Constitutional Recommendations

December 6th, 2013 at 6:42 am by David Farrar

The Constitutional Review Panel has made a number of recommendations to Cabinet. Mostly they are general stuff about further talking, but a few specific views emerge. They include:

  • notes that although there is no broad support for a supreme constitution, there is considerable support for entrenching elements of the constitution
  • notes the consensus that our constitution should be more easily accessible and understood, and notes that one way of accomplishing this might be to assemble our constitutional protections into a single statute
  • notes the Panel’s advice that the current arrangements for the representation of Māori in Parliament should remain while the conversation continues
  • sets up a process, with public consultation and participation, to explore in more detail the options for amending the Act to improve its effectiveness such as adding economic, social and cultural rights, property rights and environmental rights; entrenching all or part of the Act
  • does not undertake further work on the size of Parliament 
  • notes a reasonable level of support for a longer term
  • sets up a process, with public consultation and participation, to explore a fixed election date in conjunction with any exploration of a longer term
  • notes a level of concern about MPs leaving the parties they were elected with, especially list  MPs, but no consensus about a solution
  • recommends the Government invites Parliament to differentiate between types of urgency and to minimise the use of the urgency truncating select committee consideration of bills

Some worthwhile stuff there on bringing the constitutional acts into one statute, and looking at a longer term with a fixed date. Including property rights in the Bill of Rights Act has appeal also.

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67 Responses to “Constitutional Recommendations”

  1. nocommentkiwi (35 comments) says:

    Cue: a hundred posts raving about a stacked panel and maoris’ infiltration of the review process.

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  2. duggledog (1,353 comments) says:

    ‘The current arrangements for the representation of Māori in Parliament should remain while the conversation continues’

    No they should be able to be elected on their own merits FFS. If I were tangata whenua I would be insulted, the whole idea is insulting and condescending and demeaning I would have thought. The ‘conversation’ will continue for ever, like treaty settlements

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  3. duggledog (1,353 comments) says:

    Nocomment

    That’s because it is a stacked panel. Any New Zealander can see that. Still, National will ignore it I reckon.

    I’d be glad to see 100 posts on this topic, which has colossal ramifications

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  4. Longknives (4,454 comments) says:

    ‘notes that although there is no broad support for a supreme constitution, there is considerable support for entrenching elements of the constitution”

    In other words- Nobody wants it but we know better so we are going to force these changes on you anyway..
    ‘Zimbabwe of the Pacific’ here we come!

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  5. Ross12 (1,148 comments) says:

    DPF — you must have missed one. / sarc Norman put out a big PR yesterday saying the “people have spoken” ( with their submissions) that the environment and its protection etc must be put into the constitution and Government must now place more importance on it etc etc etc. On reading I thought it must have been the one recommendation that was in bold type !!

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  6. kowtow (7,615 comments) says:

    Waste of taxpayers’ money.

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  7. big bruv (13,279 comments) says:

    “on behalf of all the people of Aotearoa New Zealand.” That is as far as I got. I know of no country called Aotearoa New Zealand. There is a New Zealand, been there for years and years yet I cannot find an Aotearoa.

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  8. redqueen (456 comments) says:

    Not entirely sure that ‘environmental rights’ are compatible with property rights. Either I can enjoy my land, or I can’t, and ‘the environment’ is far more nebulous and open to political grandstanding / nonsense (aka, the Green Party will use it for whatever purpose suits their particularly point). Equally, quite easy to just publish a document on constitutional arrangements and practices without reverting to yet more legislation.

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  9. Longknives (4,454 comments) says:

    Bruv- They changed the name (again without consulting anyone outside a few Maori activists) while nobody was watching.
    Have a look at your passport…

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  10. Manolo (13,358 comments) says:

    More money wasted since everything will be ignored (and forgotten) quickly. Yawn, yawn.

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  11. redqueen (456 comments) says:

    @Longknives

    I thought that meant we had dual citizenship? A New Zealand Passport and then Aotearoa…? See, Labour, always providing a false sense of additional entitlement…

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  12. Alan (1,062 comments) says:

    Entrenching a law is a farce, it’s utterly meaningless. The requirement for a 75% majority to amend is just for show.

    With a majority of 1 you can amend the legislation which defines entrenchment, then go and repeal or amend the entrenched law.

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  13. Fisiani (953 comments) says:

    Since when did the Constitutional Review Panel change the name of my country New Zealand to Aotearoa New Zealand?
    That is insulting.

