Crown, Parliament, and Common Law

I have argued several times in the past that it is Parliament the concrete institution that we should cherish and treasure and not "democracy" the abstract ideal. This is a point that is well worth repeating in this troubling moment. Liberals, progressives, and neo-conservatives such as those who write for the Postmedia/Sun newspapers nearly always speak in terms of the abstraction, democracy, when defending our form of government. The present crisis, however, demonstrates that it is the concrete institution that is most important.


Last week, Parliament was set to return from adjournment on April 20th. The Prime Minister told the press that it would be "irresponsible" for Parliament to resume in full session in the midst of the pandemic. Andrew Scheer, the Leader of Her Majesty's Loyal Opposition, came to the defence of Parliament's right and duty to hold the Prime Minister and Cabinet accountable. The Prime Minister dug in and insisted upon an arrangement that would make him and his ministers far less accountable to Parliament than what Scheer was pushing for. With the help of the far left minority parties, the Prime Minister ended up getting his way.


Writers from a broad spectrum of political opinion, from the centre-right commentator familiar from every major news medium, print, radio, and television, Rex Murphy, to the former leader of the socialist party Thomas Mulcair, rightly criticized the government over this, arguing correctly that in this crisis we need more accountability from the government rather than less. They did not comment on the dark symbolism of the fact that the Prime Minister's demanding and getting these arrangements that would reduce his own accountability to Parliament fell on the anniversary of the birth of the most notorious tyrant of the twentieth century. Perhaps they felt it would be unfair to draw attention to this coincidence. Earlier this year, however, when the Prime Minister tried to sneak provisions into an Emergency Spending Bill that would have given his Finance Minister unlimited tax and spend powers for which he would not be accountable in Parliament for two years, provisions that attacked the very foundation of Parliament itself, the Magna Carta and the "no taxation without representation" principle enshrined within it, he released the proposed bill on March 23rd. He hoped Parliament would rush it through in a unanimous one day vote on the next day. Mercifully the Opposition stood their ground, he was forced to back down that time and the Emergency Spending Bill, sans most of his power grab, was passed on Lady Day. The day when he sent out the first draft was the anniversary of the Enabling Act of 1933 - a bill which gave the new German Chancellor enhanced emergency powers to act independent of the Reichstag. That Chancellor was the same notorious tyrant born on April 20th. How many times does this sort of coincidence have to happen before it is no longer coincidence but the Prime Minister rubbing his dictatorial aspirations in our faces?


The abstract ideal of “democracy” can be easily reconciled with tyranny and dictatorship. The wisest of the ancients, Socrates, Plato and Aristotle, all knew and taught, that democracy was the mother of tyranny. The man who is often credited with being the father of Modern democracy, Jean-Jacques Rousseau, is also known as the father of totalitarianism. Adolf Hitler, the tyrant referred to in the previous paragraph, was not only elected into office, but governed with the enthusiastic support of a vast majority of his people which he did not lose until the tide of war turned against him.


It is much harder to reconcile the ancient institution of Parliament, which has stood the test of time and proven itself over and over again, with tyranny and dictatorship. Dictators hate parliaments. It is no wonder that the Liberal Party, which was working towards establishing Prime Ministerial dictatorship even before it was infiltrated and taken over by ideological Communists in the 1960s, prefers to speak in terms of democracy.


If more Canadians had a greater appreciation for our traditional institutions, such as Parliament, there would be far greater outrage over what the Prime Minister has been trying to do, and we would be in far less danger of losing these institutions and the heritage of rights and freedoms which stands and falls with them.


In the Dominion of Canada – if you check the opening preamble and Section three of the British North America Act you will see that, unlike my calling what was renamed the “Constitution Act, 1867” in 1982 by its original title, “Dominion of Canada” is not merely a deliberate anachronism but is and remains to this day the full self-chosen title and name of this Commonwealth realm – our government is a parliamentary monarchy, modelled after the mother Parliament in Westminster. This constitution, more than any other the world has ever seen, embodies the concept of a mixed constitution – the combination of monarchy, aristocracy, and democracy in a single constitution – which many in ancient Greece had come to think of as an ideal, superior to any of the simple constitution types, even before Aristotle discussed it as such in his Nicomachean Ethics and Politics.


