The law beneath the law

Brexit baffled some Europeans, but the standard explanations - immigration, sovereignty, bureaucratic overreach - while not wrong, are inadequate. They describe symptoms rather than the underlying condition, which was driven, in part unconsciously, by the very un-European bedrock on which the laws of the Anglosphere rest. This foundation has been described in some detail by Oliver Friendship in his recent Quadrant article "Edward Coke, Common Law Crusader."

Two visions of law

Roger Scruton, in his England: An Elegy, invoked Kant to explain that English common law was not made by judges, any more than was the moral law - which Kant argued was inherently known to all rational beings, and acknowledged even when it could not be articulated. Common law was discovered rather than decreed, emerging from individual cases rather than descending from sovereign diktat; the courts existed to reflect on and consider what was right according to the underlying moral law. The result, as Scruton puts it, was a system of admirable simplicity that provided a paradigm of natural justice unlike anything elsewhere in the world.

This is the bottom-up tradition: law as the organic expression of a people and their culture, shaped by precedent and custom, hostile by its very nature to the planner and the utopian.

Set against it is the top-down tradition, whose European credentials are impeccable and whose influence on the modern world has been immense, though not always benign. In Prussia, Frederick II made it clear in his Allgemeines Landrecht that law is a sovereign project - comprehensive, codified, imposed and not to be challenged. France went further. The Revolution did not merely change the government; it annihilated the pre-existing legal order, with reason triumphant over tradition, the decimalisation of time (which failed) and the guillotine as jurisprudential instrument, before replacing it all with the Code Napoléon. These two nations now drive the European Union, cemented by their shared legal culture. The choking mass of EU regulations that accumulated over forty years of British membership was not an accident. It was the natural product of a codified, top-down, statute-centred tradition being applied at continental scale.

This is what Brexit was fundamentally about - fish quotas, passports and immigration issues were merely players. Even after joining the EU, Britain kept its own currency. What really rested on the decision was the irreconcilability of two fundamentally different answers to the question: what is the law, and to whom does it belong?

It is worth pausing to observe that the top-down tradition did not begin in Paris or Berlin. Its deepest roots are older, and the pattern it follows is remarkably consistent across many different civilisations. The medieval Papacy - temporal sovereign of the Papal States, commander of armies sent against Christian heretics, sponsor of the Inquisition - was the original supranational authority in Europe after the Romans, claiming divine sanction for earthly power and reserving the right to crown each new Holy Roman Emperor. It answered to no parliament, no precedent, no custom of the people. Its law descended from God through Rome, brooking neither appeal nor evolution. The Reformation broke the papal stranglehold in northern Europe, but did little, with its urge to austerity and order, to preserve the common law tradition inherited from the Vikings.

Islam represents a similar architecture in its most complete form. Sharia is revealed law - dictated by God and worried over by scholars, but never truly changing. Europeans mistakenly view the history of Islamic expansion as a series of events driven by different entities: first the Arabs, then the Saracens, the Mamluks, Moors and Turks. But each emergence or expansion was powered by a revived focus on Sharia, with its demand that non-Muslims everywhere must submit, convert, pay tax or die.

This brand of Islam, unless it undergoes a reformation, seems permanently closed to the kind of incremental, case-by-case revision that is the lifeblood of common law. There is no discovery here, only application.

The French Revolution, stripping away the theological justification, preserved the top-down structure entirely: reason replaced God, the Committee of Public Safety replaced the Inquisition, but the flow of authority remained strictly downward. The EU, for all its mundane bureaucratic character, is the latest iteration of the same impulse - comprehensive, codified, and constitutionally resistant to the messy, bottom-up wisdom of peoples and their traditions.

The common law stands against all of these not merely as a legal technique but as a civilisational counter-argument: that justice is not handed down but grown, not imposed but discovered, not the property of the sovereign but the inheritance of the people.

The man who saved it

As Friendship points out, that the Anglosphere has common law at all is largely the achievement of one man, Sir Edward Coke (1552–1634), in overcoming an archetypal top-downer, Sir Francis Bacon. An admirer of Machiavelli, Bacon took an expansive view of royal prerogative and thought lawyers should be "lions under the throne." His project was to codify English law - and his writings are said to have influenced the Code Napoléon. Had he succeeded, England's legal system would have taken the continental path, and the subsequent history of the Anglosphere - its legal culture, its political character, its instinctive suspicion of the over-mighty state - would have been fundamentally different.

Coke's counter-vision was precise: lawyers were not lions under the throne but "umpires between King and subject." The common law answered to no sovereign, as he made clear in Bonham's Case (1608) and in the Petition of Right (1628), where he forced the soon-to-be-executed Charles I to accept that no taxation could be levied without parliamentary consent, no citizen imprisoned without cause, no martial law declared in peacetime. These were not new rights granted by a generous king. They were existing rights - discovered, not invented - already lodged in the public mind since Magna Carta in 1215.

The stakes could not have been higher. As Friendship rightly notes, the winner of this conflict would determine the legal structure not merely of England but of its future empire - and hence of Australia, Canada, New Zealand, the United States, India and many smaller British Dominions. Coke won by a slender margin, and his vision remains buried in the subconscious of the Anglosphere.

