The following text is based on a lecture delivered at the Legatum Institute on April 18.
This is a very important time for us when we, we as a country I mean, have taken this great initiative in voting for leaving the European Union, therefore landing ourselves with the obligation of answering the great question of what we are.
Are we that kind of thing that can survive on its own outside the EU, when only a mere 150 other states have managed it? Or are we the kind of thing that needs the protection of that kind of overarching bureaucracy? The question of institutions is going to be at the forefront of public debate about this.
For a long time, I have been opposed to the idea that politics is really about economics. That the only real issue is always whether we are going to be more prosperous or less prosperous depending on what decision we make. In the run up to the Brexit vote, when David Cameron realised that things might not be going quite in the right direction, he recruited hundreds of experts, or so-called experts, in the science of economics to tell us that it will be an absolute catastrophe economically speaking if we didn’t vote according to the way that he wanted.
Everything was sacrificed in that debate to discussing the economic question, even though, as most people in this room would recognise, economics is not exactly a science and all those who pretend to expertise in it tend to disagree with all the others. Maybe there is some kind of consensus about economic matters – there certainly is on the small scale – if you spend everything today, you won’t have anything tomorrow, and other wise thoughts of that kind. But when it comes to macroeconomics of the kind that effects politics, there doesn’t seem to be sufficient agreement to make it worthwhile engaging in these debates.
Nevertheless, that was the way in which the question was posed to us. And, as a result, the real question that was in people’s mind, which was the question as to our identity as a nation, was excluded from the public debates.
Questions of identity are, in my view, just as important as any of the questions that politicians have to confront. But they are the questions that people tend to put out of mind because they are embarrassing. They engage with all kinds of difficulties that we have inherited from the past. They pose a problem in a community like ours, which has large immigrant populations and which has to confront the fact that not all of our citizens identify their allegiance in quite the same way.
But that’s not a reason for avoiding these questions. Quite the contrary. In my mind, it is a reason for confronting them and that is the place where I think we have go to, the place where we can actually ask the question, “What are we?”, “What holds us together?” and “How do we make use of our shared identity in order to create a respectable and comfortable path into the future?”
Now, in my view every political order depends on a loyalty which is not political. We belong to different parties. People in this room vote different ways. There are at least three or four different broad attitudes to our life in society.
There is the attitude of those who are fixed to a particular place and to a particular way of doing things and have not got much of a capacity to adventure out. And then the attitude of those travelling around, taking advantage of this and that is the most important thing. There is the attitude of those for whom life in the countryside is the real conception of home. And the attitude of those who prefer the big cities and so on.
All these different attitudes that we observe around us create out of themselves different political orientations, and the different political parties to some extent match those orientations. Nevertheless, we have to stay together in a coherent unity if we are to accept the fact that we disagree.
This means that there must something else that we share other than our party political and attitudinal way of looking at these things. There must be a first person plural that includes us all. Only if that is in place can we actually live together accepting the results of elections. Most people have to live in a government which they didn’t vote for, even if they happen to be on the majority side they will still be living with people who didn’t vote the same way as themselves. How do we accept being governed by people whom we dislike? This is surely the most important question we have to confront in the world in which we are today.
One way of accepting that we are being governed by people we dislike is to recognise that we are part of them and they part of us. That we share this first person plural which leads us to say “we” when we are confronting all the important issues in the public realm.
So this first person plural can’t be a party political plural. It can’t be confined simply to those who know best or to those who identify themselves as the true intellectual guardians of our inheritance, or whatever it might be. It must be something that we can all share.
I think that this must therefore be a condition on the durability of our institutions. In the end, the institutions that count for us must be those that embody this first person plural which enables us to live with those with whom we disagree and also to take part in a peaceful and essentially reconciled community of disagreement.
What makes it possible for these institutions to emerge and to attract the loyalty of so many conflicting and contrasting types of people? My view is that the nation in one form or another, is absolutely essential. In the post war period – the period in which the EU was first broached as a solution to the supposed problem of belligerence – many people thought that the real cause of the two World Wars was nationalism. That we had gone through a period when people, through their nationalistic sentiments had entered into conflict with each other and that the solution was therefore to abolish nationalism and to develop a new kind of transnational loyalty that would gather people together under a single European conception of who they are.
And I think this was a great mistake made by the architects of the EU – the mistake of thinking that nationalism was the cause of the World Wars and that the answer to the avoidance of war was to redefine loyalty so the nation state had nothing to do with it.
It is true that there is this passionate thing called nationalism which we have seen exhibited by the Nazi Party in Germany and elsewhere in Europe as well, and versions of this extreme, quasi-religious devotion to the national idea do crop up here and there all across the world.
But national identity as a form of loyalty is not like that and this is where we should distinguish nationalism as a quasi-religion from ordinary, decent patriotism, which is loyalty and devotion to a particularly national identity which one has inherited.
