The founders of the American republic, and their forebearers across the sea, were influenced by gnostic/hermetic philosophy when they created their systems of government. For them, constitutional law, English common law, and ancient tradition served as a defense against the abuse of power by government.
Gnostics had a similar mistrust of Church authority and ecclesiastical decree. The hermeticists placed a high value on individual expression and personal freedom, with government as guarantor of both public and private rights. Individual gnostic opinions varied, but they were united by a philosophical approach which fostered tolerance, freedom of expression, and creativity. Church authorities sought to limit that expression by imposing a single unifying narrative.
Because divinity was seen as a light emanating from within, 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 politized 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.
The law functions as a dynamic tension between these two opposing views, but natural law is the gift of Hermes and we take it for granted at our peril. “Lady Justice” is the female side of this duality, and legal positivism the male. The reality of law, in practise, is an integration, the latter providing certainty, the former seeking justice in individual cases.
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. This accords with descriptions of the archons (rulers) in The Secret Gospel of John – “And their triumph is in deception (apaton), leading astray, for their own structure is without divinity.”
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? (Link to “mask of piety”)
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
Adrian Charles Smith (c) 2021