What is Law
Posted by JeanPaulZodeaux 12 years, 2 months ago to Government
"All laws must be objective (and objectively justifiable): men must know clearly, and in advance of taking an action, what the law forbids them to do (and why), what constitutes a crime and what penalty they will incur if they commit it."
~Ayn Rand; The Nature of Government~
While this is a clear and concise understanding of law, in several of her writings Rand makes the mistake of contrasting "objective law" with "non-objective law" and in doing so lends credence to the notion that any legislation that comes down the pike is law. However, in science we understand a law to be statements that describe, predict and often explain why a phenomena behaves as it does in nature. In this regard Rand has come fairly close in describing law and it is only her willingness to equate non-objective legislation, or decree as law that creates a problem.
"When men are caught in the trap of non-objective law, when their work, future and livelihood are at the mercy of a bureaucrat’s whim, when they have no way of knowing what unknown “influence” will crack down on them for which unspecified offense, fear becomes their basic motive, if they remain in the industry at all—and compromise, conformity, staleness, dullness, the dismal grayness of the middle-of-the-road are all that can be expected of them."
~Vast Quicksands - The Objectivist Newsleter July 1963, 25~
There is no such thing as "non-objective law" only non-objective understandings of law. The dictators flourish when the non-objective understandings of law become "common sense". When bogus legislation is treated as law, by enforcer and the enforced alike the dictator has achieved one of their ends. If we are to objectively know the law, as Rand points out, we must know what constitutes a crime. A crime requires a victim and a victim requires a right that has been disparaged or denied. The law then, is not a set of rules to create social control, the law is unalienable rights.
Continued...
~Ayn Rand; The Nature of Government~
While this is a clear and concise understanding of law, in several of her writings Rand makes the mistake of contrasting "objective law" with "non-objective law" and in doing so lends credence to the notion that any legislation that comes down the pike is law. However, in science we understand a law to be statements that describe, predict and often explain why a phenomena behaves as it does in nature. In this regard Rand has come fairly close in describing law and it is only her willingness to equate non-objective legislation, or decree as law that creates a problem.
"When men are caught in the trap of non-objective law, when their work, future and livelihood are at the mercy of a bureaucrat’s whim, when they have no way of knowing what unknown “influence” will crack down on them for which unspecified offense, fear becomes their basic motive, if they remain in the industry at all—and compromise, conformity, staleness, dullness, the dismal grayness of the middle-of-the-road are all that can be expected of them."
~Vast Quicksands - The Objectivist Newsleter July 1963, 25~
There is no such thing as "non-objective law" only non-objective understandings of law. The dictators flourish when the non-objective understandings of law become "common sense". When bogus legislation is treated as law, by enforcer and the enforced alike the dictator has achieved one of their ends. If we are to objectively know the law, as Rand points out, we must know what constitutes a crime. A crime requires a victim and a victim requires a right that has been disparaged or denied. The law then, is not a set of rules to create social control, the law is unalienable rights.
Continued...
"It is impossible to have a conversation with someone who wants to talk at you, not with you."
Then stop talking at me. Instead why not just speak to the topic? Ad hominem attacks are just logical fallacies and don't do anything at all in terms of making an argument one way or the other in regards to the topic.
That latter is the school of "legal realism". Make of it what you will... but there are easily another half dozen "theories" - and no one tells the budding lawyers which theories are "right". In many ways, the law is what people make of it.
Ironically, in countries with a jury system, it is the people who most often pervert the law. Spill a cup of hot coffee in your lap? The judge isn't going to award three million dollars for that - but a jury might (and has).
Convict a man for a firearms mechanical malfunction (nobody was hurt) and send him to prison for three years? Yep. Juries do that too.
Not only do we get the government we deserve... we get the law we deserve as well. Unfortunately, that "we" include a large number of morons who richly deserve Hobbes' "life in the state of nature", but we have thus far not awarded them the lives they so richly deserve.
In terms of legalism, "law" students are overwhelmed with far too many "theories" on law. In science students are not overwhelmed with various theories of law, and in science all law is simple, true, universal and absolute. I am arguing that law is law and the unalienable rights of people are law and as such the law is simple, true, universal, and absolute. The reason that juries today tend to render so many boneheaded verdicts is that those allowed on a jury panel are ignorant of the law. They are instructed by the court and the attorneys on what the "law" is and all to often are given directed verdicts by judges who have disregarded the law. Jury nullification is "not allowed" by the current court system and if, when choosing the jury panel, several indicate they have no regard for the legislation criminalizing people and indicate they will not render a guilty verdict based upon the legislation alone, they will be dismissed. In Missoula County of Montana a few years ago, potential jurors repeatedly told the court they would not convict a defendant for possession of a few buds of marijuana. The prosecutor complained to the judge that the prosecution was entitled to a fair trial, the judge agreed and called a recess demanding the defendant, defense attorney and prosecutor work out a plea bargain. An eventual Alford plea was hammered out and the defendant walked out of court a "free man". The defendant did not do any jail time, but he was certainly entered into the criminal justice system because of this Alford plea.
An Alford plea is when the defendant admits that the prosecution has enough evidence to convict but does not plead guilty to the crime. Given that the Missoula County judge compelled this plea agreement due to the fact that they could not find a jury pool willing to convict, the defendant taking an Alford plea was nonsensical. He admitted the prosecution had the necessary means to convict when it was clear they did not and he should have demanded a dismissal or a trial by jury and refused any plea agreement.
It is not just juries who make boneheaded decisions. Defendants make wrong decisions all the time, even when it is perfectly clear the jury will set them free.
It is also important to realize that judicial review helps to illustrate that legislation is not law, at best merely evidence of law, and at worst, flat out unlawful.
When Congress continually legislates acts they don't even know what is stated within that act this is very much a reflection on the people who established and who are tasked with stewarding that government...We the People.
People get the government they deserve.
"How many law's does one need to govern a free society?
The United States imprison more people per capita than any other industrialized nation in the world. That's more than China and more than the Soviet Union at the height of their tyranny. As of 2008 it was reported that there were 2.3 million people residing in American prisons, and Congress and state legislatures keep adding and adding legislation to their books and it has apparently not occurred to many legislatures that they have the authority to repeal as well as legislate.
The more acts of legislation added to the books the more insane the nation becomes. So many bogus acts of legislation exist on a federal, state, and local level that its sum effect has been that more and more people have no regard for the law. This lack of regard is not because of the law, but rather due to equating legislation with law.
The short answer to your question: "How many law's does one need to govern a free society?"
The answer is as many laws that exist naturally. The gross expansion of legislative acts is often justified as a method with dealing with new technologies, but these technologies did not come about because someone invented new laws of physics and technology obeys the laws of physics and when a just government is established and kept that way, so too do the acts of legislation enacted and enforced by that just government.
" Such a perversion of force would be, in both cases, contrary to our premise. Force has been given to us to defend our own individual rights. Who will dare to say that force has been given to us to destroy the equal rights of our brothers? Since no individual acting separately can lawfully use force to destroy the rights of others, does it not logically follow that the same principle also applies to the common force that is nothing more than the organized combination of the individual forces?
"If this is true, then nothing can be more evident than this: The law is the organization of the natural right of lawful defense. It is the substitution of a common force for individual forces. And this common force is to do only what the individual forces have a natural and lawful right to do: to protect persons, liberties, and properties; to maintain the right of each, and to cause justice to reign over us all."
~Frederic Bastiat - The Law~
Any legislative authority that prohibits the people government serves but allows government officials to act upon is not a lawful act, it is instead a whimsical and arbitrary declaration of authority that does not objectively exist. If people cannot steal it follows governments cannot either. If people cannot murder, it follows governments cannot either.
In terms of rights, I think there might be some validity to the first incompleteness theorem. It is arguable that we don't know all the rights of people. An example of this is the continuing debate over abortion. On the one hand the right of a woman to make an informed choice about her own body is a reasonable assumption, but if we are to understand rights - outside of defense - as that action that causes no harm then we are confronted with the fetus which may or may not be a person. Yet another person that might deserve consideration in regards to abortion is the father. Does a woman have the right to terminate a fetus that was sired by a man expecting to enjoy his right to be a father? If this man has this right then is the abortion a demonstrable harm? There are many questions regarding a woman's choice to have an abortion that it might be fairly argued we don't know enough to determine whether this is a right or not.
My belief is that as the courts have ruled on this it is less by the standard of axiomatic law as natural rights (negative) and has been more determined under the understanding of "civil rights" (positive).
