The Gender Recognition Act of 2004 states that, after receiving a certificate of ‘gender recognition’ by the state,
[a] person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).
Contrast this with one of the most famous lines from An Introduction to the Study of the Law of the Constitution by A.V. Dicey, first published in 1885:
It is a fundamental principle with English lawyers that Parliament can do everything but make a woman a man, and a man a woman.
The contrast between these two passages illustrates one of the great ironies of modern jurisprudence. It used to be a fundamental principle that Parliament could do everything but make a woman a man, and a man a woman. But then we had the Gender Recognition Act (which was provoked by a ruling of the European Court of Human Rights in July 2002). So now Parliament can make a woman a man, and a man a woman.
Now, what I want to point out about this is that it is a matter of law. Legislation was passed in 2004, following the United Kingdom losing a case before the European Court of Human Rights in 2002, a case which depended on articles of the European Convention on Human Rights originally signed in 1950 by all members of the Council of Europe and brought into force in 1953. Therefore it was a change in law which was behind all of the current debates about ‘trans’ issues; and, also to be noted is the significant fact that the change in law was demanded by a European court.
II
Dicey was not responsible for the line I have quoted. He called it a “grotesque expression which has become almost proverbial” and he attributed to J.L. de Lolme, a Genevan writer of the late 18th Century, whose book The Constitution of England; in which it is compared with the republican form of government, and the other monarchies in Europe was first published in English in 1775, and again in an enlarged edition in 1784 (where Dicey found the line). Dicey was using de Lolme’s expression to illustrate a principle summarised in William Blackstone’s Commentaries, but of much older provenance: the principle that Parliament “can do everything that is not naturally impossible”.
Chapter X of The Constitution of England is a technical account of the contrast between English writs and Roman actiones legis. But, along the way, de Lolme claimed that the relative strictness of the English system – writs could only be authorised by a court invested with the appropriate powers, which meant, ultimately, Parliament, whereas actiones legis could be authorised by any judge or praetor – meant that English law had depended for a long time on ‘legal fictions’ in order to maintain its necessary flexibility. But de Lolme conceded that Roman lawyers too had made use of legal fictions. “Law fictions… were not unknown to the old Roman jurisconsults; and as an instance of their ingenuity in that respect may be mentioned that kind of action in which a daughter was called a son.” And he qualified this observation with a footnote:
From the above instance it might be concluded that the Roman jurisconsults possessed still greater power than the English Parliament; for it is a fundamental principle with the English jurists, that Parliament can do every thing, except making a woman a man, or a man a woman.
In the original French: c’est un principe Fondamental chez les gens de robe de ce pays-la, que le parlement peut tout, excepté faire une femme d’un homme; & vice versa.
De Lolme was an 18th-Century writer, hence ironical. Irony had disappeared by the time of Dicey, and has not yet returned amongst even the legal authorities who would now think Dicey the one guilty of grotesquery.
III
Law is an elaborate confection or construction which runs parallel to life, seems derivative of it, imposes order on it, but is separate from it. If life is where we find fact then law is where we find fiction. ‘Guilty!’ and ‘Not guilty!’ are fictions. So is ‘the Crown’, and ‘the State’, and many other corporations which only exist by legal fiction: the BBC, for instance, and the Universities. Even ‘the Law’ itself, when considered with the most Machiavellian or Augustinian eye, is something of a fiction. Now, it is common for ‘law fictions’ to be used in relation to a body politic, i.e., a corporation. But it is not common for ‘law fictions’ to be used in relation to a body natural, i.e. of an individual human soul.
Even Roman jurisconsults would not have thought that a daughter who could be a son by fiction could be a son in fact.
For the first time in human history, as far as I know, the body natural of the individual human has been separated from what we could call the body politic of the same individual human. At one and the same time a human may be naturally or, we may say, originally (or, as they say, inverting reality, ‘assigned’), male, and legally or, we may say, finally, female – and vice versa. And the interesting thing is such law is pressed so hard that certain activists are campaigning hard for law to trump nature: so that, in effect, our bodies politic will become not only the bodies recognised by law but also the only bodies there are. This will be to live in a world where, as de Lolme puts it, “writs, being warped from their actual meaning, [will be] made to extend to cases to which they in no shape belong”. This is a world in which law will be used to turn fiction into fact – by force.
