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Part 6 - The Hierarchy of Law

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Law is not a flat landscape where all rules carry equal weight. It is a hierarchy — a layered structure in which some laws sit above others, and where a lower law that conflicts with a higher one is, in principle, invalid. Most people experience only the bottom layers — statute, regulation, bye-law — without ever knowing the layers above them exist. Understanding the hierarchy changes how you read, understand, and engage with the law.

The hierarchy at a glance

Fact

The following layers are presented from highest to lowest — from the law that exists independently of any human institution, to the local rules made by local authorities for specific purposes. Each layer sits within the one above it. A lower layer that conflicts with a higher one is, in principle, without force. In practice, the lower layers are so embedded and so enforced that the higher ones are rarely invoked — but they have never been repealed. They cannot be.

1. Natural Law

   The highest authority. Not created by any government, institution, or man. The principles that exist independently of any legal system — do no harm, honour your word, take responsibility for your actions. Recognised across every legal tradition, every culture, every era of recorded history. Cannot be repealed. Cannot be amended. Does not require a parliament to exist.

2. Divine Law

   In many traditions, sitting alongside or above natural law — the moral framework derived from religious or spiritual authority. The Ten Commandments. Sharia. Torah. The Vedic principles. Each tradition has its own expression of law that claims authority above any earthly institution. Where divine law and natural law align — as they most often do on fundamental principles — the authority is compounded. Where they diverge, each man and woman must answer for themselves.

3. Common Law — the law of the land

   Law developed through court decisions and custom over centuries. Not enacted by parliament. Grown from the lived experience of communities and the judgments of courts applying natural law principles to specific situations. In England and Wales, common law predates statute by centuries. It governs the man or woman on the land — in community, in relationship, in the settled framework of rights and obligations that natural law supports.

4. Admiralty Law — the law of the sea

   A parallel and ancient body of law, developing alongside common law but for a different domain. Admiralty law governs everything at sea — ships, cargo, salvage, maritime contracts, crimes committed on the high seas. It is commercial by nature, because the sea is commercial by nature. It operates under the law of the flag — the jurisdiction of the country whose flag the vessel flies. It governs the voyage, not the community. The man in commerce at sea, not the man in community on land.

5. Constitutional Law

   The framework that defines the relationship between the state and the individual. In the UK, not a single codified document — a collection of instruments, conventions, and principles accumulated over centuries. Magna Carta 1215. The Petition of Right 1628. The Bill of Rights 1689. The Act of Settlement 1701. The constitutional framework sits above ordinary statute — an Act of Parliament that conflicts with a constitutional principle is on ground that is shakier than the doctrine of parliamentary sovereignty might suggest.

6. Statute / Primary Legislation

   Acts of Parliament. The layer most people are most familiar with. Created by the legislature, applicable to persons within the jurisdiction, enforceable by the courts. Subject to constitutional constraints in principle. Changeable by a new parliament — because no parliament can bind its successor. What Parliament enacts, Parliament can repeal.

7. Statutory Instruments / Secondary Legislation

   Regulations, orders, and rules made under the authority of a parent Act, without requiring full parliamentary debate. Lower than statute but in practice the layer that governs most of everyday life. Much of what people experience as the law — planning rules, health and safety regulations, road traffic rules, licensing requirements — exists at this level. Secondary legislation can be made and changed far more quickly than primary legislation — a fact that became very visible during 2020 and 2021.

8. Bye-Laws

   Local rules made by local authorities or other bodies under statutory authority. The lowest rung of the hierarchy. Enforceable within a specific area or context. Cannot conflict with statute. A bye-law that purports to override a statute has no force. A bye-law that conflicts with natural law has even less — though this is a point that most local authorities have never been asked to address.

Natural law — the foundation

Fact

Natural law is the oldest body of law in existence — and the only one that was never enacted by any human authority. It is the law that exists in the nature of things. The principle that a man should not harm another without cause. That a promise made should be a promise kept. That a wrong should be remedied. That a man is innocent until the contrary is proven. These principles did not originate in Parliament, in the courts, or in any legal system. They exist because they are true — recognised across every culture, every civilisation, and every era of human history that has ever asked the question of how men and women should treat one another.

Natural law is not enforced by a court or a police officer. It is enforced by conscience — the internal mechanism through which a man or woman recognises an obligation and either honours it or does not. When it is dishonoured, natural law provides for remedy — the principle that every wrong has a remedy is itself a principle of natural law, predating every court and every statute.

