Now it\’s the law that Ritchie doesn\’t understand

Sigh.

It is, of course, often said that tax avoidance is legal. I dispute that. Correctly it is not illegal. But nor is it sanctioned by parliament. It is in a grey area where the law is in doubt, and very often the application of law is, in the absence of a general anti-avoidance provision, also in doubt.

No. It\’s a very basic principle of our legal system that if it ain\’t illegal then it\’s legal. We do not have to have a law stating that something is legal for us to do before it is legal for us to do it.

We have a Common Law system. One in which you do not need to seek permission if there is no law forbidding a practice.

For example, we do not have a law against standing upon one\’s head and juggling jelly. Therefore it is legal to stand upon one\’s head and juggle jelly. It is not a grey area, it is not something that a copper or a nark can suck his teeth over, it is simply flat out legal.

There is another form of legal system, often called Roman or Napoleonic, where to a large extent this structure is reversed. Where only that which is described in the law as being legal is legal. And perhaps you would prefer to live in such a legal system.

Well, good luck to you, have fun: but you\’ll have to fuck off to France to do so.

It is our great good fortune as Englishmen that we get to do whatever the fuck we want: with only the exception of those things that there are laws against. We do not nee laws to tell us what we may do.

37 comments on “Now it\’s the law that Ritchie doesn\’t understand

  1. I agree in theory, and yet… is the daily behaviour of our chums across the manche less free, in the sense of being bossed about, than ours? Not so as I’ve noticed. If I’m right about that, it may be because we are adopting the Napoleonic system. Or it may be because we’ve become a nation of enervated, shepherded runts too afraid of our own shadows. Or a combination of those things.

    Whatever, I can’t buy this Land of the Free stuff, offset by snipes at terrorised Poujadistes.

  2. “There is another form of legal system, often called Roman or Napoleonic, where to a large extent this structure is reversed.”

    Yet another argument in favour of the abolition of France.

  3. The trouble is, when the bastards want to get you for something that isn’t illegal, they’ll do their damnest to squeeze a charge out of the ever-expanding statute books.. so although nobody ever made it illegal to (not) threaten to blow up an airport on twitter, or set fire to a small fake poppy.. someone managed to find a law which could be applied.

    AND, they’ll do it with tax too if they can.. if they don’t like the cut of your jib then they’ll ‘av ya’ if at all possible. The advantage that the wealthier avoiders have is the ability to engage and pay the right people to make sure that everything is watertight and no ‘technicalities’ are left untended to… but with tax law being as complex as it it, that’s still one helluva job.

    (I’m well acquainted with one case where HMRC persued a company for avoidance, were batted away on all the points of substance, but found a possible paperwork error.. which could prove materially expensive to the company.)

    So yeah, Murphy doesn’t get it. But I might argue that his idea of how things should be is closer to reality than Tim’s version of how things are.

  4. Is what Tim says true? I’m no expert on Continental Law, but it does follow the maxim Nullum crimen, nulla poena sine praevia lege poenali. Whereas, as the defendants in the famous Penn & Meade trial (which established the principle of jury nullification) objected, Common Law could readily be bent to the needs of the prosecution:

    The question is not, whether I am Guilty of this Indictment, but whether this Indictment be legal. It is too general and imperfect an answer, to say it is the common-law, unless we knew both where and what it is. For where there is no law, there is no transgression; and that law which is not in being, is so far from being common, that it is no law at all

  5. PaulB, the prosecution of common law offences nowadays is fairly unusual. Murder is one such offence. Conspiracy to defraud another, to pluck just two quick examples out at random. But most offences prosecuted – drugs, violence, dishonesty, public order, sexual activity – are prosecuted under statute. Nowadays if an indictment is quashed it’s as likely to be because it wasn’t signed by the judge’s clerk, as anything else.

    Saying that, the dictum that ignorance of the law is no defence predates by far the current era (in Britain) of mainly statute-based prosecution. Yet I think a compelling argument could be made that ignorance of the law is now far more widespread than when that dictum was first deployed, if only because there is now so much more (statutory) criminal law.

  6. Let’s give him some benefit, and say there are indeed areas of doubt. He’s still wrong. The law operates by a kind of fiction that the law is fixed and known, even if everyone knows you would lose at first instance, and the court of appeal, and would only win in the Supreme Court (and even if no one really knows in advance what it would hold).

