The Cat Who Walks Alone

In the UK Human Rights Blog on 15th November 2011, Adam Wagner takes on the members of Occupy London Stock Exchange (http://occupylsx.org/) who occupied The Guardian ‘Comment is Free’ blog in particular the Freemen on the Land Movement (sic – no free women?). He criticizes them for bad legal reasoning and advice, and invites a reply to a question posed by blogger ‘Old Holborn’ in a follow up comment, who asks who governs me if I withdraw my consent to be governed? Here are some notes towards an answer.

The premise of the question is that being governed is a matter of an individual giving consent – or in the broader issues raised by Occupy London under discussion on CiF, the premise is that a person may opt out of the law.

Either premise appears to envisage a world in which the atomic individual is sovereign, and has the right and therefore the power to withdraw from being governed and from law. On the hypothesis that an individual has such power, it could only be exercised once. Renunciation of law in general or government in general is all or nothing. If you just opt out of parts that you disagree with or find inconvenient, you are doing no more than asserting a temporary self-interest that has no philosophical or principled content. At the very least you’d lose credibility if you made a stand one day and later relied in some way on the law/government you have renounced. An example: you decide to live in the woods and have nothing to do with society; you cease paying taxes etc etc. When you become ill are you then not obliged to abstain from medical care lest you bring yourself back into the sphere of law and government? If you renounce all obligations, do you not also renounce all rights?

If I make a rational choice to disobey a particular law on grounds of principle, I do not reject law in general. I justify my decision by reference to a concept of morality with which the law is inconsistent. We can all think of real or imaginary cases in which such a choice is intelligible, maybe even unavoidable for people of conscience. But such a choice rests on a view that law should be better or different, not that none of it applies to me. I will be naïve if I think that such a choice will have no price, perhaps as high as martyrdom.

But do I have the power to opt out, just because it is my will to do so? Almost certainly not, while I live in a world whose substance is shot through in small and large ways with law and government. Atomic individualists probably have little sense that they are inheritors of practices, traditions, rights and obligations that people have developed and fought for for centuries. When I walk freely on the pavement I do so because of rights and laws that others have made for me, long ago. I do not extinguish my right to do so just by declaring that I no longer recognise the jurisdiction of law or government; any more than a child or mentally ill person loses their rights because they cannot articulate them. I have certain rights whether I like it or not. Having them entails obligations – not to defecate on the pavement, or make it unusable for others. I can ignore or flout them, but I can’t stop them applying to me. Unless there is a viable model for a society in which no one has even minimal obligations to others – eg not to kill or harm them – we have to have rights and obligations. Mogadishu or the Hobbesian ‘war of all against all’ are unlovely places. If there is such a thing as society, there have to be laws. And you don’t want government without law or rights. If I don’t have the power to opt out, it’s meaningless to speak of a right to.

So OH’s question can be answered by saying that it impossible not to be governed by law without total and permanent withdrawal from society, when OH can be governed by himself alone.

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About Francis FitzGibbon QC

I am a QC and member of Doughty Street Chambers, London (www.doughtystreet.co.uk) & an associate member of Trinity Chambers, Newcastle (www.trinitychambers.co.uk). Chair of the Criminal Bar Association of England & Wales. I practise criminal law. Please do not look for legal advice in this blog as you won't find any. The views expressed here are entirely personal.
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13 Responses to The Cat Who Walks Alone

  1. How kind. My own consultation, free of charge.

    I am not asking to live outside law, moreover to decide who governs me. As you quite rightly state, living within a society means you are obliged to obey the laws of that society and there you negate all right to protest? Certainly unjust statutes should at least be ignored, should they not? Once upon a time (quite recently) it was illegal to be homosexual and I am certain those who chose to ignore that particular statute did not define themselves as survivalists living in the woods? Do the many Muslims in this country with more than one wife need to be herded up and imprisoned for bigamy or are they free to join other “lawbreakers” in the forest away from decent law abiding society?

    There are alternative legal systems for those who choose to subscribe. Sharia and Beth Din for example being two of many. They however (in general) at least understand that they have no right to impose their laws on non believers. Something our Parliament has yet to realise.

    As a Libertarian, I already inflict my own morality upon others: Do not adversely affect the life or property of others. I need no God or Sovereign to decide that for me, no lawyer to advise me I may be in breach. Certainly I may tip my hat at the sacrifices of others who brought my the freedom to speak my freedoms but I am quite, quite certain Gandhi knew what he was doing when he went to make salt, no matter what his lawyers advised him was the “lawful” course of action.

    Not to question the law, seek to adapt the law and yes, reject those parts that you as an individual judge to be unjust, is to be as extremist as those in the world who would rather behead me than entertain the sad fact that I may not actually believe evertything they tell me is so, is actually so.

    All Government begins with self government. The problems start when Government tells you not to bother anymore, it has it covered for you.

