The Weaponisation of Law

A Structural History of Power Disguised as Justice - and Why Natural Law Offers a Way Out – Part 2 (a)

This is Part 2 of my series “The Weaponisation of UK law”. Please find Part 1 below in case you need to first read it or refer back to it.

This current article was originally intended to focus solely on parliamentary sovereignty and the landmark case of Entick v Carrington. However, as I began drafting that analysis, it became clear that these themes cannot be meaningfully understood without first examining the deeper assumptions that underpin the UK’s constitutional narrative - particularly the claim that governance is based on consent, and the role that moral legalism plays in sustaining hierarchical authority.

This article therefore forms Part 2(a): the conceptual groundwork. It exposes the structural impossibility of governance by consent within a rule‑over system, and it examines how moral legalism - the conflation of legality with morality - functions as the psychological and cultural infrastructure of that system. These foundations are essential for understanding why parliamentary sovereignty operates as it does, and why Entick v Carrington is so often misrepresented as a constitutional safeguard rather than a historical anomaly.

Part 2(b) will build directly on this analysis, turning to parliamentary sovereignty and Entick v Carrington in depth. But before we can evaluate those doctrines and that case, we must first understand the structural architecture that makes genuine governance by consent impossible and moral reasoning so difficult to sustain within the UK’s legal order.

Introduction

The UK’s constitutional framework is a complex blend of statutes, common law principles, conventions, and historical practices. Within this mixture, certain doctrines - particularly parliamentary sovereignty and the principle of legality articulated in Entick v Carrington (1765) - are repeatedly presented as central safeguards that balance state authority with individual liberty. This article examines those doctrines not because they define the entire constitution, but because they reveal something deeper about the structure of governance itself: the claim that authority is exercised with the consent of the governed, and the assumption that constitutional mechanisms can restrain power within a fundamentally hierarchical system.

Much public debate focuses on whether the UK has drifted away from its constitutional principles: whether Parliament has exceeded its proper limits, whether judicial oversight has weakened, and whether a return to earlier doctrines would restore balance. But this perspective assumes that governance is, and always has been, based on genuine consent. This article challenges that assumption directly. The constitutional narrative of “consent” is treated as self‑evident, yet it is never meaningfully examined. Consent, in any meaningful moral sense, requires voluntariness, the ability to refuse, and the absence of coercion. None of these conditions exist - nor can they - within a system where laws are imposed by a minority and enforced through punishment. Governance of one group by another is always inherently hierarchical and can only be maintained through coercion.

From this perspective, the very structure of the UK state - regardless of who occupies its offices or how its powers are distributed - is a system of rule over rather than rule with. Hence, even if so called “constitutional safeguards”were restored, the underlying architecture would remain unchanged: a hierarchy in which authority flows downward and obedience flows upward. In such a structure, authoritarian drift is not an aberration - it is an inevitability. The problem, therefore, is not merely that the system is malfunctioning, but that it is purposely built on a premise that can never produce genuine freedom.

It is within this broader context that Part 2b of this series will examine, in more depth, parliamentary sovereignty as it is traditionally understood. In advance, it is helpful to state here that The Diceyan model presents Parliament as the supreme law‑making authority, capable of enacting any law it chooses. This doctrine is often defended as a democratic expression of the people’s will. Yet because governance is not genuinely consensual in practice, parliamentary sovereignty is not a democratic safeguard at all, but merely a mechanism through which a small group imposes rules on millions.

The ability to legislate without meaningful constraint has contributed to a legal environment where laws can be enacted that restrict speech, expand surveillance, and criminalise dissent. These developments are frequently criticised as deviations from constitutional norms. But they, in fact, reflect deeper structural flaws: if sovereignty is claimed by Parliament rather than the people, and if the people cannot meaningfully withhold consent, then the system itself contains the very seeds of overreach as a structural feature of the system itself.

