Quote: (04-03-2019 04:52 PM)Sp5 Wrote:
Quote: (04-02-2019 01:36 PM)H1N1 Wrote:
Well, your post in a sense shows why Europeans have such trouble understanding Britain.
'Harmonisation' of laws between member states, particularly between continental Europe and Britain has two problems. One is practical, the other more abstract.
As a practical matter, you cannot harmonise a common law system and a system based on the Code Civil. The two are fundamentally distinct and incompatible in their very natures. One is an organic, judge made system of laws that arises primarily based on the actual disputes and criminal proceedings that comes before it. The other is a codified system of laws that attempts to be complete from point of creation. The latter being, by its very essence, far more bureaucratic to enforce and less adaptable to particular injustice or criminal/legislative novelty. Trying to force one on the other leads to a very unhappy state of legal affairs, such as we currently have in the UK. It also encourages our government to legislate. Prior to our joining the European Union, the amount of actual legislation governments here passed was relatively limited, and it was enacted infrequently. Again, that has all changed, and it leads to legal incompatibility and injustice - something we are seeing a great deal these days here. As some have rightly pointed out, we do now have many more unjust and insane legislation that requires ever more enforcement. This is largely due to our membership of the EU.
As a more abstract point of opposition, the clear end point of 'harmonisation' is a pan-European legal framework, binding on all member states - and the corollary, which is the eradication of national laws in favour of a centralised code. It is the federalisation of Europe, and legal harmonisation is the most potent step to achieving that utopian goal. The legal system of the UK, gifted to many of our former colonies, underpins the greatest period of progress and innovation in the history of mankind, and it is no coincidence in my view that none of the countries that have adopted it have fallen prey to murderous ideology or demagoguery.
There is a third reason, and that is that as a British citizen I have absolutely no intention to be bound by the crooked, corrupt, and extremely inferior laws of other European countries, particularly the Central and Eastern European ones, but I would extend that description to almost all of Western continental Europe too. The idea of being bound by the decisions of Romanian or Polish judges now, or heaven forbid Moldovan or Albanian ones in the future, is simply disgusting to me. Not unfortunate, not modestly or acceptably inferior - unequivocally revolting and unacceptable. I meet and deal with these people regularly, and they are all politically connected and quite prepared to solicit bribes to make sure decisions go the right way. One of the vile implications of the European Arrest Warrant is that as a British Citizen, it is possible that my country will defer (for example) to Romanian standards of justice.
A lot of words here, but little accuracy. "Positive" law - law that actually has an effect - is distilled into summaries, either by legislative codification or secondary publications like jury instructions.
The USA is thought of as a "common law" jurisdiction, yet the law is overwhelmingly set into statutes, like 90% or more depending on which state. Close to 100% in the federal courts.
Yes, judicial opinions about the interpretation of statutes are law. If a statute is found to be unconstitutional, judges can limit it or strike it down.
This is also the case in many if not all European civil jurisdictions.
The European Arrest Warrant isn't much different than any other treaty of extradition.
To use the example you cited, if there was proof you committed a crime in Romania, would you expect to escape justice before a Romanian judge?
There are scores of Eastern Europeans being extradited home from the UK every week. It will be so great for the UK, now maybe they can remain.
Same thing with Brits who can commit crimes and flee to Spain.
Again, almost all of the EU laws are commercial regulations like product standards. The UK will have to follow these to do business with Europe.
The shitshow that's coming with a no-deal Brexit will be entertaining to watch.
Say goodbye to 20% of your GDP.
Some additional points:
1. There is no question of incompatibility, because precedent is binding in EU law as well (case law is binding in both EU + UK law).
The infamous 'freedom of movement' (for example) was shaped almost exclusively through court decisions.
2. Case law has advantages and disadvantages compared to civil law. Its not inherently good or bad. For example you regularly talk about 'unelected bureaucrats in Brussels' - why are you ok if an unelected judge has the power to make laws?
3. Legal precedent can be ignored ('exceptions'), overruled, and at any event statute law is superior. Case law complements parliament legislation. Judges interpret laws, they don't make laws.
On the other hand, in most civil law jurisdictions, prior rulings are taken into consideration, they are of course not completely disregarded (they are not 'binding', but they are not totally disregarded either).
Even dissenting judges opinions are taken into consideration (everywhere)! It is not a black/white distinction.
4. You will of course never be bound by Romanian or Polish law (unless like Sp5 said you do business, commit a crime etc in Romania). A Romanian judge obviously doesn't have the power to randomly summon you in a court there!
What you are bound by, is EU laws and regulations. Nigel Farage for example is an EU lawmaker (member of the EU Parliament!).
There are countries who repeatedly voted to stay out of the EU (see Norway and Switzerland for example), but then realised you either deal with reality or reality deals with you (= life is hard without access to the EU market).
These countries have no voting rights, and yet they submit to most EU laws and regulations (because they have no choice). They contribute to EU budget, accept free movement of people etc. Switzerland is outside the EU, but a member of the Schengen zone (!!).
The really strange part for me is the UK, together with Germany, were the 2 most influential countries in terms of shaping EU law. The UK (unlike smaller EU nations) had actual power to change EU policies.
Citizens of Slovakia or Malta or Estonia may have a point if they talk about lack of sovereignty, but the Brits? I don't understand why.