DISCLAIMER: Please note at the outset that while on the one hand I have both formally & informally studied some law, I do not have a law degree, I am not a lawyer, and I’m not professing to be a legal expert. So this information is provided to stimulate thought & discussion, but should not be solely relied upon as legal advice, especially given the present corruption & dysfunction of the legal system in many if not most countries. I did ask a friend with legal experience to proofread, but unfortunately he didn’t have the time, so please excuse any inaccuracies in this … the general points are however I think quite validly argued even if such inaccuracies exist.
A lot of people seem to put these ideas of democracy & the rule of law on a pedestal, as if somehow they were the best we can aspire to. Now I’m not going to claim they don’t have value, but at present they’re not even living up to the best they can be within the social systems of the status quo.
So what I want to do in this article is discuss some of the most important & valuable principles at work in law, some others that are supposed to be included but you don’t typically hear about, and thus reach a conclusion of sorts about the direction it should be heading in.
Towards this objective, I’ll be covering the following concepts:
- Legal authority & the constitution;
- Agreement, consensus & compromise;
- Contract law & other legal principles;
- Law as social contract;
- The rule of law versus justice;
- Direct versus representative democracy.
If you’re from the United States you may be familiar with the words that go something like (paraphrased):
” … we acknowledge these truths to be self evident, that all men are created equal … “
from your constitution … but in the preamble to the Australian constitution, you’d see the words (paraphrased again):
” … this constitution of the federation of Australia gains its authority from the Crown of the Commonwealth,
whom in turn gain their authority from almighty god … “
I can’t remember the exact wording & it’s not worth looking up, because no matter the precise wording, the point remains the same … which is that in both cases, what we’re looking at here is basically a claim to authority … or in other words, an attempt to justify the powers being conveyed by the constitutional document, on the governmental organisation & representatives of the state in question.
The idea of a constitution is to state it’s case for authority, then convey a set of rules & powers to a representative body, such that a state can be governed … and in essence, there’s nothing necessarily wrong with this general principle, but it’s basis and execution has typically been poor & problematic.
In the case of Australia & other Commonwealth nations, the authority of the crown is not actually derived from some kind of supernatural being, this is merely an unfounded claim … so taken on face value it’s claim to authority is already on shaky ground unless you happen to adhere to the same delusional beliefs. The reality is, the crown has won its authority from a combination of authoritarian social control, diplomacy, resource hoarding & violence … and you only need to have a quick glance at the history books to see this.
Now, I’m not saying good things haven’t come out of this history … the Magna Carta for example is definitely a positive step when taken in the context of all the killing etc. of the past, but being such a very old document it couldn’t predict where we are now, was based on the culture / needs of the time, and doesn’t go far enough in terms of modern expectations … but let’s put that aside for now.
Meanwhile on the US side of the equation (tieing in to the principles of the Magna Carta), is this idea of equality & fairness being used as a basis for authority, but taken a little further (than the Magna Carta) as sociopolitical culture evolved. Certainly a claim to authority based on the equality of people, has more weight than a claim to authority based on power won through diplomacy & violence, backed up by brainwashing & superstition … but unfortunately this claim to authority has been entirely disingenuously executed, and further corrupted by the aforementioned brainwashing & superstition, which was supposed to be kept at bay by the principle of the separation of church and state.
However we’re also talking about a nation that nonetheless (& hypocritically) denied such equality to slaves, thus contradicting its own basis for claim to authority … and such begs the question, how much further undermined is this claim to authority, where it denies a voice & such equality of rights to the poor and to other species.
Conclusion: we can see that the authority of our constitutions & governments are based on (perhaps) the best that could be done by those who wielded power at the time … but such is nowhere near the best we can do given our present understanding, experience & technology.
Constitution of Open Empire:
Open Empire is based (in part) on the proposal that it is self authorising by the following argument:
- The principles of Open Empire are a science based approach to the quantification of Ecological & Social Justice & Sustainability, and thus from a non-species-biased perspective;
- The purpose of Open Empire is to serve “the living & non-living elements & ecosystems of Earth”.
Thus it is self-authorised by a creating a truly level playing field, verifiable by perspective neutral science, and for the benefit of all things on the planet, which are interconnected & interdependent via the ecosystems in which they reside.
It would be hard to define a higher authority for a single planet, and it even works for a multiplanetary civilisation.
So the next thing we come to is the concepts of agreement, consensus & compromise.
