The Rule of Law and the Courts
Responsible government and federalism are two cornerstones of our system of government. There is a third, without which neither of the first two would be safe: the rule of law.
What does the rule of law mean?
Everyone is subject to the law; no one, no matter how important or powerful, is above the law — not the government; not the Prime Minister, or any other Minister; not the Queen or the Governor General or any Lieutenant-Governor; not the most powerful bureaucrat; not the armed forces; not Parliament itself, or any provincial legislature. None of these has any powers except those given to it by law: by the Constitution Act, 1867, or its amendments; by a law passed by Parliament or a provincial legislature; or by the common law of England, which we inherited, and which, though enormously modified by our own Parliament or provincial legislatures, remains the basis of our constitutional law and our criminal law, and the civil law (property and civil rights) of the whole country except Quebec (which has its own civil code).
If anyone were above the law, none of our liberties would be safe.
What keeps the various authorities from getting above the law, doing things the law forbids, exercising powers the law has not given them?
The courts. If they try anything of the sort, they will be brought up short by the courts.
But what’s to prevent them from bending the courts to their will?
The great principle of the independence of the judiciary, which is even older than responsible government. Responsible government goes back only about 200 years. The independence of the judiciary goes back almost 300 years to the English Act of Settlement of 1701, which resulted from the English Revolution of 1688. That Act provided that the judges, though appointed by the King (nowadays, of course, on the advice of a responsible Cabinet), could be removed only if both Houses of Parliament, by a formal address to the Crown, asked for their removal. If a judge gave a decision the government disliked, it could not touch him or her, unless both Houses agreed. In the almost three centuries that have followed, only one judge in the United Kingdom has been so removed, and none since 1830.
The constitution provides that almost all our courts shall be provincial, but it also provides that the judges of all these courts shall be appointed by the federal government. Judges of the provincial "superior courts" (the Superior Court of Quebec, the supreme courts of the other provinces, and all the provincial courts of appeal) shall be removable only on address to the Governor General by both Houses of Parliament. The Acts setting up the Supreme Court of Canada and the Federal Court have the same provision. No judge of any Canadian superior court has ever been so removed. All of them are perfectly safe in their positions, no matter how much the Government may dislike any of their decisions. The independence of the judiciary is even more important in Canada than in Britain, because in Canada the Supreme Court interprets the written constitution, and so defines the limits of federal and provincial powers.
With the Canadian Charter of Rights and Freedoms, courts have the tasks of enforcing the rights and of making the freedoms effective.
Judges of the county courts can be removed only for misbehaviour, or inability or incapacity to perform their duties.
The Supreme Court of Canada, established by an Act of the national Parliament in 1875, consists of nine judges, three of whom must come from the Quebec Bar. The judges are appointed by the Governor General on the advice of the national Cabinet, and hold office until they reach age 75. The Supreme Court has the final decision not only on constitutional questions but also on defined classes of important cases of civil and criminal law. It deals also with appeals from decisions of the provincial courts of appeal.
© Library of
Parliament
September 2001, How Canadians Govern Themselves, (4th Edition)
http://www.geocities.com/CapitolHill/Lobby/1234/natural_law.html
To the "many-too-many", as Nietzsche styled them, any act of legislation is considered the "law". Legislation, they falsely presume, is what props up the foundation of civilized societies; and exists to impose a state peace and order among men. The "many-too-many" further assume natural peace, order and justice cannot exist without legislation. But those who have taken it upon themselves to study the subject -- to thoroughly question and examine these assumptions -- know better. They realize that not only have acts of legislation failed to live up to such ideals in the past, they also understand that acts of legislation have often been used to perpetrate the greatest disorder, injustices and crimes mankind has ever suffered:
The greatest of all crimes are the wars that are carried on by governments, to plunder, enslave, and destroy mankind.
