dimanche 12 février 2017

Herman Dooyeweerd: TAMING LEVIATHAN: State Intrusion in Church, Economy, Family etc

 Image by Fearghas MacFhionnlaigh
(adapted from original engraving "Destruction of Leviathan" 
by Gustave Doré 1865
State Intrusion in Church, Economy, Family etc
Extracts from "The Crisis in Humanist Political Theory" 
by Herman Dooyeweerd (1931) 

Dooyeweerd's 15 "Law-spheres" 
(also called "Aspects", "Functions", "Modalities", "Modes of Consciousness" etc) -

NORMATIVE (post-analytical) 
15. Pistical/ Faith-related  
14. Ethical
13. Juridical / Justice-related
12. Aesthetical 
11. Economical
10. Social
9. Lingual/ Symbolical
8. Cultural/Formational/Historical
7. Analytical/ Logical

NATURAL (pre-analytical) 

6. Sensory
5. Biotical
4. Physical
3. Kinematic
2. Spatial
1. Numerical
STATE (Juridical Law-sphere)
Finally then, I would like to give in conclusion a few practical examples to illustrate our new-found criterion for applying the cosmological principle of sphere-sovereignty to the area of law. Based on my previous comments on the integrating role that the modern state plays in relation to non-state law, I shall also use the opportunity to clear up some misunderstandings that have already arisen in certain quarters about my view of sphere-sovereignty in the juridical field. I shall choose my examples mainly from internal church law and internal corporate law. I must emphasize that I shall not be speaking of what is desirable from a political point of view, but only of the strictly material legal limits to internal state-sovereignty.

[...] Judging the material legal question among the internal differences of organized communities would force the civil judge to take sides in an area of internal law that falls under the meaning-individual guidance of the destination function of such an organized community. [ie, sports team, orchestra, church congregation, book club, vintage car society, etc. (FMF)]

CHURCH (Pistical Law-sphere)
Suppose, for instance that someone would file an action in a civil court based on Article 1401 of the Civil Code, in order to establish the unlawfulness of an ecclesiastical decision to suspend or defrock a minister. Imagine further that the judge would want to go behind the formal juridical question (whether a rule of internal church law had formally been violated) and initiate an investigation into the material question of law (whether the minister had, in fact, deviated from official doctrine). One senses immediately that this would land the judge within the area of internal ecclesiastical law. But that would be impossible without taking sides in a question of faith and doctrine, in which a civil judge is not competent. And a state legislator is even less qualified to get involved in such internal questions of church law. If he does so anyway, the resulting legislation will merely have the subjective form of law but cannot be recognized as binding positive law.

On the other hand, by virtue of its juridical sphere-sovereignty the state is fully competent to guard against the church if she were to assume rights in the public domain the exercise of which would endanger the internal order of the state. This would hold even if such ecclesiastical activities possessed a pistically qualified structure [ie determined by the Faith-related Law-Sphere (FMF)]. The church cannot claim sphere-sovereignty in the internal order of the state [Juridical Law-Sphere].

Far more controversial than the juridical sphere-sovereignty of the ecclesiastical community is that of the enterprise as an economically qualified organized community. How can the criterion as we have defined it apply in this case? The problem is indeed extremely complicated here because the "leading function" [ie the compelling Economical Law-sphere dynamic (FMF)] of the enterprise itself can never guide the process of making positive law. Another reason is that a large modern enterprise with its immense, and often international, concentration of economic power has a massive impact on the internal life of the state, indeed on the whole of human society. 

On the other hand, since the previous [19th] century the modern state has begun to intervene in the world of economic enterprise with mounting intensity by means of social legislation. Moreover, the state, either by itself or via its subdivisions (provinces and municipalities), exploits various enterprises in monopolistic fashion; the state has become a shareholder in large private firms; and so on and so forth.

[...] In short, the life of the state and the life of the economic enterprise have in modern times been intertwined by a thousand fibers. 

Taking all this into account, how are we to give practical application to the meaning-criterion for juridical sphere-sovereignty in the area of economic enterprise? Once more we begin by emphasizing that internal corporate law differs fundamentally from internal church law, internal family law, and the like, in that it is firmly linked to the "leading function" of the enterprise but that this "leading function" can be applied here only as a meaning-individual substrate of organized communal law. Internal corporate law itself can only receive genuine guidance, a deepening of its meaning, from later meaning-functions (the moral and the pistical) while always fully maintaining its meaning-individual foundation.

Thus the state through its social legislation at one time put an end to the legal defenselessness of the economically weaker party which, under the pernicious slogans of the Manchester school, had de facto been reduced to wage-slavery. Similarly, once the ban on "combinations" was lifted, the trade unions, using their increased historical and economic power, de facto terminated the fiction of  individualistic freedom of contract and launched the battle for just working conditions.

On the other hand, it belongs equally to the competence of the state legislator, with his right to govern, to guard against potential excesses of modern trusts and cartels by which consumers unjustly become victims of restricted production, inflated prices, and so on, aimed at making exorbitant profits. Yet we must also realize that we should not exaggerate the danger of such excesses because, thanks to the cosmic coherence of the law-spheres, they could backfire on the entrepreneurs.

