Archive for the ‘Law’ Category

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.


 

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!

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/


 

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.


 

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.

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 LocalA 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.

European Court’s ruling on obesity is not as idiotic as it may appear

December 20, 2014

Last week the headlines all reported that the European Court of Justice had made a ruling that obesity could be a disability and they all implied that here was another ruling by learned judges which contradicted common sense.

  1. Obesity IS a DISABILITY, rules highest EU court | Daily Mail
  2. European Court Rules That Obesity Could Be a Disability …
  3. Obesity can be a disability, EU court rules – The Guardian
  4. BBC News – Obesity ‘could be a disability’ – EU courts rule
  5. EU court rules that fatness ‘can constitute a disability’ – The …

That was my first reaction too.

But reading the ruling itself (ECJ press release) shows the logic followed by the Court. I have other objections to the whole concept of “equal rights” granted by a society (where equality is not subordinated to justice and where there are no corresponding duties), but there is no fault in the logic followed here:

  1. The EU directive on discrimination prohibits discrimination “based on religion, belief, disability, age or sexual orientation”.
  2. “The concept of ‘disability’ within the meaning of the directive must be understood as referring to a limitation which results in particular from long-term physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers”.
  3. Disability does not specifically refer to obesity.
  4. “…. if, under given circumstances, the obesity of the worker entails a limitation which results in particular from physical, mental or psychological impairments
    which in interaction with various barriers may hinder the full and effective participation of that person in professional life on an equal basis with other workers, and the limitation is a long-term one, such obesity can fall within the concept of ‘disability’ within the meaning of the directive”.
  5. “It is for the national court to determine whether Mr Kaltoft’s obesity falls within the definition of  ‘disability’.”

If obesity causes impairment which is due to a long-term physical, mental or psychological impairment then – by the very definition of disability – it is a disability in the meaning of the discrimination directive. As it must be. In fact, the Court has just stated the obvious since any condition, whether labelled obesity or anything else, if due to long term physical, mental or psychological impairment is a disability.

The onus will be on an obese person – who wishes to be classified as being disabled – to show that the obesity is due to a long-term physical, mental or psychological impairment.

Perfectly rational and unobjectionable – given the definition of disability.

When the law is an ass and the law-makers are donkeys then judges have to be mules

September 24, 2013

A horse is a vicious species apparently.  I am not sure what the legal definition of a “naturally vicious species” might be, but if it includes a horse then the definition is an ass and any judge applying such a definition would be a mule. The law-makers who put such a definition in place would of course then be donkeys.

Connecticut Post: 

The owner of a horse farm on Wheelers Farms Road in Milford said he will be in Hartford on Tuesday when the state Supreme Court hears arguments about whether his horses — and all horses in Connecticut — should be classified as a “naturally vicious species.”

The court case dates to 2006, when one of Timothy Astriab’s horses at his Glendale Farms operation bit a toddler on the cheek. Astriab says he is not sure which of his half-dozen horses bit the child. 

“The horse is still here,” Astriab said Monday afternoon at the farm. “The parents couldn’t identify which horse did it.”

As Astriab describes it, the incident happened when a father, visiting the farm to buy plants, held his 1½-year-old son up to the horse, which was on the other side of a fence. The boy, at the urging of his parents, might have been attempting to feed the animal some grass, Astriab suggested.

“I wasn’t here at the time,” said Astriab, but the signs are clearly visible on his property: “Do not feed or pet the horses.” …..

…. Astriab said he posted the warning signs before the boy was bitten. But he said none of his horses could be considered vicious, adding that a ruling by the state Supreme Court that all horses are vicious “would open up a whole new ball game” of increased insurance costs for horse owners.

“We would be the only state in the nation that would define horses as vicious,” Astriab said, noting that horses have been working alongside humans for more than 5,000 years.

Horse owners and farmers have indicated they plan to mobilize Tuesday to get the state Supreme Court to overrule a lower court ruling that defined National Velvet, Flicka, Trigger and their ilk as vicious creatures.

And if a horse is to be considered vicious, how then would we classify humans? Especially humans addicted to horse meat!

But perhaps common sense will prevail at the Supreme Court even if it was noticeably absent in the lower court which determined the natural viciousness of horses.

Swedish judicial system looks amateurish as recusal of lay judges is sought again

November 8, 2012

The Swedish judicial system is looking increasingly amateurish. The criminal Södertälje network – found guilty in Sweden’s most expensive trial – first succeeded in getting a retrial by claiming that one of the lay judges had a conflict of interest and should have been recused and is now delaying the retrial by fresh claims of bias against the new lay judges and even against the judge who approved their appointment to the trial bench!

After one of Sweden’s most expensive trials and criminal investigations ever, 16 of 20 defendants received prison sentences, two were ordered into juvenile detention, and two were found not guilty. They were accused of crimes including murder, kidnapping and extortion.

Sverigesradio 5th October: 

The most costly court case in Swedish legal history which has been called Sweden’s biggest criminal gang case, and lasted six months at a cost of more than SEK 200 million, is to be retried. The Court of Appeals ruled on Friday that one of the lay judges from the trial had a conflict of interest.  

“We have found that a lay judge on the court, who was also a member of the Police Board in Södertälje, had a conflict of interest in the issue and is therefore disqualified,” says Court of Appeals judge Sven Jönsson.

Sverigesradio 31st October:

All witnesses in a high-profile murder case in Södertälje must testify again when the case gets retried in the district court next week, according to a decision Wednesday.

The murder case – involving the so-called “Södertälje Network” – is the most expensive in Swedish legal history. A retrial was ordered after a lay judge was found to have a conflict of interest, having sat on the police board.

The new trial started again today in a farcical manner as the new lay judges were again accused by the defence lawyers for having conflicts of interest. It did not help matters that the professional chairman of the judges seemed completely unprepared to handle arguments about conflicts of interest (Svenska Dagbladet). To make matters worse, the two professional judges were unable to make a ruling about the conflicts of interest of the lay members because they were themselves accused of having conflicts of interest because – wait for it – they had approved the appointment of the lay judges accused of bias to the bench!!

Svenska Dagbladet:

Even two of the new lay judges should be recused for bias, claimed lawyers. Instead of a trial a confused discussion about conflicts of interest arose.

An already frustrated crowd of defendants, lawyers, prosecutors and paralegals on Thursday saw the case being delayed again in an almost farcical form.

 Jan Karlsson, lawyer for one of the defendants submitted late on Wednesday a motion for recusal for bias. He claimed that two of the new lay judges could also be biased because they had participated, in a meeting  of the Association of Lay Judges where the head of the police operation talked about organized  crime. ….

When the motion was taken up in a courtroom packed with close to a hundred people the two professional judges, Lars Lindhe and Jan-Erik Oja, were to take a decision regarding the conflict of interest. But then it came to a stop again. The lawyers now claimed that the judges could not take such a decision because they were themselves disqualified.

It does look as if the Södertällje criminal network and their lawyers are having a field day in exploiting the weaknesses of the Swedish judicial system. Certainly the judiciary – and by inference even the prosecution –   are looking decidedly amateurish.

The Swedish system of using lay judges, who are often local politicians, has been getting some very bad press lately for incompetence and the entire handling of this case does not impress.


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