One of the most challenging elements to a post-Brexit order is the organisation and understanding of law. Since our accession into the EEC, our laws have been increasingly harmonised with and even led by European Union directives and court judgments. Thus we’ve moved into the position of having legislation more dominant in legal acquiescence than precedent. This is not just the direction of the European Union, it has also been the direction of the British Parliament. Through parliamentary statutes and legislated actions, economic regulation has been led by the idea of one-size-fits-all legislation rather than its acceptance through the particularities of common law and the creation of contracts. Such a direction can also be seen in the dominance of human rights law in legal discourses. Instead of precedence taking the predominant position in questions of legality, human rights are defined a priori, thus leading to the situation of legal abstractions of equality of access and inalienable rights, all of which are ill-defined and based on the fluid decisions of particular judges.
Due to this settlement, certain experts of EU law have made the claim that by leaving the EU, our disentanglement from EU laws and regulations will require a massive transference of political power from parliament to the executive, as only they can take on the mammoth task of running through applicable and non-applicable legislation. Certainly that is one way of looking at it, particularly considering the dominance of legislation over common law precedence.
However, another way of passing through this quagmire could be through a decentralised common law system of varying court systems and nested systems of governance. In this system, all legislation is treated relative to preceding cases, subjective judgments and the idea that all regulations have variable elements around contractual agreements and trade.
Already, English common law contains within it a multitude of different legal precedents and court systems with their own procedures. We have tort law, contract law and property law, all of which contain elements of precedence shaping their legal consensus. Applying these to existing regulations, whether EU, UK or jointly related, would not be hugely difficult. They would simply be applied to particular economic transactions between firms when developing contractual relations, specifically in areas such as the production of particular products, and their use and sale in different market and national contexts. Eventually, this could develop into a system of local regulatory apparatuses created by juries and local judges, with regulation being applied to subjective contexts or even being scrapped if former precedents become irrelevant in the circumstance of a dynamic, fluid economy and society.
In these instances, the principle of subsidiarity is upheld in legal and regulatory matters. This is something the EU already proclaims to uphold on matters of governance and local government spending. “The idea of subsidiarity is that the higher level of government (the EU in this case) should only intervene if the lower level is not capable of acting”[1]. “To give an example of how this might be operationalised, consider the example of labour market regulation. The policy objective might be decent working conditions. If the principle of subsidiarity applied, we would ask whether this objective was already achieved via market and civil society mechanisms (for example, through trade unions, mutual aid societies, 28 and so on). Insofar as market mechanisms did not suffice, local or national government could intervene”[2]. These systems of government can be developed in such a way as to have nested levels of legal and regulatory agencies, going from neighbourhood councils to city/county local governance to voluntary regional or national parliaments. Again, existing legal systems already have these principles with courts that deal with specific legal principles and forms of law, that slowly go up to appeals and supreme courts. Elinor Ostrom has documented such systems developing in the California governance of water collection and provision[3], whereby collective contractual agreements are decided through local and state governance systems and enforced through the hierarchies of the legal system, with penalties applied to violation and the failure to meet contractual obligations.
Placing this within a libertarian society, much of what I’ve described can easily fit within a competitive court and legal system where laws are developed through consensus, precedence and contractual agreement. For example, the issues of trade between the different nations and localities of the European Union could eventually evolve into a system of trade courts and varied trade law, as was the case with the Hanseatic League and other such voluntary trade bodies.
EU law then becomes something that is not rigid and one-size-fits-all, but rather variable through a system of decentralised common law. In a system of subsidiarity, decision-making need not be centralised through top-down directives and ECJ judgments, but rather by local juries and smaller regulatory systems that include employment associations, guilds and trade unions in the decision-making process of creating and enforcing regulations. When necessary, decisions can be moved upward to appeals courts and agreed upon supreme courts, or even to regional and national forms of governance who can decide on the application of particular laws and regulations.
This system requires a radical rethink of how our economy and society are governed, and how our legal systems operate. It requires the full acceptance of the principle of subsidiarity by all relevant governance institutions, and a move back toward common law and popular litigiousness. Fundamentally, it would gut the coercive, centralised power of the state. With the recent Brexit vote, and other European populations growing more and more distressed with the centralising direction of the EU, a system of decentralised common law could be the answer to superfluous regulatory mechanisms, poorly decided legal frameworks and the continual dominance of legislation over precedence and the jury system.
[1] Booth, P. & Bourne, R. Making the Pieces Fit, 2016, 27
[2] Booth, P. & Bourne, R. Making the Pieces Fit, 2016, 27-28
[3] Ostrom, E. Governing the Commons, 1990