This is particularly important for us here because our nation, if we even use that word, consists of several different nations all nesting together under a shared history and a shared rule of law, and sometimes diverging and sometimes coming together (in conflicts).
Diverging now, because of a time of prosperity and relative peace, but nevertheless not at war with each other and identifying with each other in the real emergencies. That kind of nationalism, which is open to joining with its neighbours in historical communities of settlement, is something which we should treasure because it enables us to live together peacefully despite all our disagreements.
When we (British, but especially English people of course) try to identify what it is that we are attached to, we tend not to use the word nation but rather the word country. We talk about our country – the place where we are settled. This idea of a country has been very important in our history. It doesn’t just mean a geographical area. It means also the jurisdiction that has grown there. We identify our law in terms of the place where it is exercised, the place over which it claims obedience.
And that idea of a territorial jurisdiction is, for us, wound together with the idea of the territory over which that law prevails. It is a settled territory, settled by our people and people who we have welcomed into this country over many centuries.
There is nothing of the fervent quasi-religious nationalism that we saw in Nazi Germany in our unassuming devotion to the place that we think is ours: that this is our home, this is where we belong and that this defines our ultimate loyalties.
One of the great advantages of this kind of territorial idea of identity is that it is open to the development of a form of citizenship. In a territorial system of government, we belong with each other as fellow citizens. We are not subjects in the way in which we might be subjects of an Emperor, or any other tyrannical power. We have a kind of equality as citizens which comes from the fact that we are bound to each other as neighbours. We live side by side, not in a shared obedience to some dictatorial regime but simply as accepting the same rule of law which governs all of us.
And this, I think, is to be contrasted with other forms of identity that are available in the modern world, and which are growing, I fear, all around us. In particular with the religious form of identity. We know because of our growing Muslim population that there are people who think that secular law is only a secondary kind of law – a law which of course we should obey if there is no penalty, no religious penalty for doing so – but, in the end, it must always concede the place to the divine law, the law laid down by God himself in whatever holy book he may have bequeathed to us.
This idea that law is really a religious thing and owes its authority to a divine origin is at complete variance with our notion of the secular law which is defined by territory. The advantage of a law defined by territory and of the people that inhabit that territory is, of course, that it’s changeable and adaptable. Whereas sharia law is not changeable. All that can happen is that it can be interpreted in a certain way. There is a great problem as you know, in interpreting it, given that so many Muslims say that the gate of ijtihad [way of interpretation] is closed.
So religious law in general is not the kind of law that can adapt to changing circumstances. Whereas our secular territorial law is formed from the beginning on the principle of adaptation. It adapts to the changing circumstances of people and for that reason is a device for overcoming conflict. Many people confronting the problem of Muslim communities who want to revert to sharia tell us that we ought to have a dual system of law such as that prevailed in the Ottoman Empire, where certain matters are judged by the communal law of the religious community while others are handed over to the secular law of the state.
But we ought to remember that we fought this out in the 12th century at the time of the constitutions of Clarendon when Henry II fell out with the Archbishop Beckett of Canterbury. And the result of that conflict which was a very painful one which tore the country apart was nevertheless victory for the Crown.
The idea since then has been absolutely clear: there is one system of law in this country. It is a secular law, it’s a changeable law and is manmade but it takes precedence over anything that a self-righteous priest might like to put in its place. That was the right decision and it has been embodied in our community. That’s how we deal with things. We deal with things through that sense of shared obedience to the rule of law. As a result, we can respect religious freedom – that is something that is part of our law. It is not part of the law of a religiously based community, obviously. Our law is adaptable because we made it.
One of the real problems behind the EU institutions and one of the reasons why so many British people rejected them is that laws made by treaties are not in the same way adaptable. A treaty is laid down for all time and any changes in its terms would require the consent of all the signatories, consent which of course is never forthcoming because there are too many of them and too many conflicting interests. So we were landed, and still are landed, with a system of legislation, the Acquis Communautaire, which is 180,000 pages long, which no single person has ever read, and which we can’t change. Or only here and there adjust because the crucial issues are all those which come directly from the treaty.
So this inadaptability of transnational forms of government whether religious or in this case political means that our fundamental way of doing things has been disturbed. I just want to say in conclusion what I believe our fundamental ways of doing things are.
I believe that people have not paid sufficient attention to the role of the Common Law in defining our identity as British people, and in particular as English people who are the heart of the British settlement. Because people have not really seen how different the Common Law is from the legal systems that have been imposed upon the people of Europe by their rulers.
The first principle of the Common Law is of course that everything is permitted unless forbidden. And that’s a very strange thing to live by, a strange principle to live by. In the old Communist world, the opposite principle prevailed. Everything was forbidden unless permitted. You had to have a written document with a rubber stamp on it. The rubber stamp was all important.
But in Common Law countries, you are free until someone intervenes to prevent you doing something and, even then, you have recourse to the law as the thing which protects you from that person.
