No man has ever been arrested for attempting to break the First Law of Thermodynamics, nor spent time in clink for breaking Murphy’s Law. The idea of lawbreaking and consequent condemnation has burst out with little understanding from commentators, or even from lawyers regrettably. The absolute virtue of the Rule of Law become the worst virtue-signalling when commentators speak of laws which are no laws at all.
Law is the basis of a settled, peaceful, free society in the English-speaking world. It is taken for granted because it has always been this way – it is still a novelty in Europe. Therefore the idea of the Government “breaking the law” brings with it the heartiest condemnation, but it comes from a deliberate misunderstanding.
Covenants, without the Sword, are but Words, and of no strength to secure a man at all. Therefore notwithstanding the Lawes of Nature, (which every one hath then kept, when he has the will to keep them, when he can do it safely,) if there be no Power erected, or not great enough for our security; every man will and may lawfully rely on his own strength and art, for caution against all other men.
Law is a word used in many senses, and Hobbes, who used the phrase “Lawes of Nature” frequently, explicitly denied that these ‘laws’ were any more than as we might use the same phrase today, or such phrases as “the laws of physics”. The essence of law in the sense of the laws of the realm are where he says:
Law in generall, is not Counsell, but Command; nor a Command of any man to any man; but only of him, whose Command is addressed to one formerly obliged to obey him. And as for Civill Law, it addeth only the name of the person Commanding, which is Persona Civitatis, the Person of the Common-wealth.
In short, law properly so-called is the command of the sovereign or sovereign body, which in the case of Britain is the Queen in Parliament.
The Legislator in all Common-wealths, is only the Soveraign…. For the Legislator, is he that maketh the Law … the Soveraign is the sole Legislator. For the same reason, none can abrogate a Law made, but the Soveraign; because a Law is not abrogated, but by another Law, that forbiddeth it to be put in execution
The concept of “international law” is a different concept. As was observed in an earlier article on this site, international law is not law. It cannot be, because it is not made and abrogated by the sovereign. It is a covenant without the sword, which is but words of no strength to secure a man at all.
The courts of the realm have a certain indulgence towards the concept of “international law” in the sense that it is a general set of understandings between states and one might assume that Parliament when legislating does not intend to contradict an important treaty, so Acts of Parliament are interpreted, as far as the language will bear it, in a way that is consistent with any earlier treaty. The courts have also however stamped down on attempts to import treaties as if they were equal to domestic law: if a treaty could rewrite the rights and obligations of the subject, this would allow the Crown to bypass Parliament.
There is also to issue about what this “lawbreaking” would be were it actual law and actually broken (which in this case, I am given to understand, would not be so). In domestic law there are two separate concepts, of criminal law and or civil law (which is not the same as Hobbes’s Civill Lawes, the latter referring to actual law as opposed to the “Lawes of Nature“). Civil law is about debt, trespass, enforcing contracts and trusts, negligence leading to injury and such civil wrongs as this. It is important for the order of society but it does not carry the shame of lawbreaking. It is not what the ordinary man thinks of: if an backstreet yob yells “Run: it’s the Law!”, he does not mean he has spotted the approach of a member of the Chancery Bar.
If departing from a treaty were a breach of “law”, it would be akin to breaching a contract, not coshing a night-watchman. The shock is therefore feigned, and foolish, and in some cases dishonest with the intent to deceive the public.
The Withdrawal Agreement, the proximate cause of the recent pearl-clutching, is part of the law of the realm and so must be followed – but it is only part of the law because an Act of Parliament has made it so, and another may unmake it: the rules of the Agreement may be abrogated, but by another Law, that forbiddeth it to be put in execution. The Treaty of Rome itself, when the United Kingdom was a member of the European Communities then of the European Union, had the force of law only because an Act of Parliament made it so. This is basic stuff. Sovereignty, as Hobbes repeatedly reminds us, is indivisible.
The law that is actual law must be upheld, but it is for Parliament to consider it and at any time may send a Bill to the Queen to change the law, for that is a sovereign act of law-making. Law to govern society should be precise and understood, which those international conventions never can be nor are intended to be, and the law should be open to frequent reform, as international conventions cannot be.
That Law can never be against Reason, our Lawyers are agreed; and that not the Letter,(that is, every construction of it,) but that which is according to the Intention of the Legislator, is the Law. And it is true: but the doubt is, of whose Reason it is, that shall be received for Law. It is not meant of any private Reason; for then there would be as much contradiction in the Lawes, as there is in the Schooles; nor yet (as Sr. Ed, Coke makes it (Sir Edward Coke, upon Littleton Lib.2. Ch.6 fol 97.b),) an Artificiall Perfection of Reason, Gotten By Long Study, Observation, And Experience, (as his was.) For it is possible long study may encrease, and confirm erroneous Sentences: and where men build on false grounds, the more they build, the greater is the ruine; and of those that study, and observe with equall time, and diligence, the reasons and resolutions are, and must remain discordant: and therefore it is not that Juris Prudentia, or wisedome of subordinate Judges; but the Reason of this our Artificiall Man the Common-wealth, and his Command, that maketh Law: And the Common-wealth being in their Representative but one Person, there cannot easily arise any contradiction in the Lawes; and when there doth, the same Reason is able, by interpretation, or alteration, to take it away. In all Courts of Justice, the Soveraign (which is the Person of the Common-wealth,) is he that Judgeth: The subordinate Judge, ought to have regard to the reason, which moved his Soveraign to make such Law, that his Sentence may be according thereunto; which then is his Soveraigns Sentence; otherwise it is his own, and an unjust one.