Just What Is The Law? 

And To Whom Does It Apply?

Contrary to popular perception, no one man or nation has a monopoly on what is considered to be actual or true law or justice.  And while it may be a truism that a person, in general, “gets what is coming to him” in terms of justice in this world, it does not necessarily mean that anyone has to settle for that which does not apply to him. Thus the idea that the consent of the governed is a necessary component in general governance in America is explicitly expressed in the Declaration of Independence (1776), and yet as well is also implicitly present in the Articles of Confederation (1781) and the U.S. Constitution (1787-1791). 

In modern times, the history of law and its origins is typically written about in terms of its application to political associations arising from the formation of national unions (that is, countries and nations) expressed using terms such as English law, American law, French law and so forth. This modern trend in recognizing the origin of (mostly statutory or written) law developed from the precedent set in earlier times of evolving civilizations wherein the concept of law was often tied to the rule of a conquerer, and set up as a “rule prescribed by the sovereign power” in order to settle differences between the subjects of a manor, estate, or a state. In essence, it wasn’t actual true law, per se, but rather a rule laid down by a so-called sovereign.

However, this is not the only historical precedent of the origin of law to be found. As civilized associations continued to develop and evolve there came to be a precedent set, in the case of the inception and development of the common law in England, whereby law grew out of an adherence to moral and ethical customs agreed to and used by societies in the fair and judicial treatment of controversies arising between its members. For a period of time, common law became widely known as “the people’s law.” As the common law mostly expressed natural law, it chiefly existed as “unwritten” (whereby comes the phrase, “law goes unwritten”) and grew according to axioms or maxims of law which have become universally recognized as evolving from of the law of nature and common sense.

Other influences on the growth and development of law can be seen in the rise  of activities involved in mercantilism and trade. From these activities arose a system of law that is as ancient as trade itself known as “merchant law,” and which later came to be known by its modern moniker as “commercial law.” This law grew, developed, and was enforced by mercantile courts which became prevalent along the major trade routes in ancient times. These mercantile courts existed outside of the local and whatever national jurisdictions there were at the time. In other words, local governments took a “hands off”attitude toward these courts and allowed them to exist side by side with their own courts. As a result of this practice, mercantile courts were in essence their own source of law which was based largely on equity, as they dealt with controversies between merchants practicing commerce.

Each of these systems of law developed naturally as a means to address a need by people to settle differences in various areas of social activity. It is interesting to note that virtually no one, when faced with an alleged violation of law, thinks to look the word itself up in order to find out what it means or what it refers to. Most people, to their detriment, simply assume they know what the law is, and end up casting blame upon themselves through self-incrimination.  One of the earliest known historical definitions of  the word “law” refers to an oath given, or a promise which obligates one’s self to a certain duty or behavior.

In old English jurisprudence, “law” is used to signify an oath, or the privilege of being sworn; as in the, phrases “to wage one’s law,” “to lose one’s law.” – Black’s Law Dictionary, Fourth Edition.

This latter reference brings in the idea that law could be tied to an agreement made between members of society — for example, be they common folk, subjects of a king, or members of a merchant class — to follow a certain type of law (whether it be ecclesiastical law, municipal law, merchant law, statutory law, common law or whatever). In this sense, then, there arose the conception that one can declare the choice of law that one adheres to within his own conscience based on a given oath or consent within the group to follow that law.

Whether or not a law can be applied to a given circumstance can often depend upon whether the “person” involved consents to being adjudicated under that law. In America if a law is unconstitutional (meaning non-positive), and a person consents to being judged by that law without raising an objection to it, then whatever the adjudication ends up being stands because the person acquiesced to being judged by that law. 

It is unfortunate, but the prevailing perception in this country is that all law applies to all people all of the time — yet, in reality, that is simply not the case.  It is only true if a person thinks it is true. Other than that, any given court can be recused (its jurisdiction overruled and disqualified) if there fails to be put on the record evidence which confirms the court’s presumption of the twin elements of personam and subject matter jurisdiction. Put another way, in the case of a traffic violation, if the plaintiff (state or municipality) cannot prove that a contractual obligation exists whether it be between natural and or fictional entities, then there is no “defendant” in the case for the plaintiff to pursue. The plaintiff loses subject matter jurisdiction over the alleged accused. (At this point, it is interesting to note that subject matter jurisdiction may be challenged at any time!)

Why is this so? Because all traffic “law” (ordinances and codes) which is not consistent with the common law is unconstitutional and cannot be applied to the people; it is considered private non-positive law and not public, or positive, law.  And performance under private law can only be compelled by agreement or contract. If there is no victim who comes forward to swear out a complaint (make a sworn statement under penalty of perjury of claim of injury and/or damage loss), then there is no claim, under constitutional restrictions, which can be adjudicated in a duly formed judicial court of record. And since most traffic courts are inferior courts adjudicating only private law, they can easily be recused and disqualified to hear a case based on an unconstitutional “law.”

Why don’t more people know about this? Because it’s never been taught to them. That and the fact that they are not aware that they can insist upon the type of law to which they can be held accountable. A court must establish two types of jurisdiction before it is allowed to go forward with a matter. One type of jurisdiction refers to the subject matter that lay before the court (subject matter jurisdiction), and the other refers to jurisdiction over the person being brought before the court, known as personam jurisdiction. If there is no agreement or contract in place providing closure to that issue and thus precluding a person’s personal preference of law, then the person can challenge personam jurisdiction in order to establish that preference of law.

When an accused (“defendant” in statutory law) does not challenge the court’s personam jurisdiction (the law that the court is presuming to be in place, allowing the plaintiff to bring an action forward) and assert his own choice of law in regard to the matter, then the state or municipality retains jurisdiction by default (by means of a feudal law mechanism known as escheat whereby the accused has relinquished his law). 

Escheat is a concept involving a preferrential right claimed by a sovereign, lord of the manor,  or state, to lay claim to rights which have been otherwise abandoned. In other words: If you abandon your right to avoid the state’s jurisdiction (statutory rules) in such matters by not challenging the authority of the state’s law (i.e., its rules) over your person, the state retains jurisdiction by means of your neglect to challenge satisfactorily its authority, which in effect would imply acquiescence to its rules. 

Notice that the word “rules” is used here and not the word “law” in reference to the state’s statutes. This is because these rules are not in the strict sense of the word considered law per se, but merely rules put forth by a political entity which may only be enforced by consent. If you do not consent to adhere to these statutory rules and there is no agreement in place that would bind you to those rules, then you may rebut any assumption of personam jurisdiction and assert that the matter be heard under the law that you do adhere to (which may be the common law, where an actual injury to person or property must be the triggering event in order to bring the legal action forward).

So don’t escheat yourself out of a common law remedy by acquiescing to state “law” (a statutory rule) that does not apply to your person!

If you would like to learn more about concepts of law so you can avoid the whole mess without having to “appear” in court, you can download our free ebook Common Law Remedy To Beat Traffic Tickets and learn about the secrets that the courts and legal profession don’t want you to know.

If you’d like to learn more about the law and how it can serve you, don’t hesitate to check out our Articles on Traffic Law section. Discover some of the secrets of law that you’ve never been taught!

You can lead people to the truth, but you cant make them see it.