Pseudolaw

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False public notice containing pseudolegal sovereign citizen language in Belfast.

Pseudolaw consists of statements, beliefs, or practices that are claimed to be based on accepted law or legal doctrine, but which deviate significantly from most conventional understandings of law and jurisprudence, or which originate from non-existent statutes or legal principles the advocate or adherent incorrectly believes exist.[1] Pseudolaw often purports to base itself on "common law", though it has no relation to contemporary or historical examples of common law.[2]

Canadian legal scholar Donald J. Netolitzky defined pseudolaw as "a collection of legal-sounding but false rules that purport to be law",[2] a definition that distinguishes pseudolaw from arguments that fail to conform to existing laws such as novel arguments or an ignorance of precedent in case law.[3][4] The features are distinct and conserved.[3] The term Organized Pseudolegal Commercial Arguments (OPCA) was coined in a 2012 Canadian court decision to reference pseudolegal tactics and arguments, and has since been used by lawyers and legal scholars in Commonwealth countries.[5] Pseudolegal arguments are sometimes referred to as "legalistic gibberish".[6] The more extreme examples of pseudolegal tactics have been classified as paper terrorism.[7]

Litigants who use pseudolaw generally dispense with real legal counsel. They frequently rely on techniques and arguments promoted and sold – sometimes as "kits" – by amateur legal theorists, who are commonly called "gurus".[2][7] Pseudolegal theories and schemes are disseminated and advertised through websites, isolated documents, short or voluminous texts, seminars, radio broadcasts, instructional DVDs and, above all, YouTube videos.[2][7] Pseudolaw gurus may occasionally appear in court, though in most cases their followers are left to represent themselves.[7][8] People offering false and unlicensed legal services are likely to be charlatans or scammers.[4][9]

Pseudolaw typically appeals to people seeking a remedy for their financial or legal problems, or against perceived government excesses and intrusions.[10][11] It has been used to challenge certain laws, taxes and sentences, escape debt, avoid foreclosure, as part of financial schemes, but also to deny the jurisdiction of courts or even the legitimacy of governments. It is a common tactic of tax protesters and conspiracy theorists, as well as some types of vexatious litigants. Pseudolegal tactics may defy rationality and resemble magic rituals more than actual law.[12] The behaviour of litigants who use such methods is sometimes so unorthodox it resembles mental illness.[3][13] Arguments derived from pseudolaw have never been accepted in court[2] and can be harmful to the people using them.[11]

History[edit]

See also: Sovereign citizen movement, Freeman on the land, and Tax protester history in the United States

The history of pseudolaw is poorly documented, including by its own adherents. Pseudolaw seems to have existed in the United States since the 1950s, and possibly much earlier.[2] Pseudolegal theories challenging the legitimacy of government or taxes were observed in Canada as early as the 1930s.[14] The development of pseudolaw was fostered in the United States by the farm crisis of the late 20th century: from the 1980s, former North Dakota farmer Roger Elvick advocated anti-tax and anti-government schemes in what became known as the redemption movement. The advent of the Internet later facilitated the spreading of pseudolegal ideas and concepts,[15] which matured around 1999–2000 in the United States where they were at that point hosted by the sovereign citizen movement. During the same period, US-influenced pseudolaw was introduced into Canada,[2] initially through the "Detaxer" movement led by Eldon Warman, who reframed Elvick's theories and US sovereign citizen ideology to better suit a Commonwealth context. Detaxer ideology was further adapted by the freeman on the land movement,[16] which became more prevalent than sovereign citizens in Commonwealth countries.[17][18] In the United States and Canada, pseudolaw has been used by Indigenous groups as well as by those claiming inauthentic indigenous identities,[19] and by other ethnic groupings such as the African-American "Moorish" sovereign citizens.[20] Since the late 2000s, the sovereign citizen movement has enjoyed a significant resurgence, due to the 2007-2008 financial crisis.[21][19]

Outside the United States and Canada, pseudolaw has appeared in various English-speaking countries, including the United Kingdom, Australia, New Zealand, the Republic of Ireland and South Africa.[2][16]

Freeman on the land ideology reached the United Kingdom and the Republic of Ireland in the late 2000s. Irish and British "gurus" have imported the core ideas of North American pseudolaw, while also using Ireland and UK-specific concepts and references. In Ireland, it notably developed after the burst of a real-estate bubble in the late 2000s, which drastically reduced property values, causing financial stresses and foreclosures and leading people to seek solutions to their financial woes. One striking feature of Irish pseudolaw is the appearance of a political party, Direct Democracy Ireland, created by Ben Gilroy, a promoter of anti-foreclosure concepts and conspiracy theories. As in the Republic of Ireland, pseudolaw is mostly used in the UK for economical reasons, by people wishing to avoid taxes or to escape government regulations.[16]

