In all of today’s leading British institutions, whether the cabinet or parliament, business or finance, universities or the media, a clear majority have aligned themselves with the European project and most prominent figures backed, more or less enthusiastically, the Remain campaign. The only significant exception was the legal profession. Certainly, there are some Remain supporters among leading legal figures, but it has been evident for some years that many at the top of the legal profession and the judiciary are at best reticent about the benefits of the EU. Indeed, the most prominent legal authorities openly indicated their rejection of pretensions by EU courts to assert their superiority over UK ones, among them former Law Lord Lennie Hoffmann, the President of the Queen’s Bench, Sir Brian Leveson, and the unanimous ruling of the Supreme Court, presided over by Lord Neuberger in the HS2 case of 2014.
Why are the lawyers sceptical of the European project? Probably because pride in the tradition of the common law and the legal sovereignty of parliament is the single most distinctive and enduring element of British identity. Elsewhere, ethnic origin, or religion or the state itself, have been the focus of national identity, but for many centuries it has been the country’s legal and constitutional heritage which have stood at the heart of English and later British political self-identity.
The last time this identity was seriously challenged was some 400 years ago, early in the 17th century, when schemes to codify English law were inspired by figures like Thomas Hobbes and the Dutchman Hugo Grotius, proposing to replace traditional laws with new universal theories based on the law of reason and natural rights. Such theories were (and are) challenging to national legal systems, for they argue in favour of universal standards, against what is regarded as the particularism and parochialism of traditional law.
Most common lawyers of the time were ill-equipped to grapple with such theories, but there was one prominent figure who could: John Selden, the foremost common lawyer of his generation, was also an unsurpassed scholar, versed in more than 20 languages, as well as an eminent parliamentarian and among the authors of the 1628 Petition of Right. Selden deployed his immense scholarship to rebuff universalistic theories by turning their usual argument on its head — he argued that rational and abstract laws are utterly useless at compelling and ruling actual peoples, who have particular propensities and qualities. He concluded that universal moral principles can really be upheld only within particular legal systems fitted to the disposition and character of a nation.
As the model for his approach, Selden offered the Jewish legal tradition of the seven fundamental Noahide principles which, according to the Talmud, all the descendants of Noah (that is, all humanity) were commanded to observe. Nations were free to devise laws according to their wishes and necessities, as long as they did not transgress these basic principles. Selden pointed out that the continued adherence of the Jewish nation to Talmudic law in the centuries since the destruction of their state by the Romans proved the benefit of this approach. For the Jews, scattered around the world and with no central government, had long lost all political attributes of a nation but one — they still adhered to their traditional national law.
A nation defined by its particular laws and customs was, for Selden, the essence of England too, and this idea has endured among common lawyers ever since.