Brexit, common law and ethical thinking

I have just read two sharply contrasting articles in “Prospect” about Brexit. Jay Elwes runs out the already familiar “we woz robbed” line, embellished with quotes from Popper which could however equally be applied to either side. Roger Scruton on the other hand makes a far more interesting attempt to understand and interpret why people voted as they did, without the patronising assumption that only stupidity or gullibility can explain the vote. Whether he is right or wrong in his particular analysis – and in my view he is far more right than wrong on this occasion – this approach of taking the vote seriously as something whose meaning(s) must be sought and grasped rather than as a nonsensical aberration to be dismissed is surely the best way to move on past current turmoil and division.

In explaining some of the uneasiness the English in particular have always felt towards the EU, Scruton makes a very interesting point about the essential difference between the UK common law tradition and European (including Scottish) Roman law traditions. The first starts from cases, with rules and principles emerging as “precedent” only from the attempt to grapple with the complexities of the particular. The second starts from principles and seeks to apply them to particular cases, giving perhaps an appearance of greater intellectual consistency but at the expense sometimes of shoehorning some of the facts.

This “bottom up versus top down” dichotomy is an oversimplification of course (Sir Roger does not suggest otherwise) but nevertheless of vital importance and not only for understanding the Brexit vote. I have argued in the book that exactly this priority of the individual case over rules should be the hallmark of our ethical thinking across the board, but did not make the analogy that it produces a sort of moral common law, or perhaps simply “common ethics”. The big difference is that there are no judges or experts in the ethical field, we each have to decide our own cases. But the analogy with common law, trying constantly to tread a consistent line but too aware of the complexity of everyday life to take shelter in simple rules, may be helpful in getting a handle on what may otherwise seem a daunting approach to ethical reasoning.

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