We are developing the social individualist meta-context for the future. From the very serious to the extremely frivolous... lets see what is on the mind of the Samizdata people.

Samizdata, derived from Samizdat /n. - a system of clandestine publication of banned literature in the USSR [Russ.,= self-publishing house]

What size law?

It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow.

(James Madison, writing as “Publius” in The Federalist No. 62)

The current Code of Federal Regulations in the United states is pushing 180,000 pages, far more than any human can ever hope to read. The Federal Register, which reports on changes to these regulations, is now in the vicinity of 70,000 pages per year. This does not include, of course, the size of the underlying United States Code, or the size of many rules that are not part of the CFR, or the size of local and state laws and regulatory rules, or the mass of court rulings, administrative rulings, tax court rulings, IRS opinions and the like.

39 comments to What size law?

  • pete

    The best size for law is probably a small group of people who all know each other.

  • 2 Commandments out of 10.

  • Paul Marks

    Agreed Perry M.

    At the time the writing of the Constitution James Madison actually regarded State governments as more of a threat to liberty than the Federal government would be (indeed he hoped the Federal government would act as a check upon the States).

    Within a few years James Madison had revised his opinion – holding that the Federal government was more of a danger than the States, as it was less difficult to leave a State than to leave the country (of course James Madison had a massive disregard of SLAVERY – utterly neglecting any serious plan to end this State government abuse).

    I hold that, especially today (now the evil of slavery is long dead), it is James Madison’s latter opinion (that the abuses of the Federal government are the primary threat to liberty) that is the correct one.

    As for the Bill or Rights – which was supposed to safeguard liberty against the Federal government. Sadly such things as the lack of the word “specifically” in the Tenth Amendment is held (by establishment “liberals”) to negate any real limits on either Federal government spending or regulations.

    This and the fundamental distortion of the words “common defence and general welfare” (the PURPOSE of the specific powers that follow in Section Eight, Article One – turned into a “general welfare power”) and “regulate interstate commerce” (intended as a check on State government power – but turned into unlimited Federal power), is the root of the problem.

    Solutions?

    Difficult – highly difficult.

    Especially as almost half the American population are no dependent on money from the Federal government.

    Those who depend for their income upon the Federal government are unlikely to put that at risk – for the sake of limiting its regulating power.

    With hide sight – perhaps the last chance to limit the Federal government (the side of bankruptcy – real although not official) was the defeat of 1964.

    The defeat that led the creation of the dependent tens of millions.

    Since then Presidents have been elected promising to cut “waste and corruption” – but not to deny that people had a “right” to money and services from the Federal government.

  • Paul Marks

    As for the law.

    The law is the effort to put in practice (in the circumstances of time and place) the principle of justice – this being to each their own.

    This central principle of both Roman and Common Law Jurisprudence is lost now (especially among lawyers).

    So we have lots of “legislation” (and “regulation”) – but the law itself is dying.

  • Paul Marks

    Justice as to each their own – is another way of saying the non aggression principle, in terms of both bodies and goods.

  • Fraser Orr

    If you don’t or can’t know what the rules are, you can’t be expected to follow them.

    However, here is the situation in the USA. Regularly, nine of the top legal scholars in our country disagree what a law means 5-4 on a very frequent basis. Moreover, they have a set of rules concerning “standing” and “ripeness” that means that even they will not tell you what a law means until after your have potentially broken it, and potentially subject to considerable state sanction for it. And even when you have both standing and your case is ripe, then often try to construct their rulings so narrowly that nobody else can tell anything more about what the law actually means than they did before your ruling.

    Nice, huh?

  • Richard Thomas

    The simple truth is, ya pay people to make laws, they make laws. Possibly “The Sorcerers Apprentice” was an unwitting allegory for the western political process.

    It’s a fatal flaw that hopefully can be avoided next time.

  • Yeah, but 70,000 pages a year is only, like, 8 pages an hour. How hard is it to read 8 pages an hour?

    Learn the rules, hippies!

  • PersonFromPorlock

    I’m inclined to see the law as being meant to preserve balance among the members of society, so that no one takes advantage of anyone else, or has advantage taken of them. Legislators, on the other hand, see law as a way to direct ‘advantage’ to their benefactors, or to force conduct on people with no regard to balance either among individuals or between the state and the individual. This is a problem.