    I had a case where a trustee did x, on the advice that it was right, even though he’d have to go to the House of Lords to prove it. He was sued on the grounds that he’d acted in breach of trust by going against legal advice. Wrong, said court of appeal. What he was doing was right, even if lower courts wouldn’t recognise that.

    So you’re not acting illegally just because it’s grey area – it’s just that you may only find out later what the law really was all along despite the mistaken earlier decisions of the courts.

    Ps take your own legal advice if you have a problem.

  7. “I agree in theory, and yet… is the daily behaviour of our chums across the manche less free, in the sense of being bossed about, than ours? ”

    A point being debated with pal over for a visit as we sat enjoying a beer with his hire car at the kerb. Coupe motorcycle cops pulled up, dismounted, sat at a table nearby. Two coffees black, two tots of…cold tea? But even here it gets chilly. We’re needing to go but pal is nervous, indicates the cops, guns holstered at their waists, batons hanging down. Hey, we’re just a couple middle aged guys, enjoying the sun. Go, pay the tab, nod to a cop as I cross his eyeline. He nods back. We get in the car, drive away.
    Would that have happened in the UK?
    I’ve been wandering Roman Law, countries, last few years. The only dealings I’ve had with the law is them helping me. Yeah, when I used to come down here, many years ago, turistas getting pulled over on the Carretera; del Muerto & blagged for a thousand pesetas happened. You kept couple of notes in your passport in case. Informal tax. That’s long gone.
    It’s the UK I feel nervous, moment I hit ground. From the rude, obstreperous cunts at Passport Control to the camera infested roads, intrusive security theatre, thuggish police. Fish don’t notice the water but from the bank it don’t look too clean. It’s not the legal system it’s what you do with it & the UKs got too many slime like Murphy trying to bend your’s to their ends. And it’s looking too damned malleable.

  8. BiS, you’ve given colour to my thoughts on the subject.

    About a decade ago, I was belting along a Sicilian motorway. Well, there’s no car as fast as a hire car, is there? After a while, I noticed rozzers up ahead and, being a bit English, slowed down and tucked in behind them. A couple of minutes later, and this is quite true, a hearse came up behind us the proverbial bat out of H. Didn’t slow dow, and paid no heed to the rozzers. It hared past at 160-180 kph. The rozzers seemed uninterested. Who can say why, ahem? So I pulled out, and followed the hearse’s course of action. And guess what? Indeed. Nothing at all happened.

  9. A law is nothing without enforcement.

    That is why a Napoleanic code is not so scary. The enforcement is often weak.

    The problem with the UK is that laws are enforced more, or at the very least people are more inclined to obey the law.

  10. sigh.

    Your alternative is bastards. And twats. Get a fucking grip, worstall. And your lackeys.

    Really?

  11. Of course Murphy understands the law. The law is what he decides it is at the time, what part of that doesn’t he understand?

    People are brought forth in front of The Murphy for judgement and it is decided. That is the Law of Murphy.

  12. @Arnald:

    If you’re going to come here, with your divergent views at least have the common courtesy to post a cogent counter-argument rather than just offensive bile.

    If that’s what raises your stick then bugger off to Obnoxio the Clowns place where swear-blogging is de rigueur.

  13. In security engineering, my field, there are terms for this; “default deny” (that which is not explicitly permitted is denied), and its opposite, “default allow”. Default deny is great for security policy as it means you don’t need to explicitly consider all the different ways in which your security may be breached when writing your security policy, but only the things that you’d definitely like to be allowed.

    But for laws, I think “default allow” results in a freer, more livable society.

  14. Frederick – the haphazardness of enforcement in these dodgy common law countries is part of what makes it scary – if the law is only enforced at random then it becomes arbitrary, and that is a very bad thing.

    The same thing is happening in the UK now where instead of enforcing existing law, politicians prefer to play to the 24 media audience and write a new one with the inevitable consequences in terms of loss of freedom, unintended consequences and increased cost o f running the state machine.

  15. @PaulB, Tim is repeatedly and routinely wrong about code law stating everything is banned except that which is allowed, I assume it is done for rhetorical effect.

    OK, there are some exceptions that don’t really apply to average Joes (for example European law on drugs, in a nutshell is: “It is illegal to sell any product with a medicinal claim. You may obtain a license to sell a product with a medicinal claim by jumping through hoops A0-An”). This however applies equally in the common-law realms of the UK and RoI and has nothing to do with codification.

