judges, but have never been defenders. They take all the decisions in criminal investigations and trials, from the opening of a case to the final verdict in their Supreme Courts. There is no equivalent body in our system.
They have no Habeas Corpus – you can be arrested and imprisoned for long months without any right to a public hearing where you can demand that the prosecution show prima facie evidence (what the Americans call “probable cause”) of the case against you. There is no trial by independent jury, verdicts are decided by case-hardened professional judges who may have been prosecutors but who will never have been defenders. And other safeguards that we are accustomed to are lacking.
I spent much of the 1980s observing cases in Italy, and realising that their whole system is basically geared to imposing the will of the State on the citizens. The maxim is “Dura lex sed lex”, meaning “this may be a harsh law, it may even be unfair, but you have to obey it”. There is not much use for our concept that “justice must be done, and be seen to be done”. There is not even a specific word in most continental languages for “fairness”, an idea which is learnt in the playground. They have to make do with “justice”, which is decided by judges and lawyers.
[Ed: This is Part I of a three-part series. Part II will be published tomorrow.]