  • RRS

    These are not LAWS.

    They are Rules of Policy.

    To repeat:

    Rules of Policy (legislation, regulations, ordinances and their excrescences) are attempts to describe, define and delineate desired social order and the relationships necessary for it.

    Law describes, defines, but does not necessarily delineate observed social order and the relationships within it.

    Law results from the identification, delineation, reconciliation (including enforcement) of obligations commonly recognized and accepted within the social orders extant and as they change over periods of time. Those actions may occur within or without an institutional framework. Those social orders which develop an institutional framework may be regarded as having some form of Rule of Law.

  • Indeed, RRS. It’s worth repeating every time.

  • RRS

    To Paul Marks (and others),

    I suggest (ascribe):

    Justice is the performance of obligations.

  • CaptDMO

    All this without including Executive reconsiderations of which laws will, or will not, be enforced for folks endowed with “special considerations”, THIS week?

    (ie, but most certainly not limited to)We just had some amusing riots in the US. Lots of “media” coverage. Lots of CCTV images of folks faces, OR, if they “artfully” ripped off their shirts for an impromptu “mask”, images of their unique body tattoos. Our Nation’s “top cop” went to town to (do something or other).
    IN ESSENCE:Our Chief Executive recently paid a ransom of three “enemy combatants” for one American prisoner of highly alleged suspect behavior. This transaction has been found (well after the fact, for SOME reason)to be illegal.
    OK, Now let’s see here, page one…..

    We’ll see if our (appointed)”top cop” will be consistent in his traditional enforcement of the laws.

  • veryretired

    The slow motion coup by the developers of the authoritarian administrative state is nearing its completion date, and the only pertinent questions now are: can the public recognize the danger such centralized power truly represents in time to take such steps as are necessary to stop it; and can such an intricate, interlocking structure of rules, jurisdictions, and regulatory agencies be dismantled without extraordinary, and extra-legal, measures.

    The Tea Party movement in the US gives some encouragement to the possibility that collectivist, authoritarian ideas have not yet carried the day, and that the opposition to those pursuing that ideological framework for our society is stronger and deeper than many suspected.

    As to the second question, I’m afraid the situation is much more problematic. One of the key factors influencing the nature of that contest is whether or not the current politicization of the media can be reversed or negated.

    As with all authoritarian/autocratic structures, the intrusive administrative state appears very powerful, but is, in fact, a brittle construct which cannot survive any widespread conviction on the part of ordinary citizens that it need not be respected or cooperated with on a daily basis.

    While non-violent non-cooperation may be a valid and desirable tactic, the boiling anger, and notorious touchiness of our people when they believe they have been wronged, may prevent such a tactic from becoming the only form of resistance.

    In that latter case, I would say, simply, lawyers first.

  • JohnW

    Here are 2 quotes – one from fiction, one from fact:

    Ayn Rand, Atlas Shrugged.

    The rectangle of light in the acres of a farm was the window of the library of Judge Narragansett. He sat at a table, and the light of his lamp fell on the copy of an ancient document. He had marked and crossed out the contradictions in its statements that had once been the cause of its destruction. He was now adding a new clause to its pages: “Congress shall make no law abridging the freedom of production and trade….”

    Herbert Spencer Man versus the State.

