History is written by the winners. It’s said so often that the idea has suffered the fate of all clichés, to go almost un-noticed. But it’s worth thinking about occasionally.
What would we have grown up to believe about Hitler if he’d won? Those of us, that is, who were here at all. Which I probably wouldn’t have been.
Going back further, what about Napoleon Bonaparte?
I’ve always thought of the little French emperor as a sort of prototype Hitler, with his charismatic leadership and militaristic desire to conquer all of Europe. His 1812 march on Moscow, so vividly captured by Tolstoy in his great novel War And Peace, has always seemed to pre-figure the Nazis’ doomed assault on Russia.
For more than 20 years, from 1793 until his final defeat at Waterloo in 1815, Old Boney was Britain’s bogeyman. The national obsession, the national fear, were real and ever-present. The Martello towers, built to stave off a feared invasion that never came, still dot the East Anglian coast.
Our great national heroes, Nelson and Wellington, were heroes because they defeated Napoleon. London’s most famous square, the nearest thing we have to a national public space, is named for Nelson’s final, fatal triumph at Trafalgar. Two centuries on, Waterloo remains the great “close-run thing”, a battle to rank in our mythology alongside Hastings (but better, because “we” won).
I never really paused to question the image of Bonaparte as a Bad Thing, the awful fate “we” managed narrowly to avoid. Not until the other day, when I encountered a surprising alternative view.
Which goes like this.
Wherever he went, Napoleon swept away hereditary privilege, bringing land and new freedom to the common people. He brought freedom of – and, crucially and highly unusually, freedom from – religion. He emancipated the Jews from all kinds of traditional repression (a bit unlike Hitler there, then). He introduced new standard “metric” measures (the one legacy people tend to know about).
The Napoleonic Code is also at root why France and a few other countries – including Germany (post-Hitler) – have a better legal system than us.
We tend, with our “great Britain” complex, to assume we do everything better than other people. Except sport (at which we actually punch above our weight). In many things it’s true, or true-ish, though getting less so. It’s really not true of our legal system, which is still largely run by privileged people for the preservation of their privilege.
That’s not to say there aren’t many fine lawyers, genuinely committed to the cause of justice. Of course there are. But the system works against them, not for them.
Consider the archaic and arcane language legal documents are written in. It’s deliberately impossible for anyone but a trained lawyer to understand, which is why they can charge such high fees for writing and interpreting it.
A key point of Napoleon’s code was that documents should be written in easily understandable language. Now, wouldn’t that be nice?
The other big difference between French-style and English-style law is between “adversarial” and “inquisitorial” proceedings.
Here, and in other countries with a similar system, any case in court is a battle between two sides. One wins, one loses. Sometimes you get the right result. Other times it’s a question of who can afford the better lawyer, who does better at appealing to a jury, or just plain luck.
The European system, based on Napoleonic principles, is not about seeing who wins. It’s about finding the truth.
Of course, it’s a bit more complex than that. But the central principle is there – and, to a large degree, it works.
German courts have a roughly 90 per cent conviction rate. They also have far fewer miscarriages of justice than here. Fewer wrong ’uns getting away with it – and fewer innocent people banged up.
They don’t have so many of their population in prison, because they don’t have our constant clamour for longer and longer sentences. They consider the high chance of being caught and convicted a better deterrent than ever harsher punishment for those who are.
They also have better after-care, which means fewer repeat offenders. It’s both more civilised and more effective.
The “what if” approach to history is always tempting, and never remotely possible to be sure of. But maybe – just maybe – if the battles of Waterloo and Trafalgar had gone the other way we’d have a fairer society now. Including a better, less expensive, system of law.
Perhaps we’d have Napoleon on our banknotes and all celebrate him as the great saviour of the country.
In the meantime, back in the real world, senior legal figures have begun to think the unthinkable. The Lord Chief Justice, Baron Thomas of Cwmgiedd, gave a lecture earlier this year called Reshaping Justice, suggesting we might scrap much of our current system and adopt a more European approach.
Why would a lord in a wig, gown and chain suggest such a thing? Because the current system is so inefficient, and so expensive, that government cuts threaten to break it completely. So something good might come out of those cuts after all.