29 Jun 2018

'Rule of Law' or to 'Rule through the law', this is the question. Common Law v. Statutes


With the considerable growth of international commerce and powerful corporations, combined with the ever-present desire of the few to rule the many, the commercial legal system known as Roman Civil Law, has expanded internationally and led to the existence of bijural (dual jurisdiction) systems of regulation in all the World's Common Law countries.  The British Government's legislation is based in the system of Roman Civil Law.

A David with the head of Goliath statue in the gardens of Schwerin Castle in northern Germany.
These two competing systems of regulation, the ancient and preeminent jurisdiction of Common Law and the subordinate statutory jurisdiction of Roman Civil Law, are in constant ideological conflict with each other. 

The primary and compelling reason for the United States’ Declaration of Independence was to eliminate the Roman civil legal system from the domestic law of the colonies due to its potential for conflict with freedom.

Briefly, and stated in general terms, the basic concepts of these two systems are diametrically opposed. In the Roman statutory legal system, the source of all regulations is the State or the personal ruler, it or he is sovereign. In the common law, the source of all law is the People, and they as a whole are sovereign.  The most prominent distinction between common law and the statutory legal system is that common laws are principle based and applied equally to all men, while the statutes of the Roman legal system are more prescriptive, can only hold jurisdiction over legally registered consenting persons and can be made to apply to specified parts of society.

The Roman civil legal system is recognised as lending itself towards an oligarchic state, whereas the true democracy enhancing Saxon Common Law promotes moral self-determination of the People by the People under a Constitution created by the People.  The Roman civil legal system is a top-down authority, whereas the Common Law system is a people-up authority, with the People as the foundation of power.

During the centuries, these two systems have had an almost deadly rivalry for the control of society.  The Roman civil legal system and its fundamental concepts have been the instrument through which men of genius and self-serving ambition have set up and maintained despotisms through trading and money.  Whereas the common law, with its basic moral principles being the instrument through which men of equal genius but with love of mankind burning in their souls, have established and preserved liberty and free institutions.

Society has been hierarchical for millennia, revolving around the status of individuals and organisations.  The words state, statute, statutory all have their root in the word status.  By legal definition, a ‘society’ is “a number of persons united together by mutual consent, in order to deliberate, determine, and act jointly for some common purpose.” 

All Acts of Parliament are statutes known as legislation, they are technically not laws.  They are parliamentary legislated policies, which determine what is ‘legal’ or ‘illegal’ - words which are derived from the word ‘legislated’ and ‘legislation’.  A ‘Statute’ is defined as a rule or policy of a society, an edict of legislation used to govern that society.  Statutes are subject to the consent of the society – and this is individual consent and not collective consent. 

Statutes are often incorrectly referred to as laws by barristers and solicitors trained by the State to serve the State’s legal system, but the correct interpretation would be ‘black letter law’ (meaning Statutes) which are distinguishable from ‘law’.  

The word ‘Statute’ is legally defined as: “A legislative rule of society given the force of law by the consent of the governed, a rule, as of a corporation.”  By its own definition it is not a law, it is only given the force of law by the consent of those who have entered into an agreement to be governed.  The Latin maxim - Consensus Facit Legem - means ‘Consent makes the law’, and to be lawful the consent must be free and fair and should not be induced by fraud, misrepresentation, coercion or mistake. 

A law differs from a statute in that law applies to all individuals in the land regardless of consent, for example nobody is above the Common Law crime of murder.  Equality before the law is the principle that each independent being must be treated equally by the law - principle of isonomy - and that all are subject to the same laws of justice.  Whereas statutes require consent and apply to defined sectors of society, as per the details of the relevant Act of Parliament.

The 1689 Bill of Rights makes a distinction between laws and statutes – “All which are utterly and directly contrary to the known laws and statutes and freedom of this realm”.

Acts of Parliament become Statutes – primary legislation which in turn are enacted and enforced by statutory instruments – secondary legislation.  For example, council tax is a statutory instrument enacted under its primary legislation the Local Government Finance Act 1992.

If Acts of Parliament were laws they would be called ‘Laws of Parliament.’ Parliament knows the distinction which it quite rightly maintains. Look at any Act of Parliament and you will notice the absence of the word law – that will give you the first clue that there is a difference.  Parliament maintains the distinction between statutes and laws because those ‘in the know’ use this knowledge for their personal benefit.  Parliament can only create, amend and repeal Acts of Parliament, and according to its own parliamentary constitution, the Acts created by previous Governments cannot bind successive Governments.  Parliament cannot create, amend or repeal Common Laws as it does not have authority over the higher jurisdiction of Common Law.  Parliament is in fact bound by the preeminent jurisdiction of Common law, which means that all its statutes must not breach Common Law.

Laws take time to evolve and remain for long periods of time.  Statutes can come and go based upon the whims and agendas of Government.  The fabric of a law may be copied into a statute but if later repealed as a statute, the Common Law obviously remains in force.  Only a proper convention of the People or the jury of a properly convened Common Law Court de Jure may change the law though a unanimous decision. 

