Wednesday, 23 March 2011

On the Origins of Law...

Continuing with commentary on Harry Hibschman's "What You Should Know About Law," after asking "What is Law" the next obvious question is "Where did Law come from?"

In the abstract, Hibschman contends that the earliest functionality of Law is nothing more than the natural rules governing what he calls "our animal ancestors." Hibschman observes the writings of Joseph McCabe from 'Man and His Submission to Being Ruled,' on the thought that

[n]atural selection has brought about a tradition of conduct of behavior. Those who do not live on certain lines or within certain limits perish. It is the unconscious law of the animal world, and it is to some extent incorporated in the organism.

McCabe, Hibschman says, claims that children "follow the ways of the parents through imitation or correction, and habits are formed for the individual that lead him to conform to custom." These customs, he continues, reach beyond the lowest savage level of humanity without society, long before the written word and possibly before the true advent of spoken language, and yet that is where law begins. Hibschman continues that out of ancient custom came both morality and law, which was recorded upon the invention of written language. Such is the common law, which the United States acquired from England, the principles and rules of which came "to England from Babylon, Palestine and Phoenicia by way of Greece and Rome so that our modern law has roots in over half the earth."

To that largely unwritten inherited body of law we have added legislation, but Hibschman asks the question that when we enact laws, do we really make them. Custom, Hibschman claims (at least in his time) is still a tyrant, and asks the reader to consider critically the thought that "when we think we legislate, we do naught but register in rigid form customs already approved by the social conscience." Hibschman concludes his thoughts on the origins of the law with a comment from Woodrow Wilson's "The State," where Wilson declared 'Back of the Must there is first an Ought.' Law, Hibschman says, comes from that Ought.

From my own experience in observing the change in culture in the last 80 years both historically and while I have been alive, I can entirely see Hibschman's point about children learning from parents and conforming to custom. It's an oft-used example from the 1990s era of welfare reform, but three generations of welfare recipients in one house is enough. Or, if you prefer another example, the cultural acceptance of divorce and the single parent household in the 60s and 70s has given rise to the proliferation of single parent households today, some from divorce others because they simply never bothered to marry. Further, I can even see how given enough numberless generations how observed custom would become ironclad in the force of unwritten law. Further, we see in several historical contexts how custom evolved fully into law.

The Old Testament Biblical accounts of Moses giving the Israelites "The Law" (the Halakha) in Deuteronomy was largely a codification and a reminder of the rules that Moses had given the Israelites upon the Exodus from Egypt, and then left a specific instruction that the whole body of laws was to be read to the entire nation every seven years by the priests of Israel, and every king was to write an entire copy of the law on a scroll as one of his first acts upon taking the throne (Deuteronomy 17:18-19)

Hammurabi similarly codified what must have been customary action during his reign from 1792 BC to 1750 BC. Hammurabi's organization of the law likely made the code itself more easily understood and by replacing custom with the power of the kingdom gave it force. Further Hammurabi made sure that the law was visible by writing it on a large stone monument (a stele) and putting it in public, so that anyone who was literate could read it for themselves in order to understand exactly what their rights were and what was expected of them.

Today, in the legislative halls of both States and the Federal government, there is no question that we have abandoned the slow petrification of the growth of custom into the stone of law for the rapid-fire legislative antics of bare electoral majority rule. No longer is there widespread acceptance of the need for customary action or societal duty to settle into the culture before its codification. No. Today it is merely "that is what 50.1% of the voting public wants" (not even the entire citizenry).

Sometimes it is even worse than that, when the legislators themselves take it upon themselves to legislate what they think we SHOULD want because it is "in our best interest," such as the recent Health Care Reform act of 2010, which even now 60% of the people disagree with, although for a myriad of reasons. At least with this body, we can recognize their disdain for the will of the public and vote them out of office for abusing the public trust, hopefully undoing the damage done in the interim period.

What should frighten the public even more than this shotgun approach to lawmaking is that usually less than half of the eligible population actually does vote on who their lawmaker will be, concentrating ever-more power into the hands of the few politically active at the expense of those who merely follow along.

The final idea that should further horrify the public is the expansion of the Administrative bodies which promulgate rules and regulations with seemingly no oversight from the elected bodies who have ceded them power. They act, often without mandate, review, or even direction other than "department X shall promulgate regulations for industry Y for the protection of the public." While they are required to have comment periods, they have the authority to ignore all public commentary and to act, and usually must be challenged through administrative processes before any court challenge may be mounted. Even then, the burden is VERY high on the party seeking to overturn the administrative rule. The administrative state, through its bureaucracy is accountable to no one but itself.

As with the definition of "what is law" from the last commentary, we have lost something in the change from a slow, deliberate codification of custom into law. While being able to change law quickly can have its benefits, either by banning a new custom from taking hold or when a particular law or action is seen as being incredibly destructive, the approach of "legislate first, deal with the consequences later" is itself destructive to the fabric of the nation and to the larger historical context of what the law should be.

Wednesday, 16 March 2011

What is law?

My wife knows that I have an interest in history, learning from the past, and seeing how culture changes over time, for better and for worse. She very thoughtfully gave me several of the "Little Blue Book" series that deal with topics in law, edited by Haldeman-Julius, for Christmas in 2009.

We'll be looking at them out of order from when they were published simply because from a topic standpoint, that makes more sense. The first of these is "What You Should Know About Law" written by Harry Hibschman which seems to have been published first in 1929.

Hibschman's first commentary is a question: "What is Law?" He answers in saying that

In one way it is a collection of rules regulating and protecting the life, rights and property of the citizen- a mass of principles classified, reduced to order, and made generally binding in a given part of the world through the expressed will and authority of the political entity.

