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Word Gems 

exploring self-realization, sacred personhood, and full humanity

Editor's Essay: 

What is Law, What is Justice? 

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Editor’s Prefatory Comment:

Attorney Adrian Smith has written an excellent blog article which clearly defines the concept of law. You’ll find excerpts just below; after which, I invite you to peruse my own additional thoughts on law and justice.

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... Because divinity was seen as a light emanating from within [each person], the “divine right of kings” shining from above was rendered obsolete. Without popular consent and participation, government is fire, “a dangerous servant and a fearful master” (as George Washington is reputed to have said). Government is force, not reason, and the coercive power of the state can be deployed at any time to deprive citizens of their freedom, and hence the need for safeguards – a system of checks and balances.

From earliest times, the jury system was designed to place the fate of an accused in the hands of his peers, and not some tyrant. The ancient writ of habeas corpus (“let us have the body”) meant no one should disappear without a trace. If arrested, the accused must be brought before a judge and not simply vanish.

Article 9 of the English Bill of Rights 1688 ensures that no one could be arrested and charged with sedition for words uttered in Parliament.

That the Freedom of Speech and Debates or Proceedings in Parliament ought not to be impeached or questioned in any Court or Place out of Parliament.

This system was based on a balance and separation of powers. No single organ or branch of government (legislature, judiciary, executive) should be allowed to dominate the others.

Eternal vigilance is the price of freedom.

Legal philosophy asks the central question, what is law? There are two schools of thought.

One school, called legal “positivism” says it is “the command of the sovereign,” the so-called “command theory.” It is called legal “positivism” not because its adherents are positive; in fact, they are quite miserable. Positive, in this context, means, that which is posited or put forward by some authoritative body.

The second school, the one I favour, says law is morality.  This is often called natural law or the principles of natural justice. That’s not to say all laws are moral, far from it; but for law to be considered law (conceptually), there must be some minimum moral content to distinguish it from the orders of the mafia boss. The most important moral principles embedded in this concept of law are strict impartiality and equal treatment before the law. When these things are absent, a judge might wear the robes of his office, but he has become a mere puppet, a politicized surrogate for party or ideology.

In 1770, a lawyer named John Adams risked his career successfully defending British troops charged with murder after Bostonians were killed during a riot, the so called “Boston massacre.” John Adams was an American patriot, and the colony was on the brink of rebellion. Nevertheless, he looked beyond the mob outrage, setting aside his own internal leanings and examined the facts on their merits, without reference to popular opinion or political partisanship. That’s impartiality; without it, we have no law, only force. John Adams was a signatory to the Declaration of Independence and went on to become America’s second president. 

“Lady Justice” (Themis, Titaness of divine law and justice) is seen wearing a blindfold while holding a beam balance with a sword in her hand. The blindfold is a symbol of impartiality. She is an allegorical personification of the moral force in the judicial system.

An example will serve to illustrate legal positivism and natural law. I refer to the so-called “Nazi informer cases.” In Nazi Germany, the quickest way to get rid of an unwanted spouse was to report them to the police for saying hateful things about Hitler. That was enough to make that person disappear forever. No trial, no evidence, no right to a hearing, no habeas corpus, no innocent until proven guilty; but a conviction and death sentence based solely on the testimony of the complainant. I will return to this concept shortly. 

Post-war authorities sought to prosecute the informants because their actions and intent were the moral equivalent of murder. The positivists objected. Law is the “command of the sovereign.” Hitler was sovereign and the complainants were the ultimate solid citizens, faithful servants of the state…

Today there is an increasingly widespread acceptance of unrepresentative, unaccountable, supranational governance and a corresponding relaxation of that ancient call for eternal vigilance; but such vigilance is needed now, more than ever.

Dwight D. Eisenhower warned of a military industrial complex acquiring unwarranted influence. He was referring to corporate interests seeking to replace representative government as the dominant institutions in society. This condition is now well advanced. It is common to speak of corporate rule or corporatism.

Joel Bakan, Professor of Law at Queen’s University, gives a detailed account of this in his book The Corporation (see my Recommended list). Professor Bakan interviewed Canadian psychologist Robert D. Hare, who developed the now famous Hare Test of psychopathy used by mental health professionals to diagnose psychopathy. In the interview, Robert Hare diagnoses the corporation as a psychopathic entity; not employees of the corporation, but the corporation itself which, in law, is a separate legal person.

The diagnosis might help to explain why we are relaxing our much-needed vigilance. The psychopath is a master of deception. They know how to put themselves in a good light. They often rise to the top and may be seen as solid citizens or pillars of the community…

A handful of corporations control the major media which allows them to steer narratives to their advantage. Corporations seek to undermine the sovereignty of the nation state and associated constitutions, destroy culture, concepts of natural law, or anything else which stands in the way of absolute power. To this end they will use Trojan horse concepts, speak in terms of “sustainable development” or “equity, diversity and inclusion” which in the hands of normal people would be worthy objectives.

The Trojan horse stands outside the city gates a god-like marvel which offers protection and favour. The Trojans see no threat; the Greeks have fled. They invite it in, not knowing what lies within the belly of the beast. Who would not want to grant dictatorial powers to pious benefactors promising a utopian future – if you really believe it?

I have written extensively about the erosion of natural law principles, but I give one more example here, one which is highly representative of a much larger trend.