This is what is contained ultimately in the famous writ of habeas corpus – no one can detain you, enslave you, imprison you or do anything like that to forbid your freedoms without there being true cause. And if it happens to you the sovereign must respond to the demand that you are released and brought before his courts for judgment.
That principle of habeas corpus is what many people think is part of what makes Anglo-Saxon justice so distinct. But there is another aspect too, which is that in the Common Law, the law is our possession. The law is not there to control you in the interests of someone else, no matter how highly placed that person. It’s there to provide remedies to you when things go wrong.
The idea of a remedy is fundamental to a Common Law jurisdiction. If something has happened to you which seems to have disturbed the equilibrium upon which you were depending, you go to the courts for a remedy. If there is no remedy in the ordinary system of law, people used to petition the Lord Chancellor to take their individual case seriously and find a remedy nevertheless from the principles of natural justice which we all will acknowledge.
Hence there grew the principle of equity parallel to the Common Law, which is simply a way of providing remedies when the law hasn’t specified any. This concept of law has been absolutely vital in giving us the sense of being free to associate with each other, to do the things that we want to do as social beings without asking permission from anyone except ourselves.
In Germany – where you have to have an identity card just to be a legitimate citizen – you also have to have a permit from the police to reside anywhere, to change your house. You can only settle in a new town if you have a police permit to do so. If you want to set up an association for purposes of your own, you have to have the legal document with the rubber stamp permitting you to associate for that purpose.
We in Britain, thanks to the law of equity, which created the concept of a trust, we can get together and do something just because we want to. The Legatum Institute, I assume is a trust and didn’t have to have permission from the government in order to exist of pursue its purposes.
It used to be the case that charitable purposes could be pursued without any prior rubber stamp from the state. I have noticed that William Shawcross is here and will testify that he now has to put that rubber stamp on everything. The charity commissioners under the Labour Government of course began to appropriate the kind of authority that the institutions of the state already have in France and Germany – you have to get their permission before you can do something.
It used to be a matter for the Common Law courts however to decide whether something was charitable or not and meanwhile it was assumed that you could get on with it. So these things have changed a little bit – the idea that law is a way of controlling things from above has been invading our legal system and partly under pressure from the EU. But still we have this idea that the law is the possession of the individual citizen and not of the state, and that the State is itself answerable to the law. Even the monarchy is answerable in the sense that the monarch owes his or her position to the law that creates it.
That has been a principle accepted since the 12th century. So the law stands above the state and the individual citizen and all of them can call upon it to vindicate their case whenever something has gone wrong. So law for us is an instrument for settling disputes and conciliating people. It’s not there for imposing a plan or controlling people. It means that throughout our communities there is a principle of accountability that has to be followed.
Those with power have to account for it. If you have a power you can be brought before a court of law if you act ultra vires – in other words, in such a way that the power has not authorised. Everybody with power in this country is accountable to those who don’t have it.
One way of accounting is, of course, through elections. I am very pleased that our Prime Minister has decided that it is time to call such an election. But that isn’t the only way in which people are held to account. If you are in any kind of office in UK today, someone there has the ability to hold you to account for acting against the constraints and the permissions of your office.
I stand opposed to the European idea which asks us to obey regulations even though we have no idea who issued them or what is the penalty for getting them wrong, or how we make someone who gets them wrong account for his mistakes. This is something which many people in this country find objectionable – the idea that they are governed form outside the country by people who are not accountable in any easily comprehensible way.
So to conclude, that legal legacy of ours goes hand in hand with that sense that this country is home and it is to this country that our allegiance is owed. And that is a very mild idea of national identity, namely identity which is identified in terms of a place and a law which has grown there.
But it’s sufficient, I think, to give us the reassurance that we do genuinely belong together and that we can count on the acquiescence of our neighbours in accepting a shared jurisdiction. We are in it together – and I think that is the most important thing that people now need to know.
Obviously in the aftermath of the Brexit vote many of my colleagues in the intellectual and university world were quite vociferous in their rejection of what had happened, thinking that they had been betrayed in their fundamental aspirations and that this was just a conspiracy on the part of populists and ignorant people to put back the clock to thwart the tide of history and so on.
But those emotions very quickly leached away and people very quickly stand together whether they agree with the Brexit vote or not, they stand pretty firmly united in the idea that we are a single, first person plural, and that the question is a question for all of us: how we go forward and how we actually set ourselves up as an independent nation-state.
And I think we should do this exactly as we have always done: by muddling along. We are a community of free institutions which have grown through these legal devices such as the law of trusts which is responsible for most of the great institutions which we have, which have been set up by private initiatives, which adapt and if they don’t adapt, crumble away.
This country is a shambling collective of unregimented people who don’t like being bossed about but who do insist that anybody who does anything to them that they don’t like must be held to account for it.
Accountability for the British people is the crucial thing and it is enough – it stands opposed to the idea of regulation from above by people who have a plan. We don’t have a plan, and when we discover people who do have plans, we take vehemently against them.