The next greatest crimes committed in the world are equally prompted by avarice and ambition; and are committed, not on sudden passion, but by men of calculation, who keep their heads cool and clear, and who have no thought whatever of going to prison for them. They are committed, not so much by men who violate the laws, as by men who, either by themselves or by their instruments, make the laws; by men who have combined to usurp arbitrary power, and to maintain it by force and fraud, and whose purpose in usurping and maintaining it is by unjust and unequal legislation, to secure to themselves such advantages and monopolies as will enable them to control and extort the labor and properties of other men, and thus impoverish them, in order to minister to their own wealth and aggrandizement. The robberies and wrongs thus committed by these men, in conformity with the laws -- that is, their own laws -- are as mountains to molehills, compared with the crimes committed by all other criminals, in violation of the laws.
This being the case, one must question whether there is something else -- if there is some other alternative standard that can create a lasting state of peace and justice among man? Or, more precisely, can ever be any type of uncorruptable, inviolate system of law and justice? After all, no inviolate laws exist in Nature except the Laws of science, and no system of law or justice exists in the animal kingdom except the "law of the jungle"; so what could delude man into believing that a workable and uncorruptable system of law and justice could ever exist among humans?
Consider that if man's mind can deduce how nature, itself, must follow certain Laws and principles for it to exist in a state of order and harmony, can he also not deduce what laws are inviolate to man’s nature as well? By learning the natural laws and principles that govern man's nature, he should also uncover the natural state of peace and justice that has always awaited him (until such time as he was ready to uncover it -- and practice it). This system has already been uncovered; and the vast majority among man already understand and live by some of its principles: principle so elegant, rational and obvious that, as the foremost authority on the subject, Lysander Spooner, long ago pointed out, even children often grasp them at a surprisingly tender age:
Children learn many principles of natural law at a very early age. For example: they learn that when one child has picked up an apple or a flower, it is his, and that his associates may not take it from him against his will. They also learn that if he voluntarily exchange his apple or flower with a playmate, for some other article of desire, he has thereby surrendered his right to it, and must not reclaim it. These are fundamental principles of natural law, which govern most of the greatest interests of individuals and society; yet, children learn them earlier than they learn that three and three are six, or five and five, ten.
Most children come to understand that when these principles are followed they and their companions will get along in a state of natural peace; and that they shall remain at peace until such time as either they or one of their companions attempts to violate these principles. This creates an unnatural state of conflict which remains until justice has been restored.
By using a fundamental Law of Nature: the Law of Identity (A=A), further principles of natural law and natural justice can be deduced, and through trial and error, their validity ascertained.
Laws of Nature, to the best of man’s knowledge, are axiomatic concepts; to be valid, no contradictions can exist within these Laws; and neither can one attempt to betray these Laws without certain predictable results occurring -- as Francis Bacon put it: Nature, to be commanded, must be obeyed. Man didn’t invent natural law, like all true Laws, he discovered them through trial and error, and observation and experiment. The edicts of popes and kings, or the acts of parliaments and legislatures, didn't establish natural law; it's always existed, and will always exist.
Just as one must look to the science of physics to understand how the Second Law of Thermodynamics governs matter in Nature, one must also look to the "science of justice"-- "the science of mine and thyne" -- to understand what principles need to be followed to govern the conduct of an individual within society for a state of natural peace and justice to exist.
Such a state of natural peace and justice cannot exist anywhere in nature except in a society of conscious humans -- and it can only exist under a set of inviolate natural laws that are tied to man’s nature, and, therefore, ‘natural’. If these laws are railed against (if man’s nature is railed against) then the state of natural peace and justice reverts back to an amoral state of nature where the conduct of an individual is similar to that of any animal, namely: Do what thou wilt shall be the whole of the Law -- the law of the jungle.
Nature itself, is amoral. It's actions are not "right" or "wrong", they just are. In the animal kingdom force, deception (and chance) constitute their "law of the jungle" -- it is the judge and jury of all disputes. For example, when a female Black Widow spider uses force and deception to slaughter its mate, it's neither acting in a moral nor immoral manner; it's acting in an amoral manner -- acting in accordance with its nature -- in accordance with the law which naturally governs the conduct of living beings in the animal kingdom: law of the jungle.
