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Impearls: 2003-09-28 Archive

Earthdate 2003-10-01

Roman Law Bashing

I quite love Winston Churchill's — yes, that Winston Churchill (as Zero Mostel put it in A Funny Thing Happened on the Way to the Forum: “the the himself!”) — History of the English-Speaking Peoples; nor am I alone in this judgment, despite its four-volume girth. 1  Renowned American historian Henry Steele Commager so liked the work that he arranged a one-volume condensation of it, to bring Churchill's history closer to the American people. 2  (While H. S. Commager's edition is very worthwhile in its own right, I do recommend Churchill's unabridged version, if you have the time.  My personal feeling is that Churchill wrote so well that the four volumes go by far too quickly.)

As an insightful and history-making British parliamentarian, Churchill brought a unique viewpoint to his subsequent role as historian, laying out the common story leading to the present diaspora of English-speaking peoples round the world, as well as considering the origins and development of the English-speaking peoples' governing principles, which in my view hold a key to worldwide freedom and liberty in the modern age.  His history also has an excellent portrayal of the American Civil War, by the way.

I was thinking of Churchill's History while pondering Eugene Volokh's recent post on European prosecutions of U.S. soldiers. 3  Many people writing on this subject portray it as a national sovereignty issue.  While I believe this approach has merit, I'd like to take a slightly different point of view: whether the institutions of many, even supposedly ”advanced,” national governments and international agencies are “mature” enough — in the human rights and robust republican institutions sense — to warrant deferring to or surrendering national sovereignty in lieu of.  Part of the problem I believe may be that many such national and international organizations are established using naive Roman law institutional strictures.

The best exposition of this of which I'm aware is to be found way back in the Medieval section of Winston Churchill's history.  The initial paragraph quoted below provides context some legal aficionados may find interesting, otherwise skip it.

It is a maxim of English law that legal memory begins with the accession of Richard I in 1189.  The date was set for a technical reason by a statute of Edward I.  It could scarcely have been more appropriately chosen however, for with the close of the reign of Henry II we are on the threshold of a new epoch in the history of English law.  With the establishment of a system of royal courts, giving the same justice all over the country, the old diversity of local law was rapidly broken down, and a law common to the whole land and to all men soon took its place.  A modern lawyer, transported to the England of Henry's predecessor, would find himself in strange surroundings; with the system that Henry bequeathed to his son he would feel almost at home.  That is the measure of the great King's achievement.  He had laid the foundations of the English Common Law, upon which succeeding generations would build.  Changes in the design would arise, but its main outlines were not to be altered.

It was in these fateful and formative years that the English-speaking peoples began to devise methods of determining legal disputes which survive in substance to this day.  A man can only be accused of a civil or criminal offence which is clearly defined and known to the law.  The judge is an umpire.  He adjudicates on such evidence as the parties choose to produce.  Witnesses must testify in public and on oath.  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 b[ut] 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 to-day, 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.  He must answer all questions put to him.  His right to be represented by a legal adviser is restricted.  The witnesses against him can testify in secret and in his absence.  And only when these processes have been accomplished is the accusation or charge against him formulated and published.  Thus often arises secret intimidation, enforced confessions, torture, and blackmailed pleas of guilty.

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.  In all claims and disputes, whether they concerned the grazing lands of the Middle West, the oilfields of California, the sheep-runs and gold-mines of Australia, or the territorial rights of the Maoris, these rules have obtained, at any rate in theory, according to the procedure and mode of trial evolved by the English Common Law.

Considering these “sinister dangers,” it's clear from an article last year in the New York Times,Russia Glances to the West for Its New Legal Code,” that Russia, for one, as an inheritor of the old Roman law system, has lagged far behind in its judicial development.  As the full article states, with regard to preparations for introduction of a new legal code in Russia: 4 

At its most basic, the new code is intended to introduce an adversarial process, with prosecutors required to argue the facts of a case while the defense will have new powers to challenge evidence, witnesses and procedures.  Judges, who until now have worked closely with prosecutors, are supposed to act as detached arbiters.

The question is how much legal systems of supposedly “advanced” western countries such as France, Germany, or say Belgium still retain vestiges of old Roman law practices within their own legal codes, and which thus may also be retained by international organizations, such as the International Criminal Court.  Certainly the antics of judges in Roman-law countries such as Spain does not inspire confidence that such systemic structural injustices are merely vestigial across western European countries in general.