    “…the number of public Acts repealed wholly or in part, or amended, during the three years 1870-71-72 had been 3,532, of which 2,579 had been totally repealed. To see whether this state of repeal has continued, I have referred to the annually-issued volumes of “The Public General Statutes” for the last three sessions. Saying nothing of the numerous amended Acts, the result is that in the last three sessions there have been totally repealed, separately or in groups, 650 Acts, belonging to the present reign, besides many of preceding reigns. This, of course, is greatly above the average rate; for there has of late been an active purgation of the statute-book. But making every allowance, we must infer that within our own times, repeals have mounted some distance into the thousands. Doubtless a number of them have been of laws that were obsolete; others have been demanded by changes of circumstances (though seeing how many of them are of quite recent Acts, this has not been a large cause); others simply because they were inoperative; and others have been consequent on the consolidations of numerous Acts into single Acts…
    But unquestionably in multitudinous cases, repeals came because the Acts had proved injurious. We talk glibly of such changes—we think of cancelled legislation with indifference. We forget that before laws are abolished they have generally been inflicting evils more or less serious; some for a few years, some for tens of years, some for centuries. Change your vague idea of a bad law into a definite idea of it as an agency operating on people’s lives, and you see that it means so much of pain, so much of illness, so much of mortality. A vicious form of legal procedure, for example, either enacted or tolerated, entails on suitors, costs, or delays, or defeats. What do these imply? Loss of money, often ill-spared; great and prolonged anxiety; frequently consequent bad health; unhappiness of family and dependents; children stinted in food and clothing—all of them miseries which bring after them multiplied remoter miseries. Add to which the far more numerous cases of those who, lacking the means or the courage to enter on lawsuits, and therefore submitting to frauds, are impoverished; and have similarly to bear the pains of body and mind which ensue. Even to say that a law has been simply a hindrance, is to say that it has caused needless loss of time, extra trouble, and additional worry; and among over-burdened people extra trouble and worry imply, here and there, physical and mental prostrations, with their entailed direct and indirect sufferings. Seeing, then, that bad legislation means injury to men’s lives, judge what must be the total amount of mental distress, physical pain, and raised mortality, which these thousands of repealed Acts of Parliament represent!”

  • Tedd

    In that latter case, I would say, simply, lawyers first.

    I agree wholeheartedly with what veryretired said. But, in defence of lawyers, I will also say that if we had a society that focused on law rather that regulation then lawyers would be heroes, rather than villains. I have never had to deal with lawyers on regulatory matters, but I have engaged lawyers for matters of law, and they have been among the most valuable, professional, and respectful business dealings I have had. Law is a noble profession, made ignoble by politics and government. (And, yes, I’m aware that it’s often the same people. That only demonstrates one of my fundamental beliefs, which is that there are not good and bad people, only good and bad incentives — for the most part.)

  • Patrick Crozier

    And yet ignorance of the law is still no defence.

  • veryretired

    The rule of law is an integral part of any constitutional state which operates to protect individual rights.

    However, the rule of law is perverted and, indeed, circumvented when it proliferates endlessly as the claimed solution to any and all problems, both personal and social.

    We now have a political and legal system which has been entirely taken over by a small minority of the citizenry, members of a closed group, who claim the right to oversee all aspects of our society, while, at the same time, exempting themselves from any but their own oversight and evaluation.

    If I proposed that a group of doctors or engineers or plumbers should oversee the legal system, and regulate its practices, and its practitioners, the bar associations and law firms would howl in protest that no such oversight could possibly be competent and legitimate.

    Yet, in every branch of our government, from local to federal, the legal profession dominates and controls all aspects of the system. Lawyers make up a proportion of office holders far out of scale with their numbers in society at large, they control, by definition, the court system and all legal representation, banning anyone not a member of their guild from engaging in legal services or serving in our courts.

    In practically every endeavor in our society, the common refrain has become, “Better run it by legal”, before anything is undertaken, whether economic, educational, military, or in any other activity.

    It may very well be that the seeming paralysis of our society when confronted by any significant problem which requires an innovative solution is the fact that everything must be cleared by overlapping groups of lawyers, whether in a legal department in some firm, or in the endless commissions and boards, agencies and oversight committees, which obstruct and interfere with every possible action, whether public or private.

    It is my contention that having lawyers in control of any part of government other than the courts themselves, especially the legislature, is a conflict of interest of the highest order, and leads directly to the kind of endless proliferation of laws and regulations from which our society now finds itself utterly entangled in thousands upon thousands of pages of obscure and often conflicting administrative rules, and the poorly drafted laws that engender them.

    The current regime’s travesty of a health care takeover bill is a perfect example of everything wrong that I am referring to, and which perfectly describes the kind of over-reaching legalism which attempts to control and minutely regulate significant social activities which the lawyers and their clerks neither understand nor appreciate the complexities of the inter-related activities they claim to be able to oversee.

    I’m sorry to have gone on so, but this is a critical element of the administrative oligarchy which has usurped the powers of our representative form of government, and transformed it into a self-serving money and power machine, stroking the egos and filling the bank accounts of mediocre men and women whose only talent is getting elected, and then arranging the system to ensure their continued occupation in spite of any incompetence or corruption.

    In our history, we have defeated lions and tigers across the globe who threatened our freedoms and liberties. It is a pitiful disgrace to allow this flock of weasels to undo, and overthrow, the system of government so many have revered and sacrificed to preserve, and replace it with an endless pile of mealy-mouthed aparatchiks whose only purpose is to make life here as difficult and cumbersome as possible so they can justify themselves and their ideologies.

  • To use once again an overused comment: that’s not a bug, it’s a feature. The complexity of the law means that you can do anything, as long as nobody higher in the administration(s) objects. Conversely, if somebody in the administration decides you need punishment, you can’t do anything without being indicted and punished.

    We are easing back into the days when the King’s word was law – not to mention the words of the Duke, Earl, or Baron, as long as the King doesn’t object. These days, even kings don’t have that power any more. It belongs to Dear Leader.

  • Laird

    I agree with part of what veryretired says, but only part. Yes, there exist in our governments (at all levels) “weasels” whose only skill is getting elected. Many of those weasels simply aren’t very bright (Harry Reid comes immediately to mind.) And yes, we are regularly treated to outrageous spectacles such as the thousand-plus-page (and risibly named) Affordable Care Act. But while some of those pages were certainly inserted secretly and in bad faith, most were not. Rather, they are a well-meaning but ultimately misguided attempt by the Congressional staffers who actually write most legislation to minimize ambiguity in what everyone concedes is a necessarily complex bill.* That is certainly true for the thousands of pages of regulations and interpretations issued by the bureaucrats responsible for implementing the statute. But it’s ultimately an illustration of “hyperlexis” in action. That term was coined by Stanford Law School Dean Bayless Manning in a relatively famous (depending upon the circles in which you move!) 1982 article of that name.** His thesis, with which I largely agree, is that a certain quantum of ambiguity always exists; it cannot be eliminated, but merely shifted to a different level, so “over-lawyering” (whether in legislation, regulations or contracts) is a waste of effort. Such over-lawyering is largely a young lawyer’s affliction (seasoned veterans have learned the limits of what makes sense), and since most Congressional staffers are fresh out of law school the results are plain to see.

    There is nothing inherently wrong in having lawyers write statutes. They understand legal writing, which has a specialized vocabulary and style as does all technical writing, and since ultimately the laws will be interpreted by other lawyers and the courts it makes perfect sense to be written with them in mind. They are not written for the general public, so the fact that a non-lawyer has difficulty understanding them is not a valid criticism. I can’t read medical journals; so what? Legislators don’t need to be lawyers (in fact, it’s probably better if they aren’t), but lawyers do need to draft the actual bills.

    I’m not arguing that the quantity and scope of our statutes and regulations haven’t grown far beyond the realm of the defensible and are choking us like kudzu. They have, and they need to be severely pruned back. But I am arguing with veryretired’s all-too-common complaint that it’s all the fault of the lawyers. In truth, it’s the fault of the electorate. We elect (and re-elect) these people and thus enable their actions. For the most part the lawyers are just trying to do their job.

    * It’s interesting to note that Congress seems to operate in only two extreme modes: either mind-numbing detail or broad generalizations which leave the actual interpretation almost wholly to the regulatory agencies charged with implementing the statute. The former is ultimately foolish; the latter is dereliction of duty. I’m not sure which is worse.

    ** Internet references to that article are easy to find, but the actual text is not. I have uploaded my copy here, if anyone is interested (it’s worth reading). No copyright infringement is intended.

  • Corruptissima re publica plurimae leges
    Tacitus – Annals 117

  • Tedd

    In truth, it’s the fault of the electorate.

    Exactly. The reality is that government by ballot means “the people” get what they ask for, good and hard. The root cause isn’t corrupt lawyers, big money, or any of the other secondary issues that so many people focus on. We vote, the votes are counted, and we (more or less) get the policies that most of us voted for. The only actual corruption in that process is ballot fraud, of which I’m sure there is some, but probably not enough to make much difference in the long run.

