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On the nature and purpose of law ..

October 6, 2022

In Sweden there is a tendency to accord Authority and Institutions unwarranted respect. I was listening to a Member of Parliament trying to explain (defend?) the importance of what he did. His glorified and rather narcissistic view of his own importance in the universe as a “lawmaker” was not unexpected.  But I find the idea that current parliamentarians are involved in holy work goes too far. I thought his overly reverential treatment of law as something sacrosanct was especially facile and unsupportable. I find deferential references to the majesty or sanctity or divinity or piety or morality of law artificial and unconvincing.

So, in this note to myself I try to think my way through the nature and purpose of law from “first principles”. 

  1. The freedom of behaviour
  2. The laws of nature
  3. The nature of laws
  4. The purpose of law
  5. What law is not
  6. Conclusions

The freedom of behaviour

Behaviour (noun): the range, or the manner, in which, things (animate or inanimate) act

  1. Even inanimate things exhibit behaviour. They do not initiate actions but are acted upon and, in turn, may react, all according to the “laws of nature”. The behaviour of an inanimate thing is the only behaviour possible and is not a choice among possible behaviours.
  2. Living things exhibit the freedom to act of their own volition. (This freedom is exhibited and a feature of empirical reality. It needs no proclamations).
  3. What any creature actually does, lies within the envelope of what its physiology allows, subject to its own individual capabilities and as constrained by any external forces being applied.
  4. What is physiologically possible is of necessity compliant with the “laws of nature”.
  5. Living things having some brain (humans among others) can imagine or desire carrying out actions prior to action. They may desire to perform actions which they cannot actually accomplish. They may act, when compelled by external forces, even against their own desired action or inaction.
  6. For a living creature to have desires, some level of cognition and a sense of self is necessary. The greater the cognitive level the greater the range of what can be imagined. The greater the level of cognition, the greater the gap between imagined behaviour and what can actually be done. Desires can encompass both actions not physiologically possible and even those contravening the laws of nature.
  7. Without being diverted by the philosophical meaning of freedom, I take it that all creatures having volition are free to choose how to act (or not). What any living creature actually does is usually only one of several available actions it is free to perform.

This freedom to act as may be physiologically possible is a brute fact of reality and, like the laws of nature, does not need any articulation or declaration or proclamation. In fact, the freedom to act followed by the choice of action, always within the envelope of possible actions, is a distinguishing feature of cognitive, living things. (The conversion of a thought into action lies at the heart of the mind-body problem which is relevant but outside the scope of this note to myself). With increasing cognition, observations create a world view and a view of self in that world. Repetition of actions gives skill and observing consequences of actions gives rise to learning. Not all that is desired leads to actual behaviour but all behaviour has consequences. A living, cognitive creature may choose to restrict itself and moderate its own actions as it learns and according to its skill. The behaviour of the creature may also be constrained, or may be induced, by externally applied forces. The fundamental, behavioural freedom that all cognitive creatures have is to select and implement what they actually do, from all that they could do. Human behaviour is a choice constrained by capability and external forces.

All humans have the freedom to choose what they actually do, or not do, from all that they could do.

The laws of nature

The laws of nature, I have no doubt, exist. They both describe and determine how all things (material or energetic) have behaved and how they will behave. They all require/assume time to be passing and become undefined/meaningless otherwise. They apply over the entire universe (as far as we can tell). There is no Authority (known) which formulates and proclaims these laws, but they still command complete, unconditional compliance. They apply even if they are not discerned. The process of science is our attempt to discern what these laws of nature actually are. Even a solitary case of non-compliance is sufficient proof that any purported law of nature is not, in fact, a law. To be a law of nature requires that full compliance is inherent. The question of coercion does not even arise, firstly because non-compliance is just not possible, and secondly because there is no authority available which can either proclaim the law or could levy sanctions for non-compliance. The laws of nature are by definition “natural” and a brute reality of our existence. No sense of morality attaches, or can be attached, to them. “Goodness” or “justice” or “justness” are not attributes that are applicable. The laws of nature are discovered in the world around us. For all practical purposes they exist everywhere and in perpetuity (and what happens within black holes need not be considered here).

The laws of nature are a condition of our existence and there is nothing in known existence which can contravene these laws.

The nature of laws

Rule (noun): a description of a principle governing conduct; a sequential specification of events within a particular area of activity; control or dominion over a territory or living things (usually people) 

Only the first meaning of rule as a description of a principle governing conduct is relevant here. We generally apply the word conduct to the behaviour of living things (individually or as a collective). To be a rule, it must be general and it must lie within the realm of possible behaviour. It must be either a description of an empirically observed pattern of real behaviour (e.g. as a rule dogs bark, lions roar) or of desired, but not impossible, behaviour (dogs shall fly is meaningless as a rule). A rule of behaviour describes – by inclusion or exclusion – the behaviour desired or not-desired.

I take a society to be any association of interacting humans. It could be a family or a club or a religious order or the members of a social media group or a country. It could even be a temporary association of the people on, say, a trek or present in a restaurant at a particular time. If all the members of a society behaved only as that society collectively desired, then that society would have no need for any rules of behaviour. The need for such rules of behaviour arise in every society because the individual members of that society are capable of behaviour, or non-behaviour, which lies within their capability, but which may not be desired by the “collective mind” for the functioning of that society.