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  14. UglyTruth (3,984 comments) says:

    notes the consensus that our constitution should be more easily accessible and understood, and notes that one way of
    accomplishing this might be to assemble our constitutional protections into a single statute

    Constitutions limit legislation, you can’t legislate a constitution into existence. Also, constitutions are of the people, not of the persons of the state with their protests and submissions.

    The NZ political system is fundamentally corrupt because it is a secular system which assumes the role of deity by declaring itself to be sovereign.

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  15. Puzzled in Ekatahuna (338 comments) says:

    notes that although there is no broad support for a supreme constitution, there is considerable support for entrenching elements of the constitution

    Is there a document somewhere that actually is the New Zealand Constitution?
    This would be news to a lot of people.

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  16. Simon (685 comments) says:

    The Peoples Constitution.

    NZ is screwed.

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  17. Weihana (4,496 comments) says:

    big bruv (11,817 comments) says:
    December 6th, 2013 at 8:05 am

    I know of no country called Aotearoa

    Translation: I’m a boring old white fart.

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  18. UglyTruth (3,984 comments) says:

    Is there a document somewhere that actually is the New Zealand Constitution?

    No. England has an unwritten constitution, and the principles of the constitution can be found in various historical documents like the Magna Carta. Is has been said that New Zealand also has an unwritten constitution, presumably based on the English one, but it relates more to the law of the land than to the legislation of parliament as a civil institution.

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  19. OneTrack (2,601 comments) says:

    Weihana -”big bruv (11,817 comments) says:
    December 6th, 2013 at 8:05 am

    I know of no country called Aotearoa

    Translation: I’m a boring old white fart.

    Translation: You are just a tauiwi (ie visitor) so Maori don’t care what you think. Just keep paying your taxes.

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  20. itstricky (1,558 comments) says:

    Translation: I’m a boring old white fart

    If he consulted The Almighty he may be able to get guidance to where it is?

    http://www.catholic.org.nz/

    Some divine sign like a colourful sky banner or something?

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  21. Huevon (186 comments) says:

    “sets up a process, with public consultation and participation, to explore in more detail the options for amending the Act to improve its effectiveness such as adding economic, social and cultural rights, property rights and environmental rights; entrenching all or part of the Act”

    This is exactly the kind of crap the Europeans put in the Lisbon Treaty. Rights to strike, free health care, pensions etc. How is that working out for them…..

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  22. F E Smith (3,302 comments) says:

    you can’t legislate a constitution into existence

    So both Australia and the USA have imaginary constitutions?

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  23. AG (1,777 comments) says:

    So both Australia and the USA have imaginary constitutions?

    Ditto Canada.

    The Constitution Act 1982 is a mythical beast.

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  24. tvb (4,202 comments) says:

    New Zealand does not have a supreme law. Parliament remains sovereign, not the Courts striking down statutes passed by parliament when interpreting a supreme law. Long may that remain so. But our constitution lies in a number of pieces of legislation and conventions and the common law. It is not unwritten.

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  25. gump (1,487 comments) says:

    @Puzzled in Ekatahuna

    “Is there a document somewhere that actually is the New Zealand Constitution?”

    ——————–

    Yes there is. Originally our constitution was defined by the New Zealand Constitution Act 1852 (which was an Act of the British Parliament that replaced the earlier New Zealand Constitution Act of 1846).

    In 1986 we repealed the 1852 Act and replace it with The Constitution Act 1986. This is the formal statement of New Zealand’s constitution and you can access it at the following link:

    http://www.legislation.govt.nz/act/public/1986/0114/latest/DLM94204.html

    The idea that we don’t have a written constitution is an recurring urban myth. However it is true that our constitution isn’t a single document (the Constitution Act must be read together with several other documents).

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  26. UglyTruth (3,984 comments) says:

    Yes there is. Originally our constitution was defined by the New Zealand Constitution Act 1852 (which was an Act of the British Parliament that replaced the earlier New Zealand Constitution Act of 1846).

    Wrong, you can’t legislate a constitution into existence.

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  27. UglyTruth (3,984 comments) says:

    New Zealand does not have a supreme law. Parliament remains sovereign

    The law of the land supreme law is the supreme law, in the sense that it is connected to what is real or substantive.
    Legislation is interpreted according to the law of the land, for example Baron Parke’s rule aka the golden rule.

    “[it] is a very useful rule in the construction of a statute to adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that is at variance with the intention of the legislature to be collected from the source itself, or leads to any manifest absurdity or repugnance, in which the language may be varied or modified so as to avoid such inconvenience, but no futher”

    Baron Parke, Becke v Smith (1836)

    Parliament isn’t sovereign, the belief that it is is only an article of faith amongst the body politic.