Pseudolaw is firmly present in Australia and New Zealand; Australia is notable for having developed its own version of pseudolaw as early as the 1980s, with local "gurus" devising Australia-specific schemes to defeat the government. Some Australians, however, litigate as freemen on the land.[16] Australian freemen have tried to recruit Indigenous Australians.[22] Unlike in Australia, New Zealand litigants have not developed theories specific to their country and show influence from various foreign sources. Many New Zealand pseudolaw litigants, however, are Maori who base their claims on their ethnic status.[16]

In South Africa, author Michael Tellinger promoted schemes based on fiscal misconceptions and, purportedly, on Ubuntu philosophy; he was also unsuccessfully involved in politics by creating the Ubuntu Party. Other South African gurus show American, Canadian or British influences.[16]

Pseudolaw has also been exported outside the English-speaking world, in countries such as Germany and Austria where it has been adapted to culturally distinct populations. While it has thrived in some countries, it has gone quickly extinct in others such as Norway.[2] Attempts in Belgium and the Netherlands were apparently unsuccessful, probably due to their not having developed appropriate schemes for local civil law jurisdictions.[16]

American pseudolaw "gurus" have been promoting their strategies in other countries,[23] sometimes making little or no effort to adapt their material to local contexts. This has resulted in peculiar incidents, such as Canadian litigants filing documents which alluded to U.S. legislations.[7]

Some groups of sovereign citizens have created "common law courts" to handle matters regarding movement members, or to issue "judgements" devoid of legal authority.[24][25][26]

Pseudolaw has been used by people wishing to ignore certain rules or to avoid inconveniences such as paying license fees and traffic tickets,[27] but also as a means to commit serious offenses such as tax evasion[4][28] or as part of fraudulent schemes like mortgage elimination.[29][30][31]

During the COVID-19 pandemic, pseudolegal arguments have been used by anti-mask and anti-vaccine activists in several countries.[32][33][34][35] Business owners and individuals have also tried to escape coronavirus restrictions by citing irrelevant documents such as obsolete clauses in the Magna Carta.[36][37]

Theories[edit]

See also: Redemption movement, Strawman theory, and Tax protester conspiracy arguments

One common pseudolegal belief is that individuals possess partial or full sovereignty independent from the government of the country in which they live, and that no laws, or only certain laws, apply to the believer. Groups espousing such beliefs include the freemen on the land and the sovereign citizen movements, whose ideologies are based on idiosyncratic interpretations of "common law".[27][25][38] Some, such as the Reichsbürgerbewegung ("Reich Citizens' Movement") groups in Germany, believe that their state itself is illegitimate.[2]

The "common law" on which pseudolegal theories are purportedly based rests heavily on a distorted image of traditional English law, mixing authentic but misinterpreted legal maxims with obsolete, typically medieval, documents such as the Magna carta, as well as actual fabrications.[2][3][7] Other irrelevant sources often cited in pseudolaw include the Uniform Commercial Code, the Articles of Confederation, or the Bible. American pseudolegal theorists tend to reinterpret the Constitution of the United States through a selective reading of legal dictionaries, notably an obsolete version of Black's Law Dictionary.[39][40][8] Irish pseudolaw gurus have referenced Brehon law rather than English law as the ancient and original source of law in Ireland.[16]

Also under the umbrella of pseudolegal arguments are conspiracy theorists who believe there is a secret parallel legal system that one can access through specific means, like using a secret phrase,[7] certain forms of unconventional legalese (one extreme example being the constructed language created by American "guru" David Wynn Miller, a purported "correct" language which is actually incomprehensible to courts as well as to most people),[41] latin maxims, grandiose language, or irregular formalities such as stamps placed on specific documents or thumbprints in red ink.[7]

Billboard promoting the freeman on the land "legal name fraud" trope in the United Kingdom.[42]

One theory, espoused by American sovereign citizens, is that the United States' legal system was at some point secretly replaced with admiralty law (understood as a form of commercial law) as part of a broader conspiracy which replaced the legitimate American government with a business corporation. This leads sovereign citizens to consider that U.S. judges and lawyers are actually agents of a foreign power and that American courts, being admiralty courts, have no jurisdiction over people.[43][27] The origin of that particular theory is unclear, though it may stem from the fact that some nautical-sounding terms such as "dock" or "birth (homophone with "berth") - certificate" are commonly used by English-language judiciaries.[44]