What made it possible?

But why did the people living in this small group of islands off the edge of Europe think like this? Why did they not stay with top-down? Part of the answer lies in a series of remarkable historical moments. One was the celebrated episode of the Danish king Knut - Canute as we know him - who ruled much of England. His courtiers' sycophantic flattery drove him to the English shore around 1025, where he commanded the tide not to overwhelm his royal shoes. It did not obey, of course, and he smiled at the consternation on the faces of his courtiers: even a king as powerful as he had no divine authority over nature. Then came the Normans, descendants of Vikings with their idea that laws should be determined through public gatherings at meetings they called Things - a tradition still preserved in the world's oldest parliament on the Isle of Man.

The tradition surfaces also in Ukraine, from around 860 AD, when it too was ruled by the Vikings, or Varangians. The Slavs living and fighting around Kiev invited the Rus, as they were called, to "rule over us and judge us according to the Law." That the law was paramount is apparent from the reported custom of ringing a church bell to summon citizens - or perhaps just the nobility - to a gathering called the Veche at the cathedral steps, to hear and vote on proposed changes to the law, much as they still do on the Isle of Man. The Cathedral of St Sophia in Kiev was begun in the early eleventh century, over 300 years before St Basil's in Moscow. When Ivan III took control of Novgorod in 1478, he carted the Veche bell off to Moscow to signal that the old democratic way of doing things was at an end.

Apart from losing control of the lands they had long settled, our Anglo-Saxon forebears acquired not only a Viking view of the law but the use of French at court and in the churches and monasteries developing across Europe. The common people stuck to Anglo-Saxon words for their farm animals - cow, bull, pig, sheep - which became French on the plate: beef, pork, mutton. Then came Shakespeare, who converted the somewhat old-fashioned diction of Middle English into Early Modern English. So what, I hear you say. But this commingling of two disparate ways of thought helps explain what is perhaps the Anglosphere's greatest contribution to the modern world.

For over a millennium, European scholarship - theology, philosophy, science and law - was conducted in Latin. This was not without advantages; Latin provided precision and universality, allowing an Italian and a Scandinavian to discuss a new idea on equal terms. But it was a dead language, frozen, owned by the Church and the universities, fundamentally unsuited to the empirical, observational demands of an emerging scientific culture.

English solved this problem in a way no other European language could, because English alone had absorbed both great streams of Western thought simultaneously. Its Germanic, Anglo-Saxon backbone provided directness and concreteness - the language of observation, of things, of blood and bone and fire. Its Latin-Romance overlay provided the vocabulary of abstraction and classification - circulation, ossification, combustion. A writer in English could describe in Germanic and classify in Latin, often in the same sentence, without switching languages.

When the Royal Society was founded in 1660 and declared its commitment to plain English - rejecting the ornate Latinity of the academy - it was not abandoning precision. It was replacing a dead vessel with a living one that contained everything Latin offered, plus the empirical grounding of Anglo-Saxon directness and simplicity. Francis Bacon, ironically, had helped make this possible: his insistence on direct observation and plain speech in natural philosophy planted a seed that his legal philosophy would have poisoned.

The consequence was that English became the language in which modernity was largely thought - science, commerce, constitutional law, and the common law tradition exported across much of the globe in the baggage of empire. This was not merely historical accident, it was the fruit of a language capacious enough to hold two civilisations in productive tension.

The Anglosphere inheritance

For Australians, this history is not antiquarian. The common law is not a British eccentricity we inherited along with cricket and warm beer. It is the foundation of the legal and political culture that distinguishes the Anglosphere from most of the rest of the world. Its influence - despite the general absence of a written constitution - survives in many countries once part of the Empire. The system of parliamentary democracy that grew from English common law carries with it a respect for the rule of law and the rights of individuals that remains central to functioning liberal democracies, as Lord Sales argued in his Robin Cooke Lecture in New Zealand in 2024.

When an Australian court reasons from precedent, when habeas corpus protects a citizen from arbitrary detention, when a judge discovers the law rather than applies a code, Coke is present. When an Australian instinctively distrusts the bureaucrat with the clipboard and the comprehensive plan, that instinct has a philosophical lineage traceable through Scruton and Burke to the medieval common law courts.

The threat, however, is not only external. Friendship makes a point that deserves emphasis: the enemy of common law in the Anglosphere is not only Brussels-style regulation from without. It is the domestic addiction to legislation from within. More statutes do not mean better government. They mean the gradual displacement of judge-discovered, precedent-grounded, culturally-embedded law by the planner's vision of what society ought to look like. Westminster and Canberra are both capable of that displacement without any help from Europe.

The conservative task - in Britain as in Australia - is to understand what common law is, why it must be preserved where possible, and what is quietly lost every time a new statute substitutes legislative certainty for judicial wisdom.

Coke understood this. He spent a career fighting for it, was imprisoned for it, and ultimately prevailed. The least his Anglosphere heirs can do is remember why.