If a single human existed in Nature, his actions would be amoral: neither moral or immoral [I’m speaking of morality in a man-to-man sense -- as opposed to a man-to-God sense -- which is religious dogma, and differs greatly from philosophical morality]. The concepts of morality and justice -- the concept of natural law -- can only exist between interactions of two or more conscious humans since natural justice and morality are absent in any other animal’s nature, and are only part of man’s nature; where interaction between man can be judged as either: right or wrong, virtuous or vicious, productive or destructive, voluntary or compulsory, consented or coerced, honest or deceptive, honorable or fraudulent; based on: mutual-exchange or usurpation, persuasion or force, freedom or slavery, peace or war -- natural law or law of the jungle -- A or B. "Do what thou wilt, except…" or, "Do whatever the hell thou wilt, ‘cuz it’s a jungle out there".
In short, the "science of justice" uncovers what conditions are required for a state of natural peace to exist among men, and what conditions will pervert a state of natural peace into a state of conflict governed by the law of the jungle (force and deception) -- transforming a moral, voluntary society into an amoral society of compelled submission -- as if one’s fellow man was little more then another predator to evade, or prey to exploit, in nature.
When men live in accordance with the principles of natural law (live by their nature), they'll exist in a state of natural harmony. When they rail against the principles of natural law -- rail against their nature -- they find themselves in an unnatural state of conflict; unnatural for conscious humans, that is, because via their consciousness and reason, they supposedly know better then to act in such an amoral fashion in their dealings with their fellow man.
The dealings of men with men, their separate possessions, and their individual wants, are continually forcing upon their minds the questions -- Is this act just? or is it unjust? Is this thing mine? or is it his? And these are questions of natural law; questions, which, in regard to the great mass of cases, are answered alike by the human mind everywhere.
The foremost authority on the subject, Lysander Spooner, defined natural law and natural justice as: "universal principle of moral obligation, that arises out of the nature of men and their relations to each other, and to other things [which are] consequently as unalterable as the nature of men." It is what secures the enjoyment of, and forbids the violation of, the natural right of the individual. In his well-reasoned, profound treatise on Natural Law, Spooner observed:
The science of mine and thyne -- the science of justice -- is the science of all human rights; of man's rights of person and property; of all his rights to life, liberty, and the pursuit of happiness.
It is the science which alone can tell any man what he can, and cannot, do; what he can, and cannot, have; what he can, and cannot, say, without infringing the rights of any other person.
It is the science of peace; and the only science of peace; since it is the science of which alone can tell us on what conditions mankind can live in peace, or ought to live in peace, with each other.
These conditions are simply these: viz., first that each man shall do, towards every other, all that justice requires him to do; as for example, that he shall pay his debts, that he shall return borrowed or stolen property to its owner, and that he shall make reparation for any injury he may have done to the person or property of another.
The second condition is, that each man shall abstain from doing, to another, anything which justice forbids him to do; as, for example, that he shall abstain from committing theft, robbery, arson, murder, or any other crime against the person or property of another.
So long as these conditions are fulfilled, men are at peace, and ought to remain at peace, with each other. But when either of these conditions is violated, men are at war. And they must necessarily remain at war until justice is re-established.
So, to back up for a second, what are the axioms of humanity, with respect to his nature? 1) man exists, and 2) it is a self-evident truth that all men are born naturally and rightfully free [e.g., each individual human has their own power of volition, and cannot act without their own mind or body forcing them to act]. These basic concepts, to the best of man’s knowledge, are axiomatic, forming the basis of his nature. A French philosopher rightly pointed out its irony: "Man is born free, but everywhere he is in irons"; and although all of mankind is born naturally and rightfully free, they can also end up in chains; but men cannot (in accordance with #2 above) be a subject of human ownership, neither can he be the owner of humanity -- although men can be bound and imprisoned (or enslaved, which is merely a deceptive appearance of ownership; practiced in an amoral, "law of the jungle" society).
