Tuesday, October 23, 2007

Napoleonic code approaches the white cliffs of Dover

The fore-ordained and highly predictable Lisbon Treaty will soon begin to make its way through Parliament. MPs will wrangle over every line; the Bill will ping-pong between the Commons and the Lords before being given Royal Assent, and in the process public trust in both politicians and the political process will diminish further as the people’s disenfranchisement is laid bare, and their impotence dawns upon them.

But the agreement in principle, struck in the early hours of 19th October, is permitting cogs to turn which have not turned since the referenda of France and the Netherlands; since the ‘constitutional concept’ was given a ‘pause for reflection’. Yet while the audience is mesmerised by conjecture upon the lead actors of this new Napoleonic epic, Cranmer is more concerned with who is writing the script and composing the score.

There is no doubt that the stage is set for either the return or the premiere of a great actor. Communicants will be aware of Cranmer’s thoughts on this. But EUObserver has picked up on a crafty bit of EU-creep, funded by the European Commission (i.e., you - to the tune of €4.3 million), and which will constitute the core principles of EU member states' private law. It is an EU civil code.

With remarkable coincidence, this is also to be presented to the Commission in December, and Cranmer half suspects that it will be slipped in beneath the champagne, fireworks, and strains of Beethoven’s Ninth which will accompany the signing of the Lisbon Treaty. It will be considered such a symbolic technicality that will not even merit coverage by the MSM, but the prospect of its adoption represents a sea-change in the way we are governed, and will undermine centuries of Common Law tradition.

The EU civil code, which already exists in draft, is consistent with the Roman Corpus Juris agenda, and will consist of legal articles relating to the exchange of goods and services. It will cover inter alia the provisions on contracts, the formation of a contract, the validity of contracts, the interpretation of contracts, the contents and effects of contracts, and the application of these rules to other juridical acts. The articles ‘will seek to describe what is the common core of European private law (in this case, mainly contract law), the bulk of which is currently covered by the 27 EU member states' national private law systems’.

Communicants may be yawning, but matters of private law – be it Common Law or Napoleonic Code - are presently the competence of each member state. As it happens, the UK and Ireland alone have a Common Law tradition, while legacy of Rome endures in the Napoleonic Code adopted by France, Italy, the Netherlands, Belgium, Spain, Portugal, and which considerably influenced the civil code of Germany. The isolation is self-evident. Of course, the Commission is denying that the objective is a European Civil Code, but a resolution adopted by the EU Parliament in March 2006 said: ‘Even though the Commission denies that this is its objective, it is clear that many of the researchers and stakeholders working on the project believe that the ultimate long-term outcome will be a European code of obligations or even a full-blown European Civil Code.’

This is a triumph for the French, the perpetuation of its revolutionary foundations, and a codification of the EU's Enlightenment principle that all spheres of life must be dealt with and regulated by a unitary system of law based on nothing but human rationality. This will present the UK with two legal systems for determining private law: one with its origins in England, the other in Rome. And since the two cannot co-exist, one must evidently give way to the other.

3 Comments:

Blogger AethelBald, King of Wessex said...

While I share Your Grace's distrust of the alien, I am not able to prefer one legal code over the other on reasoned grounds. I can, however, see the point of a unified law of contract.

Different legal systems can interoperate reasonably effectively. The USA has state law and federal law, for example. But it also has Delaware.

Delaware has cultivated its business law (after an early start, thanks to us) to an extent that it dominates the market for business litigation in the USA, with significant revenue benefits for its citizens. Could something like this be arranged for Britain? If so, how?

23 October 2007 at 11:26  
Blogger Dean McConnell said...

As a teacher of legal history I am can confirm the significance of what your grace is saying. For over a thousand years, the people, and the barristers of your "dear land" have fought not only the french, but occassionally aristocrates or the kings servants, to avoid the imposition of Roman law in place of the freedoms and philosophy of the Common Law (though some of it snuck in anyway). There are real and significant differences (though they were far greater over a hundred years ago). The Roman/Napoleonic approach is more susceptable to tyranny and is more difficult to reform or restrain. Coke, Hale, Blackstone and Pitts must be looking down from heaven in extreme dispeasure.

23 October 2007 at 18:19  
Blogger The Bovina Bloviator said...

The USA has state law and federal law, for example. But it also has Delaware.

It also has Louisiana, which operates under a civil code heavily influnced by the Napoleanic Code (all the other states' legal systems are Common Law based). Although Common Law principles have made their way into Louisiana law over the years there still are differences, e.g. judges make their rulings based on interpretation of the code rather than on precedence although they will consult Louisiana case history before doing so. Commercial transactions, civil precedure and other legal matters are also governed by rules that differ considerably from the other states, thus the Louisiana bar cannot offer reciprocity with the other state bars.

26 October 2007 at 17:23  

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