The 1297 statute version of the Magna Carta is a perfect example. When referring to the Magna Carta, the misinformed will sometimes state that it has been repealed, but they are referring to the statute version without awareness that there is a Common Law version.  The statute version has been mostly repealed by Government, but the 1215 Common Law Magna Carta is out of the reach of Parliament and remains perfectly untouched. 

The land commonly known as Britain is a Common Law jurisdiction, and Parliament and the National Government of the United Kingdom of Great Britain and Northern Ireland are legal incorporated entities.  Legal entities of any and all natures and descriptions necessarily require voluntary agreements in order to make claim to or assert authority and control over other parties and their property.  As mentioned earlier, the jurisdiction of the statutory legal system is voluntary, where legitimate members must be fully informed and lawfully consenting volunteers, being fully aware of the system into which they are, or have been, contractually obligated.

Government has the task and duty to pass lawful and just legislation in an equitable administration of the uncontroversial ‘nuts and bolts’ of day-to-day life. This is, of course, provided government operates legitimately; always within the legal and lawful parameters set by its own self-regulating statutes but most importantly in accordance with the common law Constitution, as defined by the 1215 Common Law Magna Carta.

Whilst the Common Laws are of the People for the protection and empowerment of the People, the statutory legislation is created and modified by the State to regulate the privileges, obligations and punishments of its consenting membership.  It is the generally accepted viewpoint that Government is elected into ‘office’ not ‘power’, as they frequently like to claim.  As the electorate, the intention is never to give ‘power’ to those that are elected, but merely to lend it to them for representation, trusting that that sovereignty should be returned to the electorate complete and intact at the end of a term of government.

Government legislation is created to both protect and limit its subjects’ civil rights.  Subjects can only do what the State’s legislation, rules and regulations allow them to do.  For the allowance of some statutory rights a subject must seek permission, through an application for a permit or license to do certain activities or practices which would otherwise be classed as illegal without a permit or license.  Subjects must comply with the State’s regulations or face liabilities, such as warnings, suspended sentences, fines or imprisonment. 

As a voluntary subject of the State’s statutory legal system, an individual is presumed to have knowingly consented to step into the much more limited jurisdiction of the increased regulations of the State’s authority and control, in return for whatever benefits the State provides.  As with joining any society or corporation, an individual may have to accept increased regulations as part of that society or corporation’s contractual obligations, but he shall remain protected by the legal and lawful jurisdictions above, obviously including the preeminent Common Laws of the land.

To be recognised within the statutory jurisdiction of the State an individual must be registered into the system as a ‘legal person’.  By doing so, that individual is entering, or being entered by his parents, into a system of contract, where both parties, the State and the ‘person’, seek to benefit from their interactions as per the terms and conditions of what should be a fully disclosed and lawful agreement.  This may involve some of an individual’s sovereign liberties being conceded in order to meet the terms required to participate in the State society.

As men and women, in Common Law we are all equal and subject to all the laws of British common law jurisdiction.  The State’s statutory jurisdiction should rightfully only have authority over its registered citizenship.  Not all members of society are of the same status, therefore, the legislative Acts of Parliament within that statutory jurisdiction do not apply equally to all members.  Members must have consented and contracted with the statutory jurisdiction of Parliament in order to become subject to its regulations, whereas we are all automatically subject to the jurisdiction of the Common Law of the land. 

To satisfy true and lawful consent of contract into statutory jurisdiction, the process of contract must have included full and proper disclosure, with clarity of meaning, and without deception, fraud or operation based upon assumption or presumption.  Without full disclosure, a ‘meeting of the minds’ and lawful consent, the validity of all contracts in the statutory jurisdiction can be challenged.  But it is my understanding that most people don’t even know that there are two different jurisdictions of regulation in Britain, and most certainly are not aware that lawful compliance with statutes should be properly informed and agreed rather than being based upon the presumption and assumption of consent, as is the reality today.

The theory of government is that we have surrendered some of our rights to the Government, so that the Government will protect the rights that we have not surrendered.  That’s the idea behind, the Government derives its powers from the consent of the governed.  Does anyone… know anyone now living, who consented to the Government? The answer is no.  The idea that Government derives its powers from the consent of the governed is a fiction.  The fiction is that we have consented to the surrender of our rights.  The reality is that our rights have been stolen from us because the Government monopolizes force.  It’s a sad and terrible reality but it is a reality.”  – U.S. Judge Andrew P. Napolitano

Parliament played no part in the creation of the people’s great Common Law Magna Carta of 1215. The Great Charter was made by the People directly, to reiterate and reassert their existing Common Law rights of self-rule and sovereignty, explicitly to preclude tyranny, injustice and misgovernance by binding all Heads of State and the modus operandi of government for all time under judicium parium - equal justice - the Trial by Jury justice system of the Law of the Land.  

The British Parliament has always been bound by the superior jurisdiction of the Common Law Constitution of the 1215 Magna Carta, with the additional but obviously forgotten promise of the Monarch to protect the laws of the land, as detailed in the Coronation Oath.