IF we had consensus (ie – 100% agreement), there’d be no problem, but to call this “rare” is an understatement, and given that people’s desires & needs are often in conflict, we need a method of both changing the motivational basis of need/want (to whatever degree is possible), and a corresponding system of conflict resolution … preferably without the downsides of warfare. So we make compromises in order to hopefully reach a consensus, and thus avoid conflict.
But of course such compromises are not necessarily fair or balanced, and they say more about your negotiating position & skill, than they say anything at all about what is reasonable, rational or responsible by way of merit. These compromises are based on the flawed fallacious & felonious assumption (if you’ll pardon the alliteration) that possession of wealth is evidence of merit, which it is of course nothing of the sort.
However we manage to reach compromise consensus & agreement, we record this as a contract … and thus contract law arises as one of the sets of foundational principles of all law. Thus all law is social contract, but as you have already read, we can argue for or against the validity of the claimed authority of such law.
Within the field of contract law, there are a number of important principles to understand about what constitutes a valid contract, and thus about what constitutes a valid law (setting aside for a minute any arguments about the authority of law).
Elements of a contract:
Depending on which books you read, a legally binding contract will be typically defined as having 5 or 6 elements, though I have seen others … generally they includes some combination of the following:
Transaction of goods &/or services is offerred.
A payment or benefit of some kind is returned as part of the exchange.
Both parties freely accept / agree to such an exchange.
It is the conscious intention of both parties to form legal contractual relations regarding such exchange.
Both parties have the capacity to enter such a legal relationship.
The negotiation, terms, agreement and execution of the contract do not require contravention of other law.
The terms of the contract are unambiguous.
NOTE: a legal contract can exist without a written or other physical record, its just not as easily enforceable.
So a contract is either not legally binding OR not legally enforceable, if it does not adhere to these standards.
Other contract law principles:
From this basis we can then extrapolate &/or relate the legal principles that:
- You may not by way of contract remove someone’s rights at law;
- You may not by way of contract ask someone to break another law;
- You may not by way of contract ask a person to deny their own rights at law;
- You may not by way of contract ask a person to deny someone else’s rights at law;
Other related legal principles:
Precedence is the principle that a legal decision has weight on all subsequent decisions at that level of law or below – this weight is less but still significant across jurisdictional boundaries – and thus the heirarchies of the court circuits are aimed at preserving the intended spirit of law through correct interpretation.
NOTE: We could also add here that precedence is literally translated as “that which comes first”, and thus precedence should ALSO concern itself with cause & effect, ie – if one person breaks a contract or commits a crime, but the only reason they did it was because someone else manipulated them into doing it, then the breach of law/contract was caused by the event that came first, which was the manipulation of one person by another, thus the blame (to some degree) lies at the feet of the perpetrator of that manipulation by precedence of events.
Thus also the term “case law” is basically the study of legal precedent, and a contract or law contradicting such legal precedent would be likely at least dubious if not invalid.
A contract or law contradicting legal precedent would be at least questionable if not invalid.
Tort law refers to damages, ie – if someone has committed tort, they are responsible for the causation of loss or damage.
A contract or law causing or ignoring tort would therefore be invalid.
Where someone has failed in a legal duty (including duty of care) and such failure is the result of carelessness or incompetence, they would be considered guilty of negligence.
A contract or law causing or ignoring negligence is therefore questionable if not invalid.
Where behaviour is considered to transgress moral boundaries such as fairness & honesty, this would be considered unconscionable … this is related of course to the ideas of deception, fraud, and coercion.
An unconscionable contract or law is therefore invalid.
Where tort was not necessarily committed (ie – damages or not), the careless & unreasonable exposure of others to the risk of such tort is known as reckless endangerment.
Thus a contract or law so exposing someone to risk would be invalid.
THE COMMON LAW:
The Common Law is effectively a set of such principles based on the history of law, including a range of “common law rights”, such as the better known rights to:
- A fair trial in front of a jury of your peers;
- Be considered innocent until proven guilty beyond shadow of doubt;
- Face and respond to your accuser & to the accusations;
- Not be forced to incriminate oneself (in some jurisdictions?).
Civil law is a sub-category of laws of a civilian nature, referring to cases between legal persons; but no such laws (no matter how worded or interpreted), may contravene any precedent or other law (which therefore includes the very foundations of law in social contract & thus contract law) from the same or higher jurisdiction.
Any interpretation or enforcement of such laws which would cause such contravention, would therefore be invalid interpretations or applications of law. Typically the difference between common & civil law is the source of law, the former being historical & the latter being legislative.
