In the UK, both sovereign and subject are bound by 820 years of the Common Law, a system that is taken for granted, and understood by few. I have chosen three quotations to explain how important it is to understand the differences between Common and Civil Law as the differences are not about law, but about a system that has created the culture in which those in the Anglosphere live. That culture is under threat on both sides of the atlantic.

Rulers don't like Common Law as it gives individuals rights and thus rulers seem determined to undermine it. Rulers like Civil Law as through it they can control its citizens rather than allow its citizens control of the state. In the UK we have just had our first trial without jury. The European Arrest Warrant allows people to be taken from the UK with no examination of the evidence, no right of appeal, just on the say so of another European court. Habeas Corpus is dead.

Also, Common Law breeds individualism that can flourish in a spirit of freedom. Great men and woman have grown in this culture of freedom. Civil Law breeds or rather forces conformity. Individualism is frowned upon and even repressed.

Baroness Helena Kennedy

The first mistake is a failure to see that law is cultural. ... Unlike the rest of Europe, which has what is called the 'civil law' system with codified laws and a career judiciary, we have a common law system. ... as new democracies have emerged around the world and sought to adopt a Western model they have most frequently replicated civil law systems because they are easier to take off the shelf. Their basic rules take the form of codes - huge statutes which set out the laws in detail, number by number, along with the central concepts and doctrines. For the most part the judges have little or no power to add to or subtract from the law, which is entirely contained in the codes. Their function is to interpret these rules.

The common law on the other hand was essentially created by judges as they decided actual cases. Judges in the higher courts dealt with appeals from lower courts and, in pursuit of a real rather than formal justice, took account of the experience of real litigants and real situations. One of the reasons why contemporary markets thrive in common-law-based nations is because Napoleonic, codified systems entrench bureaucracy. The dead hand of the state is heavier where there is little legal flexibility. The discretion vested in judges provides just enough 'give' to prevent rigidity. Even today, when large parts of the law are created by statutes passed in parliament, the judges have a significant role in developing the law. While our judges are drawn from the ranks of practising lawyers with everyday experience of representing clients, judges in the civil law system are civil servants. judging is a career from the start and the training of judges is separate from that of lawyers. ... The civil system is an inquisitorial system, whereas our system is adversarial.

In many ways laws are the autobiography of a nation and in Britain we have many proud stories to tell but we also have shameful chapters. This book is meant to be an alarm call about the way our liberties are being eroded. A serious abandonment of principle is in train; all of us have to say it's time to stop. 

(Baroness Helena Kennedy from her book Just Law 2005.)

Sir Winston Churchill

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 common law 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 achievement1. 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 offense 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 by [sic] 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 today, 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 witness 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. ...

Digests and codes imposed in the Roman manner by an omnipotent state on a subject people were alien to the spirit and tradition of England. The law was already there, in the customs of the land, and it was only a matter of discovering it by diligent study and comparison of recorded decisions in earlier cases, and applying it to the particular dispute before the court. In the course of time the Common Law changed. Lawyers of the reign of Henry II read into the statements of their predecessors of the tenth century meanings and principles which their authors never intended, and applied them to the novel conditions and problems of their own day. No Matter. Here was a precedent. If a judge could be shown that a custom or something like it had been recognised and acted upon in an earlier and similar case he would be more ready, if it accorded with his sense of what was just and with the current feelings of the community, to follow it in the dispute before him. This slow but continuous growth of what is popularly known as "case law" ultimately achieved much the same freedoms and rights for the individual as are enshrined in other countries by written instruments such as the Declarations of the Rights of Man and the spacious and splendid provisions of the American Declaration of Independence and constitutional guarantees of civil rights. But English justice advanced very cautiously. Even the framers of Magna Carta did not attempt to lay down new law or proclaim any broad general principles. This was because both sovereign and subject were in practice bound by the Common Law, and the liberties of Englishmen rested not on any enactment of the State, but on immemorial slow-growing custom declared by juries of free men who gave their verdicts case by case in open court.

1The Birth of Britain, vol 1, Winston S. Churchill, Dodd, Mead & Co, New York 1956, page 222

Lord Tebbit

The English are, of course, a European nation, but we are different by virtue of our history from the others. The right of a German or Frenchman to free speech is a grant by law - essentially an entitlement rather than a right. Here, it requires a law to set limits upon that right, which in this Kingdom is (I'm sorry Professor Dawkins) the God-given right of an Englishman or woman from birth.

The basic assumptions underlying the two systems of law, English Common law and European law, are such that they cannot exist side by side.

Nor is it just a matter of law. Our history has shaped our society to be different.

Churchill was right. We should wish European union well - so long as it does not seek to cross the Channel. Certainly I have no ill will towards our friends on the mainland, but I think it is time the British dog got out of the federalist manger. I could live happily on the mainland as a foreigner. I believe that we should have a treaty relationship with other European nations covering matters of mutual interest, but that our Parliament should remain fully sovereign.

Divorce is never easy, but it may be better than persisting in an unhappy marriage.

Norman Tebbit 22nd Jan, 2010, Daily Telegraph

Lord Tebbit of Chingford is one of Britain's most outspoken conservative commentators and politicians. He was a senior cabinet minister in Margaret Thatcher's government and is a former Chairman of the Conservative Party.