JJonesCo wrote: ↑Thu Sep 10, 2020 11:24 pm
Genuine question; although it might not seem that way responding on an OPCAs post
, it's the 'human rights' in searchbar that got me here.
Why must one be a subject of Canadian law? or any law for that matter.
A client recently asked and I feel I fabricated the answer, it does beg the question; why must someone be part of our society if they don't like the rules? and where can they go
if they don't?
Liddle me this. (liddle was a term we used in school
to rebut a legal conundrum or riddle of course)
This is a question canvassed in an elective in most law schools, Jurisprudence, which means philosophy of law, at least according to the prof who taught me. Now, you are right to feel that you fabricated the answer because there is no answer to this question. A subsequent poster giving some teleological argument from "well, if we didn't have law, the strong would oppress the weak," well, so what? I've heard a retired Supreme Court Judge, Cromwell, say that in Canada there is effectively no access to civil/family law for people who aren't wealthy. Before he retired, he said there was marginal access, once retired, he upped the ante and at a public lecture said there is "no access." So this horse shit about the law protecting the weak from the strong, I don't buy it, nor do lots of philosophers of law---it's fairly well canvassed in critical legal theory, which is taught in actual lawschools, that law is an instrument by which the powerful/rich oppress the weak.
The problem is complicated if you have studied academic geography. Canada is not an entity in physical or natural geography, rivers, streams, mountains, tectonic plates, etc. are natural, but Canada, USA are political. That is, they are conceptual entities. Even if you say "well, it's agreed upon that the 49th parallel (and other markers) delineate Canada from USA," why is that agreement binding? More philosophically, what does "agree" even mean? Etymologically, it means something like "to be pleased," so, if we are both pleased to delineate the 49th parallel as a boundary, that is one thing, but if I am not pleased, why does it bind me?
IMO the best answer given to this question is the positivist answer, more or less "law is a command backed by force," force being some overwhelming agency that cannot be refused. It is a fact, whether one likes it or not, that there is an agreement between very powerful entities that they, within their agreed upon spheres (their agreements, not yours, you are not powerful enough to matter) they get to apply coercion to modify behavior. The reason that they don't coerce eachother, empirically, is that if they do this, it ends up being very nasty. If USA and Canada tried to coerce one another a lot of people would die. If Constable/County Sheriff tries to coerce a speeder, they can usually do this without anyone dying, even if the speeder is un-cooperative. Most of the time he is not a true rebel who completely fails to acknowledge the legitimacy of the person attacking him, he does not truly see it as an act of war and a battle to the death, like an old-timey pirate or 19th/20th century "you'll never take me alive" sort. This is why I don't have so much problem with the freeman on the land stuff---the courts and officers should feel lucky that all they do is send letters, there's no natural reason why these people would not regard the people who claim to work for government as nothing more than humans engaged in warfare, which in some sense they are: Cicero says, and Grotius repeats in his Rights of War and Peace that "war is contention by force." So, to return to positivism, if war is contention by force, and law is a command backed by force, law is a command backed by warfare.
As for being part of society, in Canada we are lucky, official bilingualism means if you look at the Canada Post Act,
4 There is hereby established a corporation to be called the Canada Post Corporation.
4 Est constituée une personne morale dénommée « Société canadienne des postes ».
(
https://laws-lois.justice.gc.ca/fra/loi ... age-1.html)
Society just means Corporation, that is, artificial person. IMO talking about society, membership, etc. is mostly propaganda---that's hocus pocus, like the priest saying "this is my body." There is no society, except by agreement, and what we find is that even if you disagree, it doesn't matter. Take the existence of a legislature, which is a corporation:
"THE conftituent parts of a parliament are the next objects of our enquiry. And thefe are, the king's majefty, fitting there in his royal political capacity, and the three eftates of the realm ; the lords fpiritual, the lords temporal, (who fit, together with the king, in one houfe) and the commons, who fit by themfelves in another. And the king and thefe three eftates, together, form the great corporation or body politic of the kingdom" (1 Bl. Comm. 149)
Even if we dispense with parliament as some sort of thing that comes up after the Norman Conquest (parliament is a French word, not Anglo-Saxon, they had a michelgemote or something...),
"Corporations fole confift of one perfon only and his fucceffors, in fome particular ftation, who are incorporated by law, in order to give them fome legal capacities and advantages, particularly that of perpetuity, which in their natural perfons they could not have had. In this fenfe the king is a fole corporation" (1 Bl. Comm. 457)
So, the people who are questioning "why should I have to acknowledge these corporations," they are mostly a sort of organizing myth, because if you look at them with a clear (or jaundiced, who is to say?) eye, all the people who believe in them do, empirically, is apply coercion to get people to do what the corporation tells them to do. But, of course, the corporation has no soul, no mind and no body, so, really, this is a sort of legerdemain---a way for those who support the endeavor to avoid admitting that they do this themselves, they get to say they are "following orders." But that is mostlyobjective---you go over the speed limit, the constable will coerce you until you stop, and you will be fined, and then you will be coerced (in theory) to pay the fine. Everyone reasonable agrees on that. Where people disagree, and where there is no agreement, not even among legal theorists, is "why?"