Human laws are not like the laws of nature. They do not flow naturally from the laws of nature. They are all rules of behaviour invented by humans but full compliance is never inherent. They are always made within some societal context and their existence is subordinated to the collective mind of the societies they exist within. Laws are societal rules of behaviour which need to be proclaimed and formally enacted by that society. They are not fleeting but they do not exist in perpetuity either. They can be created, removed or changed as and when a society desires. Even the most important laws in a society (its constitution or other founding laws) are subject to change, albeit with some considerable barriers to change. If a society ceases or breaks down, its laws cease to exist. Laws, in any society, are rules of behaviour for that society and the enacting of laws is the prerogative of the prevailing power in that society. They are formulated and proclaimed within societies by a designated, competent Authority representing the “collective mind”.  Competence in this context means not only the legitimacy of the Authority, but also the skill and ability of the Authority to formulate and proclaim rules of behaviour. The establishment and the legitimacy of that “collective mind” in a society can be highly contentious but, generally, the “collective mind” represents the view of the power centre of that society (which is not always, or necessarily, the majority view). Enactment of laws may be accompanied by much ritual and pomp but this is about giving legitimacy to the Authority and does not contribute to the substance of the rule. Without a legitimate Authority, or lacking the competence for proper formulation and proclamation, and unlike the laws of nature, there can be no law. Human laws (rules of desired behaviour), apply over the region or the people (jurisdiction) subject to that Authority, and are always intended either to curtail some freedom of behaviour or to coerce some desired behaviour. Even where penalties or other coercive sanctions are not identified, the intention of any law remains coercive. Rules made by “Authorities” not having control over the jurisdiction or not having the competence to enforce the rule, lack substance and cannot be considered rules or accorded the dignity of the label “law”.

While there is some discussion in jurisprudence and even philosophy about whether “coercion is a conceptually necessary feature of law” there is no doubt that the intention of any human law is always to curtail a behavioural freedom or to coerce some desired behaviour.

The level of compliance or non-compliance with a law speaks to the “goodness” or effectiveness of that law. Human laws are societal constructs, tools for the effective functioning of society. The bottom line is that they are needed because the behaviour of some individuals or sub-groups within the society can come into conflict with the desires of those in power (which may be the many). The detection of non-compliance is a major part of legal systems. The non-compliance actually detected is nearly always only a fraction of all the non-compliance that has occurred. Some of the detections are unsound. Penalties can be imposed only on the fraction convicted. Note that application of laws to only some law-breakers and not to all law-breakers, is inevitably “unfair” to those caught. Penalties and punishment for non-compliance with a law can never undo the non-compliance but may be able to influence the future compliance by others. Legal penalties always involve doing harm. It may be the lesser harm but it nevertheless is about doing harm to those who are non-compliant and are detected. Paradoxically, a law that is never complied with is a useless law and one that is always complied with is an unnecessary law.

All human laws seek to either curtail some existing but unwanted freedom of behaviour, or to coerce some desired behaviour. A law is a tool, a social construct, for the exercise of behavioural control. 

Penalties for non-compliance with law are always about doing harm to some for the greater good. 

The purpose of law

All human laws are thus tools which are used to try and control human behaviour. As with any other tool, the “goodness” of the tool speaks only to its fitness for purpose. The purpose is not inherent within the tool. Purpose then can only lie with those who use the tool; those who seek to control human behaviour. Controlling human behaviour is a necessary part of all successful human societies. That control is exercised is, in itself, neither moral nor immoral. Rules of behaviour are as necessary in a troop of baboons, a bridge club or a cloister as in a nation state. In any functional system composed of many components, each component needs to subordinate its own capabilities and actions to the function and goals of the system. Assuming, of course, that the system (society) has a proper function and a proper purpose. It is the intention of the lawmakers and of those who enforce laws which imbues purpose into the equation. Morality is often implied and attached to laws but the morality of law is not inherent and only derives from the intentions of the makers and the enforcers. It is to be expected that the prevailing power in any society, having the ability to make and enforce laws, ascribes the high moral ground to itself. Immorality is then attached to people according to the level of their non-compliance with the desired behaviour. Whether a law is “good” (effective) is a function of the level of compliance achieved. A badly formulated law may achieve high levels of compliance and be considered “good”. A most beautifully written law may be completely ineffective and would be “bad” law. Whether a law is “just” or promotes “justice” is unconnected to whether a law exists or not. That judgement rests with the observer. Laws, like guns, are merely tools. They may be well made or poorly made and – quite separately – may be skillfully used or incompetently misused. They may be effective or they may not. Purpose, however, lies, not within the law, but with the user.

Laws may be seen as humanitarian or draconian, as fair or unfair, as oppressive or protective, as just or unjust and even as clever or stupid. Law may be an ass. They usually have the successful functioning of the society as a purpose but may also have the preservation of the Authority as an objective. It is almost trivial, but those in power inevitably have a more benign view of the laws they make or enforce than those whose behaviour is being coerced.

A law is a tool for behavioural control. The dignity or majesty or sanctity or divinity sometimes claimed for laws are not inherent in laws or legal systems. They are always imaginary, invented and provide the packaging, the sugar-coating, judged necessary by a society to infuse legitimacy to – or sometimes to just camouflage – the control of human behaviour. The robes and ritual and elaborate ceremony often adopted for the making and application of laws have little to do with the content of laws but have everything to do with legitimising either the makers or the enforcers. A judge’s robes give no weight to the law but attempt to give weight to the judge.