Donald J. Netolitzky has identified six core concepts in what he calls the "Pseudolaw Memeplex":

  • The "everything is a contract" theory: as conceptualized by freeman on the land "guru" Robert Menard, governments have no special inherent authority via legislation or other means, unless one agrees to be subject to said authority. The social contract is therefore an individual rather than a collective choice and people can reject government authority as a contract offer. Practically any interaction with a state actor is a potential, invisible, "contract" than can trap the individual into binding obligations by creating a "joinder", but individuals can make themselves immune from laws and government authorities by refusing to "consent" to them.[2]
  • The "silence means agreement" rule: silence is deemed consent for any sort of documents and any claim or alleged statement of fact placed in a sworn document (often called, in pseudolegal jargon, "affidavit of truth") is purportedly proven true, unless rebutted. This belief is coupled with the "invisible contracts" concept in that it implies that people should always be taking steps to avoid public authorities' "contract offers".[2]
  • There is no crime if there is no injured party: based on a misinterpretation of tort law, this concept implies that criminal prosecution cannot enforce prohibitions as long as no one was harmed.[2]
  • The state's authority is somehow defective or limited: this generally implies that certain regulations - or all regulations - are illegitimate and can be safely ignored if one uses the correct procedures or references.[2]
  • The strawman theory, considered by Netolitzky to be the most innovative component of pseudolaw: an individual has two personas, one of flesh and blood, and the other a separate legal personality (i.e., the "strawman") and all debts, liabilities, taxes and legal responsibilities apply to the strawman rather than the flesh and blood persona.[2] Many arguments linked to the strawman theory revolve around the "legal name fraud" movement, which believes that birth certificates give the state legal ownership of a personal name and refusing to use this name therefore removes oneself from a court's jurisdiction.[45][46] Various groups advocate that one can avoid this state ownership by distinguishing between capitalized and non-capitalized versions of one's name, or by adding punctuation to one's name.[2] The use in documents of thumbprints and signatures in red ink is meant to distinguish "flesh and blood" people from the fictitious "strawman", since black and blue inks are believed to indicate corporations.[47]
  • Various misconceptions and conspiracy theories about taxes (thought to be illegitimate) banks (thought to "create money from thin air", which implies that a borrower has no obligation to pay them back; variations on this theme include that the borrower’s signature creates the money, or that money is worthless unless backed by gold) and ways to extract money from the government (also called "money for nothing" schemes). Some of these concepts, linked to the strawman theory, imply that a secret fund is created for everyone at birth by the government, and that a procedure exists to "redeem" or reclaim money from this fund: this is a core belief of the redemption movement.[2]
Logo of E-Clause, a sovereign citizen pseudolaw firm

People involved in pseudolaw may use unlikely arguments, and be adherents of various other conspiracy theories and sometimes fantastical beliefs. Defendants may, for example, attempt to deny the court's jurisdiction over them by claiming that they are neither citizens nor residents of the country where the trial take place, regardless of their birthright and actual residence status.[7] In 2010, Canadian serial litigant and "Detaxer" guru David Kevin Lindsay tested a variation of the strawman theory by arguing that he should not be paying taxes because, since 1996, he was no longer a "person" as defined by the Income Tax Act but rather "a full liability free will flesh and blood living man". The court rejected his claims.[48] American sovereign citizen and redemption guru Winston Shrout, who advocated tax resistance for twenty years and was ultimately imprisoned, mixed his pseudolegal and pseudoeconomic theories with claims that he was an "Earth delegate to the interdimensional Galactic Round Table" and a "sixth-dimensional interplanetary diplomat" and that he once disrupted international transactions by relocating the prime meridian with the assistance of the Queen of the Fairies.[4][49] Christopher Hallett, from Florida, and his associate Kirk Pendegrass, from Idaho, operated a company called E-Clause which offered amateur legal services based on sovereign citizen ideology ;[50] they advertised their activities through a social media community which included QAnon supporters and flat earthers.[51] E-Clause focused on child custody cases and was notably aimed to mothers whose children had been removed from their care ; it also associated with the "Pentagon Pedophile Task Force", a QAnon-affiliated group of conspiracy theorists.[50] Hallett claimed that then-president Donald Trump had authorized him to create a separate legal system; in January 2020, a federal judge commented, upon dismissing one of Hallett's lawsuits, "The Court declines to entertain Plaintiff's fantasy that he is acting at the behest of the President". In November 2020, Hallett was murdered by one of his followers and clients, Neely Petrie-Blanchard, a QAnon adherent who had relied on him to win back custody of her children but had come to believe that he conspired against her.[52][53][54][51]

Lawyer Colin McRoberts commented in 2016, after attending pseudolegal seminars held by conspiracy theorists including Winston Shrout:

Pseudolaw isn’t harmless. It ruins lives. It sends people to prison. [It] has the potential to wreck the lives of well-meaning people. (...) People who believe they can skate their way out of taxes with these phony theories stop paying, and it starts an ugly spiral. Soon they owe so much in back taxes that they have to believe in these theories to have any sort of peace of mind, because otherwise they’d feel the sword of Damocles over their heads. So they dig in, fight their lawsuits, and lose. Every. Single. Time. Or they rely on these arguments in other kinds of cases and never get their real issues heard, because they chose to stand on gibberish instead of actual facts.[55]

Responses from authorities[edit]

Followers of pseudolaw can cause problems for courts and government administrators by filing unusual, numerous and voluminous applications that are difficult to process, or even to understand.[7][25][27] On occasion, authorities may decide to not pursue a matter in front of pseudolegal tactics, due to lack of time, interest or resources: in 2010, a prosecutor in Pinellas County, Florida, confronted with paper terrorism from a sovereign citizen who refused to pay a $20 dog licence, opted to drop the case.[27] However, while such methods may occasionally obtain similar results, or at least delay legal proceedings by encumbering courts,[56] they are ultimately never successful in front of a judge and a jury.[2] Pseudolegal tactics and arguments are commonly found frivolous and vexatious and there is no recorded instance of them being upheld in a court of law.[57] People using them may be found guilty of contempt of court or, in the case of "gurus", unauthorized practice of law.[7][25][58][59]

Depending on the nature of their actions, self-proclaimed "common law" judges have been ignored,[26] or prosecuted to the fullest extent of the law. In 2018, a Colorado court ruled that the network of "common law courts" led by sovereign citizen Bruce Doucette was a racketeering enterprise akin to organized crime and sentenced Doucette to 38 years in prison.[60]

In 2012, the Court of Queen's Bench of Alberta issued a decision pertaining to a contentious divorce case in which the husband called himself a freeman on the land and used pseudolegal arguments such as the strawman theory; Associate Chief Justice John D. Rooke compiled a decade of Canadian jurisprudence and American academic research about pseudolaw, covering freeman on the land, redemption and sovereign citizen arguments, and coining the label Organized Pseudolegal Commercial Arguments (OPCA) as an umbrella term for such tactics.[7] Besides refuting in detail various pseudolegal arguments, Rooke specifically called out the role of the "gurus" who make money by promoting tactics which are not only ineffectual, but ultimately harmful to the people who use them:

Gurus claim that their techniques provide easy rewards – one does not have to pay tax, child and spousal support payments, or pay attention to traffic laws. There are allegedly secret but accessible bank accounts that contain nearly unlimited funds, if you know the trick to unlock their gates. You can transform a bill into a cheque with a stamp and some coloured writing. You are only subject to criminal sanction if you agree to be subject to criminal sanction. You can make yourself independent of any state obligation if you so desire, and unilaterally force and enforce demands on other persons, institutions, and the state. All this is a consequence of the fact gurus proclaim they know secret principles and law, hidden from the public, but binding on the state, courts, and individuals. And all these “secrets” can be yours, for small payment to the guru. These claims are, of course, pseudolegal nonsense. (...)

OPCA arguments are never sold to their customers as simple ideas, but instead are byzantine schemes which more closely resemble the plot of a dark fantasy novel than anything else. Latin maxims and powerful sounding language are often used. Documents are often ornamented with many strange marking and seals. Litigants engage in peculiar, ritual‑like in court conduct. All these features appear necessary for gurus to market OPCA schemes to their often desperate, ill‑informed, mentally disturbed, or legally abusive customers. This is crucial to understand the non-substance of any OPCA concept or strategy. The story and process of a OPCA scheme is not intended to impress or convince the Courts, but rather to impress the guru’s customer [emphasis in original]. Mediaeval alchemy is a helpful analogue. Alchemists sold their services based on the theatre of their activities, rather than demonstrated results, or any analytical or systematic methodology. OPCA gurus are modern legal alchemists. They promise gold, but their methods are principally intended to impress the gullible, or those who wish to use this drivel to abuse the court system. Any lack of legal success by the OPCA litigant is, of course, portrayed as a consequence of the customer’s failure to properly understand and apply the guru's special knowledge.
Caselaw that relates to Gurus, reviewed below, explains how gurus present these ideas in seminars, books, websites, and instructional DVDs and other recordings. They provide pre‑prepared documents, which sometimes are government forms, and instruct how to fill in the necessary information that then produces the desired effects. Gurus write scripts to follow in court. Some will attempt to act as your representative, and argue your case.
When gurus do appear in court their schemes uniformly fail, which is why most leave court appearances to their customers. That explains why it is not unusual to find that an OPCA litigant cannot even explain their own materials. They did not write them. They do not (fully) understand them. OPCA litigants appear, engage in a court drama that is more akin to a magic spell ritual than an actual legal proceeding, and wait to see if the court is entranced and compliant. If not, the litigant returns home to scrutinize at what point the wrong incantation was uttered, an incorrectly prepared artifact waved or submitted. (...)

