Freedom in Jeopardy: A Case against the EU and Internationalism
Darren Andrews
Thursday, January 15, 2004
Freedom brings Happiness
All people want to be free. We can only grow and learn to the degree that we are free. We can only know true fulfilment to the degree that we are free. It is only through being free that mankind can reach his potential. In short, we can only be happy to the degree that we are free, for those things which bring us true joy can only be obtained through the use of those faculties which freedom vouchsafes to us; and through experience we know that being forced or coerced is anathema to both the human spirit and human enterprise.
History is the Story of the Acceptance and Rejection of Freedom
And yet freedom is something we can easily take for granted - and just as easily lose. History´s repeated sagas are evidence enough of this. Countless civilizations have come and gone, many of them destroyed because they surrendered their freedom little by little until it was all gone or taken from them. For a nation to lose its freedom there need be no military attack. It can be lost because the citizens of that nation have allowed themselves to be deceived through apathy, distractions, fear, and ebbing morals.
Britain is not immune
There are Two Forces At Work in the World
Throughout history there have been two competing philosophies of government. One holds to the idea that sovereignty lies in the people and that people have inalienable rights that precede the formation of, or exist prior to, the establishment of government. This philosophy is called Common Law and its associated legal code is called Habeas Corpus. Sometimes these terms are used interchangeably.
The other philosophy teaches that sovereignty lies in an absolute ruler or body of rulers and that rights exist only inasmuch as such rulers grant them. In effect there are no rights, only privileges. This philosophy has a number of names but most popularly is called Civil Law. Its associated legal code is called Corpus Juris.
Common Law and Civil Law are two opposites. They cannot be reconciled.
J. Reuben Clark, one of the foremost U.S. Constitutional lawyers of the Twentieth Century, had this to say about these opposing philosophies of government:
During the centuries, these two systems have had an almost deadly rivalry for the control of society, the Civil Law, and its fundamental concepts, being the instrument through which ambitious men of genius and selfishness have set up and maintained despotisms; the Common Law, with its basic principles, being the instrument through which men of equal genius, but with love of mankind burning in their souls, have established and preserved liberty and free institutions. (1)
What is Sovereignty?
In order to fully grasp the gulf between these two ideologies we will need to understand the meaning and importance of sovereignty.
In terms of a nation, sovereignty is the exclusive right to make and enforce its own laws, and to judge those who break them. Under Common Law the government only possesses this power because the people (the creator of government) have authorized it. Hence the people are sovereign. The government derives its just powers from the governed. Such a government, based on Common Law, cannot justly possess powers that do not first exist in the individual.
Sovereignty exists on many levels but ultimately resides in (and is never taken from) the people as private citizens. It is the people that are the masters, government the servant.
The three cornerstones of national sovereignty are political, military and economic independence.
Nationalism versus Internationalism
One of the finest explanations of nationalism I have ever read came from Herbert Hoover:
We must realize the vitality of the great spiritual force which we call nationalism. The fuzzy-minded intellectuals have sought to brand nationalism as a sin against mankind. They seem to think that infamy is attached to the word '‘nationalist.' But that force cannot be obscured by denunciation of it as greed or selfishness – as it sometimes is. The spirit of nationalism springs from the deepest of human emotions. It rises from the yearning of men to be free of foreign domination, to govern themselves. It springs from a thousand rills of race, of history, of sacrifice and pride in national achievement. (2)
Although referring to the United States, these words from Ezra Taft Benson, Secretary of Agriculture under Eisenhower, are both insightful and to-the-point:
There is one and only one legitimate goal of United States foreign policy. It is a narrow goal, a nationalistic goal: the preservation of our national independence. (3)
Today the foreign departments of all the major governments of the world seem to be much at odds with Benson´s belief. Indeed, the very opposite. In a time when history repeats itself and there is again a centralist movement towards the few governing the many, we must ask ourselves if this is wise? What does history teach us? How does it measure up to tried and true principle? Does it make sense in light of self-evident truths and good old common sense?
One of the reasons why some support internationalism is because of a Utopian or (what they suppose to be) a religious ideal. Ezra Taft Benson put straight those with such ideas in no uncertain language:
We must put off our rose-colored glasses, quit repeating those soothing words but entirely false statements about world unity and brotherhood, and look at the world as it is, not as we would like it to become…We would be committing national suicide to surrender any of our independence, and chain ourselves to other nations in such a sick and turbulent world. (4)
To those who - and there are many - think that changes in the world somehow change the rules of human nature and government, Benson says:
The world is smaller, you say? True, it is, but if one finds himself locked in a house with maniacs, thieves and murderers – even a small house – he does not increase his chances of survival by entering into alliances with his potential attackers and becoming dependent upon them for protection to the point where he is unable to defend himself. Perhaps the analogy between nations and maniacs is a little strong for some to accept. But if we put aside our squeamishness over strong language, and look hard at the real world in which we live, the analogy is quite sound in all but the rarest exceptions. (5)
In conclusion to this section, here are the problems with Internationalism:
- The Prime Minister (or any other) is not authorized under law to act within a foreign political organization or yield sovereignty (that is treason). He is the Prime Minister of the UK
- Centralising power from the hands of many into the hands of a few goes against the most basic tenets of wisdom and all the lessons of history; for it only makes it easier for evil men to gain control
- Political agreements do not change the nature of people (and thus nations). Nations become more united and less given to war only through free, mutual and natural relationships. In other words, political agreements play no part except as a danger to stirring up contention by employing coercion rather than non-political persuasion
- Our first love and responsibility is toward our own nation, as with our family before other families. To not love our own country first will not engender a genuine love for all other countries
- Centralising power will diminish individual liberty; the powers of a just and free government should reside with the people mainly, with a few powers delegated to local governments and even less to the central government
A Brief History of Civil and Common Law
As far as modern times are concerned, Civil Law originated chiefly from the Roman Empire.(6) For this reason it is sometimes called Roman Law. This philosophy spread over continental Europe (7) and, in the Eighteenth Century, the Civil Law climaxed in what is now known as the Reign of Terror; this gave rise to yet another name for this philosophy and its associated judicial law: Code Napoleon or the Napoleonic Code. Today, borne of its past and present geographical sway, Civil Law is also known as European Law.