Montesquieu, the eighteenth century French judge and political philosopher, is remembered primarily for articulating the distinction between the executive, legislative, and judicial powers of the state. Although the influence of this articulation was most noticeable in the development of the Constitution of the American Republic, whose Founding Fathers stressed the separation of the powers as checks and balances against each other, Montesquieu himself drew his inspiration from the ancient ideal of the mixed constitution as he found it in the writings of Aristotle and Polybius, and from its concrete manifestation in the Westminster Parliament. Montesquieu saw a correlation between the three elements of Parliament and the three powers, the Crown corresponding to the executive power, the Lords to the judicial power, and the Commons to the legislative. This correlation was not quite as precise as that between the elements of Parliament and those of Aristotle’s mixed constitution. Legislation, for example, requires an act of the entire Parliament and not just the House of Commons. A strength of the Westminster System is that while these powers are distinct, and separate to a degree sufficient enough for there to be balance, they are also united in the Crown. Thus, in the Westminster System the powers are spoken of as the Queen-in-Counsel, which is the Executive Power, the Queen-in-Parliament, which is the Legislative Power, and the Queen-on-the-Bench, which is the Judicial Power.


Although all three Powers are united in the office of the Crown, it is the Queen-in-Parliament that is traditionally understood as being the Sovereign Power. This is due to the nature of the Legislative Power. All of the Powers vested in the Crown are derived from the Law. When a new monarch accedes to the throne, the Coronation ceremony in which the King or Queen is vested with the powers and duties of the office of Sovereign, includes an oath to enact the Law with Justice and Mercy. The Legislative Power is the Sovereign Power because it is the Power to add to, subtract from, or otherwise alter, the Law itself.


Before looking more closely at the Legislative Power and the Law, let us observe here one more way in which the concrete, traditional institution of Parliament is preferable to the abstract ideal of democracy. Democracy can be either direct or representative. Direct democracy, which involves taking every government decision to the people in plebiscite, is obviously impractical except for the smallest of communities. The democracy that is an element of our Parliament, like the democracy that is an element of the American Republic, is representative democracy. Elected representatives in a representative democracy, whether parliamentary or republican, speak in the assembly on behalf of the constituency they represent – or, in countries foolish enough to abandon first-past-the post for proportional representation, the part of the population that agrees with them ideologically. Elected representatives each represent only a segment of the country, and taken collectively, only represent the country of the present moment. It is the role of the Head of State in any constitution to represent the polity in its entirety. An elected Head of State cannot do justice to this role. You can find all the necessary evidence of this assertion in the example of our republican neighbours. The election of every American President for the last thirty years, Democrat or Republican, has been followed by a “derangement syndrome” on the part of supporters of the losing party, or, in the case of the current President, supporters of the losing party plus a large segment of his own party. Nor is this exactly a new phenomenon. Following the election of the first Republican President in 1860, the states below the Mason-Dixon Line, all of which had opposed him, seceded and temporarily formed a new federal republic, which the United States had to invade and conquer in order to restore their “union.” Only a hereditary Head of State, who comes to the office by line of succession, can truly do justice to role of representing the whole of a country. This is especially true, when it comes to those who can only ever participate by representation because they have either passed on to the next world or have yet to enter ours. The Sovereign Power to alter the Law itself can only by right belong to the office of the person who can represent these as well as the interests of those living in the moment. Thus, the Queen is Sovereign, and Parliament, where the Sovereign as representative of the whole – past, present, and future – and the representatives of the moment meet and speak, is the place where her Sovereignty is exercised.


We often used the expression “law making” to speak of the exercise of this Sovereign Legislative Power of the Queen-in-Parliament. It is not an inaccurate expression, for passing a bill into law is indeed the making of a law, but it is important that we distinguish between the statutes passed in Parliament, which are specific laws, small-l, and what is meant by the Law, big-L. The big-L Law is spoken of in the singular, because it is a collective unity that includes all small-l laws. It is much more than the sum of all statutes ever passed in Parliament however, and, indeed, in our traditional system it has always been understood that the largest part of the Law is non-statutory in nature. By the non-statutory part of the Law I am not referring to the excessive amount of regulations that have been imposed by Cabinet ministers and their bureaucratic toadies in the last century as part of their unholy attempt to circumvent the constitution and the legislative process and subvert the Sovereignty of Queen-in-Parliament. I refer rather to the part of the Law that is not made by government, but discovered, being grounded in the underlying law that belongs to the larger, natural order of reality.


That underneath human laws, governments, and justice, there is an underlying law serving the end of an underlying justice, which belong to the larger order of reality is one of the foundational ideas of the Hellenistic civilization of the ancient world which, in one form or another, has remained foundational to the successors of Hellenistic civilization. The Christian civilization of Christendom, was built upon the Augustinian re-interpretation of the Hellenistic concept in which the true Law and justice were to be found in the City or Kingdom of God, of which the cities and kingdom's of men in this world are at best imperfect reflections. Even the liberalism of Modern Western Civilization, at least in its earliest stages, was founded upon concepts of a natural law and justice.