In accordance with natural justice, men can only be bound or imprisoned if they violate the principle of equal freedom: the concept that one is free to pursue his own life, liberty, property and happiness, as long as they do not violate the co-equal rights of another). In a free society -- meaning a voluntary and moral society -- one can only be bound or imprisoned if they violate the co-equal rights of another, "by committing theft, robbery, arson, murder, or any other crime against the person or property of another"; or if one refuses to "pay his debts, return borrowed or stolen property to its owner, and make reparation for any injury he may have done to the person or the property of another". Only then can someone be bound, or fined (for equitable compensation) or, in the more extreme cases, imprisoned. [It should be noted here that a few other semi-related acts, such as disturbing the peace, blocking the thruways, DUI, and so-forth, can also be abated as nuisances; but they do not constitute crimes; and they cannot be treated as crimes unless the person or property of another has been violated. According to the science of justice, whenever a victimless 'crime' (which is a natural absurdity, for in order to be a crime, there must be a victim) -- whenever such pretended 'crimes' are treated as crime, such unjust treatment constitutes crime within itself].
The reasoning behind this is obvious: if anyone initiates the law of the jungle against another, and violates one’s natural right to their person or property then, by default, they consent to have the law of the jungle initiated against themselves. This (with the exceptions of an accident) is how injustices occur and is the only way in which justice can be restored. Likewise, if one has not violated the person or property of another, then no other has any legitimate right whatsoever to violate their person or property.
Everybody has a natural right, as individuals, to punish other men for their crimes; for everybody has a natural right not only to defend his own person and property against aggressors, but also to go to the assistance and defense of everybody else, whose person or property is invaded. The natural right of each individual to defend his own person and property against an aggressor, and to go to the assistance and defense of every one else whose person or property is invaded, is a right without which men could not exist on the earth. And govern- ment has no rightful existence, except in so far as it embodies, and is limited by, this natural right of individuals.
It’s also important to note here that:
It is impossible that a government should have any rights, except such as the individuals composing it had previously had, as individuals. They could not delegate to a government any rights which they did not themselves possess. They could not contribute to the government any rights, except such as they themselves possessed as individuals.
When a group of individuals, such as a ‘government’ professes to have rights extending anywhere beyond the valid, natural rights that these same individuals possessed, as individuals, those (so-called) "rights" are not rights at all, but constitute the wrongs of usurpation and tyranny. A society which suffers such ‘government’ is not a free society -- a voluntary and moral society -- but a society which has regress back into an amoral state of nature where the "law of the jungle" (force and deception) replace natural justice. In these societies, those who possess the greatest force and have the ability to perpetrate the grandest deceptions -- namely, that group of individual who're masquerading around as "government" -- become the predators of, and the parasites on, the members of society who are not clever, strong or lucky enough to stop, evade or escape the tyrannies and usurpation of the predators and parasites.
In hopes of preventing such an amoral regression from occurring within the society, constitutions supposedly were created. All constitutions and statutes must be consistent with natural justice (as defined by co-equal, natural rights) because only by so doing would they be legally and morally binding on the citizenry. And all constitutions, being contracts, must be signed and entered into knowingly, willingly and voluntarily by all on whom it is imposed. They must also contain stipulations where the contract could become void if its provisions were violated -- as it is with all legally-binding contracts. Further:
Natural justice is either law, or it is not. If it be law, it is always law, and nothing inconsistent with it can ever be made law. If it be not law, then we have no law except that which is prescribed by the reigning power of the state; and all idea of justice being any part of our system of law, any further than it may be specially prescribed, ought to be abandoned; and government ought to acknowledge that its authority rests solely on its power to compel submission, and that there is not necessarily any moral obligation of obedience to its mandate.
The above paragraph sums up how the Law of Identity (A=A) and "science of justice" apply to the groups individuals called governments.
All governments...that profess to be founded on the consent of the governed, and yet have authority to violate natural laws, are necessarily frauds. It is not a supposable case, that all or even a very large part, of the governed, can have agreed to them. Justice is evidently the only principle that everybody can be presumed to agree to, in the formation of government.
If a government rests its authority solely on its power to compel submission -- on force and deception (as a common criminal does) -- on pretended rights that cannot be delegated to it; on professed rights that are mere usurpation and tyrannies then, according to a Law of Nature -- the Law of Identity -- it’s a government of an amoral, law of the jungle society based on the same force and deception found in the animal kingdom. Period. A=A. There is no ifs, ands, or buts about it. And no matter what that government’s representatives and agents, no matter what it’s king, president, or supreme court profess to the contrary, A is still A -- its ‘identity’ is that of an amoral, law of the jungle society where men will remain in an unnatural state of conflict. In an amoral society, as in the animal kingdom, the individuals possessing the greatest force and grandest deceptions -- namely the miscreants masquerading around as ‘government’ -- become the predators of (or the parasites on) their prey -- those members within society worth devouring (or bleeding), who are not strong, clever or lucky enough to escape being bled or devoured.
