The Political Thread

[M.I.K.]

That was a quip?

[The Legendary Shark]

Well, more of a dig than a quip, if I'm honest. Either way, I'm sorry,

[Professor Bear]

I am sure it is entirely possible that people in the UK are Tweeting 21000 times an hour about the latest episode of US cable drama The Newsroom that was shown in America last night, and so that's why it's trending in the UK while #CameronMustGo is not, but it's still amusing to think that a harmless bit of social media slacktivism might have got Fatboy running scared to the point that he bullied Twitter into blocking the hashtag from appearing in trending lists.

[GordonR]

That might be so, M.I.K., but my conclusions come from reading law and philosophy books and watching law lectures - not dictionaries.

...says the man who not so long ago was trying to argue that aether was a proper scientific principle, because it was a word in the dictionary.

[BPP]

As someone with an actual law degree (1st class hons. UCL) and multiple masters in associated sub-disciplines I'd have to say I've rarely read such poppycock spoken 'authoritively' about law as by TLS. For example his discussion on statute / common law confuses many basic concepts including the scope of statutory law and the nature of 'natural law'.

Where to start?

In UK law if a statute expressly deviates from a previous law - be it 'common law' (judge made or convention) or a prior statute then that is the end of the matter. The previous law is impliedly repealed. There is no 'higher' common law that survives.

The only higher law than UK statute is are several forms of European law (such as directives) but not all as the type of European law is relevant. The only other form of higher law is, as of the late 90s, the European Convemtion on Human Rights. Previously it was academically argued we were bound by it but ole TB's govt. put the issue beyond debate with an express undertaking of its higher status. International lawyers will argue about other forms of binding 'global' law, such as the New York Convention but at that juncture you're into arcane specialist fields.

So to be clear if a statute unequivocally deviates from past common law practice then that ends the common law regulation of that practice.

A second major problem is invoking the term 'natural law' which has no place in UK legal practice and ,merely exists in academic debates as to the 'inherent' content of a legal system. Indeed the opposite (major) school to natural law jurisprudence is positivism. Positivism, at its most basic, asserts there is a scheme / system for producing rules, meta-rules, but that law has no inherent 'moral' content. So a 'natural lawyer' will argue it does - such as Sharks 'tho shalt not kill' but a positivist will argue that while that is a good rule there is no inherent reason why a legal system will contain it. English law and English lawyers are widely acknowledged as positivists. 'Natural law' is seen as a fairly discredited legal analysis (positivists now mainly defend themselves from postmodernists, critical legal scholars, feminists, race theorists, siologists). To invoke natural law as a analogue for common law would get your term paper flunked. Common law is 'convention and judge made law to fill the lacunae' in statutes, natural law is an old near dead analytic technique.

[The Legendary Shark]

Thanks, BPP, certainly some food for thought there.
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I don't agree that "...if a statute expressly deviates from a previous law... that is the end of the matter." If that were true then no statute would or could ever be altered - all statute would, under those conditions, be both immutable and unchallengeable. (Even you yourself say the previous law is only "impliedly" repealed.) I like the fact that our laws and statutes can (in theory, at least) be challenged in our (in theory, at least) impartial courts.
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Perhaps I did conflate common law and natural law, for which I apologise. Natural Law is, in my view, the most basic of all "law" - that law which is "built-in" to the human species, flowing from instinct and behaviour - the kind of inherent and specific "law" that all species have. Common law is, again in my view and I apologise if the terms I'm using are academically inaccurate, the most basic attempt to codify human natural law. At its most basic, common law is teaching toddlers not to steal - something so basic that it doesn't need to be written down for you. Indeed, common law is not written down anywhere - even Moses' stone tablets were not common law (or even natural or "God's" law) but the first statute law - or, from an EU perspective, the first "directives".
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The statutes on those stone tablets were the first attempt to codify common law based upon natural law (without getting into the whole "reality or myth" argument concerning religious texts). Had humanity evolved from another species other than the apes then the text on those tablets might have been a lot different - Thou Shalt Not Suffer Any Other Males In The Pack Than The Alpha, for example.
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That last leonine flight of fancy aside, I think that all our laws - no matter what we call them or how we make them - must be based on our fundamental human nature. Indeed, I cannot see how it could be otherwise. There would be little to be gained in basing our laws on the nature of a wolf pack or the life cycle of a beetle.
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Let me explore the most famous inscription on Moses' tablets - Thou Shalt Not Kill. As I stated previously, this is a basic and excellent species survival tactic for social animals such as ourselves. We all know this Law without even being taught it - otherwise, on the very first day of kindergarten, all the kids would be going at one another with sharpened crayons until there was only one left, whom the teacher would then dispose of.
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So we all know not to kill but we also all know that some people ignore this rule. Given the right (shared by virtually every living thing) to defend oneself from aggression we must, therefore, concede that even under natural law it must be sometimes acceptable to kill in extreme cases of self-defence, for example. Natural law, therefore, adapts to current circumstances and so too does common law, which is the most immediate manifestation of current law, irrespective of statutes. Once the immediate crisis is over, equilibrium is restored and Thou Shalt Not Kill applies once more. If Thou Shalt Not Kill was immutable (which I dearly wish it was) then in a kill-or-be-killed situation the very statute designed to protect one becomes a positive handicap.
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So if natural law and common law allow for exceptions then statute law must, being a codification of them, also display the same flexibility - which it does. If someone has killed then the matter is examined in a (theoretically) impartial court using statutes (the established opinion) and common law (the jury's opinion) to arrive at a harmonious outcome.
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I have no real problem with statute law and our court system, indeed I think our species is still too young and stupid to do without them yet, and I think that on the whole, and certainly on the more important cases, our system still works quite well.
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But - these days, there's too much of it and too much of that has been 'weaponised', for want of a better term, by powerful interests intent on wealth and power. Our venerable system has been hi-jacked and is being used against us to strip us of our liberties and our wealth.
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And before you scoff and hand me a new roll of tinfoil, please remember that Hitler's concentration camps, Stalin's purges and Apartheid were all perfectly legal and proper under their local contemporary legislation even though said legislation directly contradicted natural, common and previous statute law. This is what I see happening now - legislation diverging from natural, common and statute law being Imposed and Enforced with the same if not more vigour than our "good" statutes (i.e., those which have served society well).
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It is all this economically motivated statute law, from whichever source, that is being imposed on us (using our own courts as a delivery system) and which flies in the face of all our other laws that I object to.
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I can't fight bad statutes with good statutes because, quite frankly, I'm nowhere near clever enough. If I even attempt to go that way I'll just get bogged down in reams and reams of legislation and case law and bumf that I don't understand - although I do still try to read and comprehend at least some of it.  My core philosophy is quite simple - so long as I'm not doing anybody any harm, or putting anyone in danger of harm, then I can do whatever I choose and nobody under the sun has the right to tell me otherwise or demand my loyalty in any way.
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What I can do is adhere to my own concept of natural law, which has led to my own single personal statute "cause loss, harm or damage to nobody; honour your lawful contracts, pay your lawful bills and be honest in your dealings."
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If I ruled the world, I'd have that carved over the entrance to every court house, every school, every hospital and every home, I'd have it etched into every mirror, every windowpane and every pint pot, I'd have it engraved on the blade of every knife, the handle of every spoon and the barrel of every gun. I'd have it printed on the front page of every newspaper and magazine, embossed on every coin and stamped in every brick. Then I'd abdicate and leave the world to it.
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My personal legislation, then, being based on fundamental natural and common law is at least as valid as the government's - in fact, my legislation and theirs agree on a great many things but disagree on fundamentals. My personal legislation applies only to myself and anyone else who freely chooses to adopt it. Government legislation sees itself as mandatory and, above all, Enforceable on everyone who happens to live within a set of artificial, invisible borders. I do not accept the government's right to enforce anything on me. The government works for us. We enforce *it*. Either as a group or individually - it makes no odds.
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To be punished for breaking a law is one thing but to have legislation enforced upon a population as if it were punishment for breaking the law is wrong. The very idea of enforcement is anathema to natural, common and statute law and yet all over I see big, self-important vehicles with things like 'Traffic Enforcement' and 'Immigration Enforcement' written on them. Enforcement is shooting down an armed killer, not trawling the traffic looking for fines to impose.
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I cannot, therefore, accept your assessment of common law as a moribund thing. Common law is the most contemporary of all laws - at its extreme it degenerates into mob rule - and is constant and vital. In fact, statute law must always lag behind common law because, just like humanity, common law constantly develops and suffers from fads and phases. In some ways, it is the job of statute and legislation to ride these fads and phases out, to harmonise what is now and what has been for the future. That's what the court system is all about, for me - not justice or revenge or reparations, but harmony.
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Thanks for your post, DPP, it surely got me thinking and I do have enormous respect for your qualifications, though my blatherings may give a contrary view. In fact, I could do with somebody possessing your knowledge 'on my side' right now, as it were. I'm sure that nothing I say is new or particularly insightful and I'm also fairly certain that many of my current views are incomplete and even inaccurate - but I continue to learn and hypothesise and theorise.
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What I really should do, I suppose, is learn how the courts work and bring them some of my arguments myself. Again, though, I'm not nearly clever enough.

[The Legendary Shark]

I don't remember that argument, GordonR, I'll have to look it up.
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Did I win? ;-)

[Tiplodocus]

As with most things, the answer to that will depend upon in whose head the question is being asked.

[Jimmy Baker's Assistant]

My personal legislation, then, being based on fundamental natural and common law is at least as valid as the government's

I think this might be where you're going wrong. UK judges/magistrates would struggle to accept that these two concepts have parity, with potentially somewhat unpleasant legal consequences.

[The Legendary Shark]

Either I have the right to make my own reasonable laws or I don't. If I don't have the right then nobody does and, if nobody has the right how do we pass it on to government? How can the whole assume rights that the individuals do not possess?

If I do have the right to make my own laws and live by them then, so long as I cause no loss, harm or damage to anyone, then those laws are the ones I choose to live by. When my law and common law come into conflict, I cede jurisdiction to common law but when my law comes into conflict with statute law I have to uphold my own law - as every sovereign individual must and just as certain countries do in relation to EU law. And, just like those countries and the EU, I'm always willing to cut a deal but will not be dictated to.
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If we have passed on our personal freedom to impose personal rules on ourselves then we have also passed on to the same agencies our personal responsibility to use those laws it creates morally - and also an understanding that we have No Right Whatsoever to impose our personal laws onto unwilling third parties.
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But, as I've mentioned before, authority never asks - authority demands. And one of the weapons authority uses to make us bow to its demands is legislation made up to look like moral law. If I had to rely on the moral judgement of myself or David Cameron, which one do you think I'd choose? Which one would you choose?

[Dandontdare]

If I do have the right to make my own laws and live by them then, so long as I cause no loss, harm or damage to anyone, then those laws are the ones I choose to live by.

"I will not watch more than an hour's TV per day" - your own law, perfectly acceptable

"I will not buy a TV licence" - this is not a personal law, you are causing loss to the TV licensing authority - not acceptable (at least in a legal sense)

[Grugz]

the reference to hitler's "solution" was a point well made I thought

[Professor Bear]

The way I look at it is you don't debate with the schoolyard bully as that just gets the shit kicked out of you even if you are one hundred percent correct about the bully having no moral right to your lunch money.

[The Legendary Shark]

Funny - I always had precisely the opposite view; you should always stand up and debate with the bully, even if you do get the shit kicked out of you. It is better to have fought back and lost than never fought back at all.

[The Legendary Shark]

For anyone who may be interested, I haven't given up debating with the bully - I have several email/postal debates going and a couple in the pipe questioning the validity of my "trial" before the magistrates.
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A quick recap. At that trial I was accused of a crime I did not commit (assaulting a police officer) but, when it became abundantly clear that there was no evidence to support the charge, I was, unbelievably, found guilty of "reckless assault". There were several anomalies in the trial, such as missing cctv footage of the incident in question, but the main one was that the only two witness testimonies did not match. Constable G testified to having a firm grip of my left arm throughout the incident and witnessing no contact whilst Officer N claimed I hit her deliberately, twice, with my left hand. Clearly, one of them is lying - I know which one but that doesn't really matter. This is perjury, is it not?
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Being skint, launching a legal appeal was out of the question and I understand that  Legal Aid, which I'd be loath to accept anyway knowing its provenance, is not available for appeals. So, what to do?
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I had been fined £365 and ordered to pay it back at a fiver a week. Because I played their game through the magistrates' court and lost, at the time I felt that paying the fine was the right thing to do - if only to keep them off my back until I could figure something out. To date I've paid £243.50 off since August so I'm way in front.
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Because I couldn't appeal, I chose a different tack using what I do best - writing arrogant, self-styled legalese claptrap like this. I have a two-pronged attack, one at the local magistrates' court itself and one at the HM Courts head office where my payment card came from.
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My strategy with the local court was to basically complain about the service and the incompetence of their staff (the three magistrates) in failing to notice a clear incidence of perjury which rendered their judgement unsound. I know that directly before my trial there was some kind of award ceremony for one of the magistrates who was retiring that day - was there wine involved? Could that have impaired their judgement, perhaps?
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My communications were, of course, met with a kind of bemused outrage - this isn't how things are done! Oh, piffle - all you have to do is check the transcripts and, if I'm wrong, I'll go away. If I'm right, I want my name cleared and my money back - that's not unreasonable, is it? Go away, stop pestering us. Oh well, if that's your attitude, here's the arrangement I suggest; I will suspend all further payments until this matter has been investigated, okay? No reply - they fall into the same trap often set for us because, in English law if you do not object to a thing then you must accept it.
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The second prong concerns the wording on the letter that came from the payment centre, which described the offence as "assault and battery" which was not what the magistrates found me guilty of - they said it was "reckless assault". A nit-pick, but a way in. A jaunty enough letter questioning this. Go away, the wording is correct. No it isn't - I wrote down what the magistrates said on the day and the wording on your letter isn't it. Go away, my records show that the letter is correct. Well, then please send me a copy of those records so I can see for myself. No reply. If you can't prove what you're saying by showing me the records you claim to hold then you have no right to claim my money, therefore further payments will be withheld until said records are produced - oh, and here's the email address of the person at the magistrates' court with whom I've arranged to withhold payments pending an investigation. No reply. Did you get my last email? No reply. So, yesterday, one last payment on the card then a recorded delivery letter containing copies of my last two unacknowledged emails in case they accidentally fell into a spam folder.
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Now I withhold my payments and see what happens. It's really kinda' fun, turning their own politely superior attitude back on them and watching them squirm.
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You might be wondering what I hope to achieve by this and the truth is that I'm not sure. I'm exploring the limitations of the system, I suppose, exposing the hypocrisy and unfairness of it to the people who work in that system. Also trying to put into practice some of the arguments and theories I vomit out here, learning what works and what doesn't. Can you imagine the disruption that just 1,000 people deferring payment (for anything) until certain questions had been answered satisfactorily would cause?
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Anyway, the exploration continues.