Observation

No statute, no regulation, no court order, no government decree can override natural law. A law that requires a man to do something that natural law prohibits — to harm an innocent person, to bear false witness, to take what belongs to another — is a law that conflicts with the highest authority in the hierarchy. The answer most philosophical and legal traditions have arrived at is the same: a law that conflicts with natural law is not truly a law at all. It is a command. And commands require compliance only to the extent that the man or woman commanded chooses to give it.

Philosophy

This places a significant responsibility on the individual — the responsibility to know natural law well enough to recognise when it is being violated, and the courage to act accordingly. Most people prefer the comfort of compliance — following the lower layers without examining whether they conflict with the higher ones. That is understandable. But understanding that the option exists — that natural law sits above statute, that it has never been repealed, that it provides a framework against which every lower law can be measured — is part of navigating the legal world consciously.

Divine law — the moral dimension

Observation

Every major religious and spiritual tradition has developed its own body of law — a framework of moral obligation that claims authority above any earthly institution. The Ten Commandments of the Judeo-Christian tradition. The Sharia of Islam. The Torah of Judaism. The Dharmic principles of Hinduism and Buddhism. The natural law principles of the Stoic tradition. Each claims, in its own way, that there is a moral order to the universe — and that human law, to be legitimate, must accord with it.

Where these traditions agree — and on the fundamentals they agree far more than they disagree — the authority is compounded. Do not kill. Do not steal. Do not bear false witness. Honour your word. Take responsibility for your actions. These principles appear in every major moral tradition that has ever existed. They are the bedrock of natural law — and they carry a weight that no Act of Parliament has ever matched.

Observation

The legal system of England and Wales was, for most of its history, explicitly grounded in Christian moral law. The oaths taken in court invoke God. The coronation oath of the monarch is a religious oath. The preamble to Magna Carta invokes divine authority. The separation of law from its moral and spiritual foundation is a relatively recent development — and one that has not been universally welcomed even among those who drafted and enacted the changes.

Common law — the law of the land

Fact

Common law is law that was not made by Parliament. It grew — through the decisions of courts, the customs of communities, and the application of natural law principles to the specific circumstances of specific cases — over centuries. It predates the oldest statute still on the statute book. It developed many of the rights and principles that Parliament later codified — and many that Parliament has never touched.

The presumption of innocence. The right to a fair trial. The right to know the charge against you. The right to face your accuser. Habeas corpus — the right not to be imprisoned without lawful cause, enforceable by a writ requiring the jailer to bring the prisoner before a court and justify the detention. These principles were not invented by Parliament. They were developed by courts, over centuries, applying the principles of natural law to the situations that came before them. They are common law rights — and they sit above the ordinary statutory framework.

Observation

Common law governs the man or woman on the land — in community, in relationship with neighbours, holding property, living within a settled framework of rights and obligations. It is the law of the land in the most literal sense. It grew from the land, from the people on it, and from the natural law that governs how those people should treat one another. It is not fixed in a statute that can be repealed by a majority vote. It is woven into the fabric of the legal system in a way that is much harder to remove — and it has a resilience that statute does not have.

Admiralty law — the law of the sea

Fact

Admiralty law is one of the oldest bodies of law in existence — and it developed separately from common law, for a different purpose, to govern a different domain. Where common law governs the man on the land, in community, admiralty law governs the vessel at sea, in commerce. The distinction was not accidental. It reflected a genuine difference in the nature of the relationships and activities being governed.

The sea has no neighbours, no common fields, no parish boundaries. It has ships, cargo, flags, and commerce. The law of the sea reflects that — it is built around commercial relationships rather than community relationships. It governs ships and their ownership. Cargo and its safe delivery. Salvage — the right to claim a portion of rescued property when a vessel is in distress. Maritime contracts. Bills of lading. Collisions and damage. Crimes at sea. At sea, jurisdiction follows the flag — the ship carries the law of the nation whose flag it flies. The flag is the jurisdiction.

Observation

The two bodies of law were kept separate because the relationships they governed were genuinely different. A man on land was a man in community — in relationship with neighbours, living within the settled framework of common law rights and natural law obligations. A man at sea was a man in commerce — engaged in a commercial enterprise, subject to commercial law, operating under the jurisdiction of the flag he sailed under. The law of the land governed the man. The law of the sea governed the voyage. Keeping them separate was not a technical nicety. It was a recognition that different human activities, in different domains, require different legal frameworks.