However, it can never be part of the competence of the state to interfere in the internal structure of corporate law. The internal authority of an enterprise does not derive from the authority of the state.  Suppose government legislation would make it mandatory for all economic enterprises of a certain size to install employee councils which would share authority in the internal guidance of the enterprise with the employer [...] In such cases the state would overstep the juridical boundaries of its position as government and indeed usurp an economic guiding function, which it cannot possess by virtue of its cosmic structure.

Wherever the state functions as a governing community, it must never allow its actions to be guided by the meaning-individual leading function of the economic enterprise as a free organized community. Ultimately, maintaining the sphere sovereignty of the internal law of organized communities can only lie with the highest authoritative organs of those organized communities themselves. And as we have seen, the criterion for this is not open to their subjective choice but resides in the divine laws for the structures of these communities themselves.

Seen in this light, no subterfuge is acceptable that would once again submit the assessment of the material boundaries for the state's competence versus other communities exclusively to an administrative court of the state itself, in whose decisions the non-state communities would then have to acquiesce. The Leviathan state may for a time factually violate the juridical sphere-sovereignty of non-state communities by brute force. But juridically the state lacks any overriding competence whatsoever vis-à-vis the sphere-sovereignty of non-state communities.

Never can the state coerce non-political communities into compliance in their internal meaning-structures as though they were its subjects, which it can do in their external position as subjects of the government (for instance, in the execution of taxation debts and so on and so forth). The directors of a firm, for example, can never be prevented by the state from closing their enterprise as a consequence of their unwillingness to comply with rules given by the state which interfere unlawfully with the internal structure of the enterprise and which they cannot square with their own independent sphere of responsibility. When this occurs in mutual solidarity, a power struggle is unleashed.

Nor should we overlook the fact that every positive legal order, if it has kept to its divine foundation, by itself offers remedies, one way or another, against such transgressions from the side of the state. This it does by suggesting ways and means to render the enforcement of the substance of such arbitrary decrees impossible.

FAMILY (Ethical Law-sphere, ie "Love/ Troth")
[...] So long as organized communities are a necessary factor in the inner vitality of a nation, the state has indeed the meaning-individual juridical task, by virtue of the leading function of its structure as an organized community, to take measures that support, restore and stimulate the life of non-political communities. Primarily this applies to the natural organized communal life of the nuclear family, insofar as this is threatened in its normal structure by the devastating effect of sin. But in the widest sense of the word, too, this competence of the state is valid for the world of enterprise and for cultural communities.

One must not think, however, that when the state takes measures such as depriving parental rights, appointing a guardian for the children, and so on, it materially interferes with the internal structure of the family bond. For such measures are adopted only when the internal structure of the family community has itself already been disrupted. Nor does the state interfere because it possesses absolute sovereignty over non-state communities in their internal structure, but rather because as state it has to ensure the preservation of the nation, in the life of which the family plays such a basic role. In this emergency situation the state uses its governing authority to provide artificial supports to these communities that threaten to disintegrate, as an emergency substitute for a natural structure that factually no longer exists.

[...] It is a profound fallacy to insist that in this temporal world order there has to be an authority that is capable of overruling absolutely every other authority in a juridical sense, under the pretense that otherwise anarchy would reign. God did not ordain any "absolute power" in time. The truth is that it is precisely the theory of the state's totality of juridical power that rests on an anarchistic, revolutionary basis, because it ignores the divine structural laws of human society.

Everyone acquainted with life knows that there are material limits to the competence of the state. It is unworthy of legal science to ignore the connection between law and life through a sterile formalism. Rather it should base itself on a cosmology that is capable of meaningfully clarifying these limits and indicating an unambiguous criterion for them.

[...] Neither the arbitrariness of a government nor an arbitrary contract is in itself a source of law. In all its individual forms, positive law is always the positivizing of divine jural principles, whose structure is determined by the divine world order.

Extracts from "The Crisis in Humanist Political Theory"
by Herman Dooyeweerd (1931)
(Paedia Press, 2010, pp 152-161, 178-179)

See also:
'Sphere-sovereignty', 'sphere-universality', Christian responsibility to join the struggle of historical 'opening-process' -
Website of pages on Dooyeweerd's identification of the normative parameters of the State,
 ie 'territorial power' and 'pursuit of justice' - 


vendredi 10 février 2017

Experimental Relating of Dooyeweerd Text to Mark Rothko Painting

Mark Rothko: No. 61 (Rust and Blue) (1953)

Dear D & A,

A fraught experiment! 

I am currently reading through Dooyeweerd's very early book (1931) "The Crisis in Humanist Political Theory". I certainly don't recommend it as a starter. Part I is particularly difficult. Also, key terminology in this book was eventually modified.

Anyhow, a passage I read this morning is reasonably accessible (at least from where I'm now at). And I thought I could maybe squeeze some juice out of it to do with our potential discussion of Mark Rothko.

Firstly, I present the piece of text as Dooyeweerd wrote it (or at least the book's English translation of his Dutch). It is to do with "Statehood" and the "Aspect" or "Mode of Consciousness" of Jurisprudence. 

Secondly I have tried to transpose it all [with my own words in square brackets] to address painting and the "Aspect" or "Mode of Consciousness" of Aesthetics.

