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French types, English individuals and the rule of law

In The Greek Way, Edith Hamilton remarked that French art was strongly intellectual and was interested in types, while English art was marked by a deep interest in individual lives.

I may be stretching, but it seems to me the Napoleonic Code of justice which has ruled France and much of continental Europe enforces abstract intellectual principles, sees types rather than individuals, and shows little sympathy for the individual by making few attempts to protect his liberty. Arrested, he or she is presumed to fit the criminal type until an investigating authority proves otherwise. Meanwhile, she can be jailed for as long as three years, without being charged. SOS describes just such an incarceration in Spain.

In contrast, Brits built their common law on individual cases. The legal principles they established grew out of real life situations with particular conditions. They were sympathetic to individuals, and respectful of the community's constitutional traditions. The community had fiercely protected individual rights in the past and was likely to do so again, however slow it might be to get moving. The result was law that was experienced as fair and just. But is there any solid foundation under this individual approach?

According to University of Illinois Law Professor Lawrence Solum, there is. The most influential formulation for the rule of law was offered by 19th century British jurist and constitutional scholar A.V. Dicey. For the rule of law, said Dicey, three things are essential:

(1) The supremacy of regular law as opposed to arbitrary power;

(2) Equality before the law of all persons and classes, including government officials; and,

(3) The incorporation of constitutional law as a binding part of the ordinary law of the land.

For centuries British law has largely met these three tests. The European Union's law, acquis communautaire, fails all three.

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