Pirates — the flag and what it means

Fact

A pirate flies a flag. The skull and crossbones — the Jolly Roger — is itself a declaration. Not a national flag. Not the flag of any sovereign. A flag of its own — signalling that the vessel operates outside the jurisdiction of any nation, outside the protection of any law, and outside the obligations that come with both. The pirate claimed no sovereign. He owed allegiance to none. He was, in the language of international law, hostis humani generis — the enemy of all mankind. Any nation's court could try him. Any nation's navy could hang him. He existed in the space between jurisdictions — and the flag he flew announced it.

Observation

The distinction between a pirate and a privateer is worth understanding precisely. A privateer did exactly what a pirate did — attacked ships, seized cargo, operated at sea outside the normal framework of commerce. The difference was a single document — a letter of marque, issued by a sovereign, authorising him to do what he did and granting him the protection of that sovereign's jurisdiction. With the licence, the same acts were lawful. Without it, they were piracy. The difference between a privateer and a pirate was a piece of paper. A permission. An offer from an authority — accepted, and acted upon. The acts were identical. The document changed everything.

Observation

The skull and crossbones as a symbol deserves its own moment — because the same emblem that flew above the pirate, the man who operates outside jurisdiction and allegiance, is the emblem of one of the most well-connected private associations in the modern world.

Skull and Bones is a secret society of senior students at Yale University, founded in 1832. Its emblem is the skull and crossbones with the number 322 beneath it. Its headquarters — known as the Tomb — is a windowless building on the Yale campus where members meet in private, bound by obligations of secrecy they take on at initiation. Membership is limited to fifteen students per year, selected through a private process. Three of its members became US presidents — William Howard Taft, George H.W. Bush, and George W. Bush. In 2004, both the Republican and Democratic nominees for the US presidency — George W. Bush and John Kerry — were members. Two candidates for the most powerful public office in the world. Both members of the same private association. Both flying, in a sense, the same flag.

Its members have included presidents, cabinet officers, heads of intelligence agencies, Supreme Court justices, senators, and senior figures in finance, industry, and media. Men who move between the private association and positions of significant public authority — bound by private obligations that sit alongside, and in some cases may sit above, their public duties.

Observation

This is a private association — operating under its own rules, with its own private language and obligations, whose members occupy some of the most significant positions of public power in the modern world. What happens within the Tomb is, by design, not known to those outside it. The skull and crossbones flies above it. Whether that flag signals what it meant to the pirates who first flew it — that those beneath it operate outside the jurisdiction and obligations of any sovereign — is a question the observer must answer for themselves.

As if there had been a great flood

Observation

A man is born. He arrives into the world through water — through his mother's waters, through the birth canal. He is received, weighed, measured, and administered. His arrival is recorded. And he is registered — his name entered into a public record, a certificate issued, a legal identity created.

Consider the words used in that process. The birth canal — a canal being a waterway, a channel through which vessels pass. The dock-tor — the doctor who attends. A dock being the place where ships are received, where vessels are brought in from the sea for inspection, administration, and the recording of what has arrived. The midwife — the one who administers the process. And the certificate of live birth — the document that records the arrival, as a ship's manifest records the cargo that has come into port.

The child arrives through water. He is received at the dock. He is weighed and measured. His arrival is recorded on a document. A legal entity — the person, the name in capital letters — is registered, filed, and placed in the system of public administration. Some of the most valuable cargo imaginable, claimed as salvage at the moment of arrival.

Observation

Are these words used by chance? Is it coincidence that the language surrounding the arrival of a new human being into the world mirrors so precisely the language of admiralty — of vessels arriving at port, of cargo being received, weighed, and manifested? Or is something being communicated — not to the man or woman on the street, but to those who understand the language — that the new arrival is entering a jurisdiction, and that the jurisdiction is not the law of the land?

Common law is the law of the land. Admiralty law is the law of the sea. The question is simple — at what point did the sea come to the land? At what point did the law that governs vessels in commerce begin to be applied to men and women who had never left the shore? At what point was the distinction between the man in community, governed by the common law, and the vessel in commerce, governed by the admiralty, quietly dissolved — so quietly that most people never noticed?

It is as if there was a great flood. As if the sea came in — gradually, imperceptibly, over generations — and covered the land. And the men and women who once stood on dry ground, under the common law, found themselves — without ever having boarded a ship, without ever having entered a maritime enterprise, without ever having consented to the jurisdiction of the admiralty — standing in water up to their necks, governed by the law of the sea, administered by dock-tors, registered on manifests, their most valuable cargo claimed as salvage at the moment of their arrival into the world.