    • I think we agree there is a lot a stake when some one chooses for reasons of conscience or principle to disobey the law, and that sometimes disobedience of a bad law can be a moral imperative – or in Gandhi’s case a moral and political imperative. And obviously his actions and in a smaller way the defiance of the Poll Tax here in the 90s led to change. Not sure about submitting to the authority of religious courts: in UK at least they are complementary to law and don’t displace it. And as a liberal I worry more about laws which claim divine authority than those which in theory at least can be changed by force of reason or public pressure. My point really is that the proposition that one can live and do without law altogether is vacuous.

  2. ObiterJ says:

    Let us assume that the individual (X) could “opt out” of being governed – a form of voluntary outlawry. Once X “opts out” – presumably by some formal process(?) – could I then shoot X and would the State would be entitled to say that X opted out and was therefore not entitled to any protection? Would I escape punishment and (maybe) even be rewarded for shooting X.

    Clearly, the idea is riisble. Choosing to disobey the law is another matter entirely but people who do so must be fully prepared to take the consequences,

    • The state didn’t always have the monoploy on protection, it is a relatively modern concept. Up until then, you could hire a Militia. If you look very closely in the next Tescos you visit, there is usually a private security guard near the checkouts.

      The first thing the state did when it assumed the monopoly for our “protection” was to remove our guns, effectively enforcing reliance upon the monopoly. Let’s pray Tesco doesn’t do the same, eh?

  3. William Bojczuk says:

    I’m not sure I’m with you on walking down the pavement “because of rights and laws that others have made for me, long ago”. As far as I am aware there is no law allowing me to use the pavement, I can do so because there is no law prohibiting me from walking down the pavement. Indeed, in some limited circumstances laws are invoked to prevent people from walking down pavements and they all operate by way of removing a right which has never actually been granted by any law-making body.

    It can, of course, be said that the absence of a general prohibition is the consequence of “rights and laws that others have made for me, long ago” in that those rights and laws did not include a prohibition but I think there is an important distinction between “rights” that exist simply because activities have not been prohibited and “rights” that exist because they have been granted expressly by Parliament (even if such grant merely stated in statutory form the existing factual position).

    The difficulty with Old Holborn’s position, as I see it, is that he is confusing (i) disobeyance of a law he knows to be binding (binding because it can be enforced against him by the powers of the State) and (ii) not being bound at all by a law he finds unpalatable. In his comments here he appears to be addressing the first point, whereas his question on Comment is Free suggests he supports the second.

  4. Stephen says:

    The Libertarian philosophy espoused by Old Holborn seems to be wanting. No man is an island and hence some collective arrangements and enforcement to protect liberties and rights of citizens is necessary. These arrangements are called the State. That said, there should exist constraints on the State to prevent it pursuing its own agendas to the detriment of the citizenry. This is why I support the HRA and the ECHR, which should do just that, ie limit the actions the State can take against individuals.

    Where OH is correct, in my view, is that our State does exist for itself and only incidentally enforces the interests of the citizenry. Examples of this abound. The jailing of Charlie Gilmour for 16 months for kicking Prince Charles’s car is an example. The sentence was disproportionate designed to punish a crime against the State. There were no other victims. Had Charlie knifed another citizen his sentence would probably have been less. His severe punishment was for being disrespectful to a symbol of the State , ie, the Monarchy. Charlie Gilmour’s “crime” was described by a blogging police officer as “heinous”, a view I suggest that is representative of the Police Force as a whole. This attitude belies the oft cited propaganda that the police exist to protect the public.

    I sympathise with OH’s love of liberty but realistically, because of the existence of crime and the need for contract enforcement, the State is necessary. However, the State must be made accountable and have limitations placed upon its powers. The HRA should do this. Once further point is that the State should be separate from the corporate sector. In modern times we see that the State has largely become the instrument of big business so that employment laws, taxation issues, etc now reflect the will of large corporations via the lobby system. The State’s role has been perverted because of this and this too will account for some of the alienation from the State that individuals feel..

    • If Charlie had stabbed someone, he’d have got a lot more than 16 months. Trust me, I’m a criminal lawyer. It’s a matter of opinion whether 16 months was wrong for what he actually did.

      On the shooting point, the state has a positive obligation under Article 2 of the European Convention on Human Rights to protect everyone’s right to life, including any self-styled outlaw. That protection is not incidental to some other state interest.

  5. Stephen says:

    In Obiter J’s scenario it would still be illegal for him to shoot X even though X has renounced his affiliations to the State. The law forbidding the shooting has little to do with protecting others – the protection of X is just incidental. The law forbidding the shooting arises from the State’s wish to have a monopoly on such matters. Let’s not kid ourselves.

  6. Stephen says:

    On the point of Charlie’s sentence, what did he actually do?

    • He pleaded guilty to violent disorder (max sentence 5 years). Specifically, he threw a rubbish bin at a car with people in it and broke a shop window, in the context of group violence. He admitted being on valium and LSD at the time. The cenotaph thing was not part of the offence.

  7. see also Obiter J for historical perspective http://www.obiterj.blogspot.com/

  8. Pingback: A woo miscellany « The Bizzle

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