La Revue Squire

"Revisiting legal clichés":
(The “Entente cordiale”: a question of atmosphere...)


Rédigé par Antoine ADELINE le 19 Juin 2007


THREE MYSTERIES

For a foreigner there are at least three ways of better understanding what it means to be English: football, the Royal Navy and the Common law.

- The most difficult of these is football. It takes years to be able to explain how, with such a basic level of game, the English clubs have managed to turn themselves into one of the most successful footballing nations in Europe. It would take an entire life to begin to explain the hatred which divides the fans of Arsenal and Tottenham.

- The most depressing (especially for the French) is the Royal Navy: the battle of Sluys, the battle of the Nile, Trafalgar etc. Only the battle of the Chesapeake prevents the record from being completely one-sided.... Being from Normandy myself, I personally have no chip on my shoulder (since 1066).

- Finally, the most feudal, exotic, chic and useful for lawyers, the Common law,

A walk through the Inns of Court and one instantly feels as though he or she has been transported back into the middle of the 15th century. Everything is peaceful: the silence, the lawns, the Temple church and even the gathering of slightly overweight pre-occupied barristers.

The neo-gothic High Court stands proudly on the Strand. A long entrance hall like a football pitch paved in marble with statues of King Alfred and Moses: nothing is missing. As a former Lord Chancellor once explained quite pompously:

"That they and their successors may be enabled truly to do justice within these walls as long as the British name shall endure, that the blessing of the Almighty may rest upon their labours, that the law which they administer may ever be a terror to evil doers and a strength and support to those who have right on their side is the fervent prayer of all Judges of your Majesty's Supreme Court of Judicature" (Lord Selborne, 1882).

On Chancery Lane, Ede & Ravenscroft have been making wigs in the same manner for over 300 years. Wildy's, a seller of all things bizarre, offers for sale an original issue of "De Legibus et Consuetudinibus" by Bracton (London, 1569), once described by the historian Maitland as "the crown and the flower of English mediaeval jurisprudence" - a copy in good condition will set you back 10,000£. For those with more modest budgets the Law Society shop sells mugs, newspapers and fluffy bears (as also sold in the neighbouring LSE) - a guaranteed success amongst the mostly Anglophile continental lawyers based in London. To gaze at a manuscript copy of the Magna Carta (1215) you should take a walk to the British Library in St Pancras.

Such historical literary works sit rather strangely against a backdrop of childhood memories: " Mary Poppins", "My Fair Lady", "Bleak House" and two witty, although slightly old fashioned, French best sellers "Les carnets du major Thomson" (by Pierre Daninos) and "Les silences du colonel Bramble" (by André Maurois). The clichés and the stereotypes never lie, even if, as in the case of the English, they do not always tell the whole truth.

The strength of the English is a understated arrogance. Fierce negotiators, lobbyists without equal (think 2012 Olympic Games!) they doubt nothing, especially before a foreigner. "Stiff upper lip", "Never complain, never explain" and "Sorry, good game". It's all foreign to us, hot blooded latins, but we admire this coolness.

So are the English our best of enemies or - more deceitfully - the worst of our allies ? It is of little significance. We, French, need them, they show us the wrong...I mean, the right way forward !

COMMON LAW v CODIFICATION

English law is an eminently practical, case law based legal system, reliant upon causes of action. A system interested as much in quid facti as it is quid juris. Codification of the law was rejected since, whilst certain, it lacks flexibility and individuality.

By contrast to French case law no English judicial decision can be understood without reference to the particular facts of the case. "Solvitur ambulando", as the judicial decision-making process was summed up by professor Cooper. In other words, English lawyers, are English first, and lawyers second!

The common law does not rest on solid legal abstract principles; rather it takes its basis from social principles. There is no such thing as old English law; the present is just a continuation of the past. Blackstone explains that the basis of the Common Law is one of implicit knowledge, unwritten, with the judge being the legal oracle. The famous legal commentator of the 17th century, Matthew Hale, sheds light on the concept of precedent with reference to the Argonautes: even if every piece of the Argo nave was replaced during the course of its journey, it would still retain its original identity.

