Our law survives by its experiance and wisdom - not rote application of words

Over 4 days in September In 1666 the Great Fire of London destroyed much of the City of London between the 2nd and 6th of that month some more than 13,000 properties and over 400 acres were consumed by the flames.

On the 13th September Charles 11 issued a Royal Proclamation ..

Since it hath pleased God to lay this heavy judgment upon us all in this time, as an evidence of his displeasure for our sins, we do comfort ourself with some hope, that he will, upon our due humiliation before him, as a new instance of his signal blessing upon us, give us life, not only to see the foundations laid, but the buildings finished, of a much more beautiful city than is at this time consumed

(The Historical Charters and Constitutional Documents of the City of London, p. 224).

There is little doubt that Charles intended a remodelling of London as a renewed and resplendent great city – one that reflected his power and majesty - at a time when the Kings word was to be obayed, as could be expected, the response produced and designs proposed by the great architects of the age offered up a new London, of wide boulevards, grand classically designed buildings and carefully placed plazas to replace the narrow winding streets of the old city that had fed the fire and aided its spread. But, the reality was that whilst these designs were admired almost none of the visions offered were materialised. The City was rebuilt by the freeholders along much the same boundary lines and street scape.

In this example we have an illustration of the difference between what the citizen, the individual, has a right to do and what the State holds it right to do.

In policing the balance between the right of the citizen and order of the state Britain holds a fundamental difference, in the eyes of many an ultimate incompatibility, of law with the systems deployed across of much of mainland Europe and critically by the EU.

English common law is a bottom-up system that starts from the perspective that, “What is not forbidden is permitted”.

Put simply it defines what you can’t do while leaving you free to do everything else. What is forbidden by law is decided Parliament acting at and on the will of the people whilst moderated, but never frustrated, by the House of Lords and under (what is now the ceremonial) constitutional approval of the Crown. Within those boundaries the application of Parliament’s laws is adjudicated and developed by a professional judiciary; where required supported and decided by a lay jury called from the people, both free from political control and influence. As a result of this layered responsibility and independence of action the law is able to breath and adapt its adjudications in line with time, taking account of current sensitivities but at all times applying necessary moderations as each judgement made and given is justified and built on and from prior precedent grounded in centuries of case law. In short it is largely based in and built from the long established core and stable values of the English State and people, not the ambition of the political class.

Continental Code, or Civil, Law is the reverse. - a top down system that effectively spells out in detail what you can do, under a “The State knows best” mantra - "what is not permitted is forbidden" .

Again put simply; it is designed, managed and controlled as a detailed rule book that results in a vastly more bureaucratic, inquisitorial and controlling approach that seeks to govern rather than arbitrate rights.

The differences between these two solutions to law and governance permeates through many areas of civil competence and commercial activity; to offer example, compare the scope and coverage offered by an English property or liability insurance policy (a Policy based on exclusions i.e. its covered unless we say its not ) governed by English Common Law to a German one (a policy based on inclusions i.e its not covered unless we say it is) governed by a Civil Code Law framework. Consider why London is the leading international seat of Insurance provision, law and arbitration.

Relevant to today I suggest it is this fundamental difference in approach that generates much of the conflict between Great Britain and the EU who by its drive for the development of a European Civil Code seeks to acheive a harmonisation of "private law" - family law, the law of inheritance, property law and obligations ( contract, tort and restitution) across all member states within a supranational civil code. in terms of application and interpretation of law and state power - especially in areas where English law and sensitivities rely on common sense, fair play and precedent rather than a written scroll the systems are unreconcilable. To quote Guy Verhofstadt "it was naïve, maybe, to reconcile the legal system of Napoleon with the common law of the British Empire".

Napolleon and the British Empire may have faded into history but the basic incompatability of their respective legal systems remains.

The simple fact is that England has developed, adsorbed and changed throughout its history and as it has done so English common law has proven its ability to respond to changing times, trends and standards whilst retaining its position of proportionality, fair application against each circumstance presented for adjudication and a fundamental equality of access. It has an agility and chameleon quality that allows it to reflect the current whilst remaining anchored in the stability of age and the strength gained from continuous trial by combat. In every dimension it is superior to rule by a permitry code administered by a remote political and legal bureaucracy.

We need at all times to remember that only history has the perspective to conclusively tell what bad law is and unless you are from Gallifrey and the owner of a TARDIS you can’t change history.

You can only learn; apply and where necessary quicky respond to and evolve from its lessons.

Which is exactly what our common law approach empowers and the stictures of code law frustrates