  • Laird

    With regard to the sentiment behind the original post, Dean Manning (whose brief “Hyperlexis” article I linked above) is in agreement. Here’s a quote from that article:

    We [lawyers] are, in my view, guilty of two grievous sins of omission.

    1. In our public law work, we do not sufficiently restrain our own intellectual urge to “fix” the law by complicating it. We do not adequately weigh the social cost of ungoverned proliferation of the law.

    2. Caught up in our areas of specialization, we do not sufficiently focus attention on the ecology of our legal system as a whole and its workability as a whole. We should, but we usually do not, aggressively work to inform the public, legislatures, regulatory agencies and the courts of a few fundamental truths about the law. Law is not a free good; more law always costs something somewhere. The functioning of the whole legal system depends upon keeping it understandable. Law unenforced is worse than no law at all. Enforcement against noncompliance is not possible without general voluntary compliance.

    The issue is certainly understood, at least by some. However, as Ellen has already noted, for others it’s a feature, not a bug. The explosive growth, in the US and elsewhere, of criminal laws (which is merely one subset of the overarching issue) is extensively documented by Harvey Sliverglate in his book “Three Felonies a Day.” But criminalizing ever more ordinary activities (especially if the crime is unknown by the “guilty” party) is simply one part of our systemic descent into tyranny. And I submit that it is largely, if not wholly, intentional. Ayn Rand expressed it well in Atlas Shrugged when one of her characters, Dr. Floyd Ferris, said “There’s no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren’t enough criminals, one makes them. . . . You create a nation of lawbreakers – and then you cash in on guilt. Now that’s the system, Mr. Rearden.”

    The autogolpe continues apace.

  • bobby b

    In defense of complexity in rules:

    In a perfect society, the One Law would be “harm no one.”

    The concept would be clear to all, because in this perfect society everyone would share a common upbringing and education as well as a common vision of what “harm” means and of what acts would necessarily produce “harm.”

    But introduce into that society members who have been raised with different social obligations and responsibilities, members who personally assign value to things based on criteria different from the criteria used in our perfect society, and you have issues.

    You can no longer regulate or punish someone by simply invoking the “harm no one” law, because the law may not be sufficient to give them notice that their intended act causes “harm” to anyone who matters.

    One arm of Due Process lies in giving notice that certain acts are prohibited. We cannot (or should not) punish someone for their actions when they (reasonably) had no idea that their intended actions are prohibited. When confronted with “harm no one”, some might think “they certainly aren’t talking about slaves, because they aren’t legally One – i.e., a full person.” Or, they might think “they certainly aren’t talking about not harming women – we don’t value them as highly as we value males, so the law merely outlaws harming men.”

    Additionally, the “harm no one” law leaves us in disarray when confronted with concepts such as group actions that ultimately lead to harm, but not as the direct consequence of one person’s specific acts. Think about Insider Trading laws; when I hear from my drinking buddy Al the Banker that he’s secretly helping Coca-Cola buy out Mentos, and I then rush out and buy Mentos stock and make a killing, the concept of “harm” is attenuated at best. One could very reasonably argue that they intended, and perceived, no harm to anyone in such an act.

    Look at the USA’s Federal Firearms Act. It is an incredibly convoluted technical manual, unreadable to most and nonsensical to many. But drafting such a voluminous nit-picky law was the only way the Legislature could translate “harm no one” into rules that differentiate “unreasonably” dangerous weapons from those weapons we think of as being suitable for our citizens. Thus, we get paragraphs and pages devoted to what constitutes a silencer, or exactly how long a pistol barrel can be without becoming a rifle, which has its own section of rules.

    Now combine this problem (that of giving adequate notice to us of what we may not do) with our (historically correct) distrust of vesting government with the power to decide for us what is allowable and what is prohibited retroactively. Through hard lesson, we’ve learned that any given individual who might be made a judge brings with them all of their own prejudices and all of their own set of values. When you make the law vague and place the bulk of its power in the discretion of the judge, you end up with judges who sentence blacks to far longer prison terms than they do to whites. You end up with judges who think a husband ought to keep the little woman in line with some reasonable physical coercion. You end up with judges who place little value on a clean environment in “bad” areas, and who thus shut down lawsuits based on pollution. (Obviously, this works both ways; just as dangerous is the judge who shuts down commerce at the drop of a VOC.)