On this principle, then -- that mere will or power are competent to establish the law that is to govern an act, without reference to the justice or injustice of the act itself, the will and power of any single individual to commit theft, would be sufficient to make the theft lawful, as lawful as is any other act of injustice, which the will and power of communities, or large bodies of men, may be united to accomplish.
Yet, if a government rests its authority solely on valid rights delegated to it (by individuals who had such rights to delegate in the first place); if it practices the science of justice and the principle of equal freedom; if its constitutions, being contracts, are signed and entered into knowingly, willingly and voluntarily, by all who are subject to them; and if those who are not party to the constitutions are left in peace so long as the leave those who are parties to the constitutions in peace; and if the constitutions contain stipulations where the contract could become void if its provisions violated (as it is with all legally-binding contracts) then, according to a Law of Nature -- according to the Law of Identity -- and according to the science of justice, it is a government of a naturally free and moral society -- voluntary society -- with a foundation for a natural state of peace and justice to exist. Period. A=A.
If governments would but themselves adhere to natural law, there would be little occasion to complain of the ignorance of the people in regard to it. The popular ignorance of law [that is, just law] is attributable mainly to the innovations that have been made upon natural law by legislation; whereby our system has become an incongruous mixture of natural and statute law, with no uniform principle pervading it. To learn such a system -- if system it can be called, and if learned it can be -- is a matter of similar difficulty to what it would take to learn a system of mathematics, which should consist of the mathematics of nature, interspersed with such other mathematics as might be created by legislation, in violation of all the natural principles of numbers and quantities.
But whether the difficulties of learning natural law be greater or less than here represented, they exist in the nature of things and cannot be removed. Legislation, instead of removing, only increases them. This it does by innovating upon natural truths and principles, and introducing jargon and contradiction, in the place of order, analogy, consistency, and uniformity.
There is a clear difference between natural law and acts of legislation, which are often in conflict each other (Corruptissima republicae, plurimae leges). In the first quoted excerpt at the beginning of this page, Lysander Spooner accurately described why such contradictions ever emerged the first place. To paraphrase Ayn Rand: The only power any government has is the power to crack down on criminals... when there aren't enough criminals, one makes them... one declares so many things to be against the law, it becomes impossible to live without breaking any. Raw, naked power uber alles:
What, then, is legislation? It is an assumption by one man, or body of men, of absolute, irresponsible dominion over all other men whom they can subject to their power. It is an assumption by one man, or body of men, of a 'right' to subject all other men to their will and their service. It is an assumption by one man, or body of men, of a right to abolish outright all the natural rights, all the natural liberty of all other men; to make all other men their slaves; to arbitrarily dictate to all other men what they may, and may not do; what they may, and may not, have; what they may, and may not, be. It is, in short, the assumption of a right to banish the principle of human rights, the principle of justice itself, from off the earth, and set up their own personal will, pleasure, and interest in its place. All this, and nothing less, is involved in the very idea that there can be any such thing as legislation that is obligatory upon whom it is imposed.
During this past century alone, over 170 million individuals worldwide, roughly the entire population of Russia, have been systematically muderded -- all of which were non war/military-related casualties -- in the name of law of the jungle legislation masquerading around as "the law". [see R.J. Rummel's site]
References
:On any day except Sunday, for as many years back as the present writer can remember, a visitor at the Boston Athenaeum Library between the hours of nine and three might have noticed, as nearly all did notice, in one of the alcoves overlooking Tremont Street across the Old Granary burying-ground, the stooping figure of an aged man, bending over a desk piled high with dusty volumes of history, jurisprudence, political science, and constitutional law, and busily absorbed in studying and writing. Had the old man chanced to raise his head or a moment, the visitor would have seen, framed in long and snowy hair and beard, one of the finest, kindliest, sweetest, strongest, grandest faces that ever gladdened the eyes of man. [return]
Further reading: