I read an excellent book a while back called ‘Prisoners of
Geography’ by Tim Marshall and in the chapter on Western Europe he wrote this:-
“ There is a theory that the relative security of the UK
over the past few hundred years is why it has experienced more freedom and less
despotism than the countries across the channel. The theory goes that there
were fewer requirements for ‘strong men’ or dictators, which, starting with
Magna Carta (1215) and then the Provisions of Oxford (1258), led to forms of
democracy years ahead of other countries.” *
While, as he goes on to say, this is not provable it is none
the less an interesting observation and helps explain why we were a
reluctant member of the political EU project. That is not to say we don’t wish
to trade with our neighbours which is of an entirely different order.
Interestingly, and a very serious point I want to make is that the current state of our freedoms are increasingly being eroded by a political class that while talking up their democratic credentials are only too keen to ignore our wishes and tell us what to do. There could be no more telling examples of this than the way our government is dealing with Covid pandemic and and their Net Zero policies.
This is why I became involved with THA as I increasingly felt our governance was becoming less democratic and really was no longer fir for purpose and need a complete rethink.
However the facts are that revolutionary political reform, of the
magnitude advocated by our six demands, will not happen overnight. Just look at
the state of our democracy now, since the signing of the Magna Carta 813 years
ago, we still don’t have proper democracy based on the true meaning of the
word expressed as ‘People and Power’. I have said before and I’ll say it again at 70, while
I hope to see our demands enacted in my life time, I may well not but
that is no reason not to have started the ball rolling for the reform of our
governance so desperately now needed in this country.
. LAW IS CULTURAL Pt 1
ReplyDeleteTim Marshall's books are excellent but I would challenge the thesis and this is very important. Our form of democracy started before Alfred the Great, but he codified it in his Great Law Code. This is the basis of our Common Law which differentiates us from mainland Europe states.
As WS Churchill described litigants: ”...They are examined and cross-examined, not by the judge, but by the litigants themselves or their legally qualified and privately hired representatives. The truth of their testimony is weighed not by the judge by [sic] by twelve good men and true, and it is only when this jury has determined the facts that the judge is empowered to impose sentence, punishment, or penalty according to law. All might seem very obvious, even a platitude, until one contemplates the alternative system which still dominates a large portion of the world. Under Roman law, and systems derived from it, a trial in those turbulent centuries, and in some countries even today, is often an inquisition. The judge makes his own investigation into the civil wrong or the public crime, and such investigation is largely uncontrolled. The suspect can be interrogated in private. “etc”… These sinister dangers were extinguished from the Common Law of England more than six centuries ago. By the time Henry II's great-grandson, Edward I had died English criminal and civil procedure had settled into a mould and tradition which in the mass govern the English speaking peoples to-day. …”
As Baroness Helena Kennedy put it in 2013: ”The first mistake is a failure to see that law is cultural. ... Unlike the rest of Europe, which has what is called the 'civil law' system with codified laws and a career judiciary, we have a common law system. ... as new democracies have emerged around the world and sought to adopt a Western model they have most frequently replicated civil law systems because they are easier to take off the shelf. Their basic rules take the form of codes - huge statutes which set out the laws in detail, number by number, along with the central concepts and doctrines. For the most part the judges have little or no power to add to or subtract from the law, which is entirely contained in the codes. Their function is to interpret these rules. ...
The common law on the other hand was essentially created by judges as they decided actual cases. Judges in the higher courts dealt with appeals from lower courts and, in pursuit of a real rather than formal justice, took account of the experience of real litigants and real situations. One of the reasons why contemporary markets thrive in common-law-based nations is because Napoleonic, codified systems entrench bureaucracy. The dead hand of the state is heavier where there is little legal flexibility. The discretion vested in judges provides just enough 'give' to prevent rigidity. Even today, when large parts of the law are created by statutes passed in parliament, the judges have a significant role in developing the law. While our judges are drawn from the ranks of practising lawyers with everyday experience of representing clients, judges in the civil law system are civil servants. judging is a career from the start and the training of judges is separate from that of lawyers. … The civil system is an inquisitorial system, whereas our system is adversarial.“
There has been a continual fight to retain these freedoms, over the centuries, against the top down methods of continental Europe, ie Magna Charta, the Reformation, the main Civil War, etc. We came very near to Civil War again, in the 19th century but thanks to the somewhat underplayed efforts of Wesley, Wilberforce and Shaftesbury, our system of rule was reformed and civil war averted.
I think that what you have explained above doesn't disagree with Marshall but supports the quote of his I used.
DeleteIn the main, yes, but I disagree that "Magna Carta (1215) and then the Provisions of Oxford" lead to democracy. Alfred's Law Code was the fundamental start to our system of democracy and Common Law. I feel it was very important that we don't loose sight of that.
DeleteOK - I accept that.
DeleteLAW IS CULTURAL Pt II
ReplyDeleteThe importance to the culture of the fact that we are all equal in the eyes of God, cannot be underplayed, however unpopular these days. Whether you agree or not, the truth is that we have now reverted to man’s natural way, of tribalism, which is where we are now. Tribes fighting each other. Tribes of the Elites, the minority causes (BLM, Climate antagonists, XR, etc) Financiers, Brexiteers, Remainers, and so on.
With all that in mind, our current government is pushing through several bills that contain clauses to undermine those basic freedoms that we had under Common Law, but few are noticing the oppresive clauses. V dangerous times.
We must understand all that before the six demands have any chance, so apologies for the long post
Yes - not only equal but also all sinful as Wesley et al. knew. That we have grown out of Christianity is the biggest lie of the age.
DeleteAmen. We have hope though because we were in an equally poor state at the end of the 18th century. It is easy to remember Wilberforce only for his work against the slave trade, forgetting the tireless work he did, with Pitt, to reform the morals of the aristocratic class, which had slow but lasting results, carried on by Shaftesbury. Oh, that we had another 'Wilberforce' today.
Delete"God Almighty has set before me two great objects, the suppression of the slave trade and the reformation of manners (morality)."
- William Wilberforce.