I had this discussion with the prof who taught me jurisprudence, my argument was that the rules of inheritance were not empirical, not like the rules of chemistry or physics. His response was "what? You're a bright boy, just read the relevant acts and case law, quit thinking so much." Blackstone as much as acknowledges this,
"(accurately and ftrictly fpeaking) there is no foundation in nature or in natural law, why a fet of words upon parchment fhould convey the dominion of land; why the fon fhould have a right to exclude his fellow creatures from a determinate fpot of ground, becaufe his father had done fo before him; or why the occupier of a particular field or of a jewel, when lying on his death-bed and no longer able to maintain poffeffion, fhould be entitled to tell the reft of the world which of them fhould enjoy it after him. Thefe enquiries, it muft be owned, would be ufelefs and even troublefome in common life. It is well if the mafs of mankind will obey the laws when made, without fcrutinizing too nicely into the reafons of making them" (2 Bl. Comm. 2)
But if we get rid of the notion that it is some compelling set of "magic words" (that bind or, or unbind us from the law) and that, rather, the dominion of land is a sort of physical activity, e.g., I have dominion of land because I am strong enough to kick everyone else off, and I have a document from the king that will cause him to assist me in that endeavor, then these problems of "why?" disappear. IMO it is equally unconvincing to give a "magic words" reason for why we are "bound" to law as it to give a magic words reason (OPCA, FMOTL, etc.) argument as to why we are not bound by law. The words explain the physical reality, they do not create it. The physical reality is that there are always powerful creatures who will coerce you, that is true in the jungle, it is true in the ocean, it is true on land. Your options are to stay away from them, or fight with them, or, in the particular human case, "deal" with them =].
Or, more briefly, lawyers are like plumbers: they know how to put the pipes together. "Why" the water should be contained by the pipe, why a pipe made of paper will burst more easily than a pipe made of copper, this is not the office of the lawyer, who is a practitioner. It is jurisprudence, which is a very wholesome endeavor, but, as Blackstone says, law is mostly about socially engineering a docile public that doesn't look too much into things.
I mean, why do we have a big coat of arms that says "DIEU ET MON DROIT," "GOD IS MY LAW" in every court in BC? And none of this "it says GOD AND MY RIGHT," I have confirmed with numerous Judges it says GOD IS MY LAW, it is Anglo-Norman, not modern French. What is jurisdiction, is it not the power jus dicere, the power to speak law, the power that God gave to Moses in the bible? Isn't that why Moses says "Thus saith the LORD God of Israel, Let my people go, that they may hold a feast unto me in the wilderness." (Exodus 5:1)? God gave him the power to declare this law. And pretending that Law has gone from (in Hammurabi's Code up until the Enlightenment, etc.) a footing on Divinity to a footing on something more solid, I think that is a fake---saying "we live in God and God Commands" is no worse (and may be better, for fixing things like land tenures) than saying "we live in Society and Society Commands."
To close, here is what Engels says, in 1887:
"It was a secularization of the theological outlook. Human right took the place of dogma, of divine right, the state took the place of the church. The economic and social conditions, which had formerly been imagined to have been created by the Church and dogma because they were sanctioned by the Church, were now considered as founded on right and created by the state. Because commodity exchange on a social scale and in its full development, particularly through advance and credit, produces complicated mutual contract relations and therefore demands generally applicable rules that can be given only by the community — state-determined standards of right — it was imagined that these standards of right arose not from the economic facts but from formal establishment by the state." (
https://www.marxists.org/archive/marx/w ... ialism.htm)
So, there is another view---it is the "economic facts" of commodity production that compel us to have the system of law that we have, the myth that "society" has created these relations is false. They are primarily economic relations, and society at most attempts to manage what is fundamentally a matter of economy. This makes a lot of sense: people built structures and dwellings far before building codes, which manage those structures, it's not like nobody built anything until the building code enabled them to do it...
Anyway, if you are a lawyer, if someone asks this, the best thing to do is smile condescendingly and say something with confidence---that is the best you can do, and obviously you don't want them looking on the Internet, that just encourages free thinking, which, as my prof told me, is never a good idea---the law is what the judges will enforce =]
