Friday, June 17, 2011

It's Not A Law, The decline of rights and the rise of legalism

Firstly the devil is always in the details. We as a society are generally quite ignorant when it comes to defining differences between laws and legislation.

We are a Common Law jurisdiction. The Common Law is a law of consensus it is agreed upon. It is a law based in custom and tradition, which was applied by judges who articulated them into law. In the words of Peter Landry it is the fair haired child at societies table.

Legislation is the brutish ugly bastard child at the table. It is the embodiment of what government truly is, which is 'force'. Legislation is what causes our society to slip into 'legalism' where anyone can become a criminal. It is the forced control over behaviour, or put another way it is ad hoc social engineering. Unfortunately it is necessary in our modern world to keep things moving and in certain cases keeps fairness in society.

The law is designed to protect freedom and rights. Whereas legislation is aimed at taking away these things. The law applies to everyone including the Queen, whereas legislation does not always apply to everyone equally exemptions can be written into it. A Law cannot be repealed since it was not enacted by a parliament, legislation can.
Although both ours and England's Parliaments can limit the Law with legislation unfortunately.

Statutes and Acts of Parliament are not law. They are only given the force of law. It might be a stretch but you could say it is a polite form of mob rule, since it was enacted by our elected representatives of which a majority of them approved the Act before Parliament. Though I would not say that is true in every case. A NGO can lobby the government claiming to represent a majority of people which in reality they only represent an minority of like minded people. Squeaky wheel meet oil.

We all have rights both constitutional and Common Law. When we claim a right it also imposes a duty on us. A right cannot exist without the accompanying duty. Blackstone says that we have the right to our life and our limbs, therefore it imposes the duty of protecting them. The law allows the keeping of such tools to this end. However in Canada we are denied these tools, The firearms act says self protection is not a valid reason for owning firearms.

My goal in this is to demonstrate that there is a difference between a law and a statute. If we begin to make this fine distinction between the two perhaps we can start regaining what the law allows and begin to regain our rights and our freedoms. As we have seen with the firearms act which was supposed to stop criminals and the misuse of firearms but instead protects criminals and began turning law abiding citizens into criminals.