Some legal thoughts for the end of the year

Some legal thoughts for the end of the year

Libertarian Alliance, December 2013

Previously I have written on the Freemen-on-the-Land and Lawful Rebellion movements. These movements are based on a number of interpretations of law that maintain, in general terms, that it is possible for the individual to challenge given legal provisions on the basis that they use a particular form of words, issue given documents that are said to have contractual enforceability under law, or withdraw actual or implied consent from what is, or what is claimed to be, a contract with the state or agencies acting on its behalf.

Dr Gabb and I are in agreement that these points, whatever their merits – and argument is sharply divided as to whether there is merit to them – are not a magic formula that, when deployed in the face of the state, will result in capitulation on its part. The state rests upon a basis of coercion, and its judicial branch is just that; a branch of the state designed to do what the state bids. It is misguided to believe that the law can be used against the state; the law exists for the benefit of the state and will not be interpreted in such a way as to threaten its fundamentals.

However, it does seem that Freeman techniques may have some significant results when deployed in practice, and that these results may not be entirely undesirable. What they amount to is a campaign of civil disobedience, and such a campaign may prove effective in frustrating aspects of the administration of law and making its operation both more costly and more time-consuming.

An article from the Irish Independent published this October tells us that,

“There have been more than 100 cases in the last year in which borrowers have used versions of Freemen arguments to resist possession by receivers and banks.

The Freemen claim, amongst other things, that they don’t recognise the authority of the courts.

Borrowers have also sought to evade judgment or eviction by claims that they have transferred their mortgages to secret trusts, claiming they can’t be evicted from their homes or business premises.

[Barrister Rossa] Fanning said that while every case must be heard and determined carefully on its own merits, the prevalence of lay litigants defending proceedings on the basis that High Court judges are not properly appointed and don’t have jurisdiction to hear cases – on the basis of “Freeman of the land” theories of law – is a serious challenge facing our legal system.”[1]

One hundred cases in a year would indeed appear to be a serious challenge. It does not ultimately matter that Freeman language and ideas are the chosen vehicle. The defendants could just as well be resting their claims upon any theory designed to frustrate the proceedings. It may well be that some of their actions are fruitless or even counter-productive. It certainly seems to be the case that some of them are using this as a means to evade contractual obligations that they have properly entered into. But Mr Fanning seems to have grasped the effect that they are achieving,

    “These arguments constitute a threat to law and order in this society because they are being advanced by people who, being realistic about matters, are engaged in a campaign aimed at the wholesale tearing up of contractual obligations without any legal basis to support same”.

Governance, even by the most brutal of tyrants, is ultimately dependent upon one thing: popular consent. Rule by repression may be sustainable for a decade or so, but it is inherently unstable. History is full of the downfall of dictators and indeed of unpopular absolute monarchs at the hands of popular uprisings of various kinds. It is true that our many-headed hydra of a state is not as easily removed. But it is equally true that its rule depends upon consent and co-operation by the population at large. If that consent is removed in a few cases, there will be little effect other than the repression of the individuals involved. If it is removed in many cases, then the effect is more likely to be that of making the business of governance difficult and, in time, impossible.

I would not want it to be thought that I am inciting our readers to embark upon a campaign of lawbreaking. Rather, I would invite them to consider a number of factors before reaching their own conclusions. The first is the systematic misuse of our legal code for political ends. I have long believed that our membership of the European Union, so far as it involves the surrender of Britain’s sovereignty, is illegal. I find it fascinating that during the years that I and others have been saying so, we have been treated as voices in the wilderness. Now, however, we have a former Lord Chief Justice suggesting that there is no consensus as to whether European Court of Human Rights rulings are actually binding on the United Kingdom, as it has been widely assumed in the past that they are[2]. If they are not binding, as I believe they never were, then it follows that the copious additional legislation passed by Parliament in the belief that it was following obligations incurred by subsidiarity to the European Union has also wrongly been seen as binding, where in fact it was optional. The implications of this perception, were it to take hold among the population, could well be truly seismic. I do not doubt that there would be those who would try nevertheless to enforce such erroneously-passed laws, but I do not believe that such an enforcement could command any form of legitimacy, nor do I believe that it should receive popular consent.

That brings me on to the next factor, which is that our laws rest upon both a literal basis, that is to say their place as a part of the code of law per se, and a moral basis, the latter dependent upon consent. In the Irish cases, there is a popular perception that the use of the law by mortgage companies against individuals who have suffered hardship as a result of the financial crisis is unjust and immoral, and should be resisted through the withdrawal of consent. Meanwhile, in England and Wales, not so long ago, a number of offences were removed from the statute book; in some cases because they conflicted with later legislation, but in others because they had simply fallen into desuetude – the law had ceased to be observed to the point where it was futile to maintain it. The latter position is an eloquent argument against absolutism in legal matters. A further argument has been the increasing use of the law during the past few decades as a means of petty regulation of matters that are the subject of legitimate moral and ethical interpretation; in other words those laws that seek to enshrine explicitly political ideas, such as egalitarianism, and to suppress opposition to those ideas.

Clearly, there are proper limits to these arguments. I am not about to suggest, along with some of those from the far Left, that there is a moral case for the mass murder of one’s political opponents, or for the theft and redistribution of goods. Nevertheless, it is our government that has felt free to engineer the murder of thousands through its foreign expeditionary wars, and that continues to perpetrate the latter crime through the tax system. It can, I believe, be convincingly argued that our government has conclusively lost what moral authority it might once have had.

Moreover, it seems to me that while it is possible to enter into detailed argument as to the lawfulness of this or that legislative provision, or the right to enter into Lawful Rebellion under Magna Carta, or whether statute law is applicable in this or that instance, such argument leads ultimately to the same ends: consent can either be given or withdrawn to governance, and either way, consequences will ensue.

My point is that as principled libertarians, we should be ensuring that our resolution in the year ahead is to fully and consciously exercise our consent, to be aware of when and how we are giving consent, and to be prepared to withhold consent when not to do so would conflict with our ethical beliefs and involve consequences which we are prepared to accept. We may, and I would argue that as libertarians we should, hold that the government of the United Kingdom, as presently constituted, is both illegal and illegitimate, and further that it is immoral. It follows that we should consider carefully how we should engage with such an entity, on what terms and with what reservations.

We do not need to embrace the Freeman philosophy or even accept its legitimacy to see the value of even a relatively blunt instrument – a form of filibuster if you will – in the withdrawal of consent. It may be that the hundred Irish cases will ultimately be unsuccessful. Alternatively, it may be that they are the beginning of something interesting. Certainly, there are areas where the possibility of the exercise or informed withdrawal of consent may involve little cost to the individual but may have considerable effect if adopted on a wide scale. A number of our readers, for example, believe that the BBC should be abolished. The easiest way to achieve this aim is to participate in those groups that aim to resist, and in time to abolish the television licensing scheme by which the BBC is funded. Further information is provided at this website[3]. Increasingly, the subcontracting of petty legal enforcement of various kinds to private companies involves the citizen in the acceptance of contractual terms of various kinds, sometimes without explicit consent being provided. In certain cases, it may be that it is profitable to establish whether that contract is valid or whether there is a basis upon which it may be contested.

But these are only basic illustrations of what can form a much deeper challenge to the assumptions that underly the consent between state and individual. If we take as a resolution the phrase Question everything! for the coming year we may be in a position where we gain a greater understanding and benefit from that process as a result.