Liberty and Regulation
There are things in our lives, traditions, principles, ideals, which are so basic and fundamental we take them for granted and rarely give them a passing thought. Take for example the Presumption of Innocence. It is one of the foundation stones of justice throughout the world. Though not always practiced, it is at least universally recognized.
There are other principles and ideals, also basic and fundamental, which we unquestioningly accept, but so deeply ingrained are they in the very fabric of our lives, we dont even realize they exist. We simply take them for granted like breathing. An example is the Presumption of Liberty.
The Presumption of Liberty is the presumption that we are all basically free to do whatever we like, to improve our lifestyle, our wellbeing, our employment and opportunities for advancement. The only qualification, the only legal prohibition, is that whatever we do, we should not in the process harm or endanger others, individuals or the collectivity.
The idea is well summarized by Lord Denning, an outstanding figure in British justice, in his book The Family Story: Each man should be free to develop his own personality to the full; the only restrictions upon this freedom should be those which are necessary to enable everyone else to do the same.
Applied in government, the principle is clear and simple. In the words of Thomas Jefferson, in his inaugural address to Congress as President in 1801: the purpose of government is to prevent men from injuring one another.
Reading this in Britain, most Commonwealth countries or the USA, one might say... Well yes. Its nice to be reminded from time to time. But its all quite obvious.
It may be quite obvious to citizens of Britain, the Commonwealth or USA, but it is by no means obvious to citizens of Europe. Indeed quite the contrary.
Throughout continental Europe the prevailing principle is a Presumption of Regulation. Regulation should be universal, and minutely detailed. There are those actions which are forbidden and those which are obligatory. Ideally there should be nothing in between, no room for doubt or uncertainty. A Swiss jurist once commented only partially in jest: Everything in Switzerland is forbidden, except that which is obligatory. In Europe, regulation prevails.
The Anglo view is that Liberty prevails; and any law which restricts our liberty must be justified on the grounds that it is harmful to others or to the collectivity.
Britons have consistently rejected the countrys membership of the European Union. When asked for reasons, their replies frequently mention the torrent of petty rules and regulations which emanate continuously from Brussels. More importantly, Britons comprehend instinctively that the very basis of Law is fundamentally different, resulting in a deep conflict of culture between Britain and the continental EU.
Whatever Britains future in the EU, leave it, stay and make the best of it, or stay and try to change it, we should at least be clear as to the nature of this very fundamental difference in the basic concept of law.