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.
No comments:
Post a Comment