Introduction
The vote for Brexit is sometimes described as meaning that Britain is “Leaving Europe”. That description is nonsense. Britain is indissolubly part of Europe, through geography, history, language, and culture. What Britain voted to leave was the European Union, a body which contains some parts of Europe and which aspires to contain also some countries which geographers would not in general regard as in any way part of Europe.
In this paper we discuss some factors that may have influenced that vote. By this we most emphatically do not mean that we shall look into individuals’ motives. We shall follow Queen Elisabeth I, who soon after taking the throne of England (Scotland was not then part of the Union) published a new prayer book. She wanted all her subjects to use that prayer book, but she also wished to leave its interpretation to the individual. Her words were “I have no desire to make windows into men’s souls”. In our view all participants in Brexit discussions should follow that course. But it emphatically is sensible to consider why there was over time growing unhappiness about Britain’s membership of the EU, leading first to the referendum and then to that referendum’s result.
In certain senses there is an incompatibility between the British and the European outlooks. The British philosophical and legal roots and traditions are different from those in Continental Europe. The consequence of these different roots and traditions is that the British incline to openness, flexibility, and a focus on the individual, whereas in Europe the tendencies lean the other way, to less openness, to inflexibility, and to a greater focus on the state. These differences were not particularly problematic when Britain joined what it regarded as a trade-promoting Common Market. But they increasingly brought difficulties as matters of law, regulation, and trade were affected by the moves towards ever-greater European Union integration.
The different traditions have led to different economic models. The British leads to free trade and an embrace of globalisation and less regulation. The European model leads to a bigger state, more regulation, and greater protection.
In this short paper we consider four matters, all of them clearly part of Britain’s history, which made Britain a less than comfortable member of the European Union, as that body is at present constituted, and even more so if its present constitutional aims are confirmed. These four matters are law, regulation, trade, and attitudes to immigration. They are discussed in that order.
Law
The legal systems of Britain and Europe are fundamentally different. Note the word “systems”. We do not mean that individual laws are different. That the British drive on the left and most of Europe on the right is neither the result of nor an example of difference in legal structure. Britain has a form of law called Common Law; countries on the European mainland have Roman (sometimes called Civil) Law.
A simple, no doubt over-simple but nonetheless fundamentally accurate summing up of how these differ is as follows. In a common law system you can do anything you like so long as it is not forbidden. In a Roman law system you can do anything you like so long as it is allowed.
These differences embody the views about the individual set out above, and also lead to entirely different views of the role of the state. In the philosophy underlying common law the state’s function is to provide the setting for individuals to do as they wish to further their own interests, constrained only by prohibitions that prevent these actions from harming others. The state is an enabling state. Under the philosophy of Roman law, the state exercises choices for the citizen, and provides a menu of what is deemed desirable from which citizens can choose. The former can lead to a small state, while the latter in general cannot.
Roman Law, going back to Emperor Justinian and in its modern form to the Code Napoleon, works by applying unchanging general principles. Common Law seeks practical outcomes; indeed, judges may begin by finding a solution and then seek legal justification on which to base it. As Oliver Wendell Holmes the renowned American lawyer and longest ever serving member of the US Supreme Court (he served from 1902 to 1932) wrote, ‘the life of the Common Law has not been logic, it has been experience.’ This fundamental difference has had a gradual effect, until it became impossible to ignore it.
Regulation
For those inclined to favour market solutions in economics the guiding principle on regulation is competition where possible, regulation where necessary. Stress is put on the fact that regulation is a tax on activity. It reduces total output. On the other hand for those who believe market failure to be widespread there is a bigger role for the state – more regulation is required. (For many of them government failure seems not to exist.) And it follows from our brief outline of the difference in legal structures that under the European model regulation is ever-more extensive and detailed. Worse still from a practical point of view is that the large bureaucracies required to detail the regulations precisely – as the Roman Law basis requires – spawn further regulation, and so on.
For the Common Law model regulation is viewed as a burden that at minimum requires careful monitoring with a view to reducing wherever possible.
An example comes from the laws governing relations between employer and employee. When laws were being proposed and subsequently enacted to prescribe how the safety of workers in a wide range of industries was to be protected, a trade union leader, Frank Chappell, who was leader of the electricians’ union objected. Not because he had no care for the safety of the members of his union but rather because is his view the existing law was superior. It prescribed a general “duty of care”, and this, he maintained, allowed working practices to adapt so as to be safe in different environments, and as environments changed.
The existence of many detailed laws does not guarantee good outcomes. This has been long understood. To quote the Roman historian Tacitus, ‘corruptissima republica plurimae leges’ (the most corrupt republics have the most laws. (Tacitus Annals) ).