I preface all the above with a resumé list of Dooyeweerd's "Law-spheres" (also called "Aspects", "Functions", "Modalities", "Modes of Consciousness" etc):
NORMATIVE (post-analytical) 
15. Certitudinal, Pistic, Fiduciary 
14. Ethical
13. Juridical 
12. Aesthetical [nucleus = "harmony"]
11. Economical
10. Social
9. Lingual/ Symbolical
8. Cultural/Formational/Historical
7. Logical

NATURAL (pre-analytical) 
6. Sensory
5. Biotical
4. Physical
3. Kinematic
2. Spatial
1. Numerical

Okay. The following is the original text. We must be very wary of Dooyeweerd's (subsequently discontinued) use of the term "spiritual" here. He is not at all meaning, for example, "supernatural". He is simply referring to the "normative" or "post-analytical" law-spheres / modes of consciousness. Words hyperlinked in green take the reader to J. Glenn Friesen's "Dooyeweerd Glossary":

In order to reduce this seemingly obvious argument to its proper dimension, we need only recall that not a single "thing-structure" may be absolutized (as done in metaphysics) into a thing in itself which as such would be detached from the religious root of our entire temporal cosmos. As a community the state can only become real through human activity, as we saw earlier, the human being as such has no "leading function" in time.

In this manner all temporal things, natural as well as spiritual ones, depend on human activity for a deepening of their meaning. As such they do not lose their thing-structure, unless they are being transformed into another entity with a new thing-structure that has a different leading function

That also holds for the state as an organised community. But this particular organized community has, as such, its "leading-function" in the jural aspect. And all deepening of its meaning, which the state's structure exhibits in law, remains essentially determined by its meaning-individual structural principle. 

Both the private-legal and the public-legal idea of the just state contain a juridical deepening of meaning in the authority structure of the state as against the autocratic types of organized governmental authority. 

Yet throughout this deepening of meaning the state remains qualified by its jural function. As soon as one were to put this structural principle aside, the state would cease to exist. One cannot seek the "leading-function" of the state in any other law-sphere without disrupting the very concept of state. 

Nevertheless, the idea of right, which points beyond the meaning of the jural towards the meaning of the cosmically later spheres, and which as the consummation of right points beyond time towards the religious fullness of meaning of divine justice, retains its sway over the meaning-individual jural domain of the state.

(Herman Dooyeweerd, "The Crisis in Humanist Political Theory", 1931, pp151, 152)

In order to reduce this seemingly obvious argument to its proper dimension, we need only recall that not a single "thing-structure" may be absolutized (as done in metaphysics) into a thing in itself which as such would be detached from the religious root of our entire temporal cosmos. As [an artwork] the [painting] can only become real through human activity, and as we saw earlier, the human being as such has no ["demarcating mode of consciousness"] in time. 

In this manner all temporal things, natural as well as [normative] ones, depend on human activity for a deepening of their meaning. As such they do not lose their thing-structure, unless they are being transformed into another entity with a new thing-structure that has a different [demarcating mode of consciousness. For example, the "thing-structure" of raw pigment is demarcated within the "physical" mode of consciousness, but if used in a painting it becomes part of a new "thing-structure" demarcated within the "aesthetic" mode of consciousness.]

That also holds for the [painting] as [organised materials]. But this particular [organisation of materials] has, as such, its ["demarcating mode of consciousness"] in the [aesthetic] aspect. And all deepening of its meaning, which the [painting's] structure exhibits [aesthetically], remains essentially determined by its meaning-individual structural principle. 

Both the [referentially abstract] and the [non-referentially abstract] idea of the [successful painting] contain an [aesthetic] deepening of meaning in the [formal] structure of [painting] as against the [conventional] types of [artistic subject-matter]

Yet throughout this deepening of meaning the [painting] remains qualified by its [aesthetic] function. As soon as one were to put this structural principle aside, the [painting] would cease to exist. One cannot seek the [demarcating mode of consciousness] of the [painting] in any other law-sphere without disrupting the very concept of [painting]

Nevertheless, the idea of [harmony], which points beyond the meaning of the [aesthetic] towards the meaning of the cosmically later spheres, and which as the consummation of [harmony] points beyond time towards the religious fullness of meaning of divine [harmony], retains its sway over the meaning-individual [aesthetic] domain of [painting].

Mark Rothko: No. 6 (Violet, Green and Red) (1951)
Dear D,

I have written too much too closely posted already. But, whatever, here is a short initial contribution to further possible discussion of the difficult ''Ding an sich" issue. 

Nothing immediately jumps out at me from your Torrance quotes to take issue with on this specific matter, though I would be extremely surprised if he in fact agrees with Dooyeweerd's view. People can talk similar language but mean such different things. 

As for "given-ness", Dooyeweerd was fully engaged with the matter of identifying real "states of affairs". That is pretty much the nub of his philosophy. He is not an abstractionist. He is not a rationalist. He is a valiant champion of everyday "wrap-around" actuality. 