On the contrary, French law is founded on the doctrine that the legislator is King. This arises from the "Caesar-Papist" approach taken over first of all by Royal absolutism, and then by the fetishism of the Revolutionaries for the law. A hundred years ago, Mallieux described the civil code as "a collection of orders given by the master of the State" and André Siegfried recalled that the French people "believed in the written law, in Roman law, and in tough decisions based on the distrust, realism and pessimism that is in contrast to English law which is based upon custom and confidence."

Henri Levy Ullmann explains, rather mischievously, that; "The reason why English law is difficult to grasp [for a foreigner] is its particular... atmosphere [une question d'ambiance]". There are two approaches, two mentalities, two moralities, two countries, a great deal of misunderstanding and, inevitably, a somewhat less than cordial "entente cordiale".

Two extracts from the impeccable text on English law, 'History of English Law' by Pollock and Maitland (1911) emphasise what’s at the core of English law and underline the divide between French and English law:

"Such is the unity of all history that anyone who endeavors to tell a piece of it must feel that his first sentence tears a seamless web. The oldest utterance of English law that has come down to us has Greek words in it; words such as bishop, priest, and deacon. If we search out the origines of Roman law we must study Babylon: this at least was the opinion of the great Romanist of our own day. A statute of limitations must be set; but it must be arbitrary. The web must be rent; but, as we rent it, we may watch the whence and whiter of a few of the severed and ravelling threads which have been making a pattern too large for any man's eye (.../...)."

"Our forms of action are not mere rubrics nor dead categories; they are not the outcome of a classificatory process that has been applied to pre-existing materials. They are institutes of the law; they are-we say it without scruple-living things. Each of them lives its own life, has its own adventures, enjoys a longer or shorter day of vigour, usefulness, and popularity and then sinks perhaps into a decrepit and friendless old age. A few are still-born, some are sterile, others live to see their children in high places. The struggle for life is keen among them and only the fittest survive."


HABEAS CORPUS AND THE DUE PROCESS OF LAW: A QUESTION OF ATMOSPHERE...

"The English revere the law and despise authority; the reverse is true for the French." (Nicolas Chamfort).

"Take care, Sirs, not to lightly demand a lettre de cachet" [a form of custody warrant]. An Englishman, upon reading this, once asked, "what is a lettre de cachet?" Nobody was ever able to make him understand". (Voltaire, Dictionnaire philosophique).

" Under the English legal system you are innocent until you are shown to be Irish." (Ted Whitehead).
"In England, a man accused of bigamy will be saved if his lawyer can prouve that he had three wives." (Georg Christoph Lichtenberg).

TRICKS OF THE TRADE : UNDERSTATEMENTS AND SARCASTIC COMMENTS

"The one great principle of English law is to make business for itself." (Charles Dickens)

"No brilliance is required in law, just common sense and relatively clean fingernails" (John Mortimer)

"The Bob Drennan letter clearly says it was not a bribe to give false evidence; it was a recognition to help in circumstances that were difficult" (David Mills, Solicitor).

"Economical with the truth" (Sir Robert Armstrong, Cabinet Secretary, during the 'Spycatcher' trial in 1986).

(Lawyer: "What is the difference between a misleading impression and a lie?/ Armstrong: A lie is a straight untruth / Lawyer: What is a misleading impression - a sort of bent untruth?/ Armstrong: As one person said, it is perhaps being "economical with the truth ».)

"The only thing a lawyer won't question is the legitimacy of his mother." (W C Fields)

TO FINISH - HONOUR TO THE GREAT SHAKESPEARE AND TO THE LAWYERS

"The first thing we do, let's kill all the lawyers." (Shakespeare, King Henry VI).

Dead simple?! Not quite. We lawyers can read between one line.

This famous line is uttered by a character, "Dick the Butcher", portrayed by Shakespeare as "the head of an army of rabble and a demagogue pandering to the ignorant". However it should not be read superficially, but rather as an indirect homage to a venerable profession defending democracy and freedom.

Reorganising the letters (anagram), Shakespeare’s quotation reads: "Knife-thrower's legal twists' deathly hell list”!

"Words, words, words…”





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