It does not matter whether you [pseudolaw gurus] frame your ‘business’ as a joke, religion, for educational purposes only, or as not being legal advice; your ‘business’ harms your naive or malicious customers, their families, and the innocent persons whom your customers abuse as they attempt to exercise what you have told them are their rights. You cannot identify one instance where a court has rolled over and behaved as told. Not one. Your spells, when cast, fail."[7]

Meads v. Meads has since been used as case law and as a resource against pseudolegal arguments by courts in Canada and in other Commonwealth countries.[5]

See also[edit]

References[edit]

  1. ^ McRoberts, Colin (March 21, 2016). "Here comes pseudolaw, a weird little cousin of pseudoscience". Aeon. Retrieved January 4, 2018.
  2. ^ a b c d e f g h i j k l m n o p q r s Netolitzky, Donald (2018). "A Rebellion of Furious Paper: Pseudolaw As a Revolutionary Legal System". SSRN Electronic Journal. doi:10.2139/ssrn.3177484. ISSN 1556-5068. SSRN 3177484.
  3. ^ a b c d Donald Netolitzky (August 23, 2018), "Lawyers and Court Representation of Organized Pseudolegal Commercial Argument [OPCA] Litigants in Canada", UBC Law Review, vol. 51, no. 2, pp. 419–488, SSRN 3237255, retrieved 2020-06-23
  4. ^ a b c d Colin McRoberts (June 6, 2019), "Tinfoil Hats and Powdered Wigs: Thoughts on Pseudolaw", Washburn Law Journal, vol. 58, no. 3, 2019, pp. 637–668, SSRN 3400362, retrieved 2020-06-23
  5. ^ a b Netolitzky, Donald J. (2019). "After the Hammer: Six Years of Meads v. Meads". Alberta Law Review: Vol. 56, 1167 at 1185. doi:10.29173/alr2548. ISSN 1925-8356. Retrieved January 20, 2022.
  6. ^ "T.C. Memo. 2000-11" (PDF). ustaxcourt.gov. U.S. Tax Court. Retrieved January 4, 2018.
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  8. ^ a b "The Sovereign Citizen Movement: A Comparative Analysis with Similar Foreign Movements and Takeaways for the United States Judicial System Judicial System", Emory International Law Review Emory International Law Review, Volume 34, Issue 2, 2011, retrieved January 24, 2022
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  44. ^ "Nonsense or loophole?", Benchmark, Issue 57, February 2012, pp 18-19
  45. ^ Dalgleish, Katherine (14 March 2014). "Guns, border guards, and the Magna Carta: the Freemen-on-the-Land are back in Alberta courts". lexology.com. Lexology. Retrieved January 4, 2018.
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  47. ^ Williams, Jennifer (February 9, 2016). "Why some far-right extremists think red ink can force the government to give them millions". Vox. Retrieved August 18, 2020.
  48. ^ "A person is a 'person', B.C. judge rules". CTV news. June 18, 2010. Retrieved January 25, 2022.
  49. ^ "Spread of 'pseudolaw' scammers and victims thwarts court system". KU School of business. September 26, 2019. Retrieved January 21, 2022.{{cite news}}: CS1 maint: url-status (link)
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  55. ^ Reverse the Constitutional Polarity of the Baryonic Trustee Matrix: Legal Gibberish on the ConspiraSea Cruise (Day 2), violentmetaphors.com, January 27, 2016, retrieved January 6, 2022
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  57. ^ Bizzle, Legal (18 November 2011). "The freeman-on-the-land strategy is no magic bullet for debt problems". The Guardian.
  58. ^ "'Sovereign' citizen gets 180 days in jail for contempt of court". Chicago tribune. 26 November 2013.
  59. ^ "'Freeman-of-the-Land' driver jailed for contempt of court". Birmingham mail. 13 October 2015.
  60. ^ Sovereign citizen Bruce Doucette sentenced to 38 years in prison, Southern Poverty Law Center, May 23, 2018, retrieved 2022-01-13
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