CAPALDI: Why Brexit and English Law Matters To All Of Us

Guest: Nicholas Capaldi, Distinguished Professor at Loyola University

Anglo-American culture and law prioritize individual freedom.

Historically, that prioritization emerged in Britain in the tension between the crown and the common law judges.


In a manner of speaking, this is an historical accident or spontaneous order – both the prioritization and how it over time evolved out of that struggle.

This does not devalue the freedom; on the contrary, retrospectively it makes it all the more precious.

America and Britain both appreciate freedom as few others on the face of the earth do.

That is what makes Brexit so critical.

It is ultimately a test of freedom, something the EU abrogates.

What has also evolved out of that struggle is the supremacy in the Anglo-American world of the legislative branch of government.

Parliament or Congress make laws.

Where then does that leave the prioritization of individual freedom?
It now rests on the fact that it is a cultural icon, for the legislature and for the judiciary, and hopefully for every other part of the government and for other cultural institutions as well.

Brexit is also about the future of individual freedoms.

Judicial supremacy was challenged as far back as Bacon and that challenge has been an ongoing feature of Anglo-American law.

The loss of judicial supremacy does not endanger personal freedom as long as the prioritization of that freedom remains culturally entrenched.

What would the history of the world be like if the foregoing had not occurred?

Freedom in every form (political, economic, and personal) now exists in parts of the non-Anglo-American world (Western Europe, Eastern Europe, even Asia, Latin America, and Africa) but in varying degrees and with some notable absences.

Clearly, the existence of freedom is not just the imitation of its Anglo-American success.

It is the product of Allied (primarily UK and US) victories in WWII and the Cold War and UK and US veto-power in the U.N.

We can postulate that there is no reason to believe that personal freedom would exist, persist, or have developed anywhere if it had not been for (a) the evolution of Anglo-American law and culture as well as (b) the hegemony of Britain in the 19th-century and the U.S. in the 20th and into the present.

Individual freedom now has a new challenge.

It is neither the supremacy of the legislature nor the erosion of Anglo-American hegemony.

The new challenge (as explicitly identified) by the rise of the bureaucratic-state.

This is reflected in two ways: both the endless growth domestically of {administrative law, the nanny-state, and the ‘deep-state’} and in the international economic emergence of state-capitalism (wherein the entire national economy is government directed not in the form of central planning but as chief negotiator in trade treaties), Super-State capitalism followed by globalism.

Intellectually this is abetted by the faith in social technology or managerialism as it was articulated in the 18th-century Enlightenment project of the French philosophes, 19th- century German positivism, and 20th-century forms of scientism.

With regard to the domestic growth of administrative law this can be seen in the advocacy the development of public law and eventually prioritizing it over private law.

It is seen in the unexamined assumption that there is a collective common good (national, then regional, and then international).

It is seen in the conceit that somehow there can be judges whose technical knowledge will enable them to make decisions that cohere with the common good while preserving individual freedom.

It is seen in inquisitorial procedure that will magically and miraculously supplants adversarial procedure.

What should concern us is the specter of the return of judicial supremacy in the guise of legal expertise for managing state capitalism (a new form of socialism) perhaps in opposition to a recalcitrant democratic legislature that does not understand the ‘true’ collective good as correctly as the ‘new’ and “deep” bureaucracy and judiciary.

This is what we see in the antidemocratic fit against Brexit and against Trump.

The people have spoken but activist leftist judges and the Deep State can act to thwart the popular will and to impose their own.

The people cannot let that happen!

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