The 200th anniversary of the Battle of Waterloo saw historical analysis and speculation but one intriguing question – what would have happened to the law if Napoleon had won – went unanswered. Our article asks what might have become of the British legal system in the event of a French victory.
Two hundred years ago this month, the final battle of the Napoleonic Wars was fought near a small village in Belgium called Waterloo. The turmoil into which Europe had been plunged since the French Revolution was finally over.
Waterloo was essentially a victory for the forces of reaction and conservatism against the radicalism that had begun in 1789. Following the battle, Britain was plunged into an economic and political crisis that included the Corn Laws, the Peterloo Massacre and suppression of dissent amongst political radicals. It was not until 1832, seventeen years after the battle that the Reform Act was passed, the first step in a long process of democratisation. Even today, we still have a House of Lords and a monarchy; the voting system dates back centuries and the recent election was decried by some as being fundamentally unrepresentative.
Interestingly, had things gone the other way at Waterloo, Britain might look very different today. When asked what he would have done had he successfully invaded England, Napoleon is said to have replied that he would have proclaimed a republic, abolished the nobility and the House of Lords and redistributed the property held by those nobles who opposed him.
Even more interestingly, a French victory would have ushered in the French legal system at the time, known as the Code Napoleon. To understand how different the legal system would now be, we can look at some of the key differences between common law (English) and civil law (still used in France).
English law has what is known as an adversarial system. Lawyers examine witnesses and present their cases based on evidence. The civil law, on the other hand, works on an inquisitorial system where judges ask the questions and demand evidence. Lawyers present their arguments based on the evidence that the court obtains.
English law comes from two main sources – laws passed by Parliament (both the UK and European) and precedents (where the decisions of courts in previous legal cases form a binding source of law for court decisions in the future).
Civil law comes from a statutory code, and that code is applied by judges. The opinions of previous courts don’t set a precedent; they are informative, rather than binding. Courts will apply the specific wording of statutory texts to each individual case.
The role of judges in the two legal systems is also very different. In English law, the judge decides matters of law and also finds facts (if there is no jury in the case). Most judges tend to rely on arguments presented by the lawyers in a case and adopt a neutral stance, looking to precedent for guidance in matters of law.
In the civil law system, judges act as inquisitor, interpreter and fact-finder. In many instances, they sit on juries themselves. Rather than rely on precedent, they will look to commentary by legal scholars for direction. In contrast to the elevated position which many English judges hold, judges in the civil law system are often viewed as bureaucrats.
A similar difference of function applies to the role of the jury. Under the English system, the jury comprises laypersons; never judges and very rarely lawyers. Their role is to look at the evidence that is presented to them and decide what happened.
The civil system, however, uses juries only in criminal cases and virtually never in civil actions. The modern French system gives a defendant the entitlement to a jury trial only if they are being prosecuted for a felony that has a sentence of 15 years in prison or (for companies and corporations) a fine of 75,000 euros. Professional judges very often sit on juries so that their decisions can be guided by law rather than emotion.