In a national emergency, such as war, disease or natural disaster, the executive branch of government may temporarily suspend civil liberties to ensure the public safety. During such periods, the executive branch governs by decree but their decrees are not law and are reviewable by the courts. It is only the enabling legislation which should be considered as law. For example, the Emergency Powers Act 1920 was an Act of the Parliament of the United Kingdom, which allowed the Sovereign power, in certain circumstances, to declare a state of emergency by proclamation. The Act does not give the State a license to drive a coach and horses through the national constitution. A government, may not, for example, declare a state of emergency for reasons which are trivial or nonsensical, effectively imposing a dictatorship by the back door.
Both the declaration of a state of emergency and subsequent decrees are reviewable by the courts. It must first be demonstrated that a genuine emergency exists. Secondly, it must be shown that the decrees ameliorate that emergency. Courts do not censor voices of dissent, as is common in politics or the media; but rather, hear arguments strictly on their merits with no weight assigned to denunciation or ad hominem attacks.
The Wednesbury principle, based on a UK Court of Appeal decision in 1948, allows for judicial review of administrative action, applying a “reasonableness test” to the decisions of authorities exercising power conferred by an Act of Parliament. Decrees, prohibitions, or mandates which defy logic, or which violate generally accepted moral standards, may be struck down.
The concept of “natural law” requires that law must have a foundation in morality to be deemed legitimate. Otherwise, it’s only force — the orders of the mafia boss shouting, Fetch me a beer. Under natural law, we are under no obligation to obey an immoral law or even to consider it as law at all.
By contrast, the philosophy of “legal positivism” conceives of law as the “command of the sovereign”, issuing orders backed by threats. There is a disturbing tendency to regard orders backed by threats as legitimate law, as though authority is beyond scrutiny, to be obeyed without question.
These two competing concepts define the issue — what is law? Is it morality or is it force? The answer is found through observation of how the law operates, not what we think it ought to be, or how we wish it would be; but what is it?
An example will serve to illustrate.
In Nazi Germany, a statute made it illegal and punishable by death, to make insulting remarks about Hitler. This was used by some Germans to dispose of unwanted spouses by reporting them to the police. After the war, informants were prosecuted, even though under Nazi law, the defendants were solid citizens performing their civic duty by snitching on offenders. In one such case, the German Court of Appeal found a woman guilty of the offence of deprivation of liberty, because — quoting from the judgment — the statutes were “contrary to the sound conscience and sense of justice of all decent human beings.” In other words, Nazi law was not law because it lacked any character as law being devoid of moral legitimacy.
The positivists objected. Hitler was sovereign and law is, “the command of the sovereign”. They also objected to the Nuremberg trials which followed because, in their view, there was no “sovereign”. Neither is international law considered law, and constitutional law is nothing more than “positive morality” (a morality which is posited or put forward).
In answering the question, clearly morality is embedded in our concept of law because in practice it is observable in the operation of the courts. The Nuremberg trials proceeded, despite the objections of the positivists, and offenders were hanged, including Nazi doctors who imposed medical experiments on people without their informed consent. The trials gave rise to Nuremberg 2, an international agreement upholding that same principle of informed consent, and this has been accepted in all civilized nations to this day.
It would take something truly extraordinary to require an abandonment of that principle. Many professionals have lost their jobs because of “mandates”, and many have succumbed to pressure in order to keep their jobs. But consent to an experimental gene therapy, pushed by companies with a history of criminal behaviour, through media outlets which they control, requires an absence of pressure; because, in law, consent given under duress is not consent.
Does a disease which has a mortality rate of less than 1% and for which the average age of death is 82 justify locking down whole populations and crashing the global economy? The lockdown response amounts to a quarantine of entire healthy populations. An alternative approach would be to quarantine only the sick and most vulnerable.
If someone in power confines you to your own home, under normal circumstances that would amount to the crime of “false imprisonment” and the persons responsible could be held liable without clear and convincing evidence that this was necessary to address an alleged emergency. It’s interesting to me that what some call “the law” may in fact be a crime, as the Nazi informer cases illustrate.
For those worried about the disease, the answer for them is clear — get the injection(s). You are now safe and protected, 92% was the claim. Those who do not take the injection(s) have voluntarily undertaken the risk and that is their business and no one else’s. The assertion that the “protected” need protection form the “unprotected” is that very kind of reasoning which the Wednesbury principle addresses — a proposition so unreasonable “that no sensible person who had applied his mind to it could have arrived at it”.
These and other related questions will now be brought before the International Criminal Court in The Hague. The victims, on behalf of whom the complaint was filed, are “the peoples of the United Kingdom.” One of the seven applicants is Dr. Michael Yeadon, a former vice president and chief scientist of allergy and respiratory research at Pfizer.
One man who understood the concept of “natural law” was Sir Thomas More, the King’s Chancellor during the reign of King Henry VIII. A man called Ritchie Rich was about to denounce Sir Thomas. Friends and family pleaded with Sir Thomas to have him arrested, something he had within his power. But Sir Thomas refused because Rich had broken no law, although he was about to — the crime of perjury. Sir Thomas was a moral man and for him the law was rooted in morality and conscience, and this, he believed, was our only defense against tyranny. In Robert Bolt’s play, “A Man for All Seasons”, Sir Thomas rebukes his friend Roper for urging him to “cut a great road through the law to get at the devil — and when the last law was down and the devil turns round on you where will you stand, Roper, the laws all being flat”.
Do we now cut a great road through the law to get at the devil, the devil being a global sickness. In the words of Sir Thomas, “I would give the devil benefit of law for my own safety’s sake”.
(C) Adrian Charles Smith 2022