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By Jason Michael

THE HIGHEST COURT IN SCOTLAND, the Court of Session in Edinburgh, has delivered a landmark ruling against the British Prime Minister* – determining that Boris Johnson had, being ‘motivated by the improper purpose of stymying parliament,’ misled the Crown, thus rendering the prorogation of parliament ‘unlawful.’ In principal and theory, then, the actions of the British government are at odds with the law as defined by one of the last remaining independent vestiges of the Scottish state. Yet, the judges were unable to order the recall of the British parliament because it is not indeed the highest court in the land. When Scots Law contradicts a ruling of the English High Court, thus becoming something of a constitutional matter, the final arbitration – a final judgement – is referred to the Supreme Court of the United Kingdom – in London.

No doubt some – if not, many – of my readers will be rolling their eyes at yet another example of my failure to conform to good sense, at my wilful refusal to accept the inherent goodness and correctness of the rule of law. Some will even choose to see in this a hint of Anglophobia. But the truth is worse: Be it Scots Law or the law of the British state, as an incurable antinomian, I don’t trust the law, and in a question relating to the legal parity of esteem of Scotland and England in political union I certainly do not trust an English court or – worse still – a higher British court to defend the dignity of Scotland when in so doing it compromises the dominance of the English state over and against any one of its subject nations in the United Kingdom qua Greater England. So, before my readers put me in stocks and begin lobbing rotten vegetables, I would like to set out my reasons for coming to these conclusions.

Firstly, some general remarks on the nature of the law – Scots or English law – would be useful. It is wrong to think of the law as a canon or measure of goodness and morality. While individual laws can be moral and good, the law itself is not bound by morality. There is no requirement that the law be good in any meaningful sense. Law – from lag in Old Norse and from the Latin lex – is a statement of power; a narrative of power. This is to say that law, as a statement of power, presupposes an authority with enough power to impose its will. In the United Kingdom this idea of law as the narrative of power derives from the principle of regia potestas – royal authority or the right of the king. It is both the right and the privilege of the monarch, encapsulated in the idea of the Crown – both Crown in officio and the Crown in parliament, to impose his or her will on his or her subjects. This idea of royal prerogative is categorically different to philosophical or ethical notions of moral goodness.

While Scotland does not have Crown courts, as is the case in England and Wales, Scots Law – like that in England – finds its roots in medieval feudal law and is therefore as much an instrument of the state qua the Crown as is the law in England and Wales and in the north of Ireland. The absence of the Crown from Scots Law is merely a terminological accident and not a practical difference – judges in Scotland (justices and sheriffs) are still instruments of the Crown.

Here then is the root of my antinomianism – my suspicion of the law and my intellectual rejection of the ‘rule of law:’ Law is the exercise of power. Be it in Scotland, in England and Wales, or in the occupied counties of Ulster, the power exercised – the status quo – is that of the union settlement of the United Kingdom, of the Crown in parliament of the British state. In our highest courts, judges are Lords – and for good reason; it is by their feudal loyalty to the Crown, to the British state, that the union has been and is still maintained. Lords Drummond-Young, Brodie, and Carloway – Queen’s Counsellors and members of the Privy Council all, the Scots judges who adjudicated Joanna Cherry’s case against the Prime Minister, are instruments of justice; of the law – and therefore instruments of the power of the Crown qua the British state. Their chief loyalty is to the law; to the narrative of power of the Crown and the British state, an authority – as an independentista and as a republican – I cannot in principle and in conscience recognise.

Their service to the British state makes it possible for them to contradict the English High Court only because the greater issue of the case – Brexit – is an issue which divides Britain’s (that is England’s) ruling class. An absolutely cynical conclusion, I confess, but one I have reached after careful consideration of the realities of the law in Britain and their function as judges of that law. Law, as the narrative of power, cannot and will not undermine the power from which it is derived unless that power is a house divided.

Moreover, this judgement in itself renders it weak and vulnerable – once again subjecting the independence of the Scottish legal system to that of the British state. In referring the matter to the final judgement of the Supreme Court in London the implication is that the Court of Session is not the highest court in Scotland – that it has no real independence, that Scots Law must be tested through a higher British court before it can be considered valid, legal and binding in and over this so-called union of equals. This strikes me as utterly pathetic. In my own experience of canon law, for however much trouble this often lands the Church in, I realise why ecclesiastical law is not referred to the civil courts of any state in which the Church sojourns – because, as a system of law, it is a jurisdiction in and of itself; it is independent of any other state precisely because it is independent. This, to my mind, is what Scotland has surrendered to Britain.

It follows than that I have no more trust in the Supreme Court in London than I have in the Court of Session in Edinburgh. It matters not that this process will be determined on the basis of Scots Law by Scottish, Welsh, and Irish judges in London – their loyalty is to the same power and their service is to the same state. What changes in London is that the decision of the Supreme Court will determine which legal system in this case trumps in a matter of ‘high politics’ of crucial importance to a British state in which, by its very constitution, England and English law are dominant. Let us consider for a moment, then, the precedent a victory for the Court of Session in London would create. It would mean that the High Court is indeed equal to and can be overruled by the independent legal system of an incorporated and dominated nation. It would indeed be wonderful, but we have to doubt seriously that this would ever be allowed to happen. This would fundamentally undermine the supremacy of England in an over the British state. In essence, it would contradict the constitutional arrangement in which Britain is de facto the absorption of Scotland, Wales, and the six counties into the English state. Personally, I think there is slim hope of this ever happening. I see it as naïve to imagine that these judges in London – servants of the Crown – will act as neutral arbiters and so create such a precedent. I hope otherwise, but power is power – and that is the law.

* The actual date of writing is Wednesday 11 September 2019.

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Scottish judges rule Parliament suspension is unlawful


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3 thoughts on “The Highest Court in the Land

  1. You say “While Scotland does not have Crown courts, as is the case in England and Wales, Scots Law – like that in England – finds its roots in medieval feudal law and is therefore as much an instrument of the state qua the Crown as is the law in England and Wales and in the north of Ireland. The absence of the Crown from Scots Law is merely a terminological accident and not a practical difference – judges in Scotland (justices and sheriffs) are still instruments of the Crown.”
    Sorry that is simply not true. Scottish Law has a different basis than English Law (Why do you think that the magnates who struck the Union kept Scottish Law outside the deal?)
    I share your cynicism about how much independence there is in the courts, as I explained to someone who was arguing from the directly opposite to your view, that they were distorted by nationalist politics, they are all members of the New Club (and I’m sure that some of them are Archers).
    What you seem to forget, the Scotland outside the UK and part of the EU might be advantageous to the Scottish Hegemonic Class, as opposed to the ones based in London.
    I think that you should reflect on what Lord Carloway wrote “The petitioners sought a declarator in terms of the petition, together with an order reducing the Order in Council and an interdict prohibiting the Government from proroguing Parliament. Scots and English law were not necessarily the same as regards the use of prerogative powers (Admiralty v Blair’s Trustees 1916 SC 247 at 266). If there was any difference, the law that was more limiting of executive power should be preferred.”

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    1. Indeed it is true. I am not talking about the basis of Scots Law, but its present function – and its present function is to be an instrument of the state. This is the function of all national and state law. The various historic sources of Scots law, including custom, feudal law, canon law, civilian ius commune and English law have created a hybrid or mixed legal system (Stair, vol. 22, para. 505), for sure, but this in no way means it does not serve the same function as modern English law. Again, it is its function and its relationship to the Crown to which I refer and not to its basis.

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