The legacy of Entick v Carrington will also be examined in this light, in Part 2b. The case is often celebrated as a cornerstone of the principle of legality, protecting individuals from arbitrary state intrusion. It is held up as evidence that the UK’s constitutional order contains internal safeguards against abuse. However, modern legislative practices - including broad delegated powers, vague statutory language, and limitations on judicial review - raise questions about whether Entick’s protections remain meaningful. The erosion of these safeguards is often described as a constitutional failure. But in fact, they simply reveal the limits of a system that has always vested ultimate authority in the state, not the individual.

Understanding these themes matters because they illuminate the gap between the constitutional story we are told and the reality of how power operates. Examining parliamentary sovereignty, the myth of governance by consent, and the principles underlying Entick v Carrington helps reveal that legitimacy and power are always assumed rather than earned, and that structural defects allow state power to expand with limited resistance. Even if the system were functioning exactly as its defender’s claim, its hierarchical foundations would still always warrant scrutiny. A system built on imposed authority - however refined, however procedurally dressed - remains a system of power over, not mutual cooperation. Such a structure ultimately functions as a system of domination rather than freedom. And it always will.

This article in the series, (when Part 2a and Part 2b are read together), therefore invites readers to consider not only how the UK’s constitutional doctrines are applied and indeed misapplied, but whether the doctrines themselves - and the assumptions beneath them - can ever genuinely safeguard liberty in a structure that presupposes the right of some to rule others. The question is not merely whether the system is functioning properly, but whether a system built on hierarchy can ever avoid sliding toward authoritarianism, or whether, in fact, such a system is perfectly structured to ensure it.

The Myth of Governance by consent

Governance by consent is widely presented as a foundational principle of democratic systems, asserting that the legitimacy of government derives from the voluntary agreement of the governed. Yet this article treats governance by consent not as a reality, but as a narrative device - a story told to legitimise hierarchical rule. In a system where authority is imposed, refusal is punished, and participation is compulsory, consent in any meaningful moral sense cannot exist. What is described as “consent” is therefore not an expression of free agreement, but a constitutional fiction used to justify the exercise of power.

In the UK, with its uncodified constitution, this fiction takes on a distinctive form. Governance by consent is invoked to explain the relationship between the state, its institutions, and citizens, suggesting that power is exercised with the implicit or explicit approval of the people. The mechanisms said to embody this consent - parliamentary representation, the rule of law, judicial oversight, public participation, and accountability structures - are presented as evidence that authority flows upward from the people. But these mechanisms are, at best, symbolic and, at worst, illusory. They cannot produce genuine consent because they operate within a hierarchical structure where the governed can never meaningfully refuse the terms imposed upon them.

The intellectual roots of governance by consent lie in the social contract theories of philosophers such as John Locke and Jean‑Jacques Rousseau. These thinkers were grappling with the political crises of their own eras, attempting to explain how authority might be justified and how governance could be made legitimate. Locke’s Second Treatise of Government (1689) argued that individuals surrender certain rights to a government in exchange for protection, but that this authority is conditional on public approval. Rousseau’s The Social Contract (1762) emphasised collective consent as the basis for sovereignty, proposing that the people are the ultimate authority. These theories were influential because they offered a moral framework for governance at a time when hereditary rule and absolute monarchy were being challenged. Yet the fact that the same problems discussed by these thinkers - the concentration of power, the erosion of liberty, and the struggle to hold rulers accountable - persist today, and in many respects have worsened, does not simply show that Locke and Rousseau failed. Rather, it reveals that the system itself defeats the very solutions they proposed. This is because a hierarchical structure cannot produce genuine consent, and therefore no theoretical “fix” can resolve the contradictions built into it. If governance by consent were possible within such a system, the problems these philosophers sought to remedy would not still be with us in amplified form; their very persistence is therefore evidence that the structure itself makes consent impossible.

Social contract theory discussed above is a philosophical justification, not evidence of actual consent. No such contract has ever been signed, negotiated, or voluntarily entered into by the population. The “agreement” such theories describe is hypothetical, retroactive, and imposed. It functions as a moral narrative to explain why some rule and others obey, not as a record of genuine collective decision‑making. The UK’s constitutional evolution - including milestones such as the Bill of Rights (1689) - reflects these ideas in form, but not in substance. Parliamentary authority is said to rest on the consent of the people, yet the people have no meaningful ability to withhold their consent.