Dooyeweerd rejects the notion of "substance" because he thinks that it is a reification of thought (via Hellenism). In other words the notion of "substance" is a fundamental misreading of existence. This includes the idea of the "soul" as "substance" (being a reification of our rationality, following the Platonic view of "reason" being pure immutable timeless form). And likewise the Ding an sich misunderstanding of "things" having a primary core behind so-called secondary qualities. 

Dooyeweerd considers social organisations such as football clubs, art associations, pre-school nurseries, geopolitical States, businesses, etc to be "things", as well as rocks, trees, fish, and cars etc. What is the "substance" of "Inverness Harriers Jogging Club", or whatever?

So for Dooyeweerd there is no raw, neutral "substance" out there, alien to us. The Cosmos is somehow enmeshed with humankind. That is why the Cosmos "fell" with/in Adam, and is redeemed with/ in the Last Adam, the True Man, Christ.

Andy Bannister of the Ravi Zacharias ministry recently took over from David Robertson as director of the Dundee-based  "Solas" apologetics online project. I listened to an audio by him from a few years ago: "Responding to the New Atheists"

Just after 16.00 mins in, he makes the statement: "Science is metaphysically neutral". I rewound and listened again. Could he be correct? He has just sold the shop, I thought. How does the "metaphysical neutrality of science" comport with Romans 1? Or with the Scriptural assertion that "All things are through Him, for Him, and to Him" etc? ("Science", of course, views the entire cosmos as its remit. And cf Carl Sagan's famous quote: “The Cosmos is all that is or was or ever will be".)

Is the aesthetic research conducted by art not also scientific? Is Art "metaphysically neutral" too? (I do realise the contention implicit in these questions).

Dooyeweerd insists reality is characterised not as (Hellenistic) "being", but as "meaning". The structures (ordinances) of reality are NOT neutral. They are meaning (as distinct from having meaning). They are sustained by Christ, therefore testify to Christ. Exhaustively. Humans have nowhere else to go. Nowhere to hide. There is only encounter with Christ whichever direction we turn. Therefore whether we eat or drink or whatever, we (whether we like it or not) refer to Him. Believers are called to acknowledge that with thanksgiving. He is the Way. He is the Door. He is Water. He is Light. (As you know, I am not, of course, talking "pantheism" here).

This post has got too long again. If I understood matters better I could be more concise...

J Glenn Friesen has a couple of related glossary entries:

This one on "Ding an sich" is fairly short.

This one on "Thing" is longer...


PS I might also mention here J Glenn Friesen's most recent essay which superbly relates Dooyeweerd back to a critique of Kant. 

Friesen writes:
"How do Dooyeweerd’s modes of consciousness relate to our experience of reality? Does he have the same problem as Lask did in relating Kant’s logical categories to the things of our experience? Dooyeweerd would later clarify that the modalities relate to reality because the individuality structures [things] of our experience function within the same modes. We can therefore make analogies from our experience of things to our modes of consciousness."  
(Dooyeweerd’s Idea of Modalities: The Pivotal 1922 Article).

mardi 31 janvier 2017

Herman Dooyeweerd: Introduction to a Transcendental Criticism of Philosophic Thought

Willem van Aelst (1627–after 1682)
Introduction to a Transcendental Criticism of Philosophic Thought
by Herman Dooyeweerd 
Evangelical Quarterly XIX (1) Jan 1947

"Let us now compare the theoretic attitude with the pre-theoretic attitude of common experience. The latter is characterised by an absolute lack of all antithetic relation. In the attitude of common experience we find ourselves completely within empirical reality with all the functions of our consciousness. There is no distance, no opposition between the logical aspect of our thought and the non-logical aspects of reality. But if there is an absolute lack of the antithetic relation, naïve [ie common] experience is none the less characterised by another relation, namely the relation of the subject to the object of our experience. Current philosophy has very erroneously confounded this relation with the antithetic relation of theoretical thought. It is precisely the opposite.

"In naïve experience we attribute without hesitation objective qualities – sensory, logical, cultural, social, aesthetic, even moral – to the objects of our common life. We know very well that they cannot function as subjects which feel, distinguish logically, live together in a society, or make value-judgments. We know perfectly that these objective qualities belong to them only with reference to the subjective functions of some possible consciousness. We experience this relation of subject and object as a structural relation of reality itself. That is to say, sensory colour belongs to the rose only with reference to a possible sensory perception, not to my individual perception or yours. To sum up: the subject-object relation leaves reality intact, together. The antithetic relation on the contrary is the product of an analysis, an abstraction."

Download PDF (10 pages)
See J Glenn Friesen's 
Dooyeweerd Glossary

J. Glenn Friesen: Dooyeweerd’s Idea of Modalities: The Pivotal 1922 Article

Dooyeweerd’s Idea of Modalities: 
The Pivotal 1922 Article
Dooyeweerd says that “the first rudimental conception” of his philosophy had ripened even before he started work at the Kuyper Foundation in October 1922. He had not even studied Kuyper's works, although he would later find some similarities in Kuyper. A detailed analysis of an article written earlier in 1922 shows us how Dooyeweerd developed his philosophy. This article is “Normatieve rechtsleer. Een kritisch-methodologische onderzoeking naar Kelsen's normatieve rechtsbeschouwing.” It includes these ideas: the rejection of the autonomy of thought, the idea of intuitive beholding [schouwen], and the idea of modalities or modes of consciousness. Previous historians of reformational philosophy have not adequately researched Dooyeweerd's sources for these ideas. None of these sources are Calvinistic. Dooyeweerd used these ideas to critique neo-Kantianism. He dismantles Kant's logical categories and instead puts forward the idea of intuited modalities. And Dooyeweerd uses the scholastic idea of ‘meaning moments’ to individuate these modalities from totality.