    We have learned that we cannot simply allow judges to make our moral decisions for us. They’re generally not any more moral than we are. What we have to do is to give the judge a very detailed and encompassing body of Law which includes specific prohibitions, and which calls for specific detailed consequences, and then let the judge show – publicly – how a prohibition has been violated, and then punished to the extent and degree that We (the royal We should always be capitalized) decided was proper.

    No, The Law needs to be specific and detailed in order to be utilized effectively and fairly. It must set out detailed accounts of exactly what behavior is proscribed, and what might happen to us should we violate those proscriptions.

    Our entire body of Laws and Rules and Regulations is, indeed, huge. But it is accessible and available to all. I might not ever crack open a law book on admiralty law, or money transfer rules, or divorce, or the proper method to ship firearms across state borders, but I could if I wanted to.

    And, if my business involves castrating sheep, or selling indulgences, or growing and selling wheat, it isn’t a huge imposition to expect me to know things about the laws pertinent to that subject, or to maybe know someone to whom I could go for edification in those areas.

    Granted, there are many many (many, many, many) outdated laws still on the books, as well as laws that were stupid the day they were written. Those we should attack. Such laws do us no benefit, and in fact hurt us by encouraging disrespect for the law.

    But that’s not a reason to fight against the quantity of laws on our books. Certainly we should strive to watch out for the quality of those laws, but to object to laws merely based on quantity is simplistic.

    If we had twenty thousand rules detailing how we should raise cows, and if everyone agreed that each and every rule was written well, that it would serve our values (i.e., it would foster safe food plus a viable beef industry), and that it imposed costs only on those whom we thought should be responsible for those costs, we’d not be wise to start hacking through them simply because there were twenty thousand of them.

  • Julie near Chicago

    If only the lawyers are capable of understanding the laws as written, then the Common Man (the layman) cannot be expected to know the laws (even were there only 10%, say, of what we actually have). Thus “ignorance of the law is no excuse” would become a weasel’s claim indeed.

    Also, lawyers and legal scholars often disagree on what the laws mean. That’s why, for instance, there are so many Federalist Society debates about whether this or that statute contravenes the Constitution. Or why Volokh has so many postings about this or that legal issue, even where it’s not necessarily a Constitutional one.

  • Julie near Chicago

    The Harm Principle is pretty clearly a reed far to weak to support the edifice of law.

    There are abundant examples. When you open a restaurant and a bunch of people quit eating at Pete’s Pizza and start eating at Bomba Bambina instead, you’ve harmed Pete. Not maybe irrevocably; and you certainly haven’t transgressed his (actual, not statute) rights. But now, how is he gonna feed himself and his bambinas?

    When you give the chair of First Violin to Miss Jones instead of Mr. Evans, you have harmed Mr. Evans.

    When the doc orders chemotherapy in the faint hope of discouraging your cancer into remission, he also harms you. (“First, do no harm” has to be taken for what it means, not for what it says.)

    But in none of these cases has the harmed person been wronged. (Well, assuming the restaurateur is honest, and Miss Jones really will do a better job than Mr. Evans.)

  • But introduce into that society members who have been raised with different social obligations and responsibilities, members who personally assign value to things based on criteria different from the criteria used in our perfect society, and you have issues.

    So don’t.

    And the harm no one formulation is so laughingly ambiguous as to border on the straw man. All you need to maintain a lawful and functioning society is strong protection of property rights, with those rights having been as clearly delineated as to make them readily understandable to most members of that society. All the rest follows out of that.

  • RRS

    What follows is not a defense of lawyers, but rather some subjective observations offering some understanding of how the changing functions of the American legal system impacts the functions of lawyers and the nature of the persons drawn to engage in those functions as they have changed to adapt to the changes in the system.