Common Law has its roots in antiquity. Some believe it to have originated from the divine law of statutes and judgements given to the Israelites by Moses. Whatever its origins, it was brought across Europe and to Britain by the Anglo-Saxons. It was a law common to all those peoples and hence became known as Anglo-Saxon Common Law. In Europe Civil law was the legacy of the later Roman Empire, but England remained free of this influence and thus the Anglo-Saxon Common Law began to be called English Common Law.
English Common Law was seriously compromised during the Norman Conquest which brought over the European Civil Law and imposed that system on Britain under the name of Feudalism. However, after long and bloody centuries, rights and freedoms were gradually won back and restored. Perhaps the primary and most notable date of this period is AD 1215 when the Magna Carta was signed - a document that is still held to be binding today as a foundation of the British Constitution.(8)
The Framers of the Constitution of the United States drew heavily upon Common Law when drawing up that remarkable freedom document. William E. Gladstone (1809-98), the British Prime Minister, was so impressed with the US Constitution that he said it was "the most wonderful work ever struck off at a given time by the brain and purpose of man". American freedom owed its foundation to English Common Law.(9) Ireland, Malta, Australia, Canada and New Zealand also adopted (to some degree) the English Common Law in the founding of their own governments.
Habeas Corpus versus Corpus Juris
Habeas Corpus (Latin for "having the body") is a system of judicial laws or tenets rooted in Common Law and thus based on natural rights and justice. Corpus Juris (Latin for "body of laws") is a system of judicial laws or tenets rooted in Civil Law and thus based on privilege and the whims of rulers. The following table contrasts the two systems. I have added elaborative notes in the first column in an attempt to highlight the importance of each point and its relationship and/or affect upon natural rights.
Table 1.0 Habeas Corpus versus Corpus Juris
|
HABEAS CORPUS (UK/US system) |
CORPUS JURIS (European system) |
|
No arrest without evidence – thus the citizen is free from harassment by the police and other government officials |
Can be arrested without evidence |
|
No holding of suspects for more than a fixed and very limited time unless charges presented in open court – this prevents governments from violating the liberty of citizens by unduly detaining them or holding them for reasons other than criminal |
Can be held indefinitely |
|
Right to face your accuser and see evidence – anonymity of accusers would mean the government could fabricate testimonies; accusers (or witnesses) should be known so that they can be held accountable; the accused has no come back where this is not so. Evidence must be known to the accused or else government again could fabricate the same and give the accused no way to prove it false |
Accuser may be anonymous; no right for accused to see evidence |
|
Right to trial by jury of one’s peers – under Common Law the really important matters are reserved to the people. It is the common people who act with the judge to provide a check on the judge (otherwise the judge acts as judge and jury which is the concentration of powers and the very definition of tyranny). The people (peers) are sovereign and must make the final decision. Further, it is also the right under Common Law for the jury to first judge the law the accused is alleged to have broken. This provides a check on the legislature, and allows the people to cast down corrupt laws. Further, professional judges (as opposed to lay magistrates) are not independent of the government and invariably enforce the will of the government – there is thus no check on the government and it would make, judge, and enforce its own laws however it pleased |
Tried by professional judge(s) (‘Inquisitorial’ model) |
|
Right to an open court – a defendant must have the right to public witnesses in a trial or else government can do things illegal in secret and can bribe those who it knows will attend. Public and free access to a trial thus helps defend the defendant against miscarriages of justice |
Closed court |
|
Presumption of innocence (innocent until proven guilty) – Common Law always gives the benefit of doubt in favour of freedom. Unlike Corpus Juris it does not treat everyone like a potential criminal. This is perhaps the most important tenet, for with such an attitude of non-judgement many Corpus Juris laws would not have come into existence in the first place |
Held to be guilty until proven innocent |
|
Protection against double jeopardy (cannot be tried more than once for the same criminal offence) – Clearly this right protects the defendant from being repeatedly tried until he is found guilty |
Can be subjected to repeated trials on the same charges until found guilty |
|
Burden of proof on prosecutor (it is up to the prosecutor to prove you are guilty) – This is an integral part of the right to presumption of innocence (see above). A part of the right to free speech is to remain silent. Under Common Law there is no requirement or force used on the defendant to testify against himself. In a very real sense it is the charges themselves that are primarily on trial and the integrity of those who have brought them. If the burden was on the defendant to prove himself innocent many accusations brought by enemies (knowing the burden would not be on them) could be brought to bear, and the defendant would be continually oppressed with the task of defending himself with eventually no recourse to the resources necessary to clear his name |
Burden of proof on defendant (you are presumed guilty and must prove your innocence) |
Constitutional Broadside Index
Home
Steven Montgomery