Laws are often categorised according to the societies in which they are used. Divine Laws or the Laws of God are all human-made formulations and proclamations made by religious societies and purporting to be laws. Similarly, Natural Law (not be confused with the Laws of Nature) is claimed by some humanist philosophers to override all other law. It is based on an invented theory of overriding standards of universal morality which apply because they derive from the Nature of the World and the Nature of Human Beings. As with Divine Laws, the claim is that Natural Law should take precedence over any other human-made law. “Nature” is then an invented concept which is accorded divinity. God, the Divine and Nature are all taken to be Supreme Authorities. But they are invented by humans, and the purported laws are all authored by humans who effectively claim to be representatives of the Supreme Authority. They all seek, for good or ill, to control human behaviour. International Law tries to regulate the behaviour of participating nation states who in turn sign on to controlling the behaviour of their citizens. The laws are merely tools for behaviour control. The purpose lies elsewhere.

Human laws can never contravene the laws of nature (though some incompetent Authorities do try, from time to time, to make laws which contravene the laws of nature). They always remain rules of desired behaviour. It is usually the members of a society who grant some societal body (the Authority) the authority to formulate and declare rules of behaviour. However, establishing an Authority is an exercise of power and the members of the society may merely acquiesce. Laws as behavioural rules are organic and dynamic and their purpose is the functioning of the society they are embedded in. They are different from one society to the next. Within a society they can be created, discarded, modified, or replaced from one time to another. The grant of authority to a body to create laws is no guarantee of that body’s competence to create laws. Also the authority and the competence of a body to create laws is no guarantee of the body’s capability to enforce (usually by coercion but sometimes by incentive) such laws. That is a separate competence which may require additional bodies to come into play.

The purpose of law is not inherent. It lies first with the intentions of the Authority enacting the law and then with those tasked by the Authority with enforcing the law.

What law is not

  1. Morality and justice and ethics are not inherent in laws. These are attributes of purpose and lie in the use of law.
  2. Being merely tools, laws do not, in themselves, contain any dignity or majesty or divinity or sanctity.
  3. The existence or application of a law can never undo behaviour. It may be able to prevent future, unwanted behaviour or induce desired behaviour.
  4. The application of law requires discrimination between the compliant and the non-compliant.
  5. The purpose of any legal penalty is to do harm.
  6. Whether the application of law is just or not depends upon the eye of the observer.
  7. The rule of law is a tautology (the rule of rules).

Conclusions

All humans have the freedom to choose what they actually do, or not do, from all that they could do.

The laws of nature are a condition of our existence and there is nothing in known existence which can contravene these laws. 

All human laws seek to either curtail some existing but unwanted freedom of behaviour, or to coerce some desired behaviour. A law is a tool, a social construct, for the exercise of behavioural control.  

Penalties for non-compliance with law are always about doing harm to some for the greater good. 

The purpose of law is not inherent. It lies first with the intentions of the Authority enacting the law and then with those tasked by the Authority with enforcing the law.

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Banning what is not illegal is what? immoral/unethical/ stupid/ clever/ ……

April 27, 2022

We live in forbidding times.

The 20th century in a sociological sense will be looked back upon as a time when fear – and many undue fears – governed society. It is remarkable that it is so called “liberal” societies who have the greatest overabundance of legislation banning things. Authoritarian societies start with the default position that everything is forbidden unless explicitly allowed. Liberal societies pretend to start with the position that everything is allowed unless explicitly banned. And what is banned is then driven by cowardice in an atmosphere of fear. They then generate a mountain of legislation to ban what cannot be done, said, written, eaten, or worshipped. Legislation bans some from being parents and takes their children away. Dogs are not allowed to run free and people are banned from politically “incorrect” behaviour. Bakers are not allowed to reject unwelcome customers. To give offense is banned. Sellers are forced to sell to unwelcome buyers. Feelings are not allowed to be hurt. Snowflakes melt. Safe spaces are created in which the sanctimony virus is nurtured. Most so-called liberal states have become Nanny states. There is more suppression of individuality today in so-called liberal states than in many dictatorships.

If some behaviour is not banned it is clearly not illegal even if not specifically being identified as being legal. Many companies and organisations ban behaviour and actions which are not banned by legislation. They go well beyond the legislative limits of what is not allowed in law to restrict their own employees or their customers or their users. It is obvious overreach.

But is the overreach illegal? or just immoral or unethical? or just “contrary to the will of the people”.

“Don’t walk on the grass”, “Don’t eat here”, no beer at a football match, keep your dog on a leash, no loudspeakers , and so on, are some of the more innocuous examples. Of course “free speech” does not actually exist – anywhere. It is “cabined, cribbed, confined” by legislation and extra-legal sanctimony. But overreach is overreach and some of it is vicious. The social media groups such as Facebook and Twitter are cases in point. They have taken it upon themselves to become moral police. They ban posts which clearly are not in contravention of any legislation in accordance with their own view of what is acceptable. They go further and, arbitrarily and selectively, ban some people from participating.

It is in that context that Elon Musk’s comments about Twitter should be read.

“The extreme antibody reaction from those who fear free speech says it all. By “free speech”, I simply mean that which matches the law. I am against censorship that goes far beyond the law. If people want less free speech, they will ask government to pass laws to that effect. Therefore, going beyond the law is contrary to the will of the people.”

I stopped using LinkedIn, Facebook and Twitter some time ago. Musk’s take-over of Twitter – if it goes through – is probably the best thing that has happened to social media. But I doubt I will be returning to Facebook or Twitter or LinkedIn anytime soon.

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Lawyers are to humans as fungi are to trees

April 16, 2021

I have suggested in the past that cooking may be the oldest art form and that chefs may have been members of the oldest profession. However it may be that lawyers came first.

Reblogged from A short history of lawyers (upcounsel.com)

Imbricate fruiting of Phaeolus schweinitzii. image forestpathology.org

Like the symbiotic relationship between trees and fungus, lawyers and humans have an important, interlocking relationship going back to the dawn of man.

The following is excerpted from “Some Lawyers Are People Too!” by Hugh L. Dewey, Esq. (2009). 

Legal anthropologists have not yet discovered the proverbial first lawyer. No briefs or pleadings remain from the proto-lawyer that is thought to have been in existence more than 5 million years ago.

Chimpanzees, man’s and lawyer’s closest relative, share 99% of the same genes. New research has definitely proven that chimpanzees do not have the special L1a gene that distinguishes lawyers from everyone else. (See Johnson, Dr. Mark. “Lawyers in the Mist?” Science Digest, May 1990: pp. 43-52.) This disproved the famous outcome of the Scopes Monkey Trial in which Clarence Darrow proved that monkeys were also lawyers.

Charles Darwin, Esquire, theorized in the mid-1800s that tribes of lawyers existed as early as 2.5 million years ago. However, in his travels, he found little evidence to support this theory.

Legal anthropology suffered a setback at the turn of the century in the famous Piltdown Lawyer scandal. In order to prove the existence of the missing legal link, a scientist claimed he had found the skull of an ancient lawyer. The skull later turned out to be homemade, combining the large jaw of a modern lawyer with the skull cap of a gorilla. When the hoax was discovered, the science of legal anthropology was set back 50 years.

The first hard scientific proof of the existence of lawyers was discovered by Dr. Margaret Leakey at the Olduvai Gorge in Tanzania. Her find consisted of several legal fragments, but no full case was found intact at the site. Carbon dating has estimated the find at between 1 million and 1.5 million years ago. However, through legal anthropology methods, it has been theorized that the site contains the remains of a fraud trial in which the defendant sought to disprove liability on the basis of his inability to stand erect. The case outcome is unknown, but it coincides with the decline of the Australopithecus and the rise of Homo Erectus in the world. (See Leakey, Margaret A. “The case of erectus hominid.” Legal Anthropology, March 1947: pp. 153.)

In many sites dating from 250,000 to 1,000,000 years ago, legal tools have been uncovered. Unfortunately, the tools are often in fragments, making it difficult to gain much knowledge.

The first complete site discovered has been dated to 150,000 years ago. Stone pictograph briefs were found concerning a land boundary dispute between a tribe of Neanderthals and a tribe of Cro-Magnons. This decision in favor of the Cro-Magnon tribe led to a successive set of cases, spelling the end for the Neanderthal tribe. (See Widget, Dr. John B. “Did Cro-Magnon have better lawyers?” Natural History, June 1926: p. 135. See also Cook, Benjamin. Very Very Early Land Use Cases. Legal Press, 1953.)

Until 10,000 years ago, lawyers wandered around in small tribes, seeking out clients. Finally, small settlements of lawyers began to spring up in the Ur Valley, the birthplace of modern civilization. With settlement came the invention of writing. Previously, lawyers had relied on oral bills for collection of payment, which made collection difficult and meant that if a client died before payment (with life expectancy between 25 and 30 and the death penalty for all cases, most clients died shortly after their case was resolved), the bill would remain uncollected. With written bills, lawyers could continue collection indefinitely.

In the late 1880s, legal anthropologists cracked the legal hieroglyphic language when they were able to determine the meaning of the now famous Rosetta Stone Contract. (See Harrison, Franklin D. The Rosetta Bill. Doubleday, 1989.) The famous first paragraph can be recited verbatim by almost every lawyer:

“In consideration of 20,000 Assyrians workers, 3,512 live goats, and 400,000 hectares of dates, the undersigned hereby conveys all of the undersigned’s right, title, and interest in and to the property commonly known as the Sphinx, more particularly described on Stone A attached hereto and made a part hereof.”

The attempted sale of the Sphinx resulted in the Pharaoh issuing a country-wide purge of all lawyers. Many were slaughtered, and the rest wandered in the desert for years looking for a place to practice.

Greece and Rome saw the revival of the lawyer in society. Lawyers were again allowed to freely practice, and they took full advantage of this opportunity. Many records exist from this classic period. Legal cases ranged from run-of-the-mill goat contract cases to the well-known product liability case documented in the Estate of Socrates vs. Hemlock Wine Company. (See Wilson, Phillips ed. Famous Roman Cases. Houghton, Mifflin publishers, 1949.)

The most famous lawyer of this period was Hammurabi the Lawyer. His code of law gave lawyers hundreds of new business opportunities. By creating a massive legal system, the demand for lawyers increased ten-fold. In those days, almost any thief or crook could kill a sheep, hang-up a sheepskin, and practice law, unlike the highly regulated system today which limits law degrees to only those thieves and crooks who haven’t been convicted of a major felony.

