Judicial Oath

Grasshoppa

Just a quick question...

What is the judicial oath, here in the Republic of Ireland?

I'm trying to google it and it keeps throwing up the UK.

Thanks.

dermot_sheehan

Art 34.5.1 of the Constitution:
"In the presence of Almighty God I, ___________, do solemnly and sincerely promise and declare that I will duly and faithfully and to the best of my knowledge and power execute the office of Chief Justice (or as the case may be) without fear or favour, affection or ill-will towards any man, and that I will uphold the Constitution and the laws. May God direct and sustain me"

Grasshoppa

Cheers.

Grasshoppa

A couple more questions...

What laws are the judge promising to uphold?

Case law, statutory law, civil law, or all of them?

And if there is a distinction, where is it laid down?

234

Grasshoppa wrote: »

A couple more questions...

What laws are the judge promising to uphold?

Case law, statutory law, civil law, or all of them?

And if there is a distinction, where is it laid down?

In this context the law would probably mean a varitey of things including:

• Statute
• Case Law/Precedent/Common Law/ Rules of Equity
• Constitution
• EU Law
• Etc.

Civil law can mean a lot things. It can be used to distinguish other areas of law from criminal law or to distinguish from canon law but it is still included within case law, statute, etc.
It would be debateable if "law" included substantive values such as justice etc.
P.S. I really hope this isn't going in the direction of one of those Freeman rants.

Grasshoppa

234 wrote: »

P.S. I really hope this isn't going in the direction of one of those Freeman rants.

I'm not going to rant.

I just came across the concept midweek, and was curious if there's anything in it.

I've been googling all week, but it's a hard subject to look up.

So, is the oath a catch-all oath, and is there any definition as to what it entails?

234

Grasshoppa wrote: »

I'm not going to rant.

I just came across the concept midweek, and was curious if there's anything in it.

I've been googling all week, but it's a hard subject to look up.

So, is the oath a catch-all oath, and is there any definition as to what it entails?

Most provisions of the Constituion are fairly vague and you need to look to the case law to see how the superior courts interpret them. As far as I know there has been no case law on 34.5.1. That being said you could make a reasonable guess that since it's only an oath, not any form of statutory declaration with consequences for breach attached it has little value. It might be of some aid in defining the judicial function or if a judge was removed from office as per 35.4.1 but otherwise it just seems to be, in the words of deValera, "an empty formula".

234

Just had a quick look and in cases like Adragh v Maguire and McKenna v An Taoiseach 34.5.1 was used to justify the role of the judiciary as guardians of the constitution. So it seems 34.5.1 gives judges powers rather than restricts them.

Grasshoppa

234 wrote: »

Most provisions of the Constituion are fairly vague and you need to look to the case law to see how the superior courts interpret them. As far as I know there has been no case law on 34.5.1. That being said you could make a reasonable guess that since it's only an oath, not any form of statutory declaration with consequences for breach attached it has little value. It might be of some aid in defining the judicial function or if a judge was removed from office as per 35.4.1 but otherwise it just seems to be, in the words of deValera, "an empty formula".

Since it's from UK law, would a UK precedent apply? (assuming there is one)

On my google searches I came across an ongoing drugs case where the defendents are claiming freeman status, so I suppose the proof is in the pudding.

http://thescotsman.scotsman.com/scotland/39Freemen39-are-told-they-will.6676742.jp


Edit; a bit more detail here...http://www.fmotl.com/forum/viewtopic.php?f=63&t=5809

Grasshoppa

234 wrote: »

So it seems 34.5.1 gives judges powers rather than restricts them.

Meaning all types of law are covered by the oath?

Wolfe Tone

The Freeman concept is certainly fascinating, I dont think this board would be the place to learn more about it. You will have "bunch of loons" bandied about and the thread will simply be lots of posters having a go.

Our man in Havana

gabhain7 wrote: »

Art 34.5.1 of the Constitution:
"In the presence of Almighty God I, ___________, do solemnly and sincerely promise and declare that I will duly and faithfully and to the best of my knowledge and power execute the office of Chief Justice (or as the case may be) without fear or favour, affection or ill-will towards any man, and that I will uphold the Constitution and the laws. May God direct and sustain me"

What if you don't believe in God?

