The identification of fundamental law and its basic principles

Sinclair, Malcolm David (2016) The identification of fundamental law and its basic principles. Doctoral thesis (PhD), Manchester Metropolitan University.

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Abstract

This thesis argues that the doctrine of absolute Parliamentary Sovereignty does not have a proper legal basis and is a political doctrine. The most superior form of law is Fundamental Law which, contrary to the existing legal view, does have a legal basis for its existence. Fundamental Law is that body of law which expressly or by implication states in its rules the fundamental rights and freedoms of the individual. These fundamental rights and freedoms are intrinsically linked to a concept which can be properly called Fundamental Justice. A principle inherent within a rule of Fundamental Law is natural equity. When a rule of Fundamental Law is properly operative then a specific form of Justice is created or the same form of injustice is prevented. Research has been undertaken dating back to the 17th. century with particular emphasis upon the period around the English Civil War and the charges brought against King Charles I. This research continued through to the Second World War and onwards to modern times. There is particular analysis relating to the Nuremburg War Crimes trials and the judgments of the Tribunal; the Universal Declaration of Human Rights; the European Convention on Human Rights and the recognized concept of Compelling Law or Jus Cogens. The methodology used during this thesis is the same as that which is applied throughout the courts in the UK legal system. It applies a combination of ‘black letter’ law; documentary analysis; identification at various stages of the distinction between political and legal issues; establishing facts from the evidence and most importantly drawing proper and reasonable inferences from those established facts and factual situations. This being in accordance with the accepted practice of all the courts in the UK. Evidence is provided of a number of specific rules which can properly be called rules of Fundamental Law. These rules are identified by analysing existing recognized rules of Compelling Law and certain specific rules found in Human Rights Law and demonstrating the common factors between them. This thesis accepts that the doctrine of Fundamental Law is not recognized as a legal concept in the UK legal system but provides compelling evidence that such a failure has little to do with the fact of its existence, as a question of law, but is simply a refusal to recognize it, apparently based on political expediency. This thesis further demonstrates the benefits to individuals by the proper recognition of Fundamental Law.