The explosion in the number of lawyers coincided with the development of algebra, the mathematics of legal billing. Pythagoras, a famous Greek lawyer, is revered for his Pythagorean Theorem, which proved the mathematical quandary of double billing. This new development allowed lawyers to become wealthy members of their community, as well as to enter politics, an area previously off-limits to lawyers. Despite the mathematical soundness of double billing, some lawyers went to extremes. Julius Caesar, a Roman lawyer and politician, was murdered by several clients for his record hours billed in late February and early March of 44 B.C. (His murder was the subject of a play by lawyer William Shakespeare. When Caesar discovered that one of his murderers was his law partner Brutus, he murmured the immortal lines, “Et tu Brute,” which can be loosely translated from Latin as “my estate keeps twice the billings.”)

Before the Roman Era, lawyers did not have specific areas of practice. During the period, legal specialists arose to meet the demands of the burgeoning Roman population. Sports lawyers counseled gladiators, admiralty lawyers drafted contracts for the great battles in the Coliseum, international lawyers traveled with the great Roman armies to force native lawyers to sign treaties of adhesion — many of which lasted hundreds of years until they were broken by the barbarian lawyers who descended on Rome from the North and East — and the ever-popular Pro Bono lawyers (Latin for “can’t get a real job”) who represented Christians and lost all their cases for 300 years.

As time went on, the population of lawyers continued to grow until 1 out of every 2 Romans was a lawyer. Soon lawyers were intermarrying. This produced children who were legally entitled to practice Roman law, but with the many defects that such a match produced, the quality of lawyers degenerated, resulting in an ever-increasing defective legal society and the introduction of accountants. Pressured by the legal barbarians from the North with their sign-or-die negotiating skills, Rome fell, and the world entered the Dark Ages.

During the Dark Ages, many of the legal theories and practice developed during the golden age were forgotten. Lawyers lost the art of double billing, the thirty-hour day, the 15-minute phone call, and the conference stone. Instead, lawyers became virtually manual laborers, sharing space with primitive doctor-barbers. Many people sought out magicians and witches instead of lawyers since they were cheaper and easier to understand.

The Dark Ages for lawyers ended in England in 1078. Norman lawyers discovered a loophole in Welsh law that allowed William the Conqueror to foreclose an old French loan and take most of England, Scotland, and Wales. William rewarded the lawyers for their work, and soon lawyers were again accepted in society.

Lawyers became so popular during this period that they were able to heavily influence the kings of Britain, France, and Germany. After a Turkish corporation stiffed the largest and oldest English law firm, the partners of the firm convinced these kings to start a Bill Crusade, sending collection knights all the way to Jerusalem to seek payment.

A major breakthrough for lawyers occurred in the 17th century. Blackstone the Magician, on a trip through Rome, unearthed several dozen ancient Roman legal texts. This new knowledge spread through the legal community like the black plague. Up until that point, lawyers used the local language of the community for their work. Since many smart non-lawyers could then determine what work, if any, the lawyer had done, lawyers often lost clients, and sometimes their head.

Using Blackstone’s finds, lawyers could use Latin to hide what they did so that only other lawyers understood what was happening in any lawsuit. Blackstone was a hero to all lawyers until, of course, he was sued for copyright infringement by another lawyer. Despite his loss, Blackstone is still fondly remembered by most lawyers as the father of legal Latin. “Res ipsa loquitur” was Blackstone’s favorite saying (“my bill speaks for itself”), and it is still heard today.

Many lawyers made history during the Middle Ages. Genghis Kahn, Esq., from a family of Jewish lawyers, Hun & Kahn, pioneered the practice of merging with law offices around Asia Minor at any cost. At one time, the firm was the largest in Asia and Europe. Their success was their downfall. Originally a large personal injury firm (if you didn’t pay their bill, they personally injured you), they became conservative over time and were eventually overwhelmed by lawyers from the West. Vlad Dracul, Esq., a medical malpractice specialist, was renowned for his knowledge of anatomy, and few jurors would side against him for fear of his special bill (his bill was placed atop 20-foot wooden spears on which the non-paying client was placed).

Leonardo di ser Piero da Vinci, Esq., was multi-talented. Besides having a busy law practice, he was an artist and inventor. His most famous case was in defense of himself. M. Lisa vs. da Vinci (Italian Superior Court 1513) involved a product liability suit over a painting da Vinci delivered to the plaintiff. The court, in ruling that the painting was not defective despite the missing eyebrows, issued the famous line, “This court may not know art, but it knows what it likes, and it likes the painting.” This was not surprising since the plaintiff was known for her huge, caterpillar-like eyebrows. Da Vinci was able to convince the court that he was entitled not only to damages but to attorneys’ fees, costs, and punitive damages as well. The court, taking one last look at the plaintiff, granted the request.

A land dispute case in the late 15th century is still studied today for the clever work of Christopher Columbus, Esq. He successfully convinced an Aztec court, in Columbus vs. 1,000,000 Acres that since the Indians did not believe in possession, they could not claim the land in question. Therefore, his claim had to be given priority. Despite the fact that the entire court was sacrificed to the gods, the case held and Spain took an early legal lead in the New World.

As the New World was colonized, England eventually surpassed Spain as the leading colonizer. England began sending all of its criminals and thieves to the New World. This mass dumping of lawyers to the states would come back to haunt England. Eventually, the grandchildren of these pioneer lawyers would successfully defeat King George III in the now famous King George III v. 100 Bags of Tea. England by this time was now dreadfully short of lawyers. The new American lawyers exploited this shortfall and, after a seven-year legal war, defeated the British and created the United States, under the famous motto, “All lawyers are created equal.”