Parliamentary representation is the mechanism most frequently cited as proof of governance by consent. Citizens elect Members of Parliament (MPs) to represent their interests, and this electoral process is presented as how the public periodically affirms or withdraws support. But representation is not consent. Elections occur infrequently, offer limited choice, and do not provide a genuine opportunity to refuse governance itself. Mechanisms for recalling or removing MPs who act outside the supposed principle of consent are narrow, highly restricted, and rarely successful. These features are often described as flaws in an otherwise legitimate system. Yet they instead reveal something deeper: that parliamentary representation is structurally incapable of producing genuine consent because it operates within a system that presupposes rule‑over rather than rule‑with.

Over the centuries, it has become increasingly clear that the problems Locke and Rousseau attempted to solve - how to justify authority, how to limit power, how to secure legitimacy - cannot be resolved within a hierarchical structure. Yet the UK’s constitutional narrative continues to rely on the language of consent without ever asking if this truly exists, all whilst the underlying architecture of power over has not changed throughout centuries. No academic, legal professional, or legal philosopher will ever state the underlying problem: governance as it is, remains a system in which a minority makes rules for the majority, backed by the threat of punishment. The idea of governance by consent has therefore not been betrayed; it has simply never existed within a system built on hierarchy.

Dicey’s doctrine of parliamentary sovereignty itself exposes a fundamental contradiction at the heart of the claim that we are governed by consent. If Parliament can enact any law it chooses - including laws that restrict freedoms, criminalise dissent, or expand state control - then the idea that authority derives from the voluntary agreement of the governed becomes untenable. The Public Order Act 1986, for example, has been used to prosecute individuals for protest speeches, including those condemning alleged genocides. Such applications raise concerns not only about oppressive laws, but about a system that protects state interests while punishing those who challenge them. Likewise, the recording of non‑crime hate incidents by police threatens free expression and lacks any meaningful public approval. These examples do not represent deviations from a consensual system; they in fact reveal that no such system exists at all.

Critics often treat these developments as unfortunate departures from constitutional ideals, but this assumes that governance by consent is the norm and that parliamentary sovereignty is merely being misused. In reality, parliamentary sovereignty functions as a shield for hierarchical power. It always has and it always will. It is rationalised as the delegated authority of the electorate, yet this delegation is entirely theoretical. It presupposes that Parliament acts in the public interest and that rule‑over is a legitimate framework for expressing consent. Neither is true. In any event, in practice, Parliament increasingly defers to the executive through broad framework legislation, enabling ministers to legislate with minimal scrutiny. This is not, however, a further breakdown of a previously working system; it is the system operating according to its design. This is because the doctrine of sovereignty does not protect the people from arbitrary power - it authorises it.

Within the system’s own narrative, governance by consent is said to be supported by the rule of law. The landmark case of Entick v Carrington established the principle of legality, holding that state actions must be grounded in clear legal authority. Lord Camden’s famous dictum - “if it is not in our books, it is not law”- is often cited as evidence that public and legal consent constrain government power. But this principle assumes a social contract that has never existed in practice. It imagines a reciprocal relationship between state and citizen, when in reality the relationship is one of imposition, enforcement and power over.

Modern governance increasingly undermines even the theoretical safeguards of alleged governance by consent. Executive rule through secondary legislation bypasses full parliamentary scrutiny, eroding the very legality that Entick is said to protect. Judicial review is often presented as a mechanism that preserves consent by ensuring government accountability. Cases such as R (UNISON) v Lord Chancellor (2017), which struck down tribunal fees, and R (Privacy International) (2019), which limited the effect of ouster clauses, are frequently cited as evidence that the courts uphold the rule of law. But these checks operate within - and are therefore constrained by - the same hierarchical structure of imposed governance. Therefore they cannot create consent where none exists. Recent statutory changes to judicial review further restrict the courts’ ability to scrutinise executive action, illustrating how easily legal safeguards can be narrowed when they conflict with the priorities of those in power.