Trade
Similar outcomes follow for international trade – as indeed they do for any trading activity. The British have long pursued free trade (often against powerful political forces) and indeed having adopted it almost two centuries ago have preached the benefits and endeavoured to export the doctrine. Europe from the nineteenth century generally resisted that model. The market model shows that maximum gains flow from the free movement of goods. Any interference in that free flow will result in welfare losses. There will always be gainers and losers when moves to free trade are made. But indisputably the benefits to the country overall are greater under free trade.
The desirability and pursuit of free trade flows from the legal tradition of allowing individuals to pursue their own interests. It contrasts with the long mercantilist tradition in Europe with its focus on the centrality of the state and its view of what was best for the country. That latter system also leaves the state more exposed to interest group pressure. Interest groups are successful when representing highly concentrated business or other activities. They have much greater economic power than widely dispersed consumers with little representation. Protectionist policies are frequently the result. And as before, regulatory policies beget regulatory policies. (The recently concluded Canadian EU trade agreement taking 10 years to agree and running to over 1500 pages contains all the evidence needed.)
Immigration
Britain has long been a country open to migrants, whether or not they be refugees. There have of course been occasional falters in this long and noble tradition, but they have been both rare and small. The reasons for this welcoming attitude are easy to trace. They lie in the individualistic philosophical and legal tradition that held that individuals could do what they liked so long as they did not harm others. Immigrants were therefore welcome so long as they fitted in – not necessarily integrating in the sense of adopting all local mores, but rather behaving in ways that were not blatantly inconsistent with them. (And of course for most of the period there was no welfare state.)
Was the Brexit vote a break with this tradition? Some, assuming the right of creating windows into men’s souls that Queen Elisabeth I foreswore, assert that it was. But settled traditions take a long time to change. Concerns about immigration may well have had a simple practical cause. When Britain was opened to migration from the EU, the government then in office forecast a trivial increase in such migration. They therefore made no preparations. More schools were not built urgently. Nor were more hospitals. House building did not increase dramatically. There was no acceleration in the development of more public transport. Immigrants increase the population as well as increasing a disembodied “workforce”, and the government of the day paid no heed to that. Hence the many benefits of migration also brought, for some parts of the country at least, problems that would have been avoided had the government displayed some forethought.
There is no reason to believe that the openness of the British traditional liberal mind-set, the tradition of individual freedom so long as it does not harm others, and of kindness to new arrivals, has changed. Britain was after all the first country in the world to have a Jewish prime minister. And perhaps most compelling, Britain has never been plagued, even in the depths of inter-war recession, with unsavoury authoritarian politics of the type that has appeared from time to time in other countries.
Conclusion
Nothing of what is outlined above makes it impossible, or even mildly difficult, for Britain to live on good terms with her neighbours in the European Union. None of it makes it difficult for Britain to trade freely with them, or for people to move freely between Britain and them. None of it creates difficulty in recognising the acceptability of goods and services produced under the regulations of the EU nor for the EU to accept British regulations. All these regulations, after all, are imposed by democracies with the welfare of their citizens in mind, not by cleptocracies or dictatorships. But what the differences most emphatically do is make it very uncomfortable for Britain to be a member of a union of countries all of which have legal systems of the Roman law type, and which is increasingly governed, as a federation, by a body of law of the Roman form.
Two quotations from Lord Denning, who ended his legal career as a member of the House of Lords[1], make the point.The first, from 1974, is as follows. “The Treaty of Rome does not touch any of the matters which concern solely England and the people in it. … But when we come to matters with a European element. … Parliament has decreed that the Treaty is henceforward part of our law. It is equal in force to any statute.”[2]Then, sixteen years later, he wrote, “Our sovereignty has been taken away by the European Court of Justice. … No longer is European law like an incoming tide flowing up the estuaries of England. It is now like a tidal wave bringing down our sea walls and flowing inland over our fields and houses….”[3]
That discomfort would inevitably be felt on all sides, not just by Britain. Britain is undoubtedly suited to be a good friend and partner in all economic activity, in which we include the movement of individuals, to the member countries of the EU. But British membership of an EU constituted as it is now seems to be heading would be comfortable for neither Britain nor the EU: British philosophical and legal roots and traditions seem too different from those on the Continent. The Brexit vote should not have been a surprise to anyone who had read Lord Denning.
22 Dec 2017
Note
1. What were called Law Lords used to sit in Britain’s House of Lords, and constituted Britain’s highest court. That court was removed from the House of Lords, and named the Supreme Court, only when it was no longer supreme. ↑
2. H.P. Bulmer Ltd v J. Bollinger SA. ↑
3. Introduction to “The European Court of Justice” (Bruges Group, 1990) ↑