In the last few years the activists have been trying to change the Gender Recognition Act so that it will be enough to identify oneself as the other sex. In September 2020 the United Kingdom Government decided not to allow people to change sex simply because they wanted to fictionalise themselves. So there are still limits to the willingness of the state to allow fictions by law to be substituted for natural facts.
But one can see why there is nothing in our respect for law which enables us to resist such a substitution. It is only by limiting law and insisting that it remains within its own boundaries that we can hold onto facts. It is no wonder Starmer had so much difficulty with his definition of a woman. He is a lawyer, and, as such, lives in a world of legal fiction, not fact.
Dr. James Alexander is a Professor in the Department of Political Science at Bilkent University in Turkey.
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I wonder why no comments section on the Chris Packham story. Such is my dislike for the thick obnoxious little twerp I instantly put in a complaint on Toby’s behalf and made a donation to the daily sceptic. So it looks like you’ve got me commenting for at least another month. God that tit makes my piss boil and it makes me hate the BBC even more, if that were possible.
“I wonder why no comments section on the Chris Packham story. “
There were no comments on the Dawn Butler thing either, also by Mr TY. Perhaps he doesn’t want the opposition to use the comments in evidence against him.
Probably because of legal aspects pertaining to the complaint. But that does not mean you cannot pass comment right here on the piece of human garbage that works for the eco socialist British Brainwashing Corporation.
Yes that’s what I thought and I agree. People will be reading these comments sections pertaining to the likes of Packham and that lady who defamed Toby, and anything seriously negative or abusive may well reflect badly on him personally. Of course, we can just comment here instead so it wouldn’t surprise me if they start deleting comments they see as too negative or ‘honest’. Basically, prepare to be ‘Moderated’.
. Packham and his mates are having their day in the sun but it won’t last.
“ Pride goeth before destruction. And a haughty spirit before a fall”
“the United Kingdom Government decided not to allow people to change sex ”
You can’t change sex. This is certainly not within the power of HMG (very little is, it seems). You’d need to talk to God about it.
State is an abstract concept but not a fiction as it very much does exist.
You can make people drive at 20mph and it can become the law, but the people actually have the power to put a stop to that as we saw in Wales, and it also means they have the power to put a stop to Net Zero, gender ideology and all the other clutter of Liberal progressive crap. We have the power, we just need to be aware of it.
If the deluded activists get their way and get the Gender Recognition Act changed, as has happened in Spain, men can identify themselves as ‘women’, which basically erases what it is to be recognised as female in the eyes of the law. So I will still have XX chromosomes and they will still have XY but the law must recognise us both as women. As J.K Rowling says, ”If men can be women then there’s no such thing as a woman.” The new misogyny bill in Scotland also protects MtF trans people. So they get to behave like misogynists towards women while at the same time being protected from so-called ”misogynistic abuse”. Only a dyed-in-the-wool misogynist would claim what’s happening is not an attack on women’s rights.
If Packham’s lips are moving you can be confident that he is lying. It’s what he does, relentlessly.
It is puzzling that Toby Young, by complaining to the BBC, appears to be crediting the BBC with some integrity. I suspect he will be disappointed. The BBC is simply a corrupt organ of the leftist deep state. It is incapable of being reformed and needs to be abolished.
There are two meanings to the word law.
The political one where governments decide what should, or should not, be done
The scientific one which describes how the physical world works.
When the two contradict each other, the scientific one should take precedence
Legislation isn’t Law. Law is discovered, Legislation is invented in order to weaken the Law, diminish the Rule of Law and provide political advantage to the governing clique by granting favours and advantages to its supporters.
Magna Carta: King John ceded sovereignty to the People, also ceded his power to tax without consent, binding his heirs snd successors. Parliament therefore cannot be sovereign. This is clear because no Parliament can be bound by a previous Parliament: it can repeal prior Acts. If Parliament were sovereign, this would not be possible.
The People are sovereign but have been condition to think otherwise.