234

Grasshoppa wrote: »

Since it's from UK law, would a UK precedent apply? (assuming there is one)

On my google searches I came across an ongoing drugs case where the defendents are claiming freeman status, so I suppose the proof is in the pudding.

http://thescotsman.scotsman.com/scotland/39Freemen39-are-told-they-will.6676742.jp


Edit; a bit more detail here...http://www.fmotl.com/forum/viewtopic.php?f=63&t=5809

Ok, this gets a bit more involved here. The normal situation with precedent is that Irish precedents (of an equal or higher court) are binding. Precedents from other common law jurisdictions (includes UK) are of presuasive authority which pretty much does what it says on the tin.
However, there are two issues with this. First of all our constitution is a complete break with UK law. While we inherited our legal system from then and it is still fairly similar our written down constitution is completely different from theirs. So when the courts need guidance from abroad they tend to look first to the USA because our constitution is quite similar to theirs.
Second issue is also related to precedent. Not sure about the Scottish courts but it looks like the Sheriffs court is a local court and ther would be several of them throughout Scotland. Normally the only precedents used are those that come from courts whose jurisdiction covers the whole legal jurisdiction (our High Court as opposed to the Circuit Court or District Court). So the only Scottish precedents that Irish judges would really look to would be from the Court of Inner Session (equivilent of our Supreme Court). Generally the Irish courts don't bother looking at Scottish decisions, it's usually England and Wales.
So, the short version- Scottish precedent generally not used her, definately not from such a low court, would only be of persuasive authority not binding and since it's a constitutional issue they would probably ignore the UK stuff anyway.
It will be interesting to see how it works out. Don't hold out much hope though. It might make an interesting case for the UK Supreme Court.

234

Our man in Havana wrote: »

What if you don't believe in God?

Doesn't matter; the constitution does. Look at 44.1, it's pretty bad:

The State acknowledges that the homage of public worship is due to Almighty God. It shall hold His Name in reverence, and shall respect and honour religion.

234

Grasshoppa wrote: »

Meaning all types of law are covered by the oath?

It hasn't really been determined; it would all depend on what you were trying to use the oath to show. Since this is about freemen I think I'l give my two cents worth (no rants, I promise).
In the examples I have seen the Freemen use the judicial oath as a means of refusing to engage with the courts and the legal system. Essentailly they argue that the judge is not upholding his oath beacuse of what he is doing. The problem comes when they try to say that this means he cannot make a decision beacuse he has no jurisdiction to to so beacuse he is not upholding his oath. The problem is that it is not for the party before the court to determine if he is upholding his oath or not, that's a question for a higher court. So if it was accepted that not upholding your oath meant you had no jurisdiction to make the decision it would be for a higher court to detemine if the judge did in fact uphold his oath or not, this is not the role of the litigant/accused/etc. So you appeal or seek judicial review. An akward analogy would be if you punch somebody in the face and they sue for assault and battery. It is not for them to determine if you have or have not assaulted them, they don't just get to make their own order for damages, you have to put your case to a judge. He then makes the decision and your argument is vindicated or not. Just because you believe that you are legally correct does not make it so, your need the impramatur of the judicial system to give effect to you view.

Robbo

Wolfe Tone wrote: »

The Freeman concept is certainly fascinating, I dont think this board would be the place to learn more about it. You will have "bunch of loons" bandied about and the thread will simply be lots of posters having a go.

When you're claiming that the Book of Genesis (as the above horticulturists are) told you to grow dope, you may not be coming from the strongest of positions. No one listens to Phil Collins these days...

Grasshoppa

What about the freeman notion that you give your consent to be charged by identifying yourself with your legal entity (by supplying the guards your name or signing a document , for example) and by agreeing that you 'understand the charges'?

Is there a difference between a human and the 'person'?

And is one consenting to be tried by 'understanding the charges'?

Grasshoppa

Wolfe Tone wrote: »

You will have "bunch of loons" bandied about and the thread will simply be lots of posters having a go.

Probably, but I'd like to fire in as many questions as I can before it comes to that.

darragh666

Grasshoppa wrote: »

What about the freeman notion that you give your consent to be charged by identifying yourself with your legal entity (by supplying the guards your name or signing a document , for example) and by agreeing that you 'understand the charges'?

Is there a difference between a human and the 'person'?

And is one consenting to be tried by 'understanding the charges'?

The short answer would be no.

The legal system is not as complicated as you seem to think. Words dont have secret dual meanings etc.

The legal system is run by people. The same people that make up society as a whole. One person does not pick and choose which laws apply. Read up on social contract or various other legal philosophies.
There is no simple answer to why the current law applies apart from the fact that it was decided by the majority of society when they voted on the 1937 constitution. And so long as people keep voting in elections and 'approving' of the current legal system it wont cease to operate or apply to an individual or small minority.

blueythebear

Wolfe Tone wrote: »

The Freeman concept is certainly fascinating, I dont think this board would be the place to learn more about it. You will have "bunch of loons" bandied about and the thread will simply be lots of posters having a go.

