Liberty, enshrined in Law, desecrated by legislation

[Add polemic here]

Inalienable Wisdom

A short extract from a speech by Judge Andrew Napolitano, discussing Natural Rights, at the Mises Institute. The full speech is here.

Liberty and the Rule of Law 3: What have I missed?

Statute of Felonies

Ye shall not commit the following acts, for they are considered the most serious crimes, neither shall ye attempt to commit, conspire to commit or be complicit in the committing by others of these felonies, whether by recklessness, malice aforethought, negligence or insanity.

I Manslaughter II Murder III Malicious Cruelty IV Rape V Abduction VI False Imprisonment VII Grievous Assault IIX Serious Assault IX Indecent Behaviour X Indecent Assault XI Robbery XII Burglary XIII Theft XIV Fraud XV Criminal Damage XVI Criminal Possession XVII Criminal Association XIIX Criminal Coercion XIX Incitement to Felony XX Betraying the Nation XXI Perverting the Course of Justice XXII Dereliction of Duty XXIII Desecration of a Corpse XXIV Reckless Endangerment XXV Riot

Defence Denial outright Committed in self-defence
Aggravations Helplessness of the victim Habitual criminality Multiple felonies Cruelty Pitilessness
Mitigations Duress Coercion Entrapment Provocation Isolated Act Intoxication Completely out of character Insanity Beneath the age of responsibility Co-operation Full Admission
Verdicts Not guilty Guilty, but with mitigation Guilty Guilty with aggravation Punishments Incarceration Fines and Forfeitures Expulsion Public Safety Bond
Sentencing Punitive Tariff Exemplary Tariff Public Safety Tariff

Liberty and the Rule of Law; part II

Rembrandt van Rijn - Moses with the Tablets of the Law (1659)

The principle of the Rule of Law

The sovereign power rests and is invested in the Law, held to be above all. The Law exists to maintain peace between the members of a society, and is an instrument of coercion to protect the life, liberty, and property of every such member. Where there is injury, the Law shall bring redress. Where there is great wickedness, the Law shall punish. The Law is to be generally applicable, clear and just. Everyone is equal, under the Law.

Why and how this has been subverted

Rationalist extremists attacked this concept, failing to see the worth of such a noble legal fiction. Socialists assailed it in the name of class war. They had no time for equality under the Law; their whole ideology was based not on the harmony of interests, but rather antagonism between classes. Nor could they accept the idea of a higher power constraining them. The Law, for them, was no more than a licence to use the power of coercion in support of their admittedly sectional interests, and if challenged would justify themselves in the name of the majority.

What I believe needs doing about it.

Drawing upon our great tradition of common law and common sense, we must set out clearly and succinctly the Law of this Land. The aim must be to reduce and clarify all aspects of the Law, starting with the criminal law and progressing onwards through civil, companies and administrative legislation.

A series of parliamentary Acts would be needed, such as a Criminal Statute Act and a reissue of Magna Carta, re-stating our fundamental legal rights. The Criminal Statute should set forth what are considered felonies. This should be a list as short as, perhaps 20 to 30 serious crimes. It should be short enough that anyone could recite them with a minimum of effort. It must also set forth a sentencing policy, which is firm in its resolve to punish wrong-doing, and increasingly severe with repeat offenders. Magna Carta should be re-issued, as it has been a number of times in our history - and we need it now as much as ever. Jury trial, habeas corpus, the right to self-defence, liberty of conscience and free speech, and whatever other curt statements are necessary to uphold individual liberty against arbitrary misrule.

As a parlour game , try to set out 20 definitions that contain all criminal acts that are called felonies - the most serious of crimes, not misdemeanors or minor infractions. You are allowed to over-run 20, if you must. Another blogger recently wrote:

"Let us go back to my first principle and my single law: as far as I am concerned, there should only be one single law—you shall not initiate force or fraud against life, liberty or property",

That may be an inspiration, but I will go further than a list of one, ergo:

I Murder
II Manslaughter
III Torture
IV Rape
V Grievous Assault

VI Theft
VII Burglary
VIII Robbery
IX Fraud

X Reckless Endangerment
XI Violent Assault
XII Criminal Damage

Already I reckon I've covered pretty much all there is. Something like Arson would be covered under criminal damage, reckless endangerment and possibly manslaughter, depending on the actual case. The list is immediately expanded by defining various degrees of guilt in relation to a crime, such as:

Actually committing the crime
Attempting to commit the crime
Conspiring to commit the crime
Standing complicit in the crime
Involuntarily committing the crime
Negligently committing the crime

Further to these degrees of guilt, which relate to the defendant, there are degrees of severity amongst the acts which are grouped together under one heading. Some crimes are more wicked than others, so let crimes be subdivided into three degrees of severity, where the third, or lesser degree covers small (albeit it serious) matters, and the first degree is reserved for the worst offences. The degree of cruelty or the helplessness of the victim must be weighed if crimes are to be punished adequately and justly.