Further, Hibschman says that there are 4 sub-parts in identifying "law":

A Law - a rule of action established or adopted by recognized political authority to enforce justice, to prescribe duty or obligation, and to protect life, rights, and property; a means by which certain social ends are attained.

The Law - the specific rule in effect in a given case.

Law - the aggregate body of rules defined above; but

Law is also used in the sense of principle; of a high standard of right or justice as something natural, unimpeachable, and ever operative; or of a philosophical concept, crystallized in the minds of men as a juridical absolute.

He concludes this portion of his commentary by saying that lawyers have an expression, referring to statute or decisions as "That is the law, but it is not law." This reflects the difference in conceptualization between the Roman law concepts of lex (the statutory body of written law) and jus (the entire body of of all law including natural rights).

In the intervening 80-plus years, the accepted legal definition of "law" has shifted from the high ideals of the early 20th century. Black's Law Dictionary, 8th Edition, (c) 2004, starts with this definition:

Law (1) - The regime that orders human activities and relations through systematic application of the force of politically organized society, or through social pressure, backed by force, in such a society; the legal system.

(2) - The aggregate of legislation, judicial precedents, and accepted legal principles; the body of authoritative grounds of judicial and administrative action; esp., the body of rules, standards and principles that the courts of a particular jurisdiction apply in deciding controversies brought before them.

(3) The set of rules or principles dealing with a specific area of the legal system.

(4) The judicial and administrative process; legal action and proceedings.

(5) A statute.

(6) COMMON LAW (law but not equity).

(7) The legal profession.

My first thoughts on seeing the descriptions side by side is that, in the intervening years, we have lost any discussion of law as a protector of rights. What appears to be gone from the overall discussion of what the law is, as Hibschman puts it, is the concept of the law being a high standard of right or justice as something natural, unimpeachable, and ever operative; or of a philosophical concept, crystallized in the minds of men as a juridical absolute. The current definition of "law" seems to speak only of force and power, but not of the protection of natural rights of the individual or of ordering of society other than through force. While there are then twenty-seven different sub-definitions located under different names, including natural law, divine law, moral law and common law directing the reader to other concepts the overall definition of law seems to be solely organized around authoritarian command.

The closest that the Black's definition gets to addressing the protection of rights by the law is an included note by Richard A Posner from The Problems of Jurisprudence p. 220-21 (1990), where he says:

It will help to distinguish three senses of the word 'law.' The first is law as a distinctive social institution; that is the sense invoked when we ask whether primitive law is really law. The second is law as a collection of sets of propositions - the sets we refer to as antitrust law, the law of torts, the Statute of Frauds, and so on. The third is law as a source of rights, duties, and powers, as in the sentence 'The law forbids the murdering heir to inherit.'

When we fail to have a discussion of the law as a source of protection of rights as well as the creation of duties and powers in the highest level definition of 'law,' we lose something more than a simple conceptual discussion. We lose the idea that the law is to be a protector of life, natural rights and property of the individual. Without providing this protection, the law loses its authority as a natural, unimpeachable, and ever operative method of enforcing justice, and merely becomes a cudgel for the authority of the day to to prescribe duty or obligation upon those subjugated to its power.

Tuesday, 15 March 2011

Fleeing From Utopia...

I hope that this blog will largely be about forgotten little quirks of the law and oddities that I have found. I expect that it will also become a commentary upon how a law system once easily enough understood by the common man has become a behemoth requiring you to consult someone with a 3 year post-college degree to engage in even the most routine transaction. However, I will likely touch on politics often enough that the reader should know where I stand.

The modern Conservative believes in the interconnection of free markets, private property, religion, tradition, authority, representative government, separation of powers, natural rights and ordered liberty. He is responsible for seeing to his own well being, the well being of his family and as a citizen to contribute to the well being of the community through volunteerism and good works. These concepts, developed through the human experience, promote The Civil Society.

The modern Liberal believes in the supremacy of the state (nation), as opposed to the classical Liberal who opposed authoritarian regimes in favor of personal freedom. Thus the modern Liberal is more appropriately now named the modern Statist. To the modern Statist, the imperfection of the individual and the allowance of personal pursuits via liberty impede the creation of the Utopian state.

The Statist's Utopia can and has taken many forms throughout history but all have the same flaw: that the Statist misuses the concept of equality.

The Founding Fathers (and by extension, the modern Conservative) understood equality to be the natural right of every individual to live freely under self-government, to acquire and retain the property he creates through his own labor and the leverage of his individual property, and to be treated impartially before a just law.

The Statist uses the claim of creating 'equality' to pursue uniform economic and social outcomes at the expense of self-government, individual property rights and individual liberty. Further, he believes that he can tame man's natural state of imperfection and through man's perfection can Utopia be achieved.

Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. (C.S. Lewis). The Statist attempts to deconstruct The Civil Society and instead offers the tyranny of authoritarianism. They talk of individual rights, but promote collectivism. They talk of enfranchisement and suffrage, but promote judicial and administrative usurpation of the representative state. They talk of workers' rights but promote the heavy taxation and regulation of labor. This is not liberty.

The Statist portrays Utopia as a kind of heaven on earth, but has a high tolerance for the widespread hell of Statist-caused misery, believing it is the price humanity must pay to pave the way for Utopia, or believing that Statist caused misery is due to misapplication of Utopian ideals, poor performance of a particular regime or nefarious doings of perceived "enemies of the state."

The modern Conservative recognizes that equality is the equal opportunity before God, man and the law of the individual to prove unequal talent. He also recognizes the double meaning from the Greek that Utopia is both the good place and no place, for it does not exist. Nevertheless, the modern Conservative finds himself Fleeing From Utopia.

[Some concepts and language borrowed from Mark Levin's essays contained in Liberty and Tyranny: A Conservative Manifesto. 2009]