THE PAST INSPIRES OPTIMISM

After all these presentations and generalizations the reader may well wonder what my personal feeling is and whether I count myself among the optimists or the pessimists. My somewhat paradoxical answer will be that, when I look at the present, I am a pessimist, but when I look at the past I am an optimist.

TodayвЂ™s state of affairs is undeniably discouraging, as there are vast obВstacles to legal unification among the continental countries and seemingly insurmountable differences between England and the Continent. Paraphrasing Rudyard KiplingвЂ™s 1889 Ballad of East and West and the phrase вЂ?East is East, West is West, and never the twain shall meetвЂ™, I fear that вЂ?civil law is civil law and common law is common law, and never the twain shall meetвЂ™. But a look at the past gives me courage, because history shows how quickly things can change and how вЂ?wildвЂ™ dreams вЂ” or nightmares вЂ” do come true. Who could have thought that the millenary unity of the Roman Church, built on St PeterвЂ™s rock, would be deВstroyed in one or two generations and Latin Christendom be split into warring national churches and denominations? SimiВlarly, the last country where the eighteenth century expected a disastrous revolution was France, where all observers had been struck by the popular devotion to the monarchy. In the early nineteenth century political unification in Germany seemed a pipe-dream and so did legal unification and codification. Yet by 1871 the Empire was proclaimed and in ι 900 the one German civil code was introduced. In our own time hardly anyone foreВcast German reunification: I remember telling my students for many years that the reunion envisaged by the Constitution of the German Federal Republic was a mere pium votum and as unreВalistic as most other pious wishes. Who foresaw that an obscure ayatollah living in exile in Paris would bring down the regime of the shah of Iran, buttressed by modern tanks and planes and imВmense wealth? And what about the sudden dissolution into thin air of the Soviet Union and the German Democratic Republic? The conclusion is clear: there are no insurmountable obstacles, and the most unforeseen developments do take place. In other words, if the political will is strong enough and the lawyers preВpare the road, legal unification in Europe may still come about.

In a minor way, certain approximations are already taking place and changes have been made in English rules and practices that were regarded until recently as immutable and based on reason. The appeal a minima, i.e. the appeal lodged by the prosecution in a criminal case against a lenient condemnation in order to obtain a more severe sentence in a court of appeal, used to be considered contrary to the basic principles of the common law (it still is unacceptable in the United States because of the Fifth AmendmentвЂ™s prohibition of double jeopardy), but this ancient and venerable rule was recently abolished and the new practice seems to be widely accepted as reasonable. Another example is the judge-made вЂ?rule of exclusionвЂ™, first established in 1769, which forbade the courts to look at what was said in Parliament to find out the intent of the lawgiver: the text of the Act and its literal interpretation according to precise and binding rules were the judgesвЂ™ only guides. Recently, however, with the accession of the United Kingdom to the European Economic Community (as it then was) and under the influence of the practice of the Court in Luxemburg, Englishjudges have taken the intent of the lawgiver into account and the debates in Parliament, as recorded in Hansard, can now be quoted in court.^{^[38]}

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Source: Caenegem R.C. van.. European Law in The Past and The Future: Unity and Diversity over Two Millennia. Cambridge University Press,2004. вЂ” 185 p.. 2004

THE PAST INSPIRES OPTIMISM

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