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Foul, not fair

The political discourse in Great Britain is shaking the foundations of British democracy. On common sense and fairness, two (forgotten?) British strengths
By Professor Ulrike Müßig

Professor Ulrike Müßig holds the Chair of Civil Law, German and European Legal History at the University of Passau. Over the past five years as part of the wide-ranging ReConFort Project alongside academics from Australia, Belgium, Germany, Great Britain, Italy, Poland and Spain, she has researched European constitutional history and, in particular, the role of constitutional practice, communication and interpretation in establishing constitutions. The EU funded the project with the highest academic award at the European level, an Advanced Grant from the European Research Council (Grant Agreement Number 339529, ReConFort). Her English-language monograph Reason and Fairness, Constituting Justice in Europe, from Medieval Canon Law to the ECHR will be published shortly by Brill/Nijhoff.

The current situation in Great Britain affects me tremendously: on the one hand, as a legal historian because it was the first nation to develop the principle of the rule of law over the monarchical executive and it exists in a system of unwritten constitutional conventions (i.e. living legal history). On the other hand, as a result of my personal career as an academic: I spent a year of my degree in Cambridge and, as a professor, I have frequently worked with the UK Supreme Court. A German professor in Cambridge had a profound effect on me. I’ll cover more on that later.

Facts versus interpretations

Back to Brexit: the British discourse is mixing the levels, facts and interpretations, and this mixing is causing a blockage when it comes to voting on the Brexit deal, as well as such alternatives as revoking the exit request and other proposals for change. When the chief legal adviser to Prime Minister Theresa May, the Attorney General, delivered his devastating opinion on the proposed Brexit deal, he justified this with the most unlikely of potential scenarios: a mala fide approach by the European Union. This suggestion that the European Union wants to treat Great Britain badly and would interpret the deal accordingly was then assumed as fact in the debate that followed. However, the borders between Scotland and England as well as between the Republic of Ireland and Northern Ireland are neither suggestions, nor interpretations or assumptions, but rather concrete facts. The alternating opinions of the negotiating partners are interpretations that have the strength to shape constitutional matters depending on how they are used as arguments.

People's will versus Parliament

Another example is making the will of the people absolute. Of course, the people’s will is the legitimating accountability for the whole of democracy, but the argument against the representatives of the people cuts to the very quick of the British Parliament. The narrative of the sovereignty of Westminster is not only a beautiful tradition as demonstrated, for example, when Parliament is opened and “Black Rod” has the door slammed in his face, symbolising the House of Commons’ independence from the monarch. It is about common sense and fairness. The English version of the rule of law is characterised by the legal interpretations against Stuart absolutism that can be read in the 1689 Bill of Rights. The legislative decides on matters of common welfare, notwithstanding the prerogative rights of the executive. In the 2017 Miller case, the United Kingdom’s Supreme Court made it clear that Great Britain’s departure from the EU is not a privilege of government.

No space for insults from the animal kingdom

The responsibility of the legislative for common welfare is based on the (legal) professionalism of the artificial reason expected of those representing the people rather than the human reason of the general public. Here, “artificial” means reason decoupled from the human weaknesses for party political careers and which is based on professional expertise. This pprofessionalism aligns itself with respect for one thing or another – even when there are contradictions. Just as “my learned friend” is the usual term of address for the opposing lawyer in court, “my right honourable friend” is according to the legal logic of British Parliamentary history – with the two red lines in the House of Commons and the ceremonial mace –the standard in Parliamentary debates. Simply addressing the other in the third person can rationalise the discourse. Therefore, there is no place for insults from the animal kingdom, especially when the official title of those not holding power is: “Her Majesty’s Loyal Opposition”.

The consequences: dogmatism, dispute, (rhetorical) war

In the current showdown, the political discourse in Great Britain on Brexit is similar to a religious war. Remainers and Brexiteers alike insist on their own sovereignty of interpretation. This is what Sir Edward Coke referred to in the constitutional precedents from the 17th century as “human reason”. It results in dogmatism, disputes and finally (rhetorical) war. This is opposed by the judgment style of the higher English courts, which is trained in rules and Socratic questioning (artificial reason). The artificial nature and art (!) comprise the assumption that all points of view have equal value and only the different consequences vary.

Dogmatism is created when facts become interpretations and interpretations become facts. I have observed this tendency beyond Great Britain. Even at the European level, most recently in the heated debate on reforming copyright, both sides resorted to implacable positions. Some Parliamentarians dressed down the protests against the reform. Such attitudes put democracy at risk, and this is evidenced by our research. As uncomfortable as this may be for us lawyers, constitutions remain lifeless documents, as long as the text is not communicated. How a constitution is framed within the public discourse arguably tells us more about the stakeholders’ commitment to constitutionalism than the constitution itself. This is one of the fundamental lessons that has resulted from ReConFort, and one that is of existential importance to the upcoming European elections.

In this case, fairness is not a moral category but rather a very specific European idea of justice. This form of fairness must be shown to be comprehensible by using appropriate legal arguments. 

Professor Ulrike Müßig, legal historian at the University of Passau

As a student in Cambridge, I met Professor Kurt Lipstein, who fled to England in 1933 as a Jewish assessor. At Cambridge, he made a new life for himself as a faculty assistant. He told us how, during the Blitz, he had to hold out in the very steep roof of the Squire Law Library. Three buckets of water against German bombs!

This professor received us young Germans in the 1990s without any hate or resentment in his eyes. He demonstrated a deeply-held belief in democracy. It was based on values that are both British and European: reason and fairness – a fine distinction between facts and interpretations. He demonstrated to us that fairness could be achieved with reason. In this case, fairness is not a moral category but rather a very specific European idea of justice. This form of fairness must be shown to be comprehensible by using appropriate legal arguments. 

This characteristic defines European – and yes, that also includes British – constitutional traditions. Great Britain would do well to consider this.