England never forgot this lesson and immediately stopped its practice of sending lawyers to the colonies. This policy left Australia woefully deficient in lawyers.

With stories of legal success common in the late 1700s, more and more people attempted to become lawyers. This process of stealing a shingle worried the more successful lawyers. To stem this tide as well as to create a new profit center, these lawyers passed laws requiring all future lawyers to be restricted from practice unless they went to an approved law school. The model school from which all legal education rules developed was Harvard Law School.

Harvard, established in 1812, set the standard for legal education when, in 1816, it created the standardized system for legal education. This system was based on the Socratic method. At most universities, the students questioned the teacher/professor to gain knowledge. These students would bill their professors, and if the bill went unfulfilled, the students usually hung up their law professor for failure of payment At Harvard, the tables were turned, with the professors billing the students. This method enriched the professors and remains the standard in use in most law schools in America and England.

As developed by Harvard, law students took a standard set of courses as follows:

  1. Jurisprudence: The history of legal billing, from early Greek and Roman billing methods to modern collection techniques.
  2. Torts: French law term for “you get injury, we keep 40%.” Teaches students ambulance-chasing techniques.
  3. Contracts: Teaches that despite an agreement between two parties (the contract), a lawsuit can still be brought.
  4. Civil Procedure: Teaches the tricky arcane rules of court, which were modernized only 150 years ago in New York.
  5. Criminal Law: Speaks for itself.

These courses continue to be used in most law schools throughout the United States.

Despite the restrictions imposed on the practice of law (a four-year college degree, three years of graduate school, and a state-sponsored examination), the quantity of lawyers continues to increase to the point that three out of every five Americans are lawyers. (In fact, there are over 750,000 lawyers in this country.) Every facet of life today is controlled by lawyers. Even Dan Quayle (a lawyer) claims, surprise, that there are too many lawyers. Yet until limits are imposed on legal birth control, the number of lawyers will continue to increase. Is there any hope? We don’t know and frankly don’t care since the author of this book is a successful, wealthy lawyer, the publishers of this book are lawyers, the cashier at the bookstore is a law student, and your mailman is a lawyer. So instead of complaining, join us and remember, there is no such thing as a one-lawyer town.

Lawyers are members of a parasitic life-form which emerges in the cracks of human society.

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Laws are made to be broken

December 7, 2017

This is from a before-dinner talk I gave recently.

image – open parachute

Today I return to a little paradox which leads to quite subversive thoughts. 

A few weeks ago I had a conversation with a lawyer. Have you noticed that even small talk with a lawyer takes on the character of an inquisition? If only laws were simpler we would not need lawyers, I thought. In any event, it made me think of the nature of the quality of laws. How should we define a good law? And what would be a bad law? 

Now, after a long evening you all need to wake up and follow my reasoning. 

There are only two types of laws. We have either the natural laws of the universe or we have the myriad laws invented by humans. Even the so-called laws of the various gods have all been invented by humans. Note that the universe does not bother with proclaiming its laws. They just are. The universe does not even care if humans get the formulation wrong. No threat or punishment is required because it is impossible to violate these laws. Without any compulsion, it is guaranteed that everyone will comply with these perfect laws. 

So we can say that if everybody complies with a law it is an indication of a law of the highest quality. Perfect laws are those which – without any compulsion – are followed by everyone. As are the natural laws. Worthless laws are those not followed by anybody. Like the speed ​​limits on some motorways in Norrland, for example. But, a law that is followed by everybody, without compulsion, is not needed – is unnecessary, is redundant. 

All laws written by humans always fall between these limits of being useless on the one hand or unnecessary on the other. It may seem logical that a society makes a law so that everyone will comply. But that thinking is in error. If everyone does follow the law, it becomes a redundant law. Without laws there are no law breakers. It is not only that law breakers are created by human laws, human laws need law breakers. Laws are established in the first place to prevent some human behaviors which society judges to be undesirable. But if everyone follows a law then that law is unnecessary, and if no one follows that law it is worthless. One could well say that law breakers perform a fundamental and necessary service for society. They keep laws alive. Without law breakers, there would be no need for laws or legislators or lawyers. In a heaven without law breakers, and therefore, without any law makers or lawyers, there is no room for a legal system to exist. Without a system of justice, society collapses. 

The paradox for today is that if everyone followed all laws, the legal justice system would vanish and society would implode.

A society and its legal justice system depend – existentially – upon its law breakers.

I am forced to the inevitable but very subversive conclusion that human laws are all made – not to be followed – but to be broken.

Now it’s time for dinner.

 

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Good laws are made to be broken

November 5, 2017

A bad law is one with which nobody complies.

A law which everybody complies with, without any coercion of pain or penalty, is superfluous.

(All natural laws are superfluous in that it is not possible not to comply with them).

Therefore good laws can only exist in the space between bad laws (zero compliance) and superfluous laws (complete compliance), in the space of partial compliance.

Good laws are therefore made to be broken.

 

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Cowardly French court bans video of smiling Downs syndrome kids because it may upset women after abortions

November 24, 2016

It is political correctness gone mad.

You might as well ban children with Downs syndrome from smiling. Or why not just order all Downs syndrome kids from being out in the open. After all they might be seen by a woman soon after having had an abortion.

“the freedom of expression of individuals with Down syndrome must bow to the right to abortion.”