    As derived from the English system of law the American system was developed and operated for the functions of identifying, delineating, reconciling (including enforcing) obligations commonly recognized and accepted within the several American social orders, adapting to their changes and developments over periods of time. That system, by developing a “monopoly class” (lawyers and jurists) created the institutional framework for the American Rule of Law.

    Among the varying changes in those American social orders where the increasing contests among particular interests and the increasing aggregations of interests, fueled by, and serving, demographic developments.

    That was accompanied by a pronounced shift in the function of representation in representative government (and the creation of legislation – Rules of Policy) to the representation of particular interest, and especially to the representation of aggregated interests.

    The rewards and penalties from the advancement or obstruction of interests can be observed as a major contributor to the public quest for facilities conducive to dealing with particular interests.

    One of the results in America has been the transition of the American legal system to a facility for the attainment of economic, social and political objectives (interests) which has been a substantial departure from that system’s original function of identifying law (as opposed to interpreting Rules of Policy).

    The American Polity has come to regard and demand of its legal system a facility through which “things can get done;” by which interests may be advanced or protected. That function has significantly displaced the functions of “balancing” or reconciling obligations in the American social orders.

    To provide for the operation of a legal system as a facility for the attainment of economic, social and political objectives required the development of an additional “monopoly class” whose functions are to identify and advocate for interests have affected by those objectives – resulting in a differentiation from the earlier “monopoly class” which was engaged in the identification and reconciliation of obligations.

    That new, and now predominant, “monopoly class” has come into being by demand of the American polity for the uses to be made of the altered American legal system. In varying degrees it appears to engender a difference in individual motivations and characteristics capable of the now differentiated functions required. The class of lawyers and jurists are what the American policy has required for its determinations of the American legal system and those who shall operate within it.

    One need only look at the major activities in the American legal system to note that it is primarily concerned with Rules of Policy arising out of legislation and regulations, ordinances and their extended effects upon relations within the various segments of the American social order.

    Of course, these developments have not been limited to the American legal system, but here they do represent a departure from what once was.

  • RRS

    Laird,

    as a sidelight to the points made by Manning, we should note that he is dealing with Rules of Policy.

    The difficulties in establishing Rules of Policy* derive largely from the issues of reconciling particular interests and aggregations of interests and attempting to synthesize them into something that can be regarded as Collective Choice. That chimera is never to be achieved, because it does not exist.

    * The “Legislation” being drafted is nothing more than the composition of contingent Rules of Policy. It is not Law, despite being given “the force of law.”

  • Laird

    RRS, you regularly address in these environs what you refer to as “Rules of Policy” in differentiation from what might be termed the historical concept of law (the latter being descriptive, or derived; the former being prescriptive, or decreed). As a matter of legal history and the philosophy of law this is interesting. But I fail to see how it is a meaningful distinction in modern society. The genesis of the two types of law may be different but their effect is the same, as both are judicially recognized as positive “law”. Statutes do not have “the force of law”, they are law. (It is only regulations, which are specifically not “laws” because they are not enacted via the legislative process, which can be accorded “the force of law”.)

  • RRS

    Laird,

    Admittedly, the issue you point out is philosophical, but in its distinctions we may come to a better understanding (or at least another way of examining) the differences in forms of social orders, including what our own is becoming.

    Whatever pleases the Prince is law

    .

    In that vein, whatever can be enforced is law that power of enforcement constitutes Sovereignty (Authority without any superior constraints). In that aspect “Sovereignty of the People” expressed through representatives engaged in legislating differs little from dictates of a magistrate. The qualifying characteristic is the capacity for enforcement.

    Law, as a properly used word, is a definer (also often a delineator) of the observation of a particular condition, phenomenon or order. In natural and physical sciences a law defines or describes what is observed in a particular order and relation of energies and matter, under particular conditions, as a particular phenomenon and in accordance with that specific order. Many such laws have been found to be incomplete definitions or less than full delineations of the relationships. Thus, definitions and delineations are subject to adjustment in accordance with changes in circumstances, means of observation or acuity of perception.

    But the issue you raise is the “meaning” of law in our social order. The nature of our social order, as one of the varieties of orders, needs to be considered in order to determine “what is law” in this particular social order; and, if possible determine whether that meaning distinguishes ours from other forms of social order (as it has done so in the past).