Harry Miller is visited by the police, which is surprising in Britain, since recent public notices had requested that crimes like burglaries and break-ins should be reported online, owing to staff shortages. (About one third of such crimes are not investigated at all.) Harry, a retired police officer himself, wants to know the reason for this unanticipated personal attention. Harry had been engaged in an online Twitter debate over the Gender Recognition Act and someone was offended.  One of the officers tells Harry, “We are here to check your thinking.” Harry asks, “Since when has Orwell’s 1984 become an operating manual for the police force?” The officers do not know who Orwell was, neither do they understand the concept of a “thought crime.” Harry wants to know why they refer to the complainant as “victim”? Of course that’s because his status as victim has been pre-determined in advance — no evidence needed, no trial, no innocent until proven guilty, no due process. As with the Nazi informer cases, it’s simply enough to complain. They assure Harry that his offence is not a crime, but rather a “hate incident.”

Afterward, Harry had to move heaven and earth to get a copy of the police report, but was surprised, when it arrived, to read at the top of the page, CRIME REPORT. This is the document which would show up in a background check making it impossible to get a job or a position of responsibility. Harry sued in the High Court and won. The judge compared the actions of the police to the Gestapo or the Stasi, inimical to the common law. That was good news for Harry personally, but it was raised at the trial and upheld that the police had behaved properly in accordance with the instructions of the College of Policing. Those instructions were not challenged at Harry’s trial, so thousands of people, who lack Harry’s resources to bring a High Court action, continue to be treated this way. It is now possible in Britain to be convicted of a crime, some carrying a prison sentence, based solely on the testimony of the complainant. This abuse of power has strong institutional support.

When the Titanic struck that iceberg in the cold North Atlantic sea, everything seemed OK at first, apart from a sight vibration, but the view from the promenade deck was different from the view in the engine room.  The Harry Miller case, and others like it, take us down to the engine room, beneath the surface of apparent normalcy.

Every civilization or culture, except a dying one, honours its ancestors and its traditions. Perhaps the strange death of western civilization is not a natural process but rather a controlled demolition.

Thomas More: "And when the last law was down, and the Devil turned around on you--where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast--and if you cut them down...d'you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake." Robert Bolt, A Man for All Seasons

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What is law? Adrian explained it well.

Most, virtually all, of the “law” we’ve been accustomed to represents “command-style” authority. Law, so devised, is what you have to obey because someone with force and power on their side said so. Think of the lyric in the 1960s song, “There’s a man with a gun over there telling me I’ve got to beware.”

Think of the many examples of command-style law – and consider that “force and power” is not just a gun on the hip but also threats of a psychological nature, fear and guilt -- which would include overbearing parental control, Big Mother Church and her cultish ways, and various forms of group peer pressure.

This is law as someone's whim, law representing personal opinion, law in service of private agenda.

However, law properly construed is altogether different: Adrian employs “law as morality.” I agree but allow me to expand on this as morality can mean whatever the group or Dear Leader says it should mean. To be legitimate, law and morality must reflect what we are on the deep inside. They must address what we “ought” to do and become by virtue of our natures.

This is the kind of law that “keeps the trains running on time” in Summerland. In the associated article, you’ll find Brother John of Glastonbury, on the other side for hundreds of years, commenting that the world over there is all about law and order, but it’s of such a subtle nature that no one is really aware of being governed. There’s so much freedom in Summerland that people live in an “autonomous” way. This word means “law unto oneself.” It works out well on the other side because, in the "better neighborhoods," people are living from a deeper level of self, and so “law” reflects a hidden dynamic of the heart and spirit.

Considering all of this, what is justice? Well, it depends who you ask, doesn’t it?

If you ask Dear Leader, the “man with a gun over there” or with the fear-and-guilt doctrines to keep the sheep in line, he will tell you that justice has to do with complying with all of the laws in his realm. It doesn’t matter if people are trampled on or have their reputations ruined or their civil rights spat upon, none of that matters, as long as Dear Leader is obeyed.

And now you already perceive what justice will mean, and must mean, if the term is to have more than Orwellian significance.

Justice, or a just society, or just laws, will allow all people to pursue their divine destinies, achieve their human potential, and to pursue personal definitions of happiness. Dear Leader has no place in any of this.

Postscript: The conclusion to Adrian’s article I found quite disturbing:

Every civilization or culture, except a dying one, honours its ancestors and its traditions.

It’s taken us some 200 years to lose sight of the Founding Fathers. The displacement has occurred by design. The Dear Leaders in our midst, for a long time, have done all they can to minimize the Founders’ great contributions to us and to the world. Think of JFK’s wry comment (allow me to quote from another Word Gems article):

President Kennedy once quipped to a group of White House dinner guests, Nobel laureates, that their stately banquet room had not witnessed such confluence of intellect and talent since Thomas Jefferson dined alone!

This humor, we imagine, was well received, but possibly the laughter was somewhat uneasy, not altogether full-bodied.

For all of our modern accomplishments, we intuitively sense that the Founding Fathers were of a rare species, one largely extinct today. We note that their writings resonate with a kind of exquisite wisdom, an insight into the human condition, rarely, if ever, exceeded in the literature of the Western Tradition.

Have you noticed that today we celebrate “Presidents’ Day”? We used to honor the birthdays of George Washington and Abraham Lincoln. How did this change take place?

While motives of self-aggrandizement cannot be dismissed, the implementation of a generalized "Presidents' Day," now to include not just the lackluster but the criminal element, primarily occurred as part of an effort to minimize and ignore the accomplishments of the Founders – those who emphasized personal liberties, rule of law, and checks-and-balances.

But these tremendous achievements of civilization -- without which there can be no civilization of any worth -- do not conform to the totalitarian agendas, the vote-buying and power-and-control schemes, of small men, with small minds, but with big sloppy grins.

You can't stop this if the people love to have it so. And that's our real problem.