It may be less "having a go" as pointing out that they're completely wrong and that they do themselves a disservice by aggravating judges. Also, the idea of the freeman notion appears to be often used by individuals who merely wish to avoid paying their TV License or avoid a speeding fine. I could be wrong here, but it seems to be cited only by people trying to avoid the law as opposed to being any part of any deep rooted belief system or way of life.

234

Grasshoppa wrote: »

What about the freeman notion that you give your consent to be charged by identifying yourself with your legal entity (by supplying the guards your name or signing a document , for example) and by agreeing that you 'understand the charges'?

Is there a difference between a human and the 'person'?

And is one consenting to be tried by 'understanding the charges'?

This is based on a slightly confused understanding of the legal system. The law does indeed distinguish between natural and other persons. Natural persons are just people. The state is a juristic person. Corporations also have legal personality.
However the notion that your birth certificate created a legal fiction in your name is not true. The courts are not concerned with your birth cert at all, it created nothing. All you have to do to be a natural person is exist. The court considers you a natural person if you have your birth cert or not. Even if they cannot identify you, if nodbody knows who you are, you are still a natural person.
The less said about gevernments trading birth certs on the stock market the better...

234

Another point. If your legal personality is a fiction as the Freemen claim, then the point about the Judge's Oath is moot. Since the name he swore the oath under is nothing but a legal fiction created by the government then he was not binding himself with the oath. He probably wouldn't even be a judge and could uphold no law, even the law of the land.

Wolfe Tone

Grasshoppa wrote: »

What about the freeman notion that you give your consent to be charged by identifying yourself with your legal entity (by supplying the guards your name or signing a document , for example) and by agreeing that you 'understand the charges'?

Is there a difference between a human and the 'person'?

And is one consenting to be tried by 'understanding the charges'?

Ah, the freeman differentiation between understanding charges and "comprehending" them.

Grasshoppa

darragh666 wrote: »

The short answer would be no.

The legal system is not as complicated as you seem to think. Words dont have secret dual meanings etc.

Does legalese not confer different meaning on words, in a legal setting?

Here's one online definition...le·gal·ese (lē′gəl ēz′)

noun
the conventional language of legal forms, documents, etc., involving special vocabulary and formulations, often thought of as abstruse and incomprehensible to the layman

Freeman concepts aside, why not speak in plain English?

The legal system is run by people. The same people that make up society as a whole. One person does not pick and choose which laws apply. Read up on social contract or various other legal philosophies.
There is no simple answer to why the current law applies apart from the fact that it was decided by the majority of society when they voted on the 1937 constitution. And so long as people keep voting in elections and 'approving' of the current legal system it wont cease to operate or apply to an individual or small minority.

I'll get stuck in to the constitution, so.


Why has this freeman thing come about only recently? Is it just a passing fad?

Grasshoppa

234 wrote: »

Another point. If your legal personality is a fiction as the Freemen claim, then the point about the Judge's Oath is moot. Since the name he swore the oath under is nothing but a legal fiction created by the government then he was not binding himself with the oath. He probably wouldn't even be a judge and could uphold no law, even the law of the land.

Would he not then have attached his natural person to his legal fiction by signing said oath?

darragh666

Grasshoppa wrote: »

Does legalese not confer different meaning on words, in a legal setting?

Here's one online definition...le·gal·ese (lē′gəl ēz′)

noun
the conventional language of legal forms, documents, etc., involving special vocabulary and formulations, often thought of as abstruse and incomprehensible to the layman

Freeman concepts aside, why not speak in plain English?

The language used can be complicated because it needs to be precise. The wording of a judgement could be studied and examined in the future. With a lot of cases especially criminal cases important decisions are being made which will affect the participates and therefore the language used will seem long and unnecessary but is often required.

As with any profession certain language and terms are used more frequently and over time develop more precise meanings to those in the same profession.However as 'freemen' or other 'alternative' theories may suggest the words used do not have special powers etc.

Understand does not mean stand under in some sort of special consenting way.

The freeman idea seems to be made up of a mixture of various legal ideas from through out history and various jurisdictions. It seems to be showing up more often due to the ideas being spread on the internet but people never seem to get the whole picture.

234

Grasshoppa wrote: »

Would he not then have attached his natural person to his legal fiction by signing said oath?

This is a question only a Freeman could answer for you since they are the only ones who recognise this distinction between your natural person and this legal fiction, the law does not recognise it.
Besides, they would probably want him to endorse the back of his birth cert next.

234

Grasshoppa wrote: »

Does legalese not confer different meaning on words, in a legal setting?