These concepts of a transcendent order of law and justice differ greatly between themselves, but they are variations on a common idea. The opposite of that idea - that law and justice are entirely man-made, being the mere expressions of the will of the strong -is just as old. In the first book of Plato's Politeia, the title of which is usually and misleadingly translated in English as The Republic, Thrasymachus of Chalcedon is the champion of the idea that justice is merely the strong imposing their will in the service of their own interests. The dialogue as a whole, of course, is Plato's articulation and defence, through the mouth of his teacher Socrates, of the transcendent order of law and justice. The transition into the Modern Age weakened the idea of this transcendent order. In the nineteenth century, German philosopher Friedrich Nietzsche attacked the Socratic/Platonic foundation of this concept in his The Birth of Tragedy, before turning his guns full blast on the Christian understanding of it in The Genealogy of Morals and Beyond Good and Evil, and resurrecting Thrasymachus with a vengeance in Thus Spake Zarathustra and The Will to Power. Nietzsche's influence over the last century was far greater than is often realized. Even more than Kierkegaard he paved the way for the existentialism of Martin Heidegger, Jean-Paul Sartre, Simone de Beauvoir and Albert Camus. While the novels of Ayn Rand and Terry Goodkind illustrate his neo-Thrasmachyian idea of a "master morality" defined by the creative assertion of strong-minded and strong-willed individuals as he himself understood it, in National Socialist ideology the totalitarian State became the expression of the will to power. Leo Strauss and George Grant were undoubtedly correct in saying that in Nietzsche we must grapple with the great Modern critic of Plato.


This idea, that there is a natural order of law and justice, with which temporal laws and justice must conform in order to be just themselves, has as we have just seen, been a fundamental concept of Western civilizations since ancient Greece. The relationship between our temporal laws and the underlying natural law has been understood differently in various Western societies. One approach is to say that it is the job of enlightened rulers to think about the natural law, determine what its precepts are, and translate those precepts into statutes in as close to their abstract form as the limitations of legislation permit and then inflexibly apply them. There are traces of this approach in Plato. It is the approach of many post-Enlightenment continental civil codes such as the Napoleonic, and can be found in much liberal thought. Our own system takes a different approach, however, and this is one of the major strengths of that system and the reason why there has traditionally been so much more personal freedom under our system than under its rivals, even within Western Civilization as a whole.


We have seen that in our system, the Sovereignty vested in the Queen-in-Parliament comes from the Legislative Power, because this power can change the Law itself. The exercise of this Power, however, is not the primary function of any of our State institutions. When the Magna Carta was enacted, the single most important event in the evolution of the King’s Great Council into Parliament as we know it today, the primary duty of the emerging Parliament was not to pass statutes but to hold the Executive accountable for the taxies it levied and how it spent the revenue so raised. Similarly, the primary duty of the monarch and the Crown ministers was never the creation of new laws but the maintenance of peace and order at home and abroad. This is where the Judicial Power – the Queen-on-the-Bench – comes to the forefront.


The maintenance of peace and order at home is not a matter of telling people what to do and forcing them to do it. It is a matter of providing an acceptable venue whereby disagreements can be arbitrated so as not to escalate into cycles of destructive vengeance. The courtroom is that venue. Aeschylus, the fifth century BC Athenian tragedian, borrowed from the mythology of his native land to illustrate this in the only surviving complete trilogy of plays from ancient Greece, his Oresteia. In the first play, Agamemnon, the Mycenaean king returns from Troy, having avenged his brother Menelaus, burned the city to the ground, and taken the princess and doomed prophetess Cassandra as his trophy, only to be murdered in his bathtub in his moment of triumph as the result of a conspiracy between his wife Clytemnestra and his cousin and mortal enemy Aegisthus, both of whom are seeking revenge for different reasons. In the second play, The Libation Bearers, Agamemnon’s son Orestes returns to Mycenae at the command of Apollo to avenge his father by murdering his mother, which he accomplishes with the encouragement of his sister Elektra and his friend Plyades, but then finds himself pursued by the trio of avenging goddesses, the Furies. In the final play, The Eumenides, Orestes, with the Furies still in hot pursuit, arrives in Athens where he pleads for mercy to the city’s patron goddess. In response, Athena summons twelve Athenian citizens to the Areopagus, to help her decide the case. The prosecuting Furies make the case that Orestes must be turned over to them for punishment for the crime of matricide. Apollo steps in as advocate for the defence. Six jurors are persuaded by the Furies, six by Apollo, resulting in a hung jury. Pallas herself, in her capacity as judge, casts the final vote, acquitting Orestes, after which she appeases the Furies and decrees that from here on out the procedure so established, will take the place of endless spirals of retribution.


