Attractive Legal Theories That Say Our Laws Are Not Legal

Some people have a deep seated psychological need to believe that our elected Parliaments can’t make laws that tell them what to do.

They will grasp at any pseudo-legal point that fits a “They can’t do that to me” narrative.

There’s an attraction to the idea that there is some fatal flaw in the law making process – some secret or suppressed failure that “they” don’t want us to know about. And if we just call “them” on it, we’ll be free of the unwelcome burden imposed on us by the law.

The pseudo-legal ideas about Magna Carta have persisted for more than a hundred years. They’ve persisted despite being comprehensively rejected by the Courts – and despite direct repeal of much of Magna Carta by the British Parliament starting in 1828 – and despite the patient advice of legal scholars and lawyers.

These ideas seek to de-legitimise our democratic processes for making laws and deciding cases. They malign our judges, and accuse everyone who holds against them of acting in bad faith, for some ulterior purpose.

Much of this happens organically. Everyone now is a publisher. The algorithms are not (yet) very good at distinguishing between nuttery and scholarship. Attractive sounding ideas attract attention, which the algorithms reward with higher rankings, and so feed echo chambers.

These ideas also demonstrate the type of confused thinking that malicious actors, the people who work to undermine our society, do seek to foster. Vladimir Putin’s media and propaganda aims to exploit conspiratorial myths, at home and abroad. Authoritarians thrive on these fears.

The pseudo-legal nonsense is subversive and dangerous.

Every court of first instance and up to the Courts of Appeal is bound by the rules of precedent to find that Parliament can over-ride Magna Carta.

If you base a legal argument on the idea that Magna Carta is unchangeable, the Court will (in law, must) reject your argument.

That’s because the High Court of Australia and the Queensland Court of Appeal have said Parliament can over-ride Magna Carta. Every lower court must abide by those rulings

There comes a point at which, if you say all the Courts of Australia have got it wrong, that you’re no longer talking about the law as it is, in any real sense, but what you want it to be. That’s fine. It’s your intellectual and democratic right.

But please acknowledge the doctrine of precedent is against anyone who runs a case on this type of point.

Please don’t tell people it will help them to win their case. They’ll lose. They’ll waste their time and heartache. They could be ordered to pay thousands of dollars in costs to the other side.

It’s a practical question. Legal realism if you like. What the courts actually do.
Alternative theories are all very well, but when things get real, people need legal information they can use in a courtroom.

At an individual level, for the poor sods who make life decisions based upon what they read online, it is greatly harmful.

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