    Even here, I have the uncomfortable suspicion that Ritchie is partly right. If you found out some new tax avoidance wheeze and parliament didn’t close the loophole promptly it’s entirely likely the taxman would ask one or other court to decide on the legality of the wheeze. And the joy or otherwise of common law is that there the courts are bound by all that precedent stretching back hundreds of years, rather than solely the current will of parliament. So it’s actually harder to know, until you have a court decision, whether your wheeze is legal in a common-law jurisdiction than in one where you can look at the tax code as it is, and the court decisions that arose from the tax code as it is.

  16. John Galt, have you read any of Tim’s stuff? Arnald’s swearing is as nothing by comparison. Nor is his brain, but that (Arnald’s brain, I mean) is a different kettle of shit.

  17. @cuffleyburgers:

    ” if the law is only enforced at random then it becomes arbitrary”

    I agree entirely and the legal statue books have swollen tremendously since the end WWII, such much so that it is impossible for even the most dedicated practitioner of the law to know even a fraction of it.

    By definition, this ignorance of the law leads to arbitrary execution of it by the officers of the state.

    “Corruptissima re publica plurimae leges” – Tacitus in Annals Book III, 27

    Translation: The more numerous the laws, the more corrupt the state

  18. “Roman or Napoleonic, where to a large extent this structure is reversed. Where only that which is described in the law as being legal is legal.” JamesV is correct, this is utter bollocks. As is another anglo-fallacy that’s often spouted by people who should know better: that there’s no habeas corpus in codified jurisdictions.

  19. JamesV/Peter S: how, then, do Napoleonic jurisdictions work? (I’m only an English lawyer, so I can’t pretend to know any better).

  20. From my very limited experience of the law here, as a victim of a crime, I found how the system seems to operate, entirely satisfactorily. I report a crime & this becomes a matter for investigation. The police, in due course, identify a suspect. At this point, the victim, witnesses, suspect seem to be on much the same footing. The first thing established is there was indeed a crime committed. I had to go through a fairly rigorous examination of my part, losses. Presumably, so did witnesses. Then there was a trial, the suspect was found guilty, had to make reparation to me for my losses & suffered a penalty for committing the crime. I gather the penalty is mitigated by the willingness to make reparation. I’ve also been interviewed in France as a witness in another matter. Similar system I’m led to believe. In both cases, I’ve had the impression the point of the process is to establish the truth, with all parties expected to contribute to establishing it. The system is there to decide between the parties & remedy a situation.
    The experience in the UK is, if you report a crime, the crime itself is a crime against the system. The witnesses, including the victim, are just ammunition in the CPS’s arsenal directed at whether it thinks it can pin the offense on a suspect. If the police think it worthwhile finding one. In both of the cases affecting me, as regrettably yet again a victim – but this is London, where being a crime victim is expected & these are the only incidents got beyond the file & forget stage – there seemed to be plenty of evidence worth investigating, the suspect was established- but the CPS didn’t seem bothered to pursue. At no point does one feel the system’s much interested in the truth.
    There was also an instance where I had to give evidence in a damages claim, being a witness to the incident. My physical position relative to the incident was established without objection, when I gave evidence. It was obvious that later evidence was putting the actual action that caused the damage where I wouldn’t be able to see it. When I tried to point this out to the magistrate I was strongly ordered to shut up & the point was ignored. Again, there didn’t seem much interest in establishing the truth.
    OK, it’s all anecdotal but that’s what court proceeding are, aren’t they? Examinations of evidence. No doubt the learned Mr Lud will now correct all my errors & omissions, but an observer that’s my impression.

  21. Civil law and common law jurisdictions (calling them “Napoleonic” is silly), very roughly, divide on the weight applied to precedent, which is higher in common law jurisdictions but contrary to popular belief not entirely irrelevant in civil law jurisdictions. The real difference is that the UK never got around to codifying its civil and criminal laws. Not for want of attempts – I believe an attempt at codification was abandoned around 10 years ago.

    On that precedent thing, Germany is awash with organisations that fight test cases to the Bundesgerichtshof, and not many judges at lower courts are going to be stupid enough to rule against precedent from there.

    In practise so much law in common law jurisdictions is now codified anyway that the distinction is unimportant. But I don’t know of any code that says at paragraph 1 “everything is illegal except the things that follow, which are legal”. The German civil and criminal codes certainly do not look like this.

