Why Britain is Different
The real division in the Western civilisation is not between Europe on the one hand and North America and Australasia on the other. It is between all the English-speaking countries on the one hand, whose institutions are based on the English common law system, and those of the Continent on the other. It is worth exploring this difference in some detail.
The English common law originated in the customary dealings of the Angles, Saxons and Jutes who invaded Britain after the end of the Roman occupation, and became the law of the kingdom of England. Individuals in Anglo-Saxon England were ceorls, or free peasants, who were not bound to any feudal master. The English common law was, essentially, a system in which voluntary arrangements between individuals were lawfully valid, and did not have to be approved in advance by the state. The common law system was and is basically a libertarian one, in that the individual is, on the whole, free to do whatever he or she wants to do unless it conflicts with the equal rights of others, a contract, or a statutory law. In Anglo-Saxon England there was very little by way of written law. When the Normans conquered England, they dispossessed the Anglo-Saxon aristocracy and introduced feudalism, under which most peasants were bound to the land as either villeins or serfs, and served a feudal master. Under the Normans, laws were written down on a widespread basis for the first time. Although the Normans did not consider themselves to be fundamentally changing the law of England, they introduced concepts from Roman law, which considered the Anglo-Saxon peasants to be subjects of a feudal master. The writ of novel disseisin, which the Normans introduced, reduced Anglo-Saxon peasants to the status of sharecroppers on the lands which they had previously considered to be their own.
King John violated the laws and customs of the kingdom, encroaching on the rights of his subjects. In 1215, the barons, clergy and knights of the realm compelled him to sign Magna Carta, a written statement of the rights of the subjects and communities within the kingdom. Magna Carta was not a revolutionary document, but a statement of pre-existing laws. By putting his seal to Magna Carta, John became the first ruler, probably in world history, to recognise that his word was not law, that his subjects had rights upon which he could not legally encroach, and he had to operate within the framework of individual rights and the rule of law. With Magna Carta, John did not grant any rights. He simply recognised pre-existing rights which freeborn Englishmen enjoyed as their birthright, and which were not granted as the favour or privilege of the monarch, and upon which he had encroached. The idea of a king's subjects enforcing the law and compelling a recognition of their own rights from the monarch was without precedent in the history of humanity. In a lecture he gave in London, Wilhelm Nolling, then a member of the Bundesbank Council, explicitly said that British participation in the EMU designed by Maastricht was inconsistent with Magna Carta.
Of course, there were some problems with Magna Carta. In recognising the rights of "freemen", it appeared to exclude the peasants who had been reduced to bondage after the Norman conquest. The attempt to implement its provisions led, in the short term, to renewed fighting between the king's forces and those of his barons. Nevertheless, it provided a definite recognition of a political and legal order in which individuals enjoyed the right to do what they wished to do, except as prescribed by statute law. Where there were legal disputes between individuals, a court would settle those disputes by reference to the common law, and not to the wishes of the monarch. If the king wished to introduce a law which interfered with the voluntary actions of individuals, the onus was upon him to propose it and get it legally passed, rather that the onus being on those individuals to prove that what they were doing was in accordance with a law the king had previously promulgated. The English common law, in short, recognised an area of human action which lay entirely outside the wishes of previous or present rulers.
The English Parliament gradually developed after Magna Carta as a means by which the king was legally required to gain the assent of his barons, churchmen, knights, merchants, etc, meeting in Parliament, for any new statute law. The king had to get Parliament's approval for the raising of new taxes, and Parliament had the legal right to reduce or refuse these taxes. Parliament also defended the rights of individuals when the king's administration illegally encroached upon them. The English Parliament began, in other words, as a means of limiting the actions of the monarch and defending the integrity of that area of activity which lay outside of statute law. Indeed, as early as 1326 Parliament deposed Edward II after his military failures against the "Auld Alliance" of France and Scotland.
