In Part 1 of this three-part series, we looked at some of the misinformation regarding the source and scope of the law disseminated by pseudolegal preachers.
In this second instalment, we'll look at some of the most common legal arguments put forward by proponents of this nonsense, why they are legally unfounded and why they will not be accepted by any court or tribunal of law.
Strawman theory and legal personhood
A common pseudolaw argument is that the party to a legal dispute – including the defendant in a criminal case – can avoid legal liability by pointing to a separate legal persona (“the strawman”) as the only party that can held legally responsible for an accusation.
This is based on the idea that “flesh and blood” persons do not hold a legal personality, only a false legal persona exists as a result of relationships with government, such as when being issued a birth certificate or being registered to vote.
In the Canadian case of Meads v Meads, Dennis Larry Meads attempted to avoid spousal and child support obligations as part of his divorce, by arguing such liabilities actually fell to his separate legal persona.
Numerous documents were put forward to prove that the legal construct “Dennis Larry Meads” not the actual Dennis Larry Meads owed the obligations. This included numerous agreements signed between “Dennis Larry Meads” and Dennis Larry Meads, including an attempt to transfer his Certificate of Birth over to his legal persona.
None of this had any legal effect, as Associate Chief Justice J.D Rooke noted in his lengthy judgment which rebutted many common pseudolaw arguments:
Mr. Meads is Mr. Meads in all his physical or imaginary aspects. He would experience and obtain the same effect and success if he appeared in court and selectively donned and removed a rubber Halloween mask which portrays the appearance of another person, asserting at this or that point that the mask's person is the one liable to Ms. Meads. Not that I am encouraging, or indeed would countenance, the wearing of a mask in my courtroom.
The Interpretation Act 1987 (NSW) provides guidance on how to interpret various terms found in NSW legislation. Under s21 of the Act, the term “person” includes “an individual, a corporation and a body corporate or politic” in which an individual means “a natural person”.
Corporate personhood allows for registered companies to limit individual liability for debt and legal liabilities incurred in the course of business dealings. However, this protection does not extend to personal liabilities outside of business endeavours including obligations under family law, civil liabilities or the criminal law.
In the 2021 Queensland case of R v Sweet, a man charged with two cannabis-related drug offences attempted to argue that he was not the “Kym Anthony Sweet” subject to the criminal charge, but Kym-Anthony a flesh and blood man who is not subject to the criminal laws of Queensland.
Judge Cash, who heard the matter in the District Court, described Sweet's argument as “gobbledygook” noting that:
Criminal liability attaches to a person where they ‘do the act or one or more acts in a series which constitutes or constitute the offence'. On any view of the present allegations, that could not be the ‘straw man' or ‘dummy corporation' mentioned by the applicant. The applicant's own writings describe this purported alternate persona as ‘an artificial person', a ‘legal entity', ‘an artificial legal person' and a ‘legal fiction'. Even if it existed in law, it is not capable of doing the act or acts that attract criminal liability.
You cannot carve out your personal legal liabilities in Australia through reference to a separate legal persona. Your legal identity is a “flesh and blood” natural person under the law.
Rescinding a birth contract
Another common legal tactic suggested by pseudolaw scams is to “rescind the contract” with a relevant court or government body to avoid liability.
Contract law is the area of law focused on legally enforceable agreements (“contracts”). Questions often answered by contract law include: “is a person legally obligated to fulfil a promise they made?” or “what money is owed when someone breaches a contract?”.
To rescind a contract means to cancel it.
Pseudolaw scams will often argue that a contract exists between an individual and the State giving rise to certain criminal and civil law obligations, which the individual is free to rescind at any time. Some claim that a contract is first formed when a birth certificate is issued.
Related to this argument is the idea that “silence means agreement” – meaning that a contract with the government stands until explicitly rescinded, often through the filing of an affidavit.
To be clear: there is no automatic contract between an individual and the State. Nor does the issuing of a birth certificate have any relationship to contract law.
It is absolutely possible for individuals to enter into contracts with government agencies, but this is separate from the capacity for state authorities to exercise power over citizens.
This argument appears to misunderstand an idea espoused in political philosophy called “the social contract theory”. Social contract theory is a philosophical argument in favour of the authority of the state over the individual in certain circumstances.
Seventeenth- and eighteenth-century philosophers such as Thomas Hobbes, John Locke, Jean-Jacques Rousseau and Immanuel Kant all espoused their own theories over why the existence of a centralised state benefited the collective good, which they called “the social contract”. However, this has nothing to do with contract law.
The authority of courts and government agencies over citizens does not come from a literal contract, but from state sovereignty which allows an independent state to govern and regulate its political affairs within its borders.
In Shaw v Attorney-General (WA), three men attempted to sue the State of Western Australia and the WA chapter of the Freemasons on the basis they had breached the “contract” found in the Constitution Act 1889 (WA). The plaintiff worked under a misunderstanding of the “social contract” idea in philosophy, believing it gave rise to an action under contract law.
Master of the Supreme Court David Newnes was quick to dismiss this approach:
The plea is plainly misconceived. The Constitution Act is a statute and has effect as such. It does not give rise to contractual rights or obligations on the part of the first defendant or anyone else. It is also manifestly plain that the “content and intent” of the Constitution Act could not be altered through the actions of the defendants, whether in alleged collusion or otherwise.
The proceedings were struck out for an abuse of process and the plaintiffs were ordered to pay legal costs.
The myth of ‘legal trickery'
There are many more pseudolaw tactics commonly referenced online. Some notable ones include:
- Arguing that a Justice of the Peace or a Public Notary has higher authority than the Judge or Magistrate hearing your case.
- Demanding a copy of a Judge or Magistrate's oath of office.
- Alleging misconduct, bias or other impropriety by the Judge or Magistrate.
- Declaring yourself a “sovereign man” or otherwise free of court authority.
- Attempting to foist certain legal obligations on opposing parties or courts, including declaring them “fiduciaries” or “trustees” of your interests.
- Claiming trademark or copyright over your own name, so it cannot be used in court documents.
- Through complex filings attempting to access “secret” government bank accounts to cover legal costs and liabilities (so called “money for nothing” schemes).
None of these tactics will have any effect on the success of a person's legal case. The most likely result of these tactics is prolonging a dispute, annoying the Judge or Magistrate or running the risk of being declared a vexatious litigant.
Underpinning all of these common pseudolaw tactics is the idea that a legal “hack” or “loophole” exists which can be easily exploited to defend against liability.
This idea fundamentally misunderstands the practice of law, and what lawyers actually do when they develop a legal strategy.
Lawyers are trained both to understand the law as well as how certain facts, if proven, will impact the success or failure of a case.
Defence or litigation strategy is all about arguing for or against a particular interpretation of a legal test or term, the meaning or admissibility of pieces of evidence; or encouraging a swift resolution of an issue. It is not about legal “trickery”.
If a legal argument or strategy sounds too good to be truth, it almost always is.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.