#OccupyLSX and Freemanry

Occupy London Stock Exchange have lost their appeal against the decision to turf them out of the churchyard of St. Paul’s.

I haven’t read the judgment in its entirety, but thought I’d pick up on one specific aspect.

At paragraphs 29-31:

  1. With the exception of Ms Samede, the defendants making the present applications are seeking to set aside all the orders made by Lindblom J, on the basis that they contend that the Judge ought not to have found for the City at all, but should have dismissed the claim and allowed the Camp to continue in place. It is convenient to deal first with one or two rather esoteric arguments raised by Mr Randle-Jolliffe.
  2. First, he challenged the judgment on the ground that it did not apply to him, as a ‘Magna Carta heir’. But that is a concept unknown to the law. He also says that his ‘Magna Carta rights’ would be breached by execution of the orders. But only chapters 1, 9 and 29 of Magna Carta (1297 version) survive. Chapter 29, with its requirement that the state proceeds according to the law, and its prohibition on the selling or delaying of justice, is seen by many as the historical foundation for the rule of law in England, but it has no bearing on the arguments in this case. Somewhat ironically, the other two chapters concern the rights of the Church and the City of London, and cannot help the defendants. Mr Randle-Jolliffe also invokes ‘constitutional and superior law issues’ which, he alleges, prevail over statutory, common law, and human rights law. Again that is simply wrong – at least in a court of law.
  3. Another ground he raised was the contention that the City had no locus standi to bring the proceedings ‘as the current Mayoral position has been previously usurped by the Guilds and Aldermen in Contravention of the City of London’s 1215 Royal Charter’. We do not understand that point, not least because both the Lord Mayor and the Aldermen and Guilds (through the Commonalty and Citizens) are included in the claimants.

This is yet another case in which Freeman ideas have been decisively rejected by a court.  Another reasonably high-profile case is Doncaster MBC v Watson and Haigh [2011] EWHC B15 (Fam).  At the lower end of things, the courts are alive to their existence and prepared to take robust action to prevent it wasting their time.

The problem I have, and it may be because I’m feeling charitable, is that I genuinely don’t understand how, by their own logic, Freemanry is supposed to work.

Set aside the massive conceptual problems the idea has.  Let’s concede arguendo that the Freemen are right and that the institutions we call courts aren’t really courts but commercial operations, and that they do not recognise the supremacy of Magna Carta, “common law” and other superior forms of law.  Let’s also suggest for the moment that statutes really do require consent to be binding, and the “courts” are fundamentally wrong in suggesting otherwise.  Let’s assume all of that for the moment.

The problem I have in understanding this is that, even if this were all to be correct, I cannot see how it advances their goals one bit.  Freeman tactics and techniques are used, not in the support of principle, but as a straightforward practical tool.  It’s used to evade: being bound by injunctions; eviction; parking tickets; criminal prosecutions and debts.  These are primarily practical matters.  The Freeman ideas are not used on the strength of their moral philosophy or legal analysis, but because they offer you a quick fix.  In short, Freemanism is about providing something that works.

But it’s manifestly obvious that, even if the Freeman analysis of the law sketched above is correct, it is entirely ineffective in practice.  Even if you refuse to recognise the moral or legal authority of the courts, it cannot be denied that they have real, practical power.  Indeed, Freemen tend to refer to these institutions as “de facto courts”.  These courts do not recognise the validity of Freeman principles and arguments.  Any such argument advanced before them is going to fall entirely flat and be entirely unsuccessful.

Why, then, persist?  If your goal is to take a stand on a matter of principle, fair enough.  But this isn’t where Freeman arguments are deployed.  They are used like any other legal argument: to achieve a practical outcome in your favour.  Yet they stand zero chance of achieving that if we discount any nuisance effect it might have.  Freemen go to court to win, but even on their own analysis, the fora in which they use their arguments will not accept them, making loss inevitable.

I can’t be the only one thinking this.

UPDATE: Paul Randle-Joliffe, one of the litigants in this case, has got in touch to ask me to point out that the ideas sketched out, after the quote from the judgment, as a summary of Freeman legal analysis do not represent the submissions he made before the Court of Appeal.