How law works and why it does not.

[Didymos Thomas]

My friends who study law tell me that it's English Common Law.

[Fido]

Originally Posted by Didymos Thomas

My friends who study law tell me that it's English Common Law.

I re read the introduction of the book in question looking for that reference to Blackstone; and finally found it by the index. No less than the English, we are inclined to look at the law as a cohesive whole, and the introduction makes that point. If your friend cannot see the parts for the whole I am afraid he will not do well as an attorney. One of my children is an attorney, who does bankruptcies. He is living in a mansion compared to my house. So, who am I to judge. In any event, one of the major concepts I am aware of in ours, and in Western law, is in regard to spolation coming from very old Cannon Law. And, we of course do have corporations, coming from ancient Roman Burial Societies (and they will bury us), And we do have international law, which we seem to think we are above; and the Law Merchant which seems to be a part of domestic business law, but was originally the reciprical rules governing international trade, and traders. Trespass and felony are words straight out of feudal law, and even the word defy, which you could safely do to your lord if he slept with your wife; so you could keep your fife without obligation.

Our law, which in some respects is like English law, some what different from European law as a whole, came out of a movement which was really revolutionary -with its beginnings in end of the first millenium, but which came to a head in the 11th and 12 centuries. It was with the discovery of the laws of Justinian, that philosophy first became a necessity, as the laws were apparently inexplicable without them. They, the priests and clerics who first studied these Roman laws gave dialectics a whole new meaning from the discovery of truth through conversation to a resolution of opposites or perhaps contradictions. I have the book right beside me, but, I have not read it in perhaps five years or more. I think you might enjoy it. It is only six hundred plus pages long. It covers a lot of interesting stuff.

[Didymos Thomas]

Any legal system which predates another has influence upon the newer one. Some having more influence than others. English law has a number of significant influences, I would imagine. I think the point is that it was the English law, having been influenced by the others you mention, which was appropriated by the US. So, the other systems have some influence upon ours, but this is residual, it is by virtue of their influence upon English law.

As for my friend, I must wonder which one as I have several studying law at the moment.

[Fido]

Originally Posted by Didymos Thomas

I'm not sure where you are from, though, most law in the US comes from English common law, with the exception of Louisiana which is derived from French code. Either way, the bodies of law you mention certainly influenced these systems. As for the book, I'm not familiar with it, though I have to wonder if Mr. Berman brought up this point: law changes constantly. Certainly, our laws can be traced back to ancient and more primitive systems, but these systems have radically changed. Law is always changing, and changing to meet the demands of the modern world. We see this happening in a very visible way with laws regarding the internet.
Even though our systems can be traced back to systems which are without question antiquated, our systems seem to be able to meet the demands of the chaning world.

You mispelled 'chaining'.

Law is influential in our lives, yes, but how significant? In the case of laws which limit individual liberty, such laws certainly are out of place. But are the legal ramifications of murder and theft really so intrusive on our lives?

Let me give you an example that is true even today. In German, or in American Indian tribal society it was very often possible for a man guilty of murder to get off with his life, but not without his family making a deal for a settlement of goods with the other family. This of course shows an acceptence of fate as a factor in ones life, but also an understanding that such acts as murder are inevitable. Rather than having one death lead to two, or three, or more; people made a deal, and got on with their lives. The difference should be clear: first, people had control of their own affairs. Second, people had immediate resort to justice if their honor was offended because there was no social contract. And third, control and responsibility was recognized as being through family, kin, and community. This last fact meant that if peace was not brought about by agreement found just to both sides then the whole community would suffer from feud violence that might fall upon the guilty or innocent alike. One of the goods often traded for peace was women, and they tended to bind communities in a greater desire for peace. What has happened inthe last thousand years is this: We are treated as individuals. We must appeal to a neutral third party for justice. And this has made the institution of law into a parsitical form of relationship that in my county comprises the largest part of the budget. With little to show for it since there is no want of crime while as a country, we have more people per capita in prison than any other.

Politicians suck.



Especially tyrants.

Follow Aristippius, as he has shown us all the way. When abused for kneeling before a tyrannt, he said: I can't help that his ears are in his feet. That is true across the board with their physiology since their hearts are in their diks and their brains are in their asses.