The expansion of executive authority through secondary legislation, particularly Henry VIII powers, demonstrates how the system we live under consistently consolidates power rather than dispersing it. When Parliament delegates vast law‑making powers to ministers, the question of who truly makes law becomes unavoidable. The answer is not “the people,” and increasingly not even Parliament, but the executive. The vague “COVID‑19” regulations enacted under the Public Health (Control of Disease) Act 1984, upheld in R (Dolan) (2020), exemplify how emergency powers can be used to impose sweeping restrictions without meaningful public input or consent. The Judicial Review and Courts Act 2022 further limits the ability of citizens to challenge such measures. However, these developments are not anomalies; they are predictable outcomes of a system built on hierarchy.

Many now describe the UK as a “captured system,” influenced by elite interests and insulated from public accountability. Lobbying, political pressures, and the centralisation of power have distanced Parliament from the people it claims to represent. Controversial laws that prioritise state control over judicial oversight only serve to further illustrate how easily the rhetoric of consent is overridden by the realities of power. Popular sovereignty - the idea that the people hold ultimate authority - is often invoked as a corrective, but within a hierarchical structure it remains as theoretical as the social contract itself.

Government legitimacy is said to derive from public approval expressed through elections, judicial oversight, and participation. These mechanisms are rooted in the language of consent and symbolised by cases like Entick. But parliamentary sovereignty, executive dominance, and widespread public disengagement consistently undermine these principles. But even they do not weaken a functioning system of consent; instead, they reveal that such a system has never existed. This is because the structure of current governance always ensures that authority flows downward, while legitimacy is claimed upward. The conclusion is, therefore, not that governance by consent must be strengthened, but that it cannot be realised within a system designed for rule‑over. The architecture itself makes genuine consent impossible. Therefore, any attempt to reform the system without addressing its hierarchical foundations will merely reinforce the very power dynamics it seeks to restrain.

Moral Legalism vs Moral Reasoning Within The Law

A useful lens for understanding how hierarchical governance maintains its authority - even within the myth of governance by consent - is the distinction between moral legalism and moral reasoning within the law. This distinction reveals not only how the system justifies itself, but how it actually shapes public attitudes to ensure obedience within the system.

Moral legalism holds that adherence to legal rules is both necessary and sufficient for moral behaviour. It collapses morality into legality, assuming that if something is legal, it is morally right, and if it is illegal, it is morally wrong. This mindset prioritises strict compliance over independent judgement and discourages ethical scrutiny of both the governance structures we live under and the legal systems that sustains them. In a hierarchical system, moral legalism is not an accident. It is, in fact, essential. A system built on rule‑over must always cultivate obedience, not conscience, otherwise it will not survive.

By contrast, moral reasoning within the law applies ethical principles to the interpretation, creation, and enforcement of legal rules. It asks whether laws align with justice, fairness, and human dignity and as such judges, lawmakers, and legal scholars could engage in moral reasoning, assessing the morality of laws and interpreting ambiguous provisions in ways that uphold ethical standards. When laws are immoral - permitting slavery, enabling killing, denying voting rights, enforcing censorship, or authorising mass surveillance - moral reasoning provides a framework to challenge them. But in a hierarchical system, moral reasoning is always structurally discouraged because it threatens the stability of rule‑over. Citizens are therefore conditioned to accept legality as morality, rather than to question the moral foundations of the system itself.

Parliamentary sovereignty reinforces this dynamic. The doctrine, and the judiciary’s interpretation of it, has entrenched moral legalism by fostering the belief that obeying the law constitutes moral integrity - particularly among those tasked with enforcing it. Public trust in Parliament and the courts has historically strengthened this attitude, diminishing scrutiny of legislative morality. While UK history contains moments of resistance - such as the Poll Tax protests and campaigns against discriminatory laws - these moments are merely exceptions that prove the rule. The system tolerates dissent only when it does not actually threaten the underlying hierarchy.