AND MOST IMPORTANTLY: this principle is supposed to allow the law to be both applied equally yet flexibly, because the circumstances of each case are different, and thus an application/interpretation of a law against one person, which would deny that person’s rights or contravene some other law, would be invalid – the person is effectively exempted to some degree or completely; while the exact same law applied to someone else, which (in their circumstances) would not cause such a contravention, may thus be a valid application of the law.
Criminal law deals with a few key ideas, mainly differing from civil law in being a charge brought against someone by the state, as opposed to a complaint between persons. But the main one I want to mention is the notion of intent … without which intent (premeditation to commit the crime), what might otherwise be considered a more serious felony, is instead known as a misdemeanour (though this is not the only factor distinguishing the difference in seriousness of crime).
WESTMINSTER SYSTEM OF GOVERNMENT:
All of the above is further complicated by the separation of powers in the Westminster System of Government, largely inherited by Australia (& typically by other Commonwealth nations), where 3 branches of government:
are responsible for the making and interpreting of law.
Executive: the executive (in our case the Governor General as representative of the Crown), has power of veto on any legislation, and power to both appoint, swear in & dissolve the government of the day. But the executive does not typically exercise much of its power, and is considered largely just a safety measure (and yes you’ve got to question their interpretation of “safety against what”, especially given the sacking of the Whitlam government – arguably the best thing that ever almost happened to Australia – but no action taken at all by the Governor General at any of the demonstrably corrupt, incompetent & insane decisions of governments since that time).
Legislative: the legislative branch is divided into upper & lower houses of government who write & enact law, supported by the administrative staff of the burocracy … so this is where all the writing of new law & amending of past law typically takes place (though the process is now highly corrupted by special interest groups writing their own legislation then bribing governments to vote for it, which is euphemistically called “lobbying”).
Judiciary: the judiciary is then where law is interpreted & applied (courts), and thus where case law comes into the equation.
- So all law is a form of social contract;
- Contract Law exists in both legislation AND common law sources;
- The common law source is very important & likely to be more validly & soundly argued;
- The legislative source of contract law should ONLY restate the generic framework of contracts;
- A social contract MAY be implied, but cannot be justly universally & validly assumed;
- All social contract (thus all law), must abide by the principles of contract law (as stated);
- Thus most military law is probably complete bullshit; it is its own jurisdiction, justified by violence & death.
LAW vs. JUSTICE:
So if anyone ever tells you that you MUST comply, obey, or submit “because it’s the law”, you can be pretty sure they’re full of shit and banking on you not understanding law or your rights, and the whole system is fundamentally corrupt & fraudulent by its willingness to ignore this, and thus breach people’s rights & break the very law it purports to uphold.
In the great words of I don’t know whom (but quoted from Captain Jean-Luc Piccard in the StarTrek Next Generation TV series):
“There can be no justice while law is absolute”
… and what I hope you’ve seen so far, is that the legal mechanism is supposed to be adaptive not rigid.
Unfortunately a great many legal professionals are either so cowardly, demoralised, under-funded, poorly educated, intellectually crippled or morally bankrupt, that they’re unaware of, incapable, or unwilling to support/stand up for these self-evident facts about the nature of authority, consent, agreement, law, justice etc. Hence an awareness of these principles and a willingness to engage in civil disobedience is vital to the restoration of some semblance of social justice, especially given the imperfections of the system (and certain aspects of its reasoning), but even more so due to the corruption and bias of wealth privilege and power.
So the notion of democracy is intended to bring further validity to the claim of legal authority, however the representative model is problematic to say the least, being full of corruption and doing very little to represent.
- IF presented with only unbiased facts;
- ASSUMING an intelligent imaginative & rational audience;
- ASSUMING ALSO a well educated audience;
- ASSUMING ALSO an egalitarian & empathetic audience;
- ASSUMING ALSO an experienced and wise audience;
- ASSUMING ALSO an unbiased and fair audience;
THEN (and only then) could direct democracy actually work, but representative democracy would probably still struggle even in such ideal circumstances.
To provide a basis for unbiased decisions most likely to produce the best outcome, direct democracy should only really be used for “tie breakers” in a decision making system where unbiased perspective (argument, reason, logic, maths, modelling, science etc.) are used to determine and actually conclusively PROVE right action, by proving the minimisation of ecological & social harm, and the maximisation of ecological & social benefit from a non-species-biased perspective … and hence: Open Empire.