Philosophy

This is an observation — not a legal argument that will produce a specific outcome in a specific court if asserted without thorough preparation and genuine understanding. The courts of England and Wales are not receptive to land-based proceedings being framed in admiralty terms, and those who have attempted it without real understanding of what they were doing have generally not fared well.

But the observation stands. The language is real. The words are the words they are. The law of the land and the law of the sea were kept separate for good reason. Whether they remain separate — or whether the sea has come to the land in ways most people cannot see because they were never taught to look for it — is a question worth sitting with.

It begins with a birth. Through water. Into the hands of the dock-tor. With the manifest ready to be filed.

Constitutional law — Magna Carta and what it established

Fact

Magna Carta — the Great Charter — was sealed by King John at Runnymede on 15 June 1215. It was not a gift from the Crown. It was extracted from a king by barons who had had enough — who forced him, under military pressure, to set his seal to a document that placed limits on royal power for the first time in English history. It established that even the king was subject to the law — that no one, however powerful, stood above it.

Most of Magna Carta's original clauses have been repealed over the centuries. But several remain on the statute book today. Chapter 29, in the version confirmed by Edward I in 1297, reads:

"No Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right."

Observation

No freeman shall be taken or imprisoned without lawful judgment of his peers or by the law of the land. Justice shall not be sold, denied, or deferred. These are not aspirations. They are constitutional commitments — on the statute book, in a document sealed by a king, confirmed by his successors, and never fully repealed. They establish the right to trial by jury. They establish that justice is not a commodity. They establish the rule of law over the rule of men.

Magna Carta also established that the Church was to be free from royal interference. That men could travel freely in and out of the kingdom. That no taxes could be levied without the consent of the kingdom. That weights and measures should be standardised. That the Crown could not seize property without proper process and compensation.

Observation

Many of these principles have been eroded, reinterpreted, or quietly set aside in the centuries since 1215. But the document remains. The principles remain. And they sit at a level of the hierarchy that ordinary statute cannot simply override — even if Parliament passes an Act that appears to conflict with them. Any statute purporting to allow imprisonment without trial, or to deny justice, or to tax without representation, is on ground that the constitutional framework does not comfortably support.

The Petition of Right 1628 extended and reinforced these principles — no taxation without parliamentary consent, no imprisonment without cause, no billeting of soldiers in private homes, no martial law in peacetime. The Bill of Rights 1689 established the rights of Parliament against the Crown, the right to petition, freedom of speech in Parliament, and the prohibition on cruel and unusual punishments. The Act of Settlement 1701 established the independence of the judiciary — judges to hold office during good behaviour rather than at the pleasure of the Crown, ensuring they could not be removed for giving inconvenient judgments.

Together, these instruments form the constitutional framework of England and Wales — not codified in a single document, not entrenched in the way the US Constitution is, but present nonetheless — woven into the legal fabric as surely as the common law rights that sit alongside it.

Statute — Parliament's law and its limits

Fact

The doctrine of parliamentary sovereignty holds that Parliament is the supreme law-making authority in the United Kingdom. It can make or unmake any law. No court in England and Wales can strike down an Act of Parliament on the grounds that it conflicts with the constitution — unlike the United States, where the Supreme Court can declare legislation unconstitutional. What Parliament enacts is law. What Parliament repeals is no longer law.

This doctrine has real force — and real consequences. It means that rights established by statute can be removed by statute. What one parliament gives, another can take away. The protections available to a man or woman in England and Wales are, ultimately, only as secure as the willingness of the current parliament to maintain them.

Observation

But parliamentary sovereignty is not unlimited — even within its own framework. Parliament operates within the constitutional framework. It operates within the common law. And it operates, in principle, within natural law — whether or not the doctrine of parliamentary sovereignty acknowledges this. A Parliament that passes legislation requiring something that natural law prohibits has not thereby made natural law invalid. It has created a conflict between two layers of the hierarchy — and left every man and woman subject to that legislation with the question of which layer they recognise as binding.

The further practical limit is time. No parliament can bind its successor. Every parliament is sovereign in its own time — and can undo the work of every parliament before it. This makes statute the least durable layer of the hierarchy. Natural law has never changed. Common law changes slowly, through decades of case development. Constitutional principles shift over centuries. Statute can change overnight.

EU law — a layer inserted and removed

Fact

The United Kingdom's membership of the European Union from 1973 to 2020 provides a clear illustration of how a layer can be inserted into the hierarchy and subsequently removed. EU law, during the period of membership, sat above domestic statute in certain areas — the European Communities Act 1972 gave EU law direct effect in the UK, meaning that where EU law and domestic statute conflicted, EU law prevailed. This was a significant modification to the doctrine of parliamentary sovereignty.

