In 1762 Jean-Jacques Rousseau wrote the treatise “Du contrat social ou, Principes du droit politique” [Of the Social Contract or, Principles of Political Rights] a seminal work on the organisation of human societies which continues to be the subject of study to this day. However in the intervening two hundred and fifty years there has been significant development in the framework of government and it is these that I look at in this essay.
There follows an extract from ‘The Unanimous Declaration of the thirteen united States of America’ (hereinafter referred to as ‘the US Declaration of Independence’).
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
When the United Nations Declaration of Human Rights (hereinafter referred to as ‘the UNDHR’) was drafted, this document served as one of the primary sources, for example in the preamble to the UNDHR it states:
‘Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,’
‘ Member States have pledged themselves to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms’
And, in Article 1:
‘All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.’
It is important to note that the United Kingdom as a signatory to this document assumed the responsibility of ensuring the rights set out in the declaration to:
‘both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.’ [from the preamble to the UNDHR]
Such ‘territories under their jurisdiction’ in the case of the United Kingdom includes ‘the Island of Jersey and its Dependencies’ (as defined in the Interpretation (Jersey) Law 1954).
Article 1 of the Declaration (and the US Declaration of Independence) thus implies that life as experienced by human beings is an endowment of their Creator. Therefore all human beings are trustees of their Creator and bound in Law to dutifully execute the responsibilities set out in the trust instrument.
In the jurisdiction of England (latterly England & Wales) the trust instrument is set out in Exodus 20: 1-17 of the Holy Bible, more commonly referred to as, ‘the Ten Commandments’. This was first established by King Alfred, commonly referred to as ‘the Great’, and is re-affirmed at the coronation of each monarch, last having taken place at the coronation of Queen Elizabeth II where she placed her hand upon a copy of the King James Bible and stated, ‘this is the Royal Law’.
“The Common Law” developed over a period of time as Courts applied the principles set out in the Ten Commandments to every day situations; these judgements were written down and circulated to all Court Circuits and in due course a ‘common law’ applied to all regions of the country, many of which had their own unique customs and practises until eventually there evolved a single ‘law of the land’. As colonies were established overseas they took the Law with them and there is as a result a Common Law basis to many jurisdictions particularly those that were once British colonies.
In Law the duties of a trustee include:
· Carry out the expressed terms of the trust instrument
· Defend the trust
· Prudently invest trust assets
· Be impartial among beneficiaries
· Account for actions and keep beneficiaries informed
· Be loyal
· Not delegate
· Not profit
· Not be in a conflict of interest position
· Administer in the best interest of the beneficiaries
Thus human beings, are endowed at birth by their Creator with certain rights AND certain responsibilities and within most spiritual and religious traditions there exists the concept of ‘a final judgement’ where the actions of the ‘being’ will affect the future of that ‘being’ once the physical form has ceased. This may vary from the form that reincarnation takes as in the Hindu Tradition, to eternal damnation in the Judeo-Christian and Muslim religions.
The concept of ‘being’ or ‘animus’ [Greek: Sprit] is essential in Common Law as only something with an animus can be held to have caused a wrong or to have been wronged. Thus for example if someone had been run over by an ox drawn cart, the ox could be culpable, but the cart could not.
Government is, in both the US Declaration of Independence and in the UNDHR, there simply to provide the necessary environment to allow individuals the enjoyment of the rights and the fulfilment of the responsibilities that they were endowed with by their Creator.
Whilst Rousseau exalted the Direct Democracy which existed in Geneva at the time he wrote his treatise, and continues in the Cantons of Switzerland, and indeed in the Parishes of Jersey, to this day, in larger jurisdictions different approaches have been applied.
British Liberal Democracy relies on the principles of trust. The government (by which Rousseau meant ‘the bureaucracy’ and which I will also take as my definition herein) is directed by the people. However it is impractical for the government to have eighty million bosses. The people therefore elect from amongst themselves 653 representatives who select a smaller number within that group to assume personal responsibility for the operation of a particular Ministry of State.
Each of those 653 is entrusted with the authority of the electors of his constituency; he is in a position of trust. Each Minister is also entrusted with a duty.
An Act of parliament generally curtails upon the individual freedoms of people. Referring back to the UNDHR, impinging upon these freedoms may only be done in observance of the rule of law ‘that human rights should be protected by the rule of law’.
The European Convention on Human Rights (hereinafter referred to as ‘the ECHR’) is how the United Kingdom has chosen to incorporate the UNDHR within its laws. In essence it means that whatever a government does it must be, "in accordance with law" and "necessary in a democratic society".
The Law is determined after debate by the duly elected representatives of the people, who create what are the instruments of trust that the government officers, agents and employees are required to operate within.
Therefore in any criminal case the first element which must be demonstrated is that the government is acting ‘in accordance with the law’. A statute will normally empower the government to levy a fine on someone guilty of ‘an offence’, it is therefore necessary to demonstrate that a person has undertaken the actions which are defined as an offence in order to demonstrate that the government has been endowed with the authority to levy a penalty.
Criminal trials therefore are not so much about guilt, but rather are about ensuring that the government has been endowed with the authority, “in accordance with the Law”, to act at all.
Once it has shown that it has authority ‘in accordance with the law’ it must then demonstrate that whatever actions it proposes to take is ‘necessary in a democratic society’.
The question of what constitutes ‘necessary in a democratic society’ is a matter for future study.
The fundamental issue in many modern societies is that the elected representatives confuse the authority they are endowed with as ‘trustee of the people’, a subservient position, with the position of being in charge of the government. Too many of them are, in fact, in ‘breach of trust’.
If the failure of elected representatives continues for a prolonged period of time then as the UNDHR states, ‘man is … compelled to have recourse, as a last resort, to rebellion against tyranny and oppression’.