    Haters of codified systems (usually on the grounds that anything the French do must be wrong) will make a lot of noise about the natural rights of free-born Englishmen and their protection by juries and lay magistrates, as if civil law places are staffed entirely by evil professional judges. Well we have lay magistrates (judges, rather) in Germany, there are juries used for some criminal trials in Austria and Italy, for example. The use of laypersons to find fact is not a unique feature of common law and you are still at the mercy of the ignorance and irrational foibles and prejudices of the individual(s) you land up in front of – as I found to my cost in court last week (civil case, me plaintiff).

  22. Oh – and just to illustrate, what stymied my case (I did get a 50% settlement out of the defendant) was an issue regarding the interpretation of the law. Contract issue – defective goods – but was the defect substantial enough, considering the whole thing sold and its age and contractual conditions, to represent a defect under German law? The judge was of the opinion that it probably wasn’t – on the basis of preceding decisions of the same court. Precedent is definitely relevant in civil law jurisdictions.

  23. “the haphazardness of enforcement in these dodgy common law countries is part of what makes it scary – if the law is only enforced at random then it becomes arbitrary, and that is a very bad thing.”

    We have exactly the same thing here in the UK – vast swathes of law/regulations are ignored 99% of the time by the authorities, but give them great power over anyone who for any reason were to get themselves into their crosshairs for some reason.

    It makes people want to keep their heads down, and not make a fuss, for fear of instigating some sort of investigation into their affairs (which given the amount of rules and regulations out there) is bound to find some infraction, which can then be prosecuted, and the result used to smear the person involved.

    Hence why we get politicians of the ‘PPE, Think Tank, Spad, MP’ type, because they have never been involved in anything where they had transgressed some pointless rule or other, and are squeaky clean (ish). The candidates who would be infinitely better MPs don’t want to get involved, because once they put their heads above the parapet, they are fair game for the State apparatus to home in on.

  24. Thanks JamesV for your illuminating comments from the professional side of the law.

    The feature of codified jurisdictions, it seems to me (and I’m a translator not a lawyer) is that it’s the offence that is codified. A year or so ago there was a high-profile trial here in which the defendant was found not guilty (got away with it, more like) and was then charged by an imaginative prosecutor with committing an ‘uncodified offence’. This was immediately thrown out because if it wasn’t included in the criminal code how could it be an offence? I wondered at the time how he would have got on in England with its catch-all crimes like ‘breach of the peace’ and so on.

    Naturally no such legal arguments affect the fact that everything the French to IS wrong.

    Cheers.

  25. To take up Jim’s point at 27 & not attempting to couch this in any sort of accurate legal terms; is it just me or are you getting a situation where what one could call victimless crimes- no other person involved but a law has been broken- pursued with vigor- whilst crimes that have victims, theft, violence treated less enthusiastically.
    Data points. Well, I certainly notice quite small victimed crimes being reported in our not so local press. Not as “a person has been arrested for” but simply this has occurred. If they’re worth reporting I’m presuming, maybe inaccurately, they’re few enough to make news. Conversely, every day I see breaches of regulations going largely ignored. Their enforcement seems to be based much more on whether the breach has affected anyone else.
    A totally absurd example. Last time I was in the UK I visited a house that for some obscure reason a stretch of public footpath outside. Tarmac with curb & serves 3 houses. The next stretch of footpath in either direction must be 2-300 yards away on either side. Perfectly normal rural road. Late arrival bumps up on the curb to park. You’d think sensible move – until the passing police ticket it. Did it in front of the owner without him realising what was going on. I’ve had exactly the reverse happen in France, except actually in the village. Gendarme stopped & requested the vehicle bump up on the kerb because it would impede traffic. Realised that would impede unloading & apologised, no less!
    I know there’s all sorts of technical differences (or not) between common law & codified law but isn’t it really about what you use it for? As Peter S ends above, UK law seems almost designed to be abused.

  26. BiS @ 24, I’m not sure your differing experiences of, and satisfaction with, continental and English law are (wholly) explained by the different legal systems we have, so much as by the variant attitudes of investigating and prosecuting authorities between the common and civil law jurisdictions.

    I may well be biased (of course), but I am a fan of what we now rather fondly and therefore misplacedly call our adversarial system. The point of that system is to test to destruction the other side’s case within the rubric of the burden and standard of proof. I think that’s a good system. And if it’s too glib to say it”s a system unconcerned with truth, it might be better to say that it is concerned with who is right in law, which is, after all, all we have. The search for truth in a court seems to me to be a fool’s errand and uncomfortably close to the search for the new Jerusalem so beloved of corporatists and progressives.

