Brexit in Context
Allen D. Kowalczyk
To most Americans, the Brexit phenomenon is a uniquely European enigma. Images of British Prime Minister Boris Johnson’s unruly tuft of blonde hair and Speaker of the House of Commons John Bercow’s fuming face while moderating an argumentative Parliament are now ubiquitous on our news feeds. The debate over why the British people are so unhappy with the European Union (“E.U.”) appears as foreign as another language to many Americans unfamiliar with British history and the E.U.
The Brexit story began on January 1, 1973, when the United Kingdom of Great Britain and Northern Ireland (“U.K.”) joined the European Communities, the precursor organization to the modern European Union. From its inception, the U.K.’s relationship with the E.U. has consistently been one of cautious support for the European supranational project while simultaneously closely examining its own national self-interest. For example, the U.K. is one of nine E.U. member states that never adopted the European Central Bank’s euro as its national currency. Instead, the U.K. retained its traditional national currency, the pound sterling. The U.K. also never joined the Schengen zone of passport-free travel without border checks between E.U. member states.
The U.K.’s relationship with the E.U. took a dramatic turn on June 23, 2016, when the British people voted via a national referendum to terminate their national membership in the European Union. To be clear, popular discontent with E.U. policies had already been a central issue in British politics before 2016. For example, in 2015 then-Prime Minister David Cameron launched a “renegotiation” of the U.K.’s E.U. membership due to the E.U.’s inflexibility on the free movement of people between member states’ borders. All things considered, after the dust of the deeply divisive 2016 referendum had settled, over seventeen million people voted to leave, while sixteen million voted to remain.
We are now in the subsequent limbo of Brexit as the exact details of this termination of membership have yet to be carried out by three successive British prime ministers since 2016. It should be a simple task for the U.K. government: Leave the E.U. per the mandate of the majority. However, the U.K. government is determined to negotiate an advantageous deal with terms salvaging the long-enjoyed various advantages of E.U. membership while rejecting the political hot potatoes that fueled the referendum in the first place. Whether the U.K. has a de novo legal separation from the E.U. in a no-deal scenario, or if the governments negotiate a deal that creates some curious political compromise remains to be seen in the coming months.
Regardless of the eventual outcome reached by governments, a far more politically important battle has already begun in the media: to proclaim the dominant narrative of why the U.K.’s voting populace so disapproved of the relationship with the European Union that they voted in 2016 to leave altogether.
Coast of Ireland 2019. Image courtesy of author.
Since the Brexit vote, British media has time and time again given a stage to familiar pundits to formulaically argue the meaning of Brexit in a repetitively patterned way for political gain. The political left posits Brexit to be an anti-immigration populist manipulation of the masses through disinformation resulting in an economically suicidal national divorce from the E.U. The political right counters that the Brexit vote to leave was the freely democratic triumphal answer to the unaccountable actions and economic burden of a top-heavy E.U. bureaucracy with its baggage of unhelpful regulations.
Both of these politically conventional explanations of Brexit are clearly superficial, over-reliant on economics, inadequate, or some mixture of the three to fully capture the tension building over the last decade and beyond amongst everyday British political life.
History is a reliable way to place a political phenomenon like Brexit in perspective and in its correct orientation. Author and philosopher Sir Roger Scruton’s lecture at the Nexus Institute attempts to do just this. He presents three intriguing historical and cultural reasons that help explain why Brexit unfolded as it did. Importantly, these are not the superficial talking-point reasons often debated in the popular media, and merit further exposure and exploration.
The first historical factor Scruton identifies as important to understanding Brexit is the post-World War II political reality in Europe. The U.K. successfully defended their cherished values of parliamentary representation and democratic societal change from Nazi Germany’s conquest of most of Europe. The British people are still within living memory of the enormous human and economic wartime sacrifices necessary to maintain national sovereignty. From 1940 on, British cities from Belfast to Coventry were indiscriminately bombed by the Nazis with thousands of ordinary civilians killed and many more left homeless by this terrible total warfare. Thus, many in Britain prize national sovereignty and self-determination in the public sphere in light of the prior generation’s sacrifices to retain them.
The second bit of historical context Scruton identifies for understanding Brexit is the fundamental and longstanding difference of philosophy between the British and European legal systems which is put under stress in a transnational body like the E.U. Following the Norman Conquest of 1066, the U.K. developed a unique system of law known as the common law. This system is derived from Germanic tribal law rooted in custom that was brought to Britain by the Anglo-Saxons. As the common law system developed through the centuries, judges considered themselves bound primarily to the past decisions of other courts in similar cases rather than to statutes or other forms of positive legislation. Moreover, as a casuistic jurisprudence, common law judges focused on resolving the particular case before them, and were empowered to fashion flexible remedies as justice required. Today, many areas of common law continue to be created by judges rather than a legislature. This common law system spread to the former British colonies and is currently the governing legal system in the United States, Canada, India, Australia, as well as the U.K.
In contrast, continental European law is a civil law system built upon the legal principles of the Roman Empire, and thereafter incorporated into the fledgling Church’s canon law in the Middle Ages. Civil law jurisprudence emphasizes the judicial interpretation of statutes rather than the binding force of precedent or the casuistic tailoring of legal remedies to equitably resolve the case at hand. Today, the civil law system prioritizes statutory statements of law over particular case precedents, and thus views prior case precedent as informative, but not binding on most judges. Judges take a much more active role in a trial by questioning witnesses and demanding evidence from the parties involved. Legal remedies to disputes are limited to predictable statutory options passed by a legislature. This civil law system spread to the former colonies of France, Spain, and Portugal, and is currently the governing legal system in most of continental Europe, China, Japan, most of Africa, and most of South America.
Contemporary E.U. laws and regulations reflect the European civil law system that is structurally different from the common law legal tradition of the U.K. This fundamental difference of legal philosophy places tectonic stress on political and economic cooperation that contributed in no small part to the Brexit earthquake. Already, the U.K. government has passed legislation repealing all E.U. laws within the U.K.
The third and final historical factor Scruton identifies is the uniquely global reach of the English language which leaves the U.K. particularly vulnerable to mass migration growing pains. Exacerbated by the refugee crisis beyond the E.U. borders, and a wave of economic migrants from within the E.U. borders, the U.K. faces a mass migration concern of over-burdened urban and social welfare services. Because of the English language’s status as the lingua franca of our increasingly globalized world, more and more people around the world speak English. Thus, when English-speaking migrants enter the E.U., the U.K. is the preferred destination as the shared language presents less of a daily challenge compared to other E.U. countries. For many Brexit advocates, the U.K.’s membership in the E.U. has resulted in Britain bearing a disproportionate burden of the Union’s collective commitment to immigrant and refugee absorption.
These three British perspectives on national sovereignty, the rule of law, and the global English language illuminate the value of the non-economic, intangible concerns that are at stake in the Brexit debate. These historical and cultural considerations, combined with economic advantages, international investment, immigration, an equitable welfare system, better quality of life, and the ability to control governing laws, provide helpful insight into the phenomenon of Brexit that should cause others outside the U.K. to reflect on their own historical experiences to clearly orient their current political, social, and cultural developments relative to identified historical causes.
Mr. Allen D. Kowalczyk holds a B.A. degree in History magna cum laude from Florida State University and a J.D. degree from Emory University School of Law. He is currently practicing homeownership law with Georgia Legal Services Program, Inc. in Savannah, Georgia.