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The Common Law v Hegel and the Code Napoléon via HRA1998

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The Common Law v Hegel and the Code Napoléon via HRA1998

Some 360 years ago, through a kind of national ‘trial by combat’ it became a principle of the Common Law that – as Thomas Fuller put it – ‘no matter how high, the Law is above you’ and that the governing body was answerable to the Common Law in This Worldly courts, of which Parliament was still a High Court.

It was seen by great legal figures from Rev Richard Hooker for the Royalists and Sir Edward Coke CJ for Parliament as endorsing all the jurisprudential events of the previous thousand years especially Magna Carta, Carta Forestium, Habeas Corpus or the Great Writ (first served in 1305), and guaranteeing “the ancient rights and liberties” (King Charles the Martyr’s phrase) of the freeborn Briton.

These matters were summarised during that century by three major legal documents: the Petition of Right, the Bill of Rights, and the Act of Settlement.

All this was further summarised in the next century, some 240 years ago, by those most important British constitutional documents – the Declaration of Independence and the Constitution of the United States of America (with its various Amendments).

In all of these, though rarely stated explicitly except by Hooker and a few like him, what stands supreme is the belief that the Common Law is Natural Law and as such is Divinely Inspired.

A corollary of this is that what is granted by Natural Law cannot legitimately be trammelled by mundane authorities except temporarily and only in extremis. There is no Hegelian concept of any “Rechtstaat” where freedoms and privileges are in the gift of The State, and no Code Napoléon of guilty until proved innocent.

It was to correct these weaknesses of the constitutional and jurisprudential thinking of European countries, and those which had derived their ideas from them, that the victorious Common Law countries after 1945 came up with two documents – the Universal Declaration of Human Rights, and the European Convention on Human Rights – which listed in simple terms the absolute and unalterable “human rights” that derive from Natural Law and which the European belligerents had failed to recognise.

The European Union eventually came up with a Hegelian perversity of this and a “court” of human rights to enforce it. Mr Blair’s “Human Rights Act 1998” that presently afflicts the United Kingdom is a Hegelian outgrowth, a Napoleonic excresence, from this perversity and should have no place in this culture from which the Common Law emerged.

© DRO 30062014

Written by David Rosser Owen

October 22, 2014 at 6:29 pm

Posted in Uncategorized

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