To put it another way, Law itself is a prison and the fewer people who ever see its bars, the better. That ‘not that many’ people can transform the lives of the rest of us by force of law is undoubtedly true. It happens all the time, but does not strike me as a thing to be happy about.
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Samizdata quote of the dayOctober 23rd, 2013 |
 18 comments to Samizdata quote of the day |
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The crux of the concern lies in “by force of law.”
What “Paine” writes (actually quotes) about is not LAW. but Rules of Policy (legislation, regulation and administration) which, historically, used to bear the imprimatur “. . . to have the full force and effect of Law.” ‘Not that many people’ do indeed posit legislation, regulation and administration (do not minimize the latter). And, for benefices presumed and responsibilities transferred we have assigned to those ‘not that many’ the functions calling for: legislation, regulation and administration with the resultant impacts on individual liberty.
The legal fraternity is there to protect the criminal class from the people as they steal from them.
I like to translate “Befehl ist Befehl” as “the law is the law,” to the great indignation of many of the lawyers I twit on a couple of law blogs. But really, how is the abdication of moral responsibility to Authority any different from one case to the other?
Or as I ask them, “What does the judge who says ‘the law is the law’ say when the law says ’round up the Jews?’ We already know what the judges said when the law said ’round up the Japanese-Americans.'”
PfP
In the U S, the LAW did not “say” round up anyone.
There was an Executive Order – an “administrative” action.
The fact that it was subsequently confirmed (upheld) by judicial action did not make it LAW.
It was given “the force of law” but it was not LAW.
I’m sure that will be a great comfort to you when you are looking out thro’ the barbed wire of your FEMA camp.
The law should be a shield, not a sword. It is now very much a sword in most, if not all jurisdictions on Earth, in the hands of the State or in the hands of those who seek to seize and destroy the assets and lives of rightful owners of property, or simply to attack the holders of ideas or backgrounds that are disliked.
Mr. Ed.
*parenthetical phrase added for clarity.
Definitely ‘a distinction without a difference’.
PfP-
My thought on the “difference” which I think I have posted before, so this may be redundant:
LAW describes and defines, but does not necessarily delineate, observed social order and the relationships within it.
Legislation, regulation and administration are Rules of Policy which define, describe and commonly delineate, some desired form or forms of social order and the relationships required.
RRS, I suppose I understand your definitions (although I’m not sure I entirely agree with them), but in this context I have to agree with PfP: a distinction without a dfference. For all practical purposes, something which has the force of law is indistinguishable from a law.
Laird –
I think not [“indistinguishable”]because Rules of Policy have to be “given” that force, which is inherent (as in the “Laws” of the physical, biological and now cosmological world) in LAW.
Consider what is required to make such force available (the “giving”) in the various forms of social orders; the delegation, the abdications, derogations, submissions and acceptances.
And, further, why are those requirements necessary; to what ends? In those considerations I think we will find distinctions and differences – and of the people in those social orders, discover even more.
In a discussion about the philosophy of law, perhaps. But in a practical sense, not so much.
If the Law is left, as in a pure Commom Law jurosdiction to judges to formulate according to precedent, the problem may arise of a ‘rogue’ senior judge or panel thereof setting a profoundly tyrannical precedent.
If we are to have the law as an eternal body of principles, the same problem arises, what if the tribunal deciding the principles of the law is frankly bonkers and/or evil?
If plan A is to disregard the hazard to liberty presented by ‘rogue’ precedents, we are left with the risk (or reality) of such a precedent.
If plan A is abandoned, plan B might be to allow for the law to be changed by a legislature, the UK Parliament is, after all, the High Court of Parliament, that too carries risks and realities with it, but there is always hope, perhaps little scope, for change.
A Plan C, to do a once-in-a-civilisation rewrite of the law on libertarian principles poses the question of how that is to be achieved and maintained.
Indeed, Laird – but how can one change the practical reality without discussing the philosophy on which it is based? To me, such philosophical discussion is actually quite welcome, and I find the point RRS is making to be very pertinent to understanding the mess we are in. Moreover, it may well be the key point towards that end.
Well, I don’t see it, Alisa, but clearly your mileage varies. I’ll leave it at that.
Laird –
You put your finger on a principal issue of the constructivist view of society (which I am sure is not your view). That is; that a “fabricated” legal system can have the same apparent effects within a society as one which serves the social order (as it exists and as it changes)rather than shapes it.
But, you’re right, I drift into the philosophical side – with the hope[?] that view can throw some light on the direction being taken.
Mr. Ed-
Regrettably, we can no more successfully “construct” a legal system to ensure a desired “Libertarian” social order, than can others do so to achieve a desired socialist social order.
If you want to examine the possibilities that have been tried, you might look into the history of “codifications,” their sources (usually existing systems)and objectives. Those projects go waaay back into history.
Venezuela meanwhile, and this is not from The Onion.
http://en.mercopress.com/2013/10/25/feeling-unhappy-try-orwellian-venezuela-maduro-creates-the-supreme-happiness-office
Perhaps RRS could submit to Perry for publication a short synopsis on how law forms and is followed or enforced in an environment free from legislative, regulatory, etc interference. I have a general understanding of law being in the nature of a community contract of reciprocities. When someone violates a prohibition of the law, they forfeit the protections of the law (becoming ‘outlaw’). By violating the restrictions of law binding themselves from harming others, they loose the binds holding back others from harming them.
RRS, I am particularly interested in the social dynamic and provenance of law. Code being handed done by rulers is an ancient practice, for example the Code of Hammurabi, but how did/does law arise in the absence of coercive rulemakers?