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  28. gump (1,487 comments) says:

    @UglyTruth

    “Wrong, you can’t legislate a constitution into existence.”

    ————————

    The New Zealand Constitution Acts of 1846 and 1852 were acts of the British Government. They weren’t formulated by a New Zealand legislature.

    But putting that to one side – your assertion makes no sense at all. Are you suggesting that constitutions can only be imposed by Kings and dictators?

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  29. UglyTruth (3,984 comments) says:

    It is not unwritten.

    It is unwritten in the sense that it is not expressed by a single document.

    “Unlike most countries, New Zealand follows the UK in considering itself to have an ‘unwritten’ constitution.”

    http://www.teara.govt.nz/en/constitution/page-1

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  30. gump (1,487 comments) says:

    @UglyTruth

    “Unlike most countries, New Zealand follows the UK in considering itself to have an ‘unwritten’ constitution.”

    ——————-

    New Zealand doesn’t have an unwritten constitution. As the article you linked helpfully explains:

    “It’s not clear why New Zealand’s constitution is regarded as unwritten. Key institutions and rules governing the exercise of public power in Australia, Canada and the US are also based on practice or convention outside written provisions of their constitutions. But those nations still consider their constitution to be in one written document.”

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  31. UglyTruth (3,984 comments) says:

    The New Zealand Constitution Acts of 1846 and 1852 were acts of the British Government. They weren’t formulated by a New Zealand legislature.

    While these acts may have recognized existing constitutional principles, they did not define them.

    “The constitution of a nation is the set of rules that govern how a government can exercise public power.”
    http://www.teara.govt.nz/en/constitution/page-1

    The notion that a government can be restricted by its own rules is absurd, as any government that has the power to make rules has the power to revoke them. Also, the idea that the British Government could define the rules that the NZ parliament must abide by contradicts the idea that the NZ parliament is sovereign.

    But putting that to one side – your assertion makes no sense at all. Are you suggesting that constitutions can only be imposed by Kings and dictators?

    No, I’m not suggesting that. Governments are creations of the people, so the people define the rules of governments, not the governments themselves. Written constitutions are a formal expression of the relationship between the people and the government. As well as reflecting the will of the people a written constitution should recognize the underlying principles of the local law, for common law this implies the recognition of due process (amongst other things).

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  32. F E Smith (3,302 comments) says:

    The notion that a government can be restricted by its own rules is absurd, as any government that has the power to make rules has the power to revoke them.

    Are you suggesting that the US Congress could simply abolish the US Constitution with a simple majority vote?

    the idea that the British Government could define the rules that the NZ parliament must abide by contradicts the idea that the NZ parliament is sovereign.

    But at the time the UK Parliament defined rules for NZ the NZ Parliament was not sovereign.

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  33. metcalph (1,361 comments) says:

    Are you suggesting that the US Congress could simply abolish the US Constitution with a simple majority vote?

    The Continental Congress did so. It may not have been a constitutional abolition but it was an effective one nevertheless.

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  34. EAD (598 comments) says:

    Holy sh*t – I’ve not followed this in detail (based in London). But looking at these proposals and the makeup of the panel, every New Zealander who doesn’t have the correct great, great, great grandparents ought to be mighty worried. I don’t think this group is going to be coming back with recommendations about government that acknowledges that “all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed” (Us Declaration of Independence

    Constitutions should protect the minority against tyranny from the majority. I don’t think the average punter realises where this leads if we create legal fiction of two-tier citizenship….. Despotism of the Zimbabwe type.

    Fortunately the Declaration did provide redress if despotism does arise:
    “But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security”

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  35. F E Smith (3,302 comments) says:

    metcalph,

    the Continental Congress did not abolish their Constitution with a simple majority. From what I can see, they followed the rules as set out in the document that was replaced with the present US Constitution. The present US Constitution has rules that set out how amendments are to be adopted. UT appears to be arguing that those rules are effectively redundant and that a simple majority of Congress would be sufficient to amend the US Constitution.

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  36. AG (1,777 comments) says:

    Wrong, you can’t legislate a constitution into existence.

    Canada did: http://www.solon.org/Constitutions/Canada/English/ca_1982.html

    Australia did: http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/

    Ireland did: http://en.wikipedia.org/wiki/Constitution_of_the_Irish_Free_State

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  37. UglyTruth (3,984 comments) says:

    But at the time the UK Parliament defined rules for NZ the NZ Parliament was not sovereign.

    It’s not sovereign today. For the NZ parliament the assertion of sovereignty was an argument of necessity.

