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,’
And
‘ 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’.