The European Court of Justice was the highest court for matters of EU law — sitting above the UK Supreme Court in those areas. EU regulations applied directly in the UK without needing to be enacted by Parliament. EU directives required Parliament to legislate in accordance with their requirements. The hierarchy, during this period, had an additional layer between constitutional law and domestic statute — enforceable by a court operating entirely outside the UK's own legal system.

Observation

The Brexit debate was, at its core, a debate about the hierarchy of law. Sovereignty — the question of which layer sat at the top and who controlled it — was the central argument on both sides. The decision to leave was a decision to restore domestic statute to its position above EU law, and to restore the UK Supreme Court to its position as the highest court for all domestic matters. What it illustrates, with unusual clarity, is that the hierarchy of law is not fixed — layers can be added, rearranged, and removed through political decisions. What cannot be removed — what sits above all of it — is natural law. No referendum has ever been called on that.

Secondary legislation — the layer most do not question

Statutory instruments — regulations, orders, and rules made under the authority of a parent Act — are the layer of law that most directly governs the details of daily life. Speed limits. Planning permissions. Food safety standards. Health and safety requirements. Licensing conditions. Most of what a person encounters as "the rules" exists at this level — not in Acts of Parliament debated and voted on by elected representatives, but in instruments made by ministers and officials, under powers granted by Parliament, often without any parliamentary scrutiny at all.

Secondary legislation can be made and changed far more quickly than primary legislation. A regulation can be introduced by a minister signing a statutory instrument. It does not require a vote. It does not require debate. It can come into force within days of being made — and in some cases with retrospective effect, applying to conduct that had already taken place before the instrument existed.

Observation

This is worth understanding precisely because most people assume that "the law" — the rules they are expected to follow — has been properly scrutinised, debated, and enacted by people accountable to them. In many cases at this level of the hierarchy, it has not. A regulation that affects your business, your property, your movement, or your daily life may have been made by a single minister exercising a power buried in a parent Act that Parliament passed years or decades earlier — and that few people read at the time.

The events of 2020 and 2021 made this visible in a way that was impossible to ignore. Sweeping restrictions on movement, assembly, commerce, and association were introduced through secondary legislation made under the Public Health (Control of Disease) Act 1984 — a statute that had sat quietly on the statute book for thirty-six years. Whether those regulations were within the powers granted by that Act, and whether those powers were themselves consistent with the constitutional framework above them, are questions that deserved to be asked at the time and have not been fully answered since.

Observation

The empowering point is this — secondary legislation is the lowest form of enacted law. It sits beneath statute. It sits beneath constitutional law. It sits beneath common law. It sits beneath natural law. And yet it is the layer most likely to be presented to a man or woman as though it were the final word — as though a regulation or a statutory instrument were as unquestionable as the principles at the top of the hierarchy.

It is not. A regulation that conflicts with its parent Act has no force. A regulation that conflicts with constitutional principles is on uncertain ground. A regulation that conflicts with natural law carries no moral authority — whatever its legal status. Understanding where secondary legislation sits in the hierarchy is understanding that it is, in many respects, the weakest layer of the framework. The one most subject to challenge. The one most dependent on consent and compliance to have any practical effect at all.

The question worth asking, when any regulation is placed before you — is not simply "does this apply to me?" The question is: "under what authority was this made, is that authority legitimate, and is it consistent with the layers above it?"

A lower law cannot override a higher one

Philosophy

The most important principle in the hierarchy is the simplest — a lower law cannot override a higher one. A regulation cannot override a statute. A statute cannot override the constitution. The constitution cannot override common law rights that predate it. And nothing can override natural law.

In practice, this principle is rarely invoked. The lower layers are so embedded, so enforced, and so assumed to apply that most people never look up the hierarchy to ask whether what is being demanded of them is consistent with the layers above. Most comply with regulations without asking whether the regulation is within the powers of the parent Act. They comply with statutes without asking whether the statute is consistent with the constitutional framework. They accept the framework as given — and operate within it by default.

Understanding the hierarchy requires only the awareness that the framework exists — that there are layers above the one being invoked — and that the question "is this consistent with a higher law?" is always available to be asked. Asking it does not automatically produce a remedy. But not asking it guarantees that none will ever be found.

"The man who knows only the bottom of the hierarchy knows only what he has been told to do. The man who knows all of it knows which rules are real, which are made, and which are simply assumed. That knowledge does not make him above the law. It makes him able to stand within it — consciously, knowingly, and on ground that he has chosen."

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