The only logical conclusion is that in this French court’s eyes, a child with Downs syndrome really should not be alive.

The Stream:

French Court Upholds Ban on Video of Happy Children With Down Syndrome

The court claims the video might ‘disturb the conscience’ of post-abortive women.

Video of Downs syndrome children banned in France

Video of Downs syndrome children banned in France

An award-winning video entitled “Dear Future Mom” featuring happy children and young adults with Down syndrome is banned from French television.

France’s Conseil d’État (State Council) rejected an appeal to lift the ban on November 10, declaring that seeing happy people with Down syndrome was “likely to disturb the conscience of women who had lawfully made different personal life choices” — in other words, women who chose to abort their unborn babies diagnosed with the genetic disorder.

In a press release, Jean-Marie Le Mene, president of the Jérôme Lejeune Foundation, which partnered with other organizations to produce the video and appealed the Higher Council of Audiovisual’s ban, said the court’s decision indicates that “the freedom of expression of individuals with Down syndrome must bow to the right to abortion.”

A cowardly court! An unjust court!

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A prime directive for religions and politics: First, do no harm!

July 31, 2016

Primum non nocere – First, do no harm!

It is sometimes expressed aa “Above all, do no harm” or “Primarily, do no harm”. It used to be part of the Hippocratic oath for physicians as “… abstain from doing harm”. It is a phrase which is used mostly in a medical or psychological context but it seems to me it should rightly be a Prime Directive for virtually all human activity.

All human systems of law exist to make proper redress when a claim is made. For a claim to be made against anyone or any body of people, there must first be liability. Without liability there is no claim to be made. If no harm is done there is no liability. If this is the Prime Directive for all human kind, and if there is full compliance, it follows that having a system for handling claims and and redress becomes unnecessary. Note also that without harm being done, the question of ethical dilemmas does not arise. Generally law tells us what not to do and ethics tells us what to do. Legal and ethical dilemmas only arise because what law or ethics tell us to do can cause harm to someone. And as soon as harm is done, there is liability and there is a claim.

Not everything legal is ethical and not everything illegal is unethical. But we get a confluence of ethics and law if both adopt doing no harm as the foundation on which their structures are built.

If we must have religions, why cannot every religion have that as its prime Directive or Commandment number Zero? It ought to be the underlying tenet of every political party, of every association of people, of every corporate body, of every advocacy group or – even – of every charity. It ought to be the default codicil to every exhortation to action and to every purpose. “Seek happiness but first, do no harm” or “Make a difference, but first, do no harm” or “Make your fortune but first, do no harm”.

Of course it will be rationalised and circumscribed. “First, Do no harm” will nearly always become “Do no unnecessary harm” and you could argue that the concept of the use of force not being disproportionate to the task in hand is just that. In fact the concept of “being proportional” lies at the heart of our concepts of justice and fairness and “balance”. Even in war we require that harm be kept to a minimin. “Collateral damage” is to be minimised. Using disproportionate force is frowned upon. Attacking unarmed, non-combatants is not the done thing.

The practical reality is that human activities do, in fact, do harm to others. But that does not preclude any human activity from starting with “First, do no harm”. 

Related:

https://ktwop.com/2010/09/03/behaviour-law-and-ethics-a-practical-view/

 

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Is capital punishment being applied (unofficially) in the UK?

January 30, 2016

Daniel Pelka

A  mother and stepfather were found guilty of the horrific and brutal murder of her 4 year old son. They were both sentenced to serve “at least” 30 years imprisonment in August 2013.

Mariusz Krezolek was convicted of murdering Daniel Pelka alongside his partner Magdelena Luczak, who was the boy’s mother. ….. were both jailed for 30 years in August 2013 after a court heard they subjected Daniel to “unimaginable acts of cruelty and brutality”. ….. Daniel Pelka, whose physical condition was likened by a doctor to that of a concentration camp victim, is alleged to have been deliberately starved over several months.

The mother was found dead in her cell in July last year and had, it was said, “hanged herself”.

Magdelena Luczak: Mother jailed for murdering four-year-old son Daniel Pelka dies in prison

Paramedics attended the 29-year-old’s cell at HMP Foston Hall in Derby at around 7:15am on 14 July. She was pronounced dead at the scene, according to a Ministry of Justice spokesman.

The stepfather, now 36, was found dead in his cell on Wednesday this week

Daniel Pelka: Stepfather Mariusz Krezolek who abused and murdered four-year-old found dead in prison

A Prison Service spokesperson said: “HMP Full Sutton prisoner Mariusz Krezolek was found unresponsive in his cell at 8.30am on Wednesday 28 January. “Staff immediately attempted resuscitation but he was pronounced dead shortly after.

By all accounts they would both have been prime candidates if capital punishment were still in force.

Officially, of course, the UK no longer has capital punishment – even for the most heinous cases.

But deaths while in captivity always carry a trace of a question. Certainly the deaths are very convenient for the UK authorities, both during the custodial period and the period of welfare and social care thereafter. And I can’t help wondering if there couldn’t be just one coincidence too many in this case.

 

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Laws are only as “good” as the compliance they command

January 15, 2015

There are always examples illustrating where the “law is an ass”. Recently there was the case of the Saudi Arabian cleric who has issued a fatwa against the building of a snowman since this would be an “image of man” and a blasphemy! Laws are nearly always about achieving a balance between the needs of individuals and those of the larger society, and which can often be in conflict. It is always the larger society which makes the law (never the individual) and it is always the larger society which assumes for itself the right to make laws and coerce the behaviour of the individuals making up the society. I got to wondering about how the “goodness” of a law could be measured.