Evaluating a law’s morality requires deep engagement with ethical principles, yet without such scrutiny harmful laws persist. Historical injustices, such as, for instance, anti‑homosexuality laws, and modern controversies, such as the restrictive protest provisions in the Police, Crime, Sentencing and Courts Act 2022, demonstrate how blind compliance has allowed injustice to endure. However, these are not aberrations; they are predictable outcomes of a system that equates legality with legitimacy.

Several forces have weakened the culture of ethical scrutiny in the UK - and it is difficult to view this as anything other than intentional. Behavioural nudging strategies encourage compliance without debate. As a example, fear‑based messaging during the COVID era discouraged proportionate evaluation of lockdown measures, promoting passive obedience. In addition, media institutions, often aligned with political or corporate interests, simplify legal complexities and frame dissent as disruptive. Government communication routinely presents laws as inherently legitimate, narrowing the space for critique. These mechanisms do not, of course, merely influence public attitudes; they manufacture them.

The education system reinforces all of the above by focusing on legal processes rather than ethical analysis. Education rarely equips individuals to question the moral foundations of law - a gap that serves the interests of hierarchical governance only. Additionally, judicial deference to parliamentary sovereignty, even when tempered by occasional moral reasoning (as in Human Rights Act cases), ultimately reinforces the legal status quo. The message to the public is clear: laws are to be followed, not questioned.

Together, these forces have created a legal culture in which compliance is equated with moral correctness. This suppresses public engagement and limits accountability. Without moral scrutiny, unjust laws persist unchallenged, stalling social progress and increasing vulnerability to arbitrary governance. While open dialogue, grassroots activism, and protected spaces for dissent are essential for fostering moral reasoning, growing restrictions on digital spaces suggest that such dissent will become increasingly difficult. The system is, of course, adapting to suppress the very scrutiny that threatens it.

Moral reasoning remains vital because it equips individuals to assess legal frameworks beyond their formal legitimacy. Without it, citizens risk becoming passive subjects of legislative authority, accepting unjust laws simply because they exist. When laws are evaluated through an ethical lens, society can recognise when legal rules contradict fundamental values such as justice, fairness, and human dignity. This responsibility cannot rest solely with judges or scholars; it must be exercised by citizens who demand accountability and challenge the moral legitimacy of the law.

Public engagement in moral reasoning has historically driven significant legal progress, from the abolition of discriminatory statutes to the protection of civil liberties. But such progress has always occurred against the grain of hierarchical power, not because the system encourages it. Moral reasoning is therefore not a supplement to governance - it is a counterforce to it.

Given this broader context, Ronald Dworkin’s theory of “law as integrity” becomes relevant. Although developed primarily in relation to codified constitutions, Dworkin’s interpretive approach - which insists that law must align with broader moral principles - offers a framework for understanding how moral reasoning could operate within the UK. Yet Dworkin’s theory also highlights the central tension of this chapter: moral reasoning can guide interpretation, but it cannot overcome the structural reality that a hierarchical system is designed to prioritise obedience over ethics.

Dworkin’s theory, developed in works such as Taking Rights Seriously (1977), Law’s Empire (1986), and Freedom’s Law (1996), offers one of the most influential critiques of legal positivism. He rejected the positivist view - exemplified by H.L.A. Hart - that law is simply a system of rules identifiable by social sources, and he also distanced himself from legal realism, which treats judicial decisions as largely discretionary. Instead, Dworkin argued that law is an interpretive practice guided by principles and moral reasoning, aiming to present the legal system in its best moral light.

Key elements of his theory include:

1. Law as Integrity: Judges should interpret law in a way that makes the legal system the best it can be morally, treating legal decisions as part of a coherent narrative grounded in fairness and principle.

2. Principles vs Rules: Principles such as justice and fairness have weight and guide judicial decisions in hard cases, unlike rules which apply in an all‑or‑nothing fashion.