Looking at the overall structure of the International Criminal Court, it does appear that an effort is being made there to establish the prosecutorial function as independent of the “judgmental,” if that's the proper way of putting it.  Even though the ICC does seem to be avoiding the Roman law trap whereby judges effectively act as prosecutor and jury in cases which appear before them, other issues inherent in the court appear to pose strong drawbacks to the real interests of justice in a democratic world society.  As the above page on ICC web site makes clear, principal judge selection criteria for the court are described as “[t]he representation of the principal legal systems of the world,” and “equitable geographical representation.”  Despite the oh-so multicultural and politically correct ring to them, these principles would appear potentially worrisome.  The fact is that most legal systems which have developed round the world have no interest or tradition in human rights or the individual, not to speak of republican institutions, at all.

The ICC's write-up has much fine talk about the “principle of complementarity” (see here and here, wherein it declares, for example, that “the Court itself is but a last resort for bringing justice to the victims,”), and then goes on to say: 5

Emphasising the primary responsibility of States to investigate and prosecute international crimes, the Statute provides that a case is inadmissible before the Court where the case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution. The Chief Prosecutor is obliged to consider this requirement of the Statute when deciding whether or not to start an investigation.

Despite this, the complementarity principle seems ultimately to be more directed at forcing coordination and compliance by the “States Parties” to the agreement (which I would think in the case of the U.S. would require Constitutional changes) than, despite all its talk, actually restricting the ICC Prosecutor from authorizing legal action against persons in states having robust legal systems of their own.  In other words, this principle appears more closely related to the EU's approach to forcing “coordination” between member States and the EU regulatory system than to, say, any federal relationship between states of the U.S. and the American government.

As Mark Steyn memorably put it in his article “Convergence Criteria” published back in 1996 (I'll quote quite a bit of it, as I lack a functioning link to the piece to provide): 6

Eurosceptics believe they have been proved right about federalism.  But they have not.  They do not even understand the terms they use.  Their muddled thinking, as they struggle to dramatise in plausible terms what is at stake, is summed up by Norman Lamont's claim that, in a federal Europe, Britain would be “reduced to the status of Delaware in the United States.”

To which a Delawarean would reply: you should be so lucky, pal.  In the things that count Delaware is more independent of Washington than Britain is of Brussels.  When Pete Du Pont was Governor of the state, he introduced a temporary petrol tax to pay off the deficit, and then abolished it.  The British Chancellor would like to reduce the duty on ultra-low sulphur diesel, but needs permission from Brussels.  If on the other hand Du Pont had decided to increase the deficit, there's no one in Washington with the powers to fine the state for breaching any “stability pact” or failing to meet “convergence criteria.”  […]

Presumably, Lamont picked on Delaware because it's small and insignificant and known to the British only through Perry Como's novelty song, What did Delaware?  But the truth is Dela wouldn't wear half the infringements on her sovereignty that the UK's been willing to swallow.  It's typical of the Eurosceptics that, in trying to conjure the horrors of federalism, they should evoke the world's only indisputably successful federation — a comparison which is absurdly flattering to the EU.  For one thing, America is a classical federation — that's to say, it's a federation constructed in order that local majorities should prevail at least in their localities.  […]  American federalism is built from the ground up, with the central government's powers explicitly limited.  The EU is closer to the bogus federations of communism: real nationalisms are unconvincingly replaced by an ersatz identity imposed from the top by a centralised elite and intended to obscure the fact that the constituent parts have nothing in common.  […]

The United States is plural, as befits a federation.  “Union,” though, is a word that has always meant a centralised, unitary state.  And, on the evidence, that's what they're building.  So the Eurosceptics are wrong: the European Union is not becoming a federation; it is already a centralised bureaucracy.  Delaware, Mr Lamont?  You should be so lucky.

So long as other nations' and international institutions lack such seemingly basic (but actually, historically, almost uniquely ”Anglo”) human rights together with republican safeguards, nations possessing superior standards along these lines should guard their sovereign rights jealously.


1 Winston S. Churchill, A History of the English-Speaking Peoples, Volume 1: “The Birth of Britain,” Dodd, Mead & Company, New York, 1956; pp. 221-223.

2 Churchill's History of the English-Speaking Peoples, arranged for one volume by Henry Steele Commager, Barnes & Noble Books, New York, ISBN 0-56619-545-4 (hardcover), ISBN 0-56619-813-5 (paperback), 1995.

3 Eugene Volokh, “European prosecutions of U.S. soldiers,” The Volokh Conspiracy, 2003.09.15 18:34 local time.

4 Steven Lee Myers, “Russia Glances to the West for Its New Legal Code,” The New York Times, 2002.07.01.

5The Office of the Prosecutor at a glance,” also “How does the Court work” and the “Organs of the Court,” International Criminal Court.  See also the Rome Statute of 2002.07.01.

6 Mark Steyn, “Convergence Criteria,” The Sunday Telegraph, 1996.12.08.


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