autonomy of thought - Herman Dooyeweerd - intuitive beholding (schouwen) - Kant - modalities - meaning-moment - Emil Lask - neo-Kantianism
Download PDF (33 pages)
See J Glenn Friesen's 
Dooyeweerd Glossary

mardi 10 janvier 2017

Craig Murray: 'Scotland’s Stolen Seas: The Technical Explanation'

(This video originally published  Sept 2014)
In 1999, the very evening before the devolved Scottish Parliament first opened, the UK establishment reclassified 6,000 square miles of Scottish sea as English waters. 
Scotland’s Stolen Seas: 
The Technical Explanation
by Craig Murray (10 Jan 2016)

I do not think that any work I have done has brought me as much abuse as that on the transfer of 6,000 square miles of Scottish sea to England in 1999, effected by New Labour by Order in Council literally the day before the Scottish Parliament came into being.

Some of this criticism has been utterly bizarre, including a strange contention that the whole thing did not happen and the legislation does not exist. A marginally more rational criticism has been the contention that the new boundary – which at its extreme limit eastwards runs north of Carnoustie – reflects a genuine median line influenced by the shape of the coastline.

With thanks to this map kindly sent by Dave Philip, I wish to explain why the new boundary is not legitimate.


mercredi 4 janvier 2017

UK Supreme Court: Article 50 'Brexit' Appeal (IWGB Submission - Aidan O’Neill QC)

UK Supreme Court: Article 50 'Brexit' Appeal
[Interveners (4)]
PDF of entire document
1.1 The IWGB submits that the decision of the Divisional Court was correct in law and that the Appeal should be dismissed. In summary, the IWGB submits as follows: 
(1) This Court, as the constitutional court for the United Kingdom (UK), must take into account the Scottish constitutional tradition in deciding this appeal: Section 2, §§ 2.1-2.6. 
(2) Scottish constitutional law on the prerogative requires this Court to conclude that the UK Government cannot unilaterally give Article 50(2) TEU notification of the UK’s intention to withdraw from the European Union (EU) because it has not (yet) been authorised to do so by the relevant legislatures of the UK: Section 3 §§ 3.1-3.20. 
(3) The Scotland Acts 1998 and 2016 have caused profound change in the balance in and structure of the UK constitution, which must be reflected by this court: Section 4 §§ 4.1-4.15. 
(4) Scottish constitutional law, as understood against the EU principles of respect for democracy and equality of its citizens and the ECHR principles of fairness and legality, requires that any decision to withdraw the UK from the EU has to be made with the consent of all four of the democratically elected legislatures of the UK: Section 15 §§ 5.1-5.10. 
(5) Against this understanding of the constitution, five points are made in conclusion which demonstrate how the Appellant’s claim to rely upon the royal prerogative to give Article 50(2) TEU notification without prior legislative authorisation are untenable: Section 6 §§ 6.1-6.21.

2.1 Article 50(1) of the Treaty on the EU (TEU) [1/8] provides that “any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.” The proper interpretation of Article 50 TEU is a matter for the CJEU, but it is for this court to determine what the UK constitution requires for the Article 50 TEU procedure properly to be invoked.

2.2 Answering that question shines a spotlight on just what the UK constitution is. But UK constitutional law has been the law that dare not speak its name. This is because the 1707 Parliamentary union between England and Scotland undoubtedly created a new State, but it did not create one Nation. Various schemes for a wholly incorporating ‘perfect’ Union of Scotland and England had, unsuccessfully, been proposed to the English Parliament by James VI, King of Scots, after he had acceded to the English throne in 1603. The 1707 Union differed from these earlier schemes in that, while ensuring the depoliticisation of Scotland, it put into place measures intended to protect - and indeed to strengthen - other aspects of Scotland’s distinctive continuing nationhood. Conrad Russell put it thus [505] (internal
footnote added):
“That the Scots found a perfect union politically unacceptable, and the English an imperfect union intellectually incomprehensible, provides the basis for the odd mixture of the two which was set up in 1707. The English got the unitary sovereign power which they wanted, and got it in the form based upon the existing English Parliament, with an English majority in it. The Scots got their recognition as a separate sovereign state, both from the form of the Union of 1707 as an international treaty, and from the survival of Scots law and the Scottish church. It is that claim that Scotland is a sovereign nation state which is reasserted whenever the English forget that 1707 was not a ‘perfect union’ and has recently been repeated in the Claim of Right. Scotland in accepting the Union in 1707 remained a nation and as a result any sovereignty in the British parliament could not be national sovereignty. This has always been hard for the English to understand.”
2.3 In the 300 years of that 1707 Union, there is no doubt that that the English constitutional tradition has been the dominant and, at times, overwhelming influence; but a distinct Scottish constitutional tradition has never entirely been lost and may, indeed, be said to have been revived by the devolutionary settlement for Scotland. Dicey and Bagehot, Coke and Blackstone may well be reliable guides to the English constitutional tradition, but their views are not necessarily determinative or reflective of what the UK constitution now is. Like the English common law, the Scots constitutional tradition is not an ossuary.