The objective of creating a law is to get compliance. Man-made laws (and even all the laws of all the gods – inevitably interpreted by men) are fundamentally coercive towards the end of compliance. They try to shape human behaviour – and only human behaviour – by threats of consequences for non-compliance with the law (if found out). They are a tool of organised societies and usually only try to coerce the behaviour of members of that society (including temporary members or others within the power of that society). The purpose is usually the smooth operation or the (perceived) well-being of that society.  Laws have specified jurisdictions. They do not – usually – try to coerce the behaviour of entities not within the coercive power of the law-making body. There have been cases of misguided lawmakers and Kings trying to create laws to govern animals and birds, or to control the tides or to ban eclipses and volcano eruptions, but these examples of idiocy are relatively few. (But such idiocies are present even today as with those who try to make laws to control the climate).

There is a hierarchy to these laws with the laws of any society generally being subordinate to those of any larger society it is part of. Town laws are subordinate to county laws which are subordinate to country laws. (But it is noteworthy that no country gives precedence to the laws of a god over the laws of a country. Even some Islamic States which claim to give such precedence first merge the supposed laws of their god into the laws of the country. Saudi Arabia is a legal chaos unto itself where women drivers are treated as dissenters and tried in terrorism courts). The supposed “sanctity of the law” is merely a concept which presupposes the supreme goal as being the well being of the society making the law. The laws of a failed or discredited society are discredited and discarded along with that society. Courts of Law deal with compliance or non-compliance with the Law and Justice is served only incidentally.

But all man-made laws are formulated only because compliance with the law is not assured and the society wishes to have such compliance. Only the “laws of nature” command full compliance and are 100% effective. In fact, the laws of nature are only discerned by humans because they are always complied with – without any measures to ensure compliance. Coercion is always zero. Gravity always applies – but we still don’t know quite how it does. The laws of nature are fully complied with even if the law is not discerned or formulated. Man-made laws cannot negate or defy gravity or any of the laws of nature. Neither can the laws supposed to be of the gods. (Which begs the question as to why a law supposed to have been made by an all-powerful god cannot ensure full compliance without any coercion? Going by the ability to command compliance, all imagined gods are subject to natural law!)

It occurs to me that “compliance” is the “benefit” when assessing a law and the “cost” is the amount of coercion that has to be applied to get that compliance. Taking the laws of nature as my benchmark – 100% compliance with zero coercion – leads me to think that the “goodness” of a law can then be defined as the ratio of the compliance it achieves to the cost of the coercion it has to use to achieve that compliance.  A Compliance/Coercion Ratio is then effectively a benefit/cost ratio. The greater the ratio the greater the “goodness” of a law. Note that the cost to society of some non-compliance may indicate the need for a law in that area but is irrelevant for estimating the “goodness” of that law once made.

“Goodness” is clearly infinity for laws of nature where the compliance is full and the amount of coercion in the denominator is zero. At the other end of the scale, for “bad” laws, the C/C Ratio would go to zero if either the numerator was zero or where the amount of coercion was very high and approached infinity. Clearly if there was no compliance, the C/C ratio would be zero and the law would be a “bad law”. Equally if coercion is “unlimited” (mass executions for example), the “goodness” would be zero no matter what level of compliance was achieved.

Compliance and coercion are not impossible to measure. Compliance is simply the proportion of those complying among the total population subject to the law. The amount of coercion applied could be measured by estimating the cost of the penalty/punishment levied – or to be levied – and the number of times it would be applied. A law against murder – for example – would need to estimate the amount of coercion as the punishment level multiplied by the number of times the punishment was – or would be – applied. It would need some imagination to compare the total cost to society of – say – an execution to that of a life-term, but it would not be beyond the wit of man to estimate the “amount of coercion”. A successful law would show a clear increase of the C/C ratio over time. It would quantify and demonstrate how behaviour changed such that there was more compliance with less coercion.

Perhaps every new law that is proposed should be judged for its “goodness” by estimating its Compliance/Coercion Ratio. Laws are only as “good” as the compliance they command and as “bad” as the coercion they need to apply.

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Tax free prostitution in Norway – no VAT, no income tax

December 21, 2014

I am not sure if this is a blow for women’s rights or just the consequences of laws only half-thought through or a case of “the law being an ass”. In any event this case does not quite uphold the majesty of the law.

If prostitution income is not subject to income tax because buying sex is a crime, then the proceeds from the sale of stolen property cannot either be subject to income tax. Moreover the selling of stolen goods does not need to attract VAT!!

The Local: A prostitute won a landmark victory against police in an Oslo court on Wednesday, when it ruled that police were wrong to claim taxes for the money she had made selling sex in the Norwegian capital.

Police in August raided an Oslo flat where a woman known as Patricia (34) lived with two other sex workers. They seized 74,000 kroner, much of it in foreign currency. 

They refused to return the money to Patricia, who is from Nigeria, claiming that the money was earned in Norway and should be subject to income tax and VAT (sales tax), according to newspaper VG.

But the court queried whether the state should tax income from prostitution, given that related activity such as pimping and human trafficking are crimes.

I note also that

It also said that it was not proven that Patricia was a tax resident in Norway at the time.

which might make the rest of the case moot.

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