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  38. F E Smith (3,302 comments) says:

    It’s not sovereign today. For the NZ parliament the assertion of sovereignty was an argument of necessity.

    I think both of those points require an explanation, UT!

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  39. UglyTruth (3,984 comments) says:

    Canada did: http://www.solon.org/Constitutions/Canada/English/ca_1982.html

    “Whereas Canada is founded upon the principles that recognize the supremacy of God and the rule of law”
    These principles are not defined by the Canadian document, and the Canadian government did not legislate them into existence.

    Australia did: http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/

    Australia cannot both be a sovereign nation and a nation that has it’s rules of government defined by another country.

    Ireland did: http://en.wikipedia.org/wiki/Constitution_of_the_Irish_Free_State

    “… the British Parliament received the Royal Assent and gave effect to the Constitution under British law …”
    Same as for Australia.

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  40. F E Smith (3,302 comments) says:

    I have a feeling you are a little ignorant of history, UT. But please, continue; I am waiting for an explanation as asked for above.

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  41. UglyTruth (3,984 comments) says:

    I think both of those points require an explanation, UT!

    It’s not sovereign today because it has lower status than deity and deity is pre-eminent in common law.

    The assertion of sovereignty was an argument of necessity because sovereignty is generally recognized as the essential element of lawmaking and parliament operates on the assertion that it makes law. As a secular system it cannot acknowledge the role of deity, and so it promotes the fiction that common law is nothing more than case law.

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  42. Graeme Edgeler (3,267 comments) says:

    From what I can see, they followed the rules as set out in the document that was replaced with the present US Constitution.

    Yes and no. The Articles of Confederation required the agreement of all states to be amended. The Constitution Congress set up the Constitutional Convention in the ordinary way and asked it to make recommendations for amendment.

    It decided in the end not to recommend amendment but to recommend a new constitution, which it said would come into force when 9 of the 13 states agreed, not the 100% the the Articles required for amendment of the articles.

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  43. UglyTruth (3,984 comments) says:

    I have a feeling you are a little ignorant of history, UT.

    I have a feeling that as a lawyer you have an interest in defending the status quo, and thus cannot address the issues without prejudice.

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  44. F E Smith (3,302 comments) says:

    I have a feeling that as a lawyer you have an interest in defending the status quo, and thus cannot address the issues without prejudice.

    Absolute rubbish; but please continue…

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  45. UglyTruth (3,984 comments) says:

    Absolute rubbish; but please continue…

    Do you deny that you swore an oath of allegiance (or affirmed allegiance) to Elizabeth Windsor?

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  46. AG (1,777 comments) says:

    UT,

    Is your claim that all law comes from God?

    If so, there’s the small problem that God does not exist.

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  47. AG (1,777 comments) says:

    Do you deny that you swore an oath of allegiance (or affirmed allegiance) to Elizabeth Windsor?

    You mean our head of state, the Queen of New Zealand, who only holds that position because Parliament legislated for her to have it?

    http://www.legislation.govt.nz/act/public/1986/0114/latest/DLM94210.html?search=ts_act%40bill%40regulation%40deemedreg_constitution+act_resel_25_a&p=1

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  48. UglyTruth (3,984 comments) says:

    Is your claim that all law comes from God?

    No, I said deity, not “God’, and I did not say that all law originates with deity. It is a fact that at common law natural rights are bestowed by deity, irrespective of religious beliefs. Religious issues about the exact nature of “God” are not important, other than perhaps recognizing that Blackstone was referring to deity when he spoke of “God”, and recognizing the role of deity in the due process of common law.

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  49. UglyTruth (3,984 comments) says:

    You mean our head of state, the Queen of New Zealand, who only holds that position because Parliament legislated for her to have it?

    No, I mean Elizabeth Windsor, who is not fit for the title of queen due to her involvement in religious genocide which included the torture of children in the Canadian residential schools. The NZ parliament had little choice in making her head of state due to the oath of allegiance of its members.

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  50. AG (1,777 comments) says:

    It is a fact that at common law natural rights are bestowed by deity, irrespective of religious beliefs.

    That’s a problem, given that this “deity” does not exist. And even if it did, what gave this “deity” the power and authority to bestow “common law natural rights”?

    Because making something up and then saying “this made up thing is the source of all law and authority” isn’t a very convincing argument. And just ’cause Blackstone said something don’t make it true.

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  51. UglyTruth (3,984 comments) says:

    That’s a problem, given that this “deity” does not exist.

    How could you possibly know that?