 One thing is clear, however. When the UK Supreme Court has to speak of UK Constitutional law it enters into perilous waters because the two constitutional narratives and traditions to which the UK is heir - the English historical myth emphasizing the sovereignty of the governing institutions of the State (the Crown, and the Crown in Parliament) and an unbroken continuity since Magna Carta in 1215 CEand the Scottish tradition, since at least the Declaration of Arbroath of 1320 CE [19/210], of the sovereignty of the people limiting the powers and rights of the Crown (and Parliaments) – may pull in different directions, but yet have to be reconciled if this union polity is to survive.

2.4 Notwithstanding that this matter comes here on appeal from the Divisional Court of England and Wales, this Court is not here faced with matters of purely English law. This Court is determining matters concerning the content and extent of the constitutional obligations imposed on all institutions of the now democratically based British (and Northern Irish) State, its Parliaments as much as its courts and Governments, to show respect for those fundamental constitutional norms inherent in a democratic polity. Accordingly, the role of this Court is to be conscious of and take due account of these various narratives and sources for our multiply texted constitution, as was essayed in R (Buckinghamshire County Council) v Secretary of State for Transport [2014] UKSC 3 (HS2) [7/56] per Lord Neuberger and Lord Mance at §207 (emphasis added):
“The United Kingdom has no written constitution, but we have a number of constitutional instruments. They include Magna Carta, the Petition of Right 1628, the Bill of Rights and (in Scotland) the Claim of Right Act 1689, the Act of Settlement 1701 and the Act of Union 1707. The European Communities Act 1972, the Human Rights Act 1998 and the Constitutional Reform Act 2005 may now be added to this list. The common law itself also recognises certain principles as fundamental to the rule of law.”
2.5 The Divisional Court below, guided no doubt by the limited submissions made to it by the parties and interveners, referred only to the (English) Bill of Rights of 1688 [12/106]. Article 9 of the English Bill of Rights - which enjoins “that the Freedom of Speech and Debates or Proceedings in Parliament ought not to be impeached or questioned in any Court or Place out of Parliament” - is cited and relied upon by the courts in Scotland as well as England, so it undoubtedly forms part of the UK constitution. But the (Scottish) Claim of Right of 1689 is equally a constitutional instrument for and within the UK. It is, after all, on the basis of the Claim of Right’s assertion “that it is the right and privilege of the subjects to protest for remeed of law to the King and Parliament against Sentences pronounced by the lords of Session” that this Court exercises its jurisdiction to hear appeals from the Court of Session.

2.6 Accordingly, the actions of the UK Government today can properly be measured and declared to be unlawful to the extent of its incompatibility with this Scottish constitutional tradition, on the basis that the Union preserves both constitutional traditions, and that the rule of law favours that tradition which offers the stronger protection for individual rights.


Tracing the history of Scottish constitutional law: sovereignty resides in the people

3.1 The Scottish constitutional theory of the power of the Crown being received from the people and limited by the law was first systematically set out by George Buchanan (1506 CE - 1582 CE), the celebrated European humanist scholar and poet, citizen of the Republic of Letters, historian of Scotland, tutor to the young James VI and constitutionalist who, in his dialogue De iure regni apud Scotos (1567) noted, among other things, that in Scotland
 “the people who have granted the king authority over themselves dictate to him the extent of his authority, and require him to exercise as a king only such right as the people have granted him over them”; and  
“the power received by our kings from our ancestors was not unbounded but was limited and restricted within fixed boundaries”; and  
“if the greater part of the people can pass a law and elect a magistrate, what is to prevent them judging the magistrate themselves or appointing judges to try him... Why should it seem unjust to any man if a free people have provided themselves in a similar or even in a different way with the means of restraining the harshness of tyranny.”
3.2 According to George Buchanan, therefore, the law and customs and immemorial constitutional tradition of the Scots in relation to the Crown is one of a limited constitutional monarchy involving:

(i) subordination of the Crown to the law;

(ii) the Crown’s answerability before the courts; and

(iii) in the last resort, the people’s right of revolt against a monarch in fundamental breach of his or her duties.