It is essential to recognise that, among the major European countries, this situation existed only in England, although in the separate and adjacent kingdom of Scotland a somewhat similar political and legal order developed, in which the people were also considered to be born free from bondage. I apologise to Scottish readers for refraining from a detailed examination of this theme in Scottish history before the two kingdoms were united. In every other major country in Europe - let alone beyond - the ruler's word was, for all practical purposes, law, and the individual had no rights outside of those the ruler had granted. This development of English liberty took place in a context in which the English people were aware of their legal rights and of their power to use them. In the 14th century, feudalism broke down and was increasingly replaced by a wage economy in which peasants received payment for their work. The concept of a "freeman" was gradually extended to cover every individual in the kingdom. The Peasants' Revolt of 1381, which was actually led by knights, merchants and clergymen as much as by peasants, was a manifestation of an entirely libertarian protest against the prices and incomes policy and the poll tax in which the common people used their rights within the law of the land to petition the 14-year-old king, Richard II, for the redress of their grievance, while expressing loyalty to him. Unfortunately, the king tricked them by first agreeing to their demands and then betray-ing them after they had dispersed. This was the personal fault of the king, and not of the system in which individuals enjoyed freedom. The Peasants' Revolt in England should be compared with the peasant Jacqueries of northern France and the Low Countries in the 14th century, in which rebellious serfs looted, burned and killed without motive. The peasants who participated in the Continental Jacqueries had no conception of individual liberty within the law, and nor did they have any reason to do so, given the systems under which they lived.
As the centuries went on, Parliament grew in strength. In the 17th century the inherent conflict between the powers of the king and that of Parliament broke out in the English civil war. When the Parliamentarians had Charles I executed in 1649, unjust though that action certainly was, they did it by legal process. Every king, Pope, emperor and tsar on the Continent expressed amazement that in England the king's subjects could use the law of the land to commit this act of regicide. It would have been utterly inconceivable anywhere else in the world. Eventually, in the so-called "Glorious Revolution" of 1688-89, William of Orange accepted the Bill of Rights as a fundamental statement of English law, and affirmed the sovereignty of Parliament. It was not actually a revolution, of course, but merely a reinstatement and recognition of existing rights which had been violated by James II. The people of England - later of the United Kingdom - remained freeborn individuals, despite the increase in state interventionism in the twentieth century, until this status was put into question by one act of Parliamentary legislation after another which gave jurisdiction over individuals in the UK to foreign authorities whose rule was based on the supremacy of the state, and in which the individual had no rights. As Enoch Powell put it in 1980:
In 1946 Parliament enacted that any change in the law necessary to comply with a mandatory resolution of the United Nations was to be made not by Act of Parliament but by an Order in Council. Apart from having to be 'laid' before Parliament, such orders which were of the most comprehensive scope - `such provision as appears necessary or expedient, including provision for the apprehension, trial and punishment of persons offending' - were subject to no parliamentary process or control whatever. ... Twenty years later the Act was used - when Britain called in the United Nations to help it coerce Rhodesia.
In 1951 Parliament provided, by ratifying the European Convention on Human Rights without debate, that both the Crown itself and any of its subjects within the realm, corporate or personal, could be arraigned and judged before an external court, which could give orders accordingly. Again twenty years elapsed before recourse began to be had to this external, superior jurisdiction. ...
[I]n 1972 the Crown in Parliament made a comprehensive surrender to an external power of all the aspects of sovereignty, domestic and foreign, from the right to conclude treaties to the right to tax, from the right to make laws to the right to judge causes. This price of admission to the European Economic Community was paid, not indeed without debate or opposition, but by a Parliament and a public prepared to treat with ridicule as obsolete the question of authority itself, of the external sovereignty of the state. ... Not merely do external institutions now tax, legislate, and judge causes in Britain, but the courts of this country will enforce the law of the European Community, if Parliament fails to pass or to enact the necessary legislation. It may be wondered what basis for the rule of law can be afforded by institutions which have themselves publically abdicated.
The English tradition of the common law, individual liberty, freedom of contract, and the rule of law, which makes what we call "libertarianism" possible, was extended to those countries which were colonised by the British and later became independent of them. What we call "libertarianism" applies only to those countries, and has no meaning outside of them. Among the existing nations of the world, the UK, the United States, Australia, New Zealand, Canada, the Republic of Ireland and possibly South Africa are the only ones where libertarian principles apply, or could conceivably apply. Even in such countries as India, Malaysia and Nigeria, which were once under British colonial rule and law, these traditions have not survived the end of British rule, and the supremacy of the state over the individual has been re-established. And now that the UK and the Irish Republic are subject to EU law, their inclusion in this list is now in some doubt.
The legal and political tradition of Continental countries is the exact opposite of the British tradition, and there is no way in which they can be merged without destroying one or the other. In the conception of law and society which exists in Continental countries, the state is not merely the supreme, but the sole legal entity within society. No person or institution has any rights whatsoever that have not been granted by the state, and which are in the power of the state to revoke. Under the Code Napoleon, which is the fundamental law of France, Italy and Belgium, every activity is illegal unless a law has been specifically passed permitting and regulating it. The German legal system is very similar. By contrast, in the British tradition every activity is legal unless Parliament has passed a law prohibiting or regulating it.