3. Rights as Trumps: Individuals possess moral rights that take precedence over collective goals or state interests, especially in matters of justice.

4. Constructive Interpretation: Judges should interpret statutes and legal texts in ways that align with the community’s moral and political principles, balancing past decisions with present ethical demands.

5. Rejection of Positivism: Dworkin argued that law inherently involves moral judgment; judges must decide cases based on what the law ought to be, not merely what it is.

Applied to the UK, Dworkin’s “law as integrity” would read the UK’s legal framework through a moral lens - a lens which, of course, the system itself does not structurally support. His approach would encourage judges to interpret legislation in ways that protect individual rights, promote fairness, and ensure moral coherence. In doing so, Dworkin implicitly re‑reads parliamentary sovereignty, placing principled limits on legislative authority and strengthening the judiciary’s role in safeguarding rights.

But this is precisely where Dworkin’s theory exposes the structural limits of the UK’s legal order. The combination of an uncodified framework and the doctrine of legal parliamentary sovereignty leaves little room for the kind of principled judicial interpretation Dworkin envisions. Courts remain cautious, particularly when confronted with legislation that Parliament clearly intended to enact, and they routinely defer to Parliament even when moral principles point in the opposite direction. Judicial reluctance to challenge Parliament on issues such as the repeal or amendment of rights‑protecting statutes illustrates how deeply entrenched the hierarchy of rule‑over remains within all systems.

Dworkin’s framework therefore functions less as a description of how the UK operates and more as a contrast that highlights what the current system structurally cannot achieve. His theory shows what moral reasoning would require - a legal order in which principles constrain power - and thereby reveals the incompatibility between moral reasoning and a system built on unlimited legislative authority and power over. In a hierarchical structure where Parliament can make or unmake any law, rights cannot meaningfully function as “trumps,” and law cannot be interpreted in a way that consistently reflects moral integrity.

While Dworkin’s ideas offer a valuable lens for examining the moral dimensions of legal interpretation, they also underscore the central argument of this chapter: moral reasoning cannot flourish within a system designed to prioritise obedience over principle. His emphasis on coherence, fairness, and rights illuminates the gap between what a principled legal order would require and what the UK’s hierarchical governance structure actually permits. Public engagement with Dworkin’s ideas may enrich ethical discourse, but it will take far more than interpretive theory to change our current direction - it will require citizens to rethink the very foundations of governance in order to overcome the structural reality that a rule‑over system will always tend toward moral legalism, not moral integrity.

Summary

In this part 2a article of The Weaponisation of Law series I have shown that our governance system and the constitutional narrative underpinning it rests on two mutually reinforcing myths: that governance is based on consent, and that legality is a reliable proxy for morality. Both claims collapse under scrutiny. A hierarchical system cannot produce genuine consent, and it must therefore cultivate moral legalism to maintain obedience. Parliamentary sovereignty, judicial deference, and the cultural elevation of legality over ethics are not aberrations – they are, in fact, the predictable features of a structure designed for rule‑over, not rule‑with.

Understanding this architecture is essential before turning to the doctrines that most clearly reveal it. Part 2(b) of this series will therefore examine parliamentary sovereignty and Entick v Carrington in depth, not as isolated governance and constitutional artefacts, but as expressions of the structural logic explored in this chapter. Parliamentary sovereignty will be analysed as the doctrinal embodiment of hierarchical power, and Entick v Carrington as a momentary judicial assertion of principle that has been steadily eroded by the very system it is said to constrain.

Together, these analyses will show that our governance and legal systems are not failing to live up to their its ideals – they are actually functioning exactly as designed. And it is only by recognising this that we can begin to imagine alternative models of governance grounded not in hierarchy, but in genuine moral reasoning and voluntary association.

Part 2b of this series will be published shortly with a link back to this article. In the meantime, thank you for taking the time to read this article. This is a complex subject and I have done my best to simplify it and present it in plain English so that readers can better understand matters and come to their own conclusions

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