And this is why my first response in this post is so important. Don't get me wrong, I abhor our legal system. Within it exists an untold number of unjustices, many so extreme the stories can make you break down in tears. I have been arrested, jailed, tried and convicted for a crime which I do not believe to be criminal. I have had my share of injustice from our system. However, just because our system is not perfect, does not mean that the general notion of law which exists is more harmful than beneficial.

Remember, the system changes everyday. People change it. We are both people.

The legal system has been very intransigent. Western Law, even if Russia has went through several revolutions only to find new masters in place of old.

The absolute worst thing about our system is that it gives us less justice daily and more need of law at the same time. When teachers have to fear the power granted to students by law so that it makes a difficult job next to impossible; or when parent have to fear their children, and we do, when they deserve a spanking, but threaten the law, or when parents conversely feel they must ride herd on their kids and feel the need to beat them because they have no power, as in days of old, to stand between the law and their children. A community is not a collection of individuals. A community is a cooperative enterprise, and it is communities which have suffered. Churches still exist as corporations, and corporations exist as corporations, and schools exist as corporations; and even the government acts as a corporation. Only the individual has to stand alone. What every community is, is that group of people who will defend your rights. Now, In my country, the U.S., we find unions necessary to protect our rights and the rights of consumers. Why? Are we not governed by the sole purpose to mututally defend our rights, and is not welfare and tranquility and the blessing of liberty, and even Justice stated clearly as goals? Why then, should anyone have to bear union dues when taxation is the dues we all pay for justice? Abelard without his balls said it better than this whole country with its balls, that Justice is the genus, and law is a species of justice. So what is law without justice but tyranny? Inevitably there will be those without talent or honor that will seek power for its own perks rather than for its purpose in defense of justice. When this occurs we have to realize that we are dealing with a very formal form based upon preconceptions of a philosophy and theology that no one would espouse in public on its own. We have torealize that this form has accomplished all the good it can, and is now nothing more than form, and that all forms can be changed no matter how ensconced they are in impediments of stone.

What do you consider personal? The craftsman's workshop? The farmers field, barn and pigs? The millionaire's jet? A family's home?



Who has use of the excess of wealth?
Who is a good steward of wealth, and in society, who should make such a decision? Certainly, there must be some method for deciding if some will be allowed to make more of it based on such a decision.
Can wealth be accumulated without causing poverty for another?

I do not care what a person accumulates in a life time. Everyone with a new method or a better invention should know the benefit of that. But, what they do not give away in the desire of forming relatonships that will survive them should go to the state, or more properly, the people after death. Property should be taxed while the owner is alive, and taken with his death. Wealth in movement can make an entire nation wealthy. Wealth in few hands makes the whole nation poor. Our constitution has been changed to give wealth a great deal of protection while loading the cost of government and defense onto workers. This forces the price of labor down and the price of property up. Government pressure should be in the opposite direction, making property dance for its meals and making certain workers must only work once for theirs. Neither wealth nor poverty should be hereditary.

In this nation? Yes. And just as well, often worse in every other nation in history.



I recomend it. I much prefered his libertarian socialism to the marxist literature.



Has philosophy done much else other than challenge the status quo? Even when some philosophy becomes the status quo, some other comes along to combat the establishment. Socrates was executed, and he was far from the last thinker to be persecuted for challenging authority on philosophical matters.



Of course it was a legal brief. Jefferson was a legislator, and the declaration of independence is a legal declaration - that these people will make laws for their own posterity and no longer be ruled by the laws of England. 'No taxation without representation' was the battlecry, the people had enough of England's laws.



And what do you consider to be the outdated premises? Even Confucius found value in having law.



"Dissent is the highest form of patriotism"
- Thomas Jefferson

[Didymos Thomas]

You mispelled 'chaining'.

Correction - I mispelled "changing"

As for your "example that is true even today", I'm not sure what your point is. I understand the idea that there have been ancient laws which seem unjust, but how does relate to the modern laws regarding murder and theft? I agree the system is not perfect, but while we criticize the law so greatly, and we both have, it would seem to me that, generally, laws which discourage and handle cases of murder and theft would be a benefit to society more than they are harmful.
I would like to clarify, though. I am one to think that, when you see theft, the injustice predates the theft. People only steal when they have too little, and others have far too much.