    If “what is law” is all of that which can be enforced, then we have given up on hundreds of years of reaching a meaning of law that supports a Rule of Law rather than a Law of Rules.

  • Paul Marks

    RRS – as long as the obligations are defensive (non aggression)or contractual (voluntary) then YES.

    veryretried.

    Look how the media (and the education system – which produces the media) organised a campaign of lies against the Tea Party movement (“racist”, “sexist” – the standard Frankfurt School disinformation tactics, spread in the schools and universities).

    It is true that the forces of evil (for that is what we are dealing with) can not fool everyone. However, in a democracy, all they need to fool are the MAJORITY of people.

    I wish I had a solution to present – but I do not.

  • Not even a majority, Paul. Rather, just over half of the half who bothers to vote.

  • Nico

    All sorts of things are the fault of the electorate at some level. But the people with the power of discretion (legislators, rule-making bureaucrats, prosecutors, LEO) shouldn’t be screwing the public either, even if that’s their bent.

    In Ferguson the municipality has been charging court fees and fines on the order of $350 per-household, per-year. No wonder they’re rioting. Talk about a regressive tax on the poorest (who voted for it)! Who wouldn’t revolt against such massive harassment?

    Yes, it’d be nice if voters got their heads out of their butts and smelled the roses, but we shouldn’t hold our breaths (huh, those metaphors don’t mix, i know), but we needn’t rejoice the cosmic justice of their getting their just deserts. Remember, all elections involve unfortunately aliasing, and anyways, the Republicans are too dumb or afraid to speak the truth to serial Dem voters.

  • Tedd

    Laird:

    Is it not true in common law countries that even statutory law is only “law” once it is upheld by a court? In other words, “the law” is the body of case law as determined by courts. That case law will include determinations about statutes, and even regulations, but it is the case law that is “law,” is it not?

  • Tedd

    Laird:

    Is it not true in common law countries that even statutory law is only “law” once it is upheld by a court? In other words, “the law” is the body of case law as determined by courts. That case law will include determinations about statutes, and even regulations, but it is the case law that is “law,” is it not?

  • veryretired

    Paul, yes, the problems are huge and complex. The path to overcoming the minefield that collectivist ideas have made of many important segments of our society will take the very best that the best among us can muster in terms of hard work, argument, and example.

    What worthwhile goal doesn’t have those very same characteristics?

    But, at the end of this journey is a world of free men and women able to live their lives as they see fit.

    I have a grandson aged 5, and a second aged 2. I hope to have more. They will live as free men.

    That is the only treasure, the pearl of great price, that I can leave them.

  • Laird

    Tedd, that is not my understanding. The presumption is the statutes are valid and binding “law” unless and until explicitly overturned by a court of competent jurisdiction.

  • Tedd

    Laird:

    I’m not sure what we’re saying is all that different, but let me explain my understanding in a bit more detail so you can see how it compares to yours.

    Somewhere in the Federalist Papers it is argued that a specific statute doesn’t embody the “will of the people,” it only embodies the will of the legislative majority at the time the statute was passed. The Constitution is taken to reflect the true will of the people, but expressed in broad terms. Therefore, all statutory law requires interpretation to be applied to any particular case. In effect, all court decisions are a form of judicial review. If the court applies the statute it is saying, in effect, “the statute correctly reflects the will of the people as defined in the Constitution, in this case.” If the court rules that the statute is unconstitutional it is saying that the statute does not reflect the will of the people (as defined by the Constitution) in this case. Either way, it is the combined rulings in specific cases that determine what is “law” and what is not, not the statutes themselves.

    Of course, this is now also connected to the whole debate about substantive due process versus procedural due process. But it’s my understanding that both sides in that debate accept the idea that it is the courts that determine what is law. The debate is only about what is the correct way for the courts to make that determination.

    There is a parallel under the British legal system, except I think it is based more on precedent and less on a written constitution (for obvious reasons). But the philosophical point is the same: “the law” is the body of court decisions, not the body of legislative statutes.

Leave a Reply

  

  

  

You can use these HTML tags

<a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>