All of this demonstrates the basic principle that if people are going to live together in a common society, there must be a peaceful and orderly means of arbitrating disagreements which requires a governing body that will hear both sides and decide based upon the evidence, which has the authority to ensure that both sides abide by the ruling, and into the hands of which, punishment if there is to be such, must be left. This process presupposes both that there is a natural order from which the questions of whether an action is right or wrong, who is right or wrong in a dispute, or, if it is not as black and white as that, the proportion of right and wrong on each side, can be determined, and that this can be discovered by hearing and fairly evaluating all the evidence. In other words, rather than starting with the abstract principles of natural law, and then applying these to actual persons and situations, the courts start with the concrete situations involving actual people, and from these determine in an Aristotelian manner what the abstract rules of right and wrong are. Mistakes can be made in the process, for which reason judges are required to give explanations of their rulings which can be appealed to higher courts. On the principle that the law must be the same for everyone, however, the accumulated rulings of past cases, become the precedents that guide the courts in their present deliberations. These accumulated precedents, in a system which is fallible but contains an internal mechanism for its own self-correction over time, and which recognizes the fact that fallible and flawed human beings cannot be expected to fully measure up to the standards of natural law when taken in their abstract nakedness and so allows for mitigating circumstances and requires only what can be reasonably expected in a casuistic fashion, themselves make up the bulk of the Common Law. The purpose of Parliamentary legislation is to tweak this Law, it is not the source of it.


The Common Law system has historically and traditionally allowed for much greater freedom than any of its rivals. Law that arises out of fair, honest, and in-depth inquiry into the right and wrong of particular situations, is far less likely to result in unnecessary limitations on actions that are not mala in se than either bureaucratic regulations or even legislative statutes. As the case precedents of Common Law have accumulated over the centuries, and corrections have been made over time through Parliamentary statute, certain basic rights and freedoms became firmly established as has the understanding that under Common Law, Her Majesty’s subjects are not supposed to have to ask themselves “is this permitted” every time they want to do something because they are free to do whatever they want provided it is not explicitly prohibited by Law, and have the right to expect that these prohibitions will be few, reasonable, understandable and necessary.


Among the basic freedoms that had already long been established in Common Law precedent by 1982 were the four listed as “fundamental” in section two of the Charter of Rights and Freedoms. All of the basic legal and civil protections against the arbitrary abuse of government power that are listed in sections seven through thirteen of the Charter, had also been long established Common Law rights. Habeas corpus, the right to have a court determine whether or not a detention is legal, was not given to us by the Charter, although it is listed in Section ten, but has been part of the Common Law for almost a millennium, predating the Magna Carta itself by a half century. The Charter neither gave us these rights and freedoms, nor made them more secure, but rather provided the government with loopholes by which to evade them. It was, indeed, an assault on the Common Law concept of rights and freedoms, which encouraged us to think of these as having been given to us by politicians, rather than arising out of natural law, through history and tradition.


It was also a further assault by the Liberal Party on the Westminster System which goes hand-in-glove with the Common Law, the two having evolved together over more than a thousand years of history. As we have seen, the Sovereignty of the Crown is its Legislative Power exercised in Parliament. The most basic Crown Power, however, is the Judicial Power which, as we have also seen, is the raison d'être of the State, and the institutional authority through which the Common Law develops out of natural law. For this reason the monarch’s office has been that of the highest magistrate since time immemorial, and the traditional final right of appeal under Common Law was directly to the Sovereign. By elevating the Supreme Court of Canada above Parliament, Pierre Trudeau’s Charter subverted both the Common Law and the Sovereignty of Queen-in-Parliament.


Today, our fundamental freedoms of assembly, association, and religion which although they are listed in section two of the Charter, have their foundations not in the Charter but are derived from natural law through Common Law, have been severely restricted to the point of being negated almost entirely, by the restrictions put in place to combat a strain of bat flu that has jumped to humans, perhaps with the assistance of the Communist government in China, and spread rapidly around the globe, producing nothing worse than the regular flu in most people, and killing so far a couple of hundred thousand, making it one of the least lethal plagues in history. We have been told to meet in groups of no more than ten – in some jurisdictions as low as five – at a time, to stay six feet apart from each other at all times, and churches have been ordered closed. These freedoms have not been taken away from us by legislation in either Parliament or the provincial assemblies. The restrictions are regulations imposed upon us by bureaucrats, specifically, the public health authorities. While it has been the provincial public health authorities that have done this, they have been following guidelines that the Dominion public health authority has passed on to them from the incurably corrupt and Communist-controlled World Health Organization. The fact that civil servants at any level of government have the power to restrict these freedoms to this extent and for so long – keep in mind they have been extremely reluctant until recently to even discuss an end to the restrictions and have spoken of these measures as having to be in place for a time frame that is totally unrealistic to anyone who takes into consideration anything other than the effort to combat this specific virus – is totally unacceptable and a great cause for concern. This is not the way our system of government is supposed to work. The reason civil servants, even provincial civil servants, have this much power in Canada today, is due to the Liberal Party’s assault, especially during the period from 1926 to 1982, on the Sovereignty of the Crown, Parliamentary authority, the accountability of the Prime Minister and his Cabinet, and the rule of Common Law.