[Fido]

Originally Posted by Didymos Thomas

Correction - I mispelled "changing"

As for your "example that is true even today", I'm not sure what your point is. I understand the idea that there have been ancient laws which seem unjust, but how does relate to the modern laws regarding murder and theft? I agree the system is not perfect, but while we criticize the law so greatly, and we both have, it would seem to me that, generally, laws which discourage and handle cases of murder and theft would be a benefit to society more than they are harmful.
I would like to clarify, though. I am one to think that, when you see theft, the injustice predates the theft. People only steal when they have too little, and others have far too much.

In the example true even today, as the faith of Islam has supported tribal law, like tribal law it has encouraged the social solution. There is a great deal of encouragment to forgive even murder, and to embrace some settlement that will end feud violence.

Look, I see that when law protects injustice that it eventually destroys its reason for being. People all need a stake in society. Following the law is easy for one with something to lose, but as more an more people have nothing to lose penalties have to rise along with cruelty to make people mind the law. Sooner or later it will end in a blood bath or a reign of terror. I think it is so much easier for people to never wait for a tire to blow out that can be changed at one convenience. We can see what law is, and what its intent is, and since it is primarily a form of relationship that has become formal, and primarily form with little actual relationship; then, we can realize we are not victims of some great machine, but that it exist at our mercy.

If the object of law is justice, then we must say with the Muslims that justice is an absolute right of every individual. Nothing should come before justice, and certainly not peace. But, formalism should be avoided because the relationship is what we want. We really want to work out what is just in every situation as the question comes up. The idea that behavior can be formulized is false, and injurious to society. Rather, while certain behaviors can be desired or discouraged, these are only a guide. Where the law builds a wall the willing find a loophole. Don't do it. Rather, state primarily what is the end of law, which is not a peace enforced, but agreed to; and then facilitate justice. Justice is different in every situation. Yesterday's laws built upon yesterday's conception of justice never serves the needs of the moment. Given to the richest and most powerful in any land to find justice and they will find always in their favor. Few people ever have an objective view of their own society, but if one reads history it is easy to see how the greatest of injustices were legalized, which ended in every crime, injustice, and violence being legals because they could not be prevented. Injustice is the slow distruction of society.

[Didymos Thomas]

Look, I see that when law protects injustice that it eventually destroys its reason for being. People all need a stake in society. Following the law is easy for one with something to lose, but as more an more people have nothing to lose penalties have to rise along with cruelty to make people mind the law. Sooner or later it will end in a blood bath or a reign of terror. I think it is so much easier for people to never wait for a tire to blow out that can be changed at one convenience. We can see what law is, and what its intent is, and since it is primarily a form of relationship that has become formal, and primarily form with little actual relationship; then, we can realize we are not victims of some great machine, but that it exist at our mercy.

Of course law exists at our mercy, but we must remember that, in application, it exists at the mercy of all of us. When corruption has taken the helm, and the people are methodically deceived by that corrupt element, the law, in many cases does become a 'great machine' whose prey is the citizenry.
I agree wholeheartedly about law, and having a stake in society. I see this as the very problem. This is why I suggest property rights limited by posession, by what you have use of.
People only steal when they have too little, and others have too much. I think most crimes are really the result of various social injustices; to do something about crime we must fix those injustices.

I also like your suggesting about the lack of formalization in the law. You would enjoy reading Proudhon.

I guess that sums up everything - you would enjoy the Poverty of Philosophy.

[Fido]

I was just yanking your chain pardner. Marx wrote the Poverty of Philosophy counter Proudon's Philosophy of Poverty. I don't have the later, but I do have the former. I'll at least check that out again.

[Didymos Thomas]

Trying to confuse me The only Marx I've read was The Communist Manifesto and a paragraph here and there from Das Kapital (not really interested enough in Marx to commit myself to that tome).

[Fido]

Originally Posted by Didymos Thomas

Trying to confuse me The only Marx I've read was The Communist Manifesto and a paragraph here and there from Das Kapital (not really interested enough in Marx to commit myself to that tome).

It is not just an historical book, but one of the most interesting books of history I have ever read. All of the communist theory of price and value is at the beginning, and then there is a wealth of knowledge about England and other countries. Marx came very close to saying what I say in saying Capital is a relation; while I would call it a form of relationship.