3.3 In the 1644 CE work of the Scottish Presbyterian Divine Samuel Rutherford (c.1600 CE–1661 CE) Lex Rex [27/344], Rutherford answers his Question XLIII on “whether the King of Scotland be an absolute prince, having prerogatives above Parliament and laws: the negative is asserted by the laws of Scotland, the King’s oath of coronation, the Confession of Faith etc.” as follows: 
“The kings of Scotland have not any prerogative distinct from supremacy above the laws. If the people must be governed by no laws but by the king's own laws, that is, the laws and statutes of the realm, acted in parliament under pain of disobedience, then must the king govern by no other laws, and so by no prerogative above law… [I]n treaties with foreign princes, the estates of parliament did append their several seals with the king's great seal, (which to Grotius, Barclaius, and Arnisæus, is an undeniable argument of a limited prince, as well as the style of our parliament, that the estates, with the king, ordain, ratify, rescind, &c.) as also they were obliged, in case of the king's breaking these treaties, to resist him therein, even by arms, and that without any breach of their allegiance, as is yet extant in the records of our old treaties with England and France, &c.”
3.4 This position is confirmed in the 1703 Act of the Scottish Parliament anent Peace and War: 
“Our sovereign lady, with advice and consent of the estates of parliament, statutes, enacts and declares that after her majesty's decease, and failing heirs of her body, no person being king or queen of Scotland and England shall have the sole power of making war with any prince, potentate or state whatsoever without consent of parliament, and that no declaration of war without consent foresaid shall be binding on the subjects of this kingdom, declaring always that this shall no way be understood to impede the sovereign of this kingdom to call furth, command and employ the subjects thereof to suppress any insurrection within the kingdom or reject any invasion from abroad according to former laws; and also declaring that everything which relates to treaties of peace, alliance and commerce is left to the wisdom of the sovereign, with consent of the estates of parliament who shall declare the war. And her majesty, with consent foresaid, rejects, casses and annuls all former acts of parliament in so far as they are inconsistent herewith or contrary hereunto.” (emphasis added)
3.5 In “The Crown Rights of the Redeemer: the Chalmers Lectures of 2007”, the Reverend Dr. Marjory MacLean summarises this Scottish constitutional tradition of popular sovereignty as follows: 

“Turning from the question of what defines sovereignty to the question of what its source is, we find that the characteristically Scottish Reformed approach developed through the thinking of John Knox, George Buchanan, Samuel Rutherford and the framers of the National Covenant of 1638. There are several elements in this Scottish tradition. First, at its root is a belief in popular sovereignty, by which is normally understood the self-determination of the whole people in the context of their relationship (individual and corporate) with God. In the immediate post-Reformation literature it is difficult to find a clear description of how an articulate and identifiable process of self-determination works, though the process of bonding or banding brought together people of like minds into groups strong enough to effect political and constitutional change.

The second element in the Scottish model is ‘fiduciary dominion’, the ruler’s power (dominium) to govern given by the people, who offer their trust (fides) but not their sovereignty, which according to the theory remains with them. The ruling power is therefore supreme but constitutionally bound, and cannot arbitrarily change the bounds of its authority or the constraints under which it is obliged to operate.

The third element of the Scottish model is the presence of such constraints on the sovereign people and the holder of fiduciary dominion alike: these have normally been Natural Law and Divine Law, as understood from time to time, and the rule of law.”

3.6 This tradition of popular sovereignty within the Scottish constitution reached its apotheosis with the decision by the self-convened Scottish Parliament in 1689 to declare James VII to have forfeited the Crown on the basis of its claims that he had over-reached the lawful limits placed on his executive power. The use of the word ‘forfeited’ was of particular significance because it was consistent with the terms of the 1320 CE Declaration of Arbroath [19/210] as well as with the constitutional writings of George Buchanan and Samuel Rutherford.

3.7 The Bill of Rights 1688 [12/106] declares that “the pretended Power of Suspending of Laws or the Execution of Laws by Regal Authority without Consent of Parliament is illegal”. This is echoed in the Claim of Right’s declaration [19/211] that “That all Proclamations asserting an absolute power to Cass [anglice Quash] annul and Disable laws… are contrary to Law”. But the Scottish constitutional tradition of popular sovereignty which the Claim of Right 1689 was articulating may be contrasted with the (English) Bill of Rights tradition where, as Conrad Russell notes, the prevailing “theory of legitimacy” was one “where authority, however much it might feel the need for consent, was ultimately descending”Accordingly, rather than speaking of the king being deposed in the Glorious Revolution, the English Bill of Rights employed the legal fiction that the king, in fleeing to France, had chosen to “abdicate” his throne, thereby preserving the fiction that the existing constitutional order in England continued. The English Declaration and Bill of Rights 1688 are also to be contrasted with the Scottish Claim of Right 1689 in that the English document makes no reference to James II’s oath on entering government that he will “rule the people according to the laudable laws”. Nor does the English document claim that James II had expressly breached any of the terms of his (English Coronation) oath. And the English document similarly makes no reference - unlike the Scottish text - to James II and VII invading the “fundamental Constitution of the Kingdom” and of that constitution properly being understood as a “legally limited monarchy”. Nor do the English, in terms, accuse the James II of attempting to subvert the constitution that he was in office to uphold, complaining instead only of specific acts of “arbitrary power” (namely “prosecutions in the Court of King’s Bench for Matters and Causes cognizable only in Parliament and by diverse other Arbitrary and Illegal Courses”), rather than the root and branch corruption of power which the Scottish Claim of Right of 1689 had identified. 

3.8 In this early modern period, models of constitutional government are expressed in the terms of political theology. The religious is political precisely because in defining the terms of the Church settlement in a territory you define the source and extent of power of the State.19 So in Scotland at least, the term “Papist” translates into a believer in absolutist government; “Episcopalian” into a supporter of constitutionally limited Monarchy; while “Presbyterians” hold to a democratic model in which the Elect(ors) delegate defined and limited powers to those whom they appoint to hold office.