"The system of rules that a particular country or community recognizes as regulating the actions of its members and may enforce by the imposition of penalties"
Let's ask Mubarak what he thinks of "governmental social control".
By this definition you've provided, John Galt is a criminal. Do you honestly believe Ayn Rand was selling criminality as heroism?
It could be argued that he caused all of "society" harm by not producing. Are you willing to make that argument?
http://bastiat.org/en/the_law.html
I genuinely hope you enjoy it.
You asked for a dialogue and now you are annoyed because you got one.
Edit to Add: While I am arguing that there is certainly a concreteness to criminality, my argument is that this concreteness lies in the denial or disparagement of a right. No legislative act need be codified in order to give validity to the right, or to explain the criminality. The difference between what you are arguing and I am arguing is that your argument falls prey to whimsy and arbitrariness. My argument does not. As long as it is an unalienable right and understood as such, and once this unalienable right has been violated, a concrete crime is established. Today, tomorrow, and always. There is no lawful authority to repeal or overturn an unalienable right, rights that belong to all people.
Are you intentionally or unintentionally making conversation difficult?
I ask because it was extremely clear:
-What "concrete" means (yes, material and physical)
-There is a temporal condition to a person's existence (yes, someone who lived during Prohibition would be a criminal for brewing alcohol whereas someone who lives now would not be a criminal for brewing alcohol)
Yet, despite that^ being extremely clear, you focused in on it as if it was some hole in my statement. I can think of several reasons you would do so (both intentionally and unintentionally), but, as I said earlier, it is impossible to determine that over the internet, so instead of making suppositions I asked the question I did above:
Are you intentionally or unintentionally making conversation difficult?
I cannot know how much of what I posted you have actually read, but I have stated and unequivocally so that it is important for people to understand the law, and if I was not so clear about legislation allow me to try and be more concise now. It is important people understand the clear difference between legislation and law. Solver pointed out a while ago that legislation often passed today by Congress is difficult for people to understand. I replied to that post by pointing to the Void for Vagueness doctrine that states - in part - that legislation that cannot be understood by any person of average intelligence is null and void. This is yet even more evidence to the lack of concreteness you claim legislative acts have when declaring a certain action "criminal".
It is also too irrational to rely solely upon legislation to determine what is law. You sure seem to be advocating this irrationality as a determination of what law is. You seem to be advocating whimsy and arbitrary nature as a valid determination of law. I clearly do not agree with this. I suspect that this is what you find difficult, my unwillingness to go into agreement with whimsy and irrationality as a valid determination of law. There is a better way to determine law than what you are arguing. This better way is not an invention of mine but I advocate it. When people understand that a crime must come with a victim. When they understand that a victim is someone who has their right(s) violated now we can all understand law in a concrete way. To suggest that law is concrete until it is not only keeps understanding of law in a grey area, that then facilitates the priest class lawyer sect to utter mystical incantations keeping the laity in awe and mystified.
The entire English language (or any language for that matter) does not need to be redefined or understood newly due to Ayn Rand discovering Objectivism. Words identify the world as it *is*, not as it *ought to be*. Yes, all laws *ought to be* just, but a lot of laws *aren't* just. The condition of being unjust doesn't make them not laws, and stating that it does make them not laws means *every* conversation would require defining *every* word before it was started.
Also, I don't appreciate being called dishonest when:
1. I state I am being honest.
2. Honesty is extremely important to me.
3. Honesty is one of the virtues in John Galt's speech (or do we not have that understood shared context and it must be stated explicitly as well?)
Thank you. I hope you enjoy The Gulch and find what you're looking for here.
~Francisco d'Anconia - Atlas Shrugged~
All one has to do is examine the etymology of many words to understand that words are redefined and understood newly all the time. Indeed, you authored a thread using the word "myth" that has nothing at all to do with its etymology or anything to do with mythology and was used - in its newly understood meaning - to mean falsehood.
I wouldn't even have an issue with your "honesty" if you hadn't deflected from the topic and attempt to make this thread about me. I would have found it much more honest if you simply just argued the topic and not me.
There is a reason for the Ninth Amendment and it is more than establishing that the enumerated rights are not the only rights retained by the people, it also implies in declining to enumerate these other rights that they are too numerous to list.