When Charles Dickens revived the old phrase “the laws is an ass” in his novel "Oliver Twist", he was writing in a time when despite the legal reforms in the Victorian age, law generally meant the law of precedent known as common law and the law of equity or fairness. The former was the strict interpretation of legal rights, the latter was the evolution of a process of fairness within the jurisdiction of the Lord Chancellor, known as the keeper of the King’s conscience.
In his novel that focused particularly on the legal profession, “Bleak House”, Dickens portrayed lawyers as mercenary, cynical and self-interested. Those who became caught up especially in equity disputes in the Court of Chancery, where the Lord Chancellor sat, found themselves consuming their capital and destroying their happiness, chasing the chimera of legal settlement in their favour. The interminable case of Jarndyce v Jarndyce has entered the popular consciousness of Englishmen. It was of course ironic that the area of law meant to do away with a legalistic and inflexible approach itself had become a burden upon litigants.
Yet today we have a new and particularly post-modern form of legal abuse – that often referred to as lawfare, implying war by other means. Examples current are the ongoing persecution of the hunting community through the courts and the blatant political attempts to prevent implementation of the referendum on EU membership.
What makes the development of lawfare so troubling is that England was a nation in which the rule of law was a sacrosanct principle. Back before Henry II (who built upon Anglo Saxon respect for the law in his legal reforms) the King’s Peace meant that common law in Anglo-Saxon England that extended across the realm. These principles, although much undermined, survived post the Conquest and were restored by Henry II and reluctantly reaffirmed by his son, King John when he signed the Magna Carta in 1215.
That deep respect for the rule of law, by which an English aristocrat like the commonest felon could be sentenced to die on the scaffold, as a principle before which every Englishman was equal, spread across the globe. Most famously the constitutional governmental system in the United States built upon the English principle of the rule of law. Through the Commonwealth this principle became worldwide.
What then is the modern Western nation state without the rule of law? It is that system of commonwealth suffering from that constitution most feared by the Whigs in their rhetoric at least, arbitrary government!
Yet what Whigs say should never be taken at face value. The Whigs overturned important principles such as the precedent of Royal Succession and used their new found power in England to run a corrupt oligarchy. It is interesting and telling that today’s liberals, who use the law as a weapon against political opponents, are the philosophical descendants of the Whigs. That belief in history going in a positivist direction has been further affirmed harmfully through a Left wing account of jurisprudence by the American academic of the Left, Professor Ronald Dworkin. "Progress", according to the ideology of the Left, could now be enforced by judge-made law. A hybrid of Whig positivism and cultural- Marxist jurisprudence has given us "lawfare".
By taking advantage of the Englishman’s reverence for the rule of law, corrupt progressives are not just blatantly attempting to overturn referendum results, but to tie up the Englishman in red tape and restrictive laws In a sense the ban on hunting with hounds was the test case, the canary in the coalmine. Contrary to the principles of English common law, which looked to established practice for legality, Parliamentary statute overturned generations of a country sport, symbiotically tied in with rural life, in a complex ecosystem of nature, agriculture, sport and tradition. The English common law would never have ruled in such a way. It depended upon Parliamentary statute to overturn a prescriptive right to hunt. After such an egregious victory, many more things became subject to bans and restrictive legislation, until the Englishman has found it difficult to emerge from his house without breaking one law or another.
This abuse came from the growing importance of parliamentary statute, depending upon a transient majority in the Commons, over the importance of common law, which looked to legal precedent and also, in a sense even more importantly, established usage. If something had been done for time immemorial, then in a free country it must be legal – unless a Parliamentary statute overruled this.
There is nothing antiquated, quaint or anachronistic about the common law: the most serious offence of murder remains a common law offence. Statute though, with its expression of the sacrosanct principle of Parliamentary sovereignty, commands legal legitimacy and transcends pre-existing common law. Courts would go on following precedent until overruled by a new act of Parliament. Statutes should be rare and something like a matter of last resort.
The problem with the increasing level of legislation is not just that it is used to restrict an Englishman’s historical rights, but that there is nearly always a political agenda behind it. There is currently a lot of talk about the Benn Act, which – against all precedent and having been passed through a breach of parliamentary convention – forces the executive to approach the EU for an extension in the event of no deal at the time of the legislated deadline.
Those MPs who passed the bill in a cynical and political manoeuvre now grow disingenuously indignant about the rule of law when the Prime Minister has threatened to disobey this cynical law – as though the Benn Act were some ancient principle handed down for generations. What hypocrites! This law is nothing more than a tactic and yet it is granted the same sanctity as court rulings based in centuries of precedent.
Even worse and especially since the creation of a “supreme court” by Tony Blair’s government, the problem of judge-made law through judicial review is growing and threatening the nation with a constitutional crisis.
Before our eyes we can see that the Whig history was wrong about our constitution. We are governed by the Queen in Parliament. Within its realm Parliament is sovereign, but it depends upon the head of state for Royal Assent. Furthermore Parliamentary sovereignty has nothing to do with the exercise of the Royal Prerogative and neither is that Prerogative justiciable.
This is not simply a misreading of history that is leading to a constitutional crisis. It is also to do with that ongoing problem of the “long march through the institutions” by the cultural Marxists. To a large extent left-wing liberals are the useful idiots of the cultural Marxist agenda, even if they are not fully-aware or fully-signed-up to the agenda of cultural Marxism. In any event, they are willing to breach with precedent, protocol and prescriptive rights to achieve a political agenda.
That means that longstanding practices unpopular with or unnoticed by the majority, such as foxhunting and shooting can no longer depend upon being established customs. They are threatened by a simple majority in the Commons. If the Lords object they will be overruled (and since Blair’s reforms, the Upper House has been completely corrupted, anyway). The exercise of the Royal Prerogative by a Government to achieve democratic goals such as dissolution or prorogation are prevented by statute or the Supreme Court.
The whole agenda of the progressives, by which they essentially cheat the system, is reliant upon the Englishman’s acquiescence to the law as an-almost-sacred principle. Nonetheless, this cannot carry on forever. If one or two political movements use the law to frustrate democracy or destroy ways of life, then the law itself will lose credibility. There is an arrogant contempt of the law by those who weaponise it for their own political goals, however complacent they are about their own righteousness. Being self-satisfied about one’s political views and having the power to abuse the law cannot go on with impunity. The danger is progressives (liberals and cultural Marxists) will push people too far so that the law and our institutions are no longer respected. That will not only take away their power, but be a loss and a blow for Anglo Saxon civilisation. The mistake was to believe the Whig analysis of ever-increasing parliamentary power and history heading in a liberal direction, rather than recognising our rights and civilisation depend upon established usage, custom and precedent. That Tory spirit of precedent and prescriptive rights in our law making is needed if our institutions and respect for the law are to survive.