Wednesday, January 21, 2015

What IS Law?


What the heck is law anyway?

The word law is generally misunderstood by citizen and attorney alike. This is because not only are there several types of law but there also is color of law which is something else made to look like law.
Law is the res publicus of the Romans - the 'people's thing' that is used to preserve both the state and society. It is rules based on legitimate authority derived from logical deduction of nature.

Types of Law

  • The common law has to do with that form of law that is common to all men which is derived from nature and natures god.  Common law is the intrinsically natural law we find in our hearts when we listen to our conscience and is logically deduced and is 'self evident'.
  • Equity law derives from common law and covers the making and keeping of promises.  It is the law of faithfulness and derives its authority from the common law need for society to function properly.
  • Admiralty law, also known as the law of the jungle, military law and the law of necessity.  It also derives from the common law idea of survival or self defense.  It involves law who's authority is derived from necessity.
  • Color of law is any law that is not one of the above.  It generally derives from fraud or improper jurisdiction where one of the other laws is misapplied to a party it does not concern. Color of law is not real law at all.
  • Civil law is derived from the 'law of the city' of roman times.  The roman's used law well but over time it became corrupted into a form of color of law and was used to implement the emperor's will.  Rome had fallen from a free state into a tyrannical state and its law merely looked like something legitimate.  Roman civil law derived from Babylon and ultimately from Nimrod.  The city was created to manage people and civil law is applying code to a case rather than reason.  See Brent Winter's great book on this distinction.
  • Cannon law or ecclesiastical law was the roman civil law adapted for the roman catholic church.  Same thing, just for a different body politic.  It is even more deceptive than common law because it is couched in a religious institution that appears to have the authority of God over it but in many instances may not.
  • Statutory law is another type of personal law that is often misunderstood and misapplied - we will discuss this further below.
  • International law is that applying between nations and is also derived from common law applied to the nations at a global level. However states have tried to institute international law (like the Geneva convention) to clarify the duties and responsibilities of nations.  It too, has become corrupted by color of law mainly propagated by the UN.
So how does one tell the difference between legitimate law and color of law?  

The best way is to understand maxims of law.  These are logically derived and generally accepted axioms of legal logic.  I don't want to get into that here but here is a great list of them - there is no single list because many different bodies have adopted their own lists of maxims.

Understanding Jurisdiction

For law to be applied properly, jurisdiction comes into view.  Jurisdiction simply means applying law where it's authority has force.  
For example, under natural law, it is natural for a man to make rules for his family.  This is a law derived from the common law idea that a man is the head of his family and is thus the law-giver naturally.  His law only applies to where his authority stands - that is to his family.  He cannot make rules for his neighbor or his neighbor's stuff nor can he apply his law to those outside his jurisdiction.

Statutory Law

Another example is statutory law. Statutory law means 'the law of the state' and, like a father to a family, the state is the natural lawgiver for its members.  However, statute only covers that which the state's authority properly extends and this is where things get misused and confused.
A free state complies to the rule that says that it's rightful powers are derived by 'the consent of the governed'.  Tyrannical states don't even need or use law except as a device to fool people into compliance.  Any state that does not comply with the 'consent of the governed' is, by definition, not a free state.  We see this law operating even in the family - if the members of the family don't basically consent to being led by the father, they leave and he has no more authority over them.

So how does a state get consent from the governed?

This is why we see constitutions in free states.  It is the social contract made by the people to grant powers to its governing body.  This is the lawful nexus for a free state's existence.  Without a social contract, the state is either not free or does not exist.  Our constitution is referred to as 'the law of the land' and this I think causes confusion.  It's the law that grants authority to the state via the consent of the people.  This is why constitutions are ratified.  Since it is impractical for the people to directly approve of the constitution, it is generally done through representatives.
The state loves to use its constitution as evidence that it has legitimate authority from the people. However, the state also seems to be reluctant to point out that what gives it authority to function also limits its powers.
This is why our constitution only lists Common, Equity and Admiralty law as such within it.  It does not list statutory law because that kind of law is not something the people grant to the state - it is an inherent right of self-government that a state has the ability to make its own statutes.

Back to Jurisdiction

So how is a citizen subject to statutory law?  Well, if a person has a contract with the state, he becomes subject to state rules - however limited the contract may specify.  If a person is said to be subject to statutory law but has no contract with the state, then in fact, the person is not a citizen of the state but a subject of the state and the state is not a free state.

Conclusion

I hope this helps clarify things some.  I wrote this more for myself as a simple reference to remind me of the basics.  I could probably write a book on this subject but there are plenty of them already out there.  Just keep these simple ideas in mind and it will help you to navigate the quicksand of color of law in you life.

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