3.9 The whole point about the 1707 Union is that it constitutionally entrenched the distinct Scottish and English constitutional traditions as embodied in the two nations’ separate ecclesiastical settlements. Thus, the “securing of the Protestant Religion and Presbyterian Church Government within the Kingdom of Scotland” was expressly declared to be “a fundamental and essential Condition of the said Treaty or Union in all times coming.” And it was similarly declared by the English Parliament that the preservation of the Anglican settlement in England also be made “a Fundamental and Essential part of any Treaty of Union” with Scotland. And this is not simple antiquarianism or misplaced originalism. The accession oath which was sworn by Elizabeth II before the Accession Privy Council on the day immediately after her accession, and which is renewed by her each year (whether in writing or in person) before the General Assembly of the Church of Scotland is in the following terms:
“I, Elizabeth the Second by the Grace of God of Great Britain, Ireland and the British dominions beyond the seas, Queen, Defender of the Faith, do faithfully promise and swear that I shall inviolably maintain and preserve the Settlement of the True Protestant Religion as established by the laws of Scotland in prosecution of the Claim of Right and particularly an Act entitled an Act for the Securing the Protestant Religion and Presbyterian Church Government and by the Acts passed in both Kingdoms for the Union of the two Kingdoms, together with the Government, Worship, Discipline, Rights and Privileges of the Church of Scotland. So help me God.” (emphasis added)
3.10 What this means is that this distinctive Scottish constitutional tradition embodied in the Claim of Right - of the Crown holding power from and in trust for the people assembled “in a full and free representative of this Nation”, with the Crown bound by the constitution to honour the terms and limits of the sovereign people’s grant of that power, and with both the people and the Crown subject to a duty to respect fundamental rights and the rule of law - not only survived the 1707 Union, but was expressly preserved by it and is reaffirmed by the Crown in personam every year of her reign.

3.11 This Scottish constitutional tradition of popular sovereignty has most recently been restated and confirmed by the UK Parliament in the terms in Section 1 of the Scotland Act 2016 which inserts a new Section 63A to the Scotland Act 1998 (SA) [12/124] in the following terms:

63A Permanence of the Scottish Parliament and Scottish Government

(1) The Scottish Parliament and the Scottish Government are a permanent part of the United Kingdom's constitutional arrangements.

(2) The purpose of this section is, with due regard to the other provisions of this Act, to signify the commitment of the Parliament and Government of the United Kingdom to the Scottish Parliament and the Scottish Government.

(3) In view of that commitment it is declared that the Scottish Parliament and the Scottish Government are not to be abolished except on the basis of a decision of the people of Scotland voting in a referendum.” (emphasis added).

3.12 The reference in Section 63A(3) SA to the maintenance/abolition of the Scottish devolved institutions of Government, being a matter for “a decision of the people of Scotland” - rather than simply saying “on the basis of a referendum held in Scotland” - only makes sense (since there is otherwise no specification in the Scotland Act as to who constitutes “the people of Scotland”) as a clear and unequivocal reference to, and affirmation by the Westminster Parliament of, this Scottish constitutional tradition of popular sovereignty.

No harmonisation of Scottish constitutional law on the Crown and prerogative post-Union

3.13 Although Article XVIII of the 1707 Union allowed that “Laws which concern public Right Policy and Civil Government may be made the same throughout the whole United Kingdom… by the Parliament of Great Britain”, the Union did not, in fact, result in the harmonisation - and still less in the assimilation - of public law in Scotland with that of England. In 1758 Lord Mansfield ruled in King v Cowle 97 ER 587[483]:

“1st. That this Court has no jurisdiction over the town and borough of Berwick, or any local matters arising there; because it is not to be deemed part of the realm of England, and the King's writ does not run there: consequently, this Court has no authority to remove a record from thence, by writ of certiorari, for any purpose…

Writs, not ministerially directed, (sometimes called prerogative writs, because they are supposed to issue on the part of the King,) such as writs of mandamus, prohibition, habeas corpus, certiorari, are restrained by no [856] clause in the constitution given to Berwick: upon a proper case, they may issue to every dominion of the Crown of England. There is no doubt as to the power of this Court; where the place is under the subjection of the Crown of England; the only question is, as to the propriety.

To foreign dominions, which belong to a prince who succeeds to the throne of England, this Court has no power to send any writ of any kind. We cannot send a habeas corpus to Scotland, or to the electorate [of Hanover]: but to Ireland, the Isle of Man, the plantations, and, as since the loss of the Duchy of Normandy, they have been considered as annexed to the Crown, in some respects, to Guernsey and Jersey, we may; and formerly, it lay to Calais; which was a conquest, and yielded to the Crown of England by the treaty of Bretigny”. (emphasis added).

3.14 As one commentator has noted in this regard [502]:

“The reason, therefore, why Scotland is exempt from this jurisdiction [of habeas corpus] is, that it extends only over the dominions which prior to the Union were dominions of the crown of England, and Scotland was never part of the dominions of the crown of England. The King of Scotland came also to be King of England, but this did not make Scotland subject to the crown of England.” (emphasis added) 
PDF of entire document