Observing the Supreme Court Brexit proceedings confirmed in my mind the minimal skills required to be a ‘lawyer’. The quality of the debate was abysmal and there was little focus on the straightforward actual issue in the case.
There was a definite flavour of what we routinely see in civil court proceedings. There is no proper ‘due process’ whatsoever. There is not and never has been ‘rule of law’ in the UK. We congratulate ourselves on our ‘rule of law’, but that’s just lazy wishful thinking. What we have is rule by judges, which is similar in its fundamental nature to the systems operating in the worst regimes in the world. Continue reading
We have had the four days of the Supreme Court hearing which is now over and the judges will not issue their written verdict until the New Year.
It has been four days of extreme tedium, full of highly-paid briefs over-egging the pudding with too many examples to prove a particular point, much irrelevant argument, a huge amount of referring to batch that and manuscript number this with frequent inability of all eleven judges being able to find the relevant document, and shameless toadying by the presenting lawyers with frequent references to cases that one or the other of the Supreme Court judges had presided over. Continue reading
About ten years ago, the Belgian philosopher of law Frank van Dun published a paper entitled “Concepts of Order.” In that paper he gives, among much else, an account of what he calls the convivial order. In this order, “people live together regardless of their membership, status, position, role or function in any, let alone the same, society.” It appeared in a book “Ordered Anarchy: Jasay and His Surroundings,” published in 2007 as a tribute to Anthony de Jasay. It has been preserved on the Internet on Anthony Flood’s website here .
Around the same time, the German-American libertarian philosopher Hans-Hermann Hoppe published a paper, “The Idea of a Private Law Society” . That paper outlines some of the institutions, which might maintain order and justice in societies without political states.
Recently, I re-read Frank van Dun’s work in this area, and I find it seminal. I was surprised and rather disappointed to find no evidence of anyone having tried to build on his framework in the intervening decade or so. So today, I’ll try to build on the theoretical ideas of Frank van Dun and the practical suggestions of Hans-Hermann Hoppe. I’m going to sketch a picture of how people might be able to live together, and resolve their disputes, without a state or a “sovereign.” Continue reading
Libertarianism Is Only a Theory of Law
By Rik Storey
21st November 2016
I am tired of both libertarians and their critics misrepresenting my beloved libertarianism by insisting that I am party to some sort of cult which teaches that some unspecified deity has written the non-aggression principle on tablets of stone. I have lost count of the number of times I have had to parrot the most notable libertarian scholars – libertarianism is just a theory of law, not an entire ethical system, complete with cultural mores, which must be imposed on everyone. As Lew Rockwell put it, ‘Libertarianism is concerned with the use of violence in society. That is all. It is not anything else. It is not feminism. It is not egalitarianism… It has nothing to say about aesthetics. It has nothing to say about religion or race or nationality or sexual orientation.’ Continue reading
Can Parliament do whatever it likes? The idea that it can is a little disturbing. The Commons is whipped and run along majoritarian lines, the House of Lords can be circumvented, and it is inconceivable that the monarch would deny royal assent to a bill in any but the most extraordinary circumstances. Parliamentary supremacy can therefore in practice be said to mean the supremacy of the Government.
The doctrine of parliamentary supremacy is deeply engrained in English law. Jeffrey Goldsworthy has traced it back to Tudor times and beyond (for historical examples, see here, here and here). Yet its status is not as unquestioned or unquestionable as some might think. The leading constitutional scholar Vernon Bogdanor has affirmed: “In practice…if not in law, parliamentary sovereignty is no longer the governing principle of the British constitution”. This is an explicitly practical rather than legal statement, but it can be given some legal backing too.
Prerogative Powers and the European Union
By Sean Gabb
(3rd November 2016)
Because I have other business today, and because the comment I have to make is most relevant for today, this will need to be a short essay.
I have read the Judgment of the High Court in the case of R (Miller) Secretary of State for Exiting the EU. So far as I understand, the Government claims that it may give notice to leave the European Union as a matter of prerogative power. The European Treaties are international agreements. These are not a matter for Parliament, though Parliament may be consulted for the sake of politeness, and must be asked for any change of domestic law for bringing a treaty into effect. But it is for the Crown alone to decide whether to make or withdraw from a treaty. Continue reading
By Julian Rose
One knows to be on one’s guard immediately one hears that the USA and European Union are negotiating some ‘big deal’ on transatlantic trade. Sure, big deal – in trading terms – typically means big power, big money and big mess. But when one also hears that it’s all being done in secret, then one has to add ‘big scam’ too.
The designers of the trade agreements claim that they will bring greater GDP and more jobs at both ends; a view which has been widely challenged by those likely to be on the receiving end. Continue reading