The de facto Deputy Prime Minister of the United Kingdom, Mr Damian Green, has been doing the rounds of the television studios explaining why, in his opinion, all European Union laws should be “incorporated” en bloc into British law.
In a wonderful example of missing-the-point, the opposition (the BBC and so on) are complaining about everything – apart from what they should be complaining about. The ‘Great Repeal Bill’ does not actually repeal any regulations – it turns European Union regulations into British regulations, but it does not repeal them. It does not make them ‘void’ as the regulations of Cromwell (for example banning Christmas and punishing adultery by death) were declared ‘void’ en bloc in 1660.
But why does Mr Green (and the Prime Minister – and others) think that European Union regulations have to be ‘incorporated’ into British law – why not allow them to become void in March 2019 and return to the Common Law? The question is not really an administrative one, as Mr Green would claim, it actually goes to the heart of legal philosophy.
To someone like Mr Green ‘the law’ means detailed regulations governing every aspect of economic life – to him the only alternative to this is chaos (people eating each other – or whatever). Mr Green has indeed heard of the Common Law (most certainly he has) – but the term ‘Common Law’ to a legal mind such as that of Mr Green means ‘the judgements of judges’, the Rule of Judges rather than the Rule of Law.
I am reminded of a ‘Dialogue Between a Philosopher and a Student of the Common Laws of England‘ by Thomas Hobbes. The ‘philosopher’ is, of course, Mr Hobbes himself – and the defender of the Common Law is a made up character who is written by Mr Hobbes to lose the ‘dialogue’.
To Mr Hobbes, as to Mr Green, ‘the law’ is just the ‘commands’ of someone (a legislature, or an official. or a judge), there is no sense in Mr Hobbes that ‘the law’ is a set of PRINCIPLES of natural justice that one tires to apply in everyday life (in individual cases).
As far as I can make out someone like Thomas Hobbes or Jeremy Bentham (or Mr Green) thinks that when a judge such as Chief Justice Sir Edward Coke or Chief Justice Sir John Holt heard a legal case they either decided it on the basis of an Act of Parliament, or a ‘precedent’ (i.e. what some earlier judge had said), or simply on the basis of what-they-felt-like (a whim). The idea that they followed certain PRINCIPLES of jurisprudence does not occur to him.
It is like watching a modern ‘legal historian’ examine the judgements of Sir Edward Coke – “he was inconsistent” (they declare) “because he followed some precedents and not others” – the idea that there are principles-of-natural-justice that allowed Chief Justice Coke (or Chief Justice Holt) to tell what were just and what were unjust precedents does not occur to them. These great legal minds were not just pulling judgements from their backsides – they were following the laws of reason (of natural justice) in coming to their judgements.
Again people such as Mr Green do not seem to understand that the voluntary interaction of human beings is NOT a Hobbesian ‘law of the jungle’ with people eating each other. It is a ‘spontaneous order’ (to use the term of the late F.A. Hayek – and without his implication that no is thinking about it by ordinary people as they do it, it is not that ‘spontaneous’) a ‘cosmos’ rather than a ‘taxis’ in Ancient Greek – or a ‘Civil Association’ not an ‘Enterprise Association’ in the terminology of the late conservative thinker M.J. Oakeshott (and without his efforts to try and rehabilitate Mr Hobbes).
Most of the time people do not rob or murder each other, and they make agreements that are voluntary and beneficial to both sides – those are the assumptions of the Common Law. Only when people step outside this Civil Association relationship and try and rob or cheat each other does the law step in. It is not the role of the law to tell you how to live you life in every detail (as with the Emperor Diocletian and the late Roman Empire – or the modern European Union), it is the rule of the law to step in when people try to abuse the bodies or plunder the goods of others.
When deciding what a good or service be like it is the view of the Common Law that it is a matter for the buyers and the sellers to decide voluntarily between them – with the law only stepping in if someone complains of being robbed or cheated.
But it is the view of the European Union that what a good or service should be like is up to them – that they should decide this and then impose it upon both buyers and sellers. In this they hark back to such figures from history as Louis XIV (the ‘Sun King’) and his Chief Minister Colbert – and it is a tragedy that a self described'”Conservative’, such as Mr Green, should in-effect agree with them.
“The European Union is not going to be doing this anymore – so the British government must do it” – no Sir, no one needs to ‘plan society’ in this way. People most-of-the-time can make and carry out their own plans – thank you very much.