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  52. AG (1,777 comments) says:

    How could you possibly know that?

    I rather think the onus is on the person claiming “there is this thing called “a deity” that is the source of all common law natural rights, which found our entire constitutional system” to establish the truth of that proposition. If you want to be taken seriously in common communication with others, that is. If it’s just a case of you living in your own little fantasy world, then that’s fine.

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  53. UglyTruth (3,984 comments) says:

    I rather think the onus is on the person claiming “there is this thing called “a deity” that is the source of all common law natural rights, which found our entire constitutional system” to establish the truth of that proposition. If you want to be taken seriously in common communication with others, that is. If it’s just a case of you living in your own little fantasy world, then that’s fine.

    It seems that it is you who is living in a fantasy world, asserting that you have knowledge that is beyond the reach of ordinary men.

    Knowledge that a thing exists can be attained by observation of that thing, knowledge that it doesn’t exist involves knowledge of all cases where that thing might exist, which you clearly do not have. Since you don’t have that knowledge it follows that you are either delusional or you were lying when you said that the deity that I was referring to did not exist. A more honest position might have been for you to say that you do not believe that deity exists.

    As a matter of law the existence of deity is inferred from the reference to deity in the sources of the law, specifically the writings of Bracton, Coke, and Blackstone.

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  54. RichardX (321 comments) says:

    A more honest position is that no evidence exists for that deity.

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  55. F E Smith (3,302 comments) says:

    Do you deny that you swore an oath of allegiance (or affirmed allegiance) to Elizabeth Windsor?

    Yes.

    EDIT: Sorry for the late reply. Been in meetings all afternoon.

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  56. UglyTruth (3,984 comments) says:

    A more honest position is that no evidence exists for that deity.

    How would to know whether evidence of deity exists or not?

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  57. F E Smith (3,302 comments) says:

    Do you deny that you swore an oath of allegiance (or affirmed allegiance) to Elizabeth Windsor?

    Yes.

    Well?

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  58. gump (1,487 comments) says:

    @UglyTruth

    “It’s not sovereign today because it has lower status than deity and deity is pre-eminent in common law.”

    ————————

    I don’t think you understand the concept of common law.

    The common law system replaced the previous system of canonical law. It was canonical law that derived its authority from God (whereas common law derived its authority from the Monarch).

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  59. UglyTruth (3,984 comments) says:

    The common law system replaced the previous system of canonical law.

    No, canon law operated (and continues to operate) independently of common law.

    http://diocese-tribunal.org/canonlaw.php

    It was canonical law that derived its authority from God (whereas common law derived its authority from the Monarch).

    English common law originated with King Alfred the Great, who wrote a legal code which began with the ten commandments.
    The authority of common law didn’t originate with the king because the king did not create the common law.
    “The king is not subject to men, but is subject to God and the law” ~ Edward Coke

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  60. UglyTruth (3,984 comments) says:

    Well?

    So in what way do you think that I’m a little ignorant of history?

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  61. F E Smith (3,302 comments) says:

    No, no, you asked if I denied swearing or affirming allegience to the Queen, and I said that yes, I did deny doing that.

    Answering your 8.34pm question would take far too long…

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  62. gump (1,487 comments) says:

    @UglyTruth

    “English common law originated with King Alfred the Great, who wrote a legal code which began with the ten commandments.”

    ———————-

    No – that is not correct.

    The legal code of Alfred the Great was simply a compilation of the common law which was already in use at the time. He did not create it.

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  63. gump (1,487 comments) says:

    @UglyTruth

    “So in what way do you think that I’m a little ignorant of history?”

    ————————

    Well – you recently posted that you believe that Apollo moon landing was faked.

    That’s remarkably ignorant.

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  64. UglyTruth (3,984 comments) says:

    The legal code of Alfred the Great was simply a compilation of the common law which was already in use at the time. He did not create it.

    AFAIK the law before King Alfred the Great was never called common law.

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  65. Kea (11,878 comments) says:

    Alfred the great ! LOL :)

    I think we can safely ignore the utterings of unelected dictators from over a thousand years ago before nz was inhabited. Ditto Middle Eastern religions. Neither has any relevance to us and both should be ignored.

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  66. UglyTruth (3,984 comments) says:

    Well – you recently posted that you believe that Apollo moon landing was faked.

    That’s remarkably ignorant.

    Then perhaps you would like to comment on this video:

    Or this one

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  67. UglyTruth (3,984 comments) says:

    Neither has any relevance to us and both should be ignored.

    The relevance is that he legal code marked the advent of English common law, aka the law of the land.

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