Yes, but there is nothing sinsiter in it. Using a precise meaning in law is no different to the highly technical language that scientists would use. Be wary of dictionaries, legal or otherwise, while they can provide a useful guide they are not definitive or authoratative.
Words in a legal setting can have several legal meanings or incorporate a constantly evolving concept. Ask a lawyer what reasonable foreseeability entails and where it applies and he could write you a small book. It also depends on the context of the word. "Reasonable" in one area of law might not mean the same thing in other areas.
Some of the formailty of legal language can be attributed to the law-french of the medieval english courts and the common use of latin that is only really disappearing now.
If you think about it this applies to nearly all specilised areas of life. If you talk to a serious gamer without any expreience of their world you might be confused by the language and terms used.
Can you give any examples of a word that has a legal definition that would outrage the public in the way the freemen claim. I would be genuinely interested to see.

Grasshoppa

234 wrote: »

Can you give any examples of a word that has a legal definition that would outrage the public in the way the freemen claim. I would be genuinely interested to see.

Copied and pasted from the Freeman Guide, from an Irish Freeman website...

Person
A corporation treated as having the rights and obligations of a person. Counties and cities can
be treated as a person in the same manner as a corporation. However, corporations, counties and
cities cannot have the emotions of humans such as malice, and therefore are not liable for punitive
damages unless there is a statute authorizing the award of punitive damages.

Society
A Society is a number of Persons united together by mutual consent.
Societies are either incorporated and known to the law or un-incorporated, of which the law does not
generally take notice.
By Civil Society is usually understood as a State, a Nation or a body political.
In Civil Law, by Society is meant Partnership.

Statute
➢ a law enacted by the legislative branch of a government
➢ an act of a corporation or its founder intended as a permanent rule
➢ an international instrument setting up an agency and regulating its scope or authority

Act
i. act in the law.An Act that is intended to create, transfer, or extinguish a right and that is
effective in law for that purpose; the exercise of a legal power.’
ii. act of the law.The creation, extinction, or transfer of a right by the operation of the law itself,
without any consent on the part of the persons involved.

Is the last definition, for an 'Act', correct?

To extinguish a right?

234

The definition of an act is not correct because it is too underinclusive. Statutes (includes acts) are difficult do define by referance to their purpose because they can do almost anything. Basically the Oireachtas can pass any act that is not unconstitutional. Acts can override and replace esixting law or create new areas of law. They can create and exhtingush legal rights. They can establish statutory bodies with vaious functions. They can create criminal offences. They can deal with purely administrative matters. The list goes on.

The definition of person is incorrect and corporations can have punitive damages awarded aginst them even in the absnce of a statute- Crofter Properties v Genport.

234

This is the Freeman definition of common law from the Freeman Guide:

Common Law

• The unwritten Law of the Common man.

• Comes directly from higher
self/conscience/intuition.

• Religious codes of conduct i.e. The Ten
Commandments.

• Summed up as ‘Harm None’

• These Laws are for Man and protect

Anybody want to take potshots?

dermot_sheehan

One's own personal philosophy is one thing.

The legal order that underpins society may be different.

johnnyskeleton

Wolfe Tone wrote: »

The Freeman concept is certainly fascinating, I dont think this board would be the place to learn more about it. You will have "bunch of loons" bandied about and the thread will simply be lots of posters having a go.

Well lets give the freeman (pronounced "fremen" like in Dune) ideas the benefit of taking them at their height.

So the idea is that there is a law that they did not consent to and therefore it does not apply to them. Democracy, in their view, means that you can only be governed by consent.

However, that is not what democracy is. Democracy has been unkindly described as the tyranny of the majority over the minority and while I don't think it is as stark as that, when it is put pin to collar that is essentially what democracy is. Democracy is the ability of the majority to impose their views, by force if necessary, upon the minority.

So put quite simply, if the minority refuses to obey the laws of the majority because they haven't consented to them, the majority has the democratic right to make them obey those laws, by force if necessary.

Kenny DNK

"Harm None" is the only law there ever should be imo. Yeah there are reasons for parking fines, but having to pay an amount to a corporation for it is wrong. There are much better ways of dealing with this.

Common law is based on intuition, the closest to God anyone could ever be. The legal system is a common conscencus that has been written by few people, and we are lead to believe we must live our lifes by these outdated and not challenge it. Where is the room for better ways of life? In Dail Eireann, in the hands of a handful of men.

Peace.

MinnyMinor

234 wrote: »

Another point. If your legal personality is a fiction as the Freemen claim, then the point about the Judge's Oath is moot. Since the name he swore the oath under is nothing but a legal fiction created by the government then he was not binding himself with the oath. He probably wouldn't even be a judge and could uphold no law, even the law of the land.

nice one well said. freemen though seem to want to choose when a law applies

MinnyMinor

I am genuinely curious about this .They seem to believe it is possile to do