    By contrast, my understanding (such as it is) of what happens in civil law jurisdictions is the same as yours: all parties work to assist the court in a search for truth. This, frankly, brings out the full John Bull in me. I represent my client, whether I’m prosecuting or defending, not some other fucker (and you can tell it brings out the full J.B., because I’ve never before written that in a blog). And though I’m bound by rules of professional conduct that prevent me wilfully misleading the court, I’m buggered if I’ll assist in some overarching quest that screws the person who instructed me. It’s creepy and it’s quasi-totalitarian.

    Yes, call me biased.

    That said, I referred above to how fondly we refer to the adversarial system. And in truth, a variety of shifts have occurred since about 1967 (it they’re coming thick and fast now) which mean that we are moving closer to the inquisitorial system of the civil law jurisdictions. But that’s a story for another day.

    None of which is to say that I disagree with your anecdotal evidence of investigating/prosecuting authority laziness/incompetence etc. in England, although (traditional caveat warning) there are plenty of dedicated, interested, concerned and able coppers about. There are even one or two such people who work for the CPS, albeit they’ve usually had humanity by-passes.

    As to the damages case you were involved in, I’m reluctant to comment, not having been there, but either party would have been free to recall you as a witness to deal with subsequent evidence which contradicted your own. If they did not it may mean it wasn’t important, or it may mean they did not think of it. Who knows? The judge (not a mag.) sounds a bit tetchy, but we’ve got this state-licensed cartel or closed shop thing going on, so you have no right of audience. As you might expect, I’ve no time for cartels or closed shops.

  27. JamesV, I’m no expert but isn’t what Tim was referring to in his original post the mania for licensing and regulation? I mean, I can think of examples of that in this country going back hundreds of years, but the sheer weight of it as currently practised seems to me to be a recent continental import of sort of kinda Napoleonic origins (based on no academic study, I freely admit). So whilst I agree that we tend to over-emphasise the different weight placed on precedent and on lay finders of fact as between civil and common law jurisdictions, I’m not sure that really answers the point.

    Codification is a funny thing. Last time I looked the Middle Temple library had a full collection of the French civil and criminal codes. I seem to recall it ran to many volumes. For the criminal law in this country we have as an equivalent the single volume abomination that is Archbold, supplemented by the infinitely more useful single volume Blackstone’s. I don’t think there is any civil law equivalent to either tome in our common law jurisdiction, if you take my meaning. Yet you can find pretty much any offence you care to mention in either Archbold or Blackstone’s (it’d have to be some esoteric trading standards or environmental offence to escape both). I suppose I’m saying that to a considerable extent we do have codification in this country, although perhaps not quite in the perfectly adumbrated sense originally envisaged by Justinian. Arguably, by comparison with the French equivalent, we’ve been more efficient at it, too. And I say that as a real loather of Archbold. Moreover the intertubes, irrespective of the balance between statute and precedent, are increasingly making redundant any concern over whether one can find an answer to the question, “is it legal?”

    To return to my original comment, my feeling is that culture is as important as law. I like our legal system in its traditional form, but our culture stinks.

    You can dismiss that as more special pleading if you like….

  28. Edward Lud-

    I would argue (and have been arguing for some time here and there) that adversarialism is essential to liberty. The concept of “consensus” inevitably leads to tyranny.

  29. Ian B, or as Mark Steyn puts it: bipartisanship is just the two main parties ganging up on the electorate.

  30. M’learned Mr Lud,
    The problem I find myself with is, I agree totally with everything you say. But feel a bloody sight happier here than there, recently. I’d paraphrase your closing lines:
    “my feeling is that culture is as important as law … but our culture stinks.”
    But which is the chicken & which the egg?

  31. I’m afraid that Tim is entirely wrong. The key difference between Common Law and Civil Law (aka Roman/Napoleonic Law) is the question of who makes the laws.

    Under a Common Law system, judges are able to make the law simply because precedent rulings are binding. The disadvantage is that a bad ruling can be corrupting on future cases. Under a Civil Law system only the state can make the law, and judicial precedent is disallowed. The disadvantage is that this requires the law to be fully codified, and can result in inadequacies of legal provision and inconsistencies of court judgements.

    Neither system is perfect, and in real life there is a huge overlap between the two systems, as James V points out. As for the supposed virtues of the English adversarial system, I have myself been involved in legal actions in France which have all been extremely adversarial, though mediated more by formal submission than courtroom procedure.

    But Tim’s idea that under a Civil Law system everything that’s not specified as legal is illegal is just plain wrong.

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