Readers, feel free to inform me of what crimes my list above neglects? Immediately coming to mind, cannibalism, grave desecration, necrophilia...

XIII Desecration of a corpse (grave desecration can go into Criminal Damage)

Indecent exposure? Obscenity? Possession of child porn?

XIV Obscenity

What of today's possession laws? Many of these should be struck down and not replaced, but, given that the repeal of certain drug prohibitions and reform of firearms law is an urgent need, it must be conceded that a list could be made of substances and objects that even the most liberal society would wish to control, so, and with ever the desire to be general in thinking, and to limit the Law by clear definition:

XV Possession of specifically banned substances, articles or objects, as proscribed in Schedules A, B & C, these being necessarily open to constant review, to balance prevention of threats to society with individual liberty.

Five to go. What else?

XVI Abduction
XVII False Imprisonment
XVIII Criminal Coercion (blackmail, extortion, threatening to commit a crime)
XIX ?

Liberty and the Rule of Law; part I

As Friedrich Hayek notes in his essay 'Why I am not a conservative', libertarians and conservatives have, over the last few decades, often found themselves in the same trench fighting a common enemy, but he cautions us not to overlook the significant differences between these two positions.

Without dwelling too long on that essay, or navel-gazing over political labels, the meanings of which naturally evolve over time, and are undermined in political discourse by being strawmanned by their foes and by lazy thinking, rhetoric and parotted slogans from all sides, it is important to assert libertarian principles with clarity, especially where they are distinct from our conservative allies. This is certainly the case with regard to criminal law.

Here on my blog, and elsewhere, two cases have been noted, which illustrate two different problems with our current justice system. In the first, and it is not the most glaring I am sure, but I think it is a reasonable example of the leniency shown by the justice system with regard to violent, pitiless criminals. A man robbed and beat an old woman almost to death, a neighbour who had tried to help him in the past. Not only did the Crown Prosecution Service accept a plea bargain, rather than prosecute the more serious charge of attempted murder, but the judge handed down a sentence which will most likely see the man out of jail in less than five years. This is because prisoners are almost automatically released midway through their sentence (in this case 10 years) and he may well have spent some time on remand. Considering the age of the man, he will be released with many years ahead of him, in which he is likely to reoffend and, as he has shown himself to be capable of gross violence, I see his sentence as an equally gross dereliction of duty on the part of the justice system. So, in this case and many others, I denounce the authorities for failing to adequately punish the convicted criminal.

In the second case, a woman is sent to jail for possessing an old pistol, which her father brought back from his travels. According to the law, she must be punished, but according to my views, she has done nothing wrong. I do not accuse the authorities of leniency, nor indeed the opposite. It is the case that the law is wrong. Where there is no offence, there should be no punishment, and she has committed no offence against anyone, by the mere act of possessing an unused, unloaded firearm. But the case makes clear that a libertarian, such as I, cannot call for 'zero tolerance' to be shown to all criminals. As the law stands today, she is indeed a criminal - she herself pleaded guilty, thereby denying the possibility of a jury letting her off in the face of the evidence (a 'perverse verdict'), a possibility no doubt very slim, but nevertheless a fundamental check on the power of the state to enforce arbitrary and wrong-headed laws.

As I've shown in earlier posts, the right to keep and bear arms in our own self-preservation and defence was historically counted amongst the essential English liberties. I can, for rhetorical effect, claim that is 'the true law of the land', and I can believe that to be so. But my confidence of finding a jury who agrees with me and would let me off with a wink and a smile if I'm hauled before them for strolling around with a 1911 tucked in my belt is not great.

This is not, by far, the only area where the current criminal law is wrong-headed. The drug laws are another glaring example - glaring, at least, to a libertarian, less so or not at all to a conservative, such as Peter Hitchens. Now, it is worth pausing a moment to consider Mr Hitchens. In many ways I agree with him, and because he speaks the truth as he sees it, he's worth listening to, even when he's wrong. At least you see a mind in action, not a party-programmed automaton. He has staunchly defended traditional values that I hold dear, such as jury trials and habeas corpus. He is right on so many things; his opposition to the wars in Iraq and Afghanistan and to ID cards being some. But along comes the issue of drugs and we have a real division, because he's heading for a different destination, although our paths converge for much of the journey.

If I don't press the 'publish' button soon, this'll end up forever as a draft, so I'll cut it short and take up the theme in another post. What I want to do is to give some coherence to the principle of the Rule of Law, why and how this has been subverted, and what I believe needs doing about it.