affiliated to the International Association of Constitutional Law
I’m reading David Aaronovitch’s Voodoo Histories: The Role of the Conspiracy Theory in Shaping Modern History (2009). It’s excellent, but although it makes passing reference to conspiracy theories about the European Union it says nothing about one that deals with the foundations of the British constitutional system.
Sunstein and Vermeule have defined a conspiracy theory as ‘an effort to explain some event or practice by reference to the machinations of powerful people, who attempt to conceal their role (at least until their aims are accomplished)’: see (2009) 17(2) The Journal of Political Philosophy 202, 205. Of course, some conspiracy theories – defined in this way – are both justified and true. What concerns me are those that are unjustified and false. In a bewildering, uncertain and unfair world, where participation in and respect for organised politics is declining and public understanding of the constitution and law is poor, it shouldn’t be a surprise that some people turn to outlandish ways of explaining the constitution. The lack of surprise should not, however, mean that mainstream constitutional lawyers should ignore what I call ‘crazy constitutionalism’. In this blog post I want to shed some light on one particular conspiracy theory and suggest a course of action.
Throughout the UK, there are people who make the claim that the whole constitutional and legal apparatus in Britain is a conspiracy to rob men and women of their common law rights. Drawing on the ‘freeman of the land’ movement from North America, UK groups of various political leanings subscribe to the main tenants of this theory. They include The People’s United Community (TPUC), Lawful Rebellion, the British Constitution Group and White Rabbit Education Network. Their view of the world is propagated through websites, social media, and events across Britain. New supporters are actively recruited. Dozens of people spend evenings and weekends in the study of law, drawing on legal materials but unconstrained by the mainstreams’ basic frameworks of understanding.
On one level, the world imagined seems like a heady mix of ‘The Truman Show’, a Dan Brown novel, ‘Raiders of the Lost Ark’ with a sprinkling of quasi-religious self awakening.
But the freeman belief system is also a call to practical engagement with government and courts. Actions include adopting a particular stance towards official forms (for example voter registration documents, jury summons), which are returned with a series of questions. When an official asks ‘Do you understand’, a freeman of the land will respond ‘I do not stand under that statement’ (to avoid, according to freeman of the land thinking, accepting the jurisdiction of the official).
In legal proceedings in which freeman come to court (‘de facto courts’) in relation to non-payment of council tax, repossession actions, bankruptcy proceedings and criminal prosecutions, hearings are disrupted by self-proclaimed freemen of the land working through a series of rituals: on entering a court, he may say to the judge: ‘We claim common law jurisdiction before we enter this vessel … do we have an accord?’. (The reference to the court as a ‘vessel’ is explained by the central place given to maritime law in the legal worldview of freemen). The judge will be asked if he or she is ‘on oath’. Confusion may reign as the freeman places a birth certificate before the court. Most dramatically, on 7 March 2011 several hundred freemen stormed a court in Birkenhead in an attempt to arrest the judge.
Freemen of the land dismiss mainstream accounts of the constitution and legal system as a deception, perpetrated on a huge scale. At the heart of freeman of the land constitutional framework is the idea that there is a fundamental distinction to be drawn between a natural man/woman and a corporation. When parents register the birth of a child, they are entering a contract with the State to ‘sign over the legal title of the baby’. At that point, the child becomes a ‘strawman’, a fictitious legal entity owned by the State and used as collateral in commercial transactions. Significance is attached to the fact that birth certificates have similar physical attributes to documents used in commerce – watermarks, dates of issue, registration numbers, and so on. Using the naming conventions of freemen of the land, “Mr Andrew Le Sueur” is the person – the legal fiction or birth certificate; “Andrew, of the Family Le Sueur” is the man. In court proceedings, a freeman of the land will produce a birth certificate as the ‘person’ summoned to appear and the man is regarded as a ‘lay adviser’.
Freemen of the land express their understanding of the constitution using what at first sight seems like vocabulary and legal concepts which are familiar to mainstream constitutional lawyers: ‘personality’, ‘jurisdiction’, ‘lawful authority’, ‘common law’ and ‘the rule of law’.
A basic aspect of the belief is that public bodies – local authorities, the police, government departments, courts – are corporations run for profit (as evidenced by the facts that some have ratings by credit reference agencies and some have county court judgments registered against them). Another key tenet of belief is that men and women have the ability to choose which ‘law form’ they operate under. This state of affairs is thought to be derived from clause 61 of Magna Carta 1215 (a provision omitted from later reissues of the charter). Freemen of the land assert that they are not bound by legislation or commercial law (of which maritime law is of especial importance) unless they consent to be bound in a particular situation. Official demands – for payment, to appear in court, to complete the census – are merely invitations that may be declined.
Lawyers working in the mainstream are likely find it easy to dismiss the freeman of the land movement as pseudolegal woo (at the same time as accepting that there are sincere and well-meaning people involved in the cause). If the movement in the UK were confined to a few websites, clips on YouTube and meetings in draughty community centres, no more would need be said. Trivial disruption of public administration – whether it’s refusing to complete the census or pay TV licences—might also be overlooked. But the events in Birkenhead County Court on 7 March 2011, even if it praised by some Daily Mail readers—escalates matters. It is time to take the freeman movement seriously.
A starting point needs to be research into the phenomenon, its impact on public administration and the rule of law. It would be interesting to know whether HM Court and Tribunal Service keep records of hearings disrupted by freemen of the land tactics and what, if any training, magistrates and other judges receive in dealing with freemen.
One practical strategy advocated by Sunstein and Vermeule is introducing some ‘cognitive diversity in the groups that generate conspiracy theories’ (op cit, 226). They have in mind infiltration by ‘government agents’. In an era of radical cost cutting in public services, suggesting that local government officers and civil servants should spend time contributing to freeman of the land online discussion sites is unthinkable; I also have doubts as to whether official intervention is desirable. But shouldn’t academics and legal professionals – as concerned citizens – dip into them now and then, to ask some challenging questions and state some facts?