Saturday, May 11, 2013

A New Paradigm of Law

These days we find endless reference made to "rule of law", as well as an almost incomprehensibly manic devotion toward law in popular cultural outlets such as film and television.  This slavish idolatry of law is enough to leave the intelligent man brain-numb for its utter lack of sense, particularly given that the law has almost universally devolved into an institution of arbitrary and unjust prohibition and mandate, posing far and away greater dangers to the individual than it does protections.

Many nations presume themselves superior and more "civilized" than others because they operate under "rule of law".  Such nations often beat their chests as they boast of their augmented moral positions as places where rule of law reigns supreme.  What appears to escape anymeaningful examination is the fact that the vast and overwhelming majority of so-called "law" is immorally, ignorantly, and criminally conceived, drafted, enacted, and enforced.

Thomas Jefferson referred to the law as often being nothing more than the tyrant's whim.  A truer assessment has perhaps yet to be made, and yet, not all law is absent of proper moral substance.  Few people will argue that murder laws are morally unsupportable, yet laws prohibiting the possession and use of marijuana, the bearing of a firearm, or securing the services of a prostitute chafe against a great many people; a great majority, in fact.

Clearly, then, it may be said that there are two types of law: those that have the respect of the average man and those that earn his contempt.  But how can this be?  Is the law not the great and unassailable foundation of all properly civilized nations?  The answer to that would depend largely upon one's definitions and the presumptions under which he labors.

Suffice it to say that regardless of the commonly presumed normative values, the positive reality is that much of what is called "law" is despised, hated, often feared, and largely disregarded by enormous numbers of people.  Here we refer to ordinary and good people with no criminality about them whose innate senses of justice and propriety tell them that one law is acceptable whereas another is not.

Dictionaries, including Black's Law Dictionary (BLD) define "crime" in a most painfully absurd way, basically asserting that a crime is nothing more than a violation of written and enacted law.  This is yet another glaring example of just how ignorant, corrupt, or fundamentally stupid "legal thought" is.  What such a definition tells us is that a crime is whatever some arbitrarily constituted body of men say it is and therein after all are compelled to act in accord with the dictates, mandates, prohibitions, and other fiats as the so-called "law" may specify.  The utter absurdity of this would be difficult to overstate.

In the world of American jurisprudence, which derives strongly from English law, there are two basic categories of law.  The first is commonly referred to as crimes  mala in se.  Such are the true crimes that would include murder, rape, theft, robbery, assault, and destruction of property.  In other words, the acts are in themselves evil because they result in a harm being brought to another where there can be no justification for doing so.

The other category of crimes are those mala prohibita, meaning those acts or failures to act that are arbitrarily assessed as being criminal and become therefore punishable even though no actual crime has been committed.  Examples of crimes mala prohibita are almost without end, but a short sample list might include the following:

  • Speeding
  • Drug use/possession/distribution
  • Soliciting the services of a prostitute
  • Engaging in oral sex or other "deviant" sexual practice
  • Possession, distribution, or production of pornography
  • Flying an aircraft without a license
  • Operating an unregistered vehicle on public roads
  • Building a house without permits
  • Using dynamite to remove tree stumps
  • Making explosive materials
  • Burning your own house down
  • Walking nude on a public sidewalk
  • Failing to file an income tax statement
  • Bearing weapons for all morally justifiable purposes
  • Attempting to commit suicide

The list of crimes mala prohibita is enormous and, far more disturbing, utterly arbitrary.  The "logic" upon which such statutes are built and their enactment justified defies all rationality.  So wildly fallacious are the foundations upon which such laws are constructed and foisted upon the people of a nation as to do profound violence to one's sense of credulity.  That such huge populations of otherwise and presumably rational persons have allowed this brand of raving insanity to  arise, much less continue, destroying countless lives in the course of time is an aspect of human nature that must mystify God himself, leaving him scratching his own head in utterly failing comprehension of the behavior of his creation.

As we can see, a core issue here lies with the current, profoundly flawed definition of "crime".  Given that definition, crimes mala prohibita are secured their legal credibility for there is nothing in the definition of "crime" that places any requirements or other restrictions on the formulation of new and improved crimes.  The door is left widely open, and the bottom line is basically this: anything goes for which you can get away with life and limb.  That is the underlying principle upon which such law is built, which does not even qualify as the purely pragmatic, for pragmatism often has an understandable basis for its choices.  What we are examining here does not rise even to that meager standard, but rather nothing better than rank caprice and whim.

Given the definition of "crime", we find ourselves hip-deep in the nightmare of the purely arbitrary where any action may be redefined as a crime.  The implications of this are so profound and broad that "staggering" barely cuts the descriptive mustard.  In this world, it is a literal truth that virtually anything goes because there is nothing in terms of identified principle that delimits legislative action.  We can forget, for example, the dictates of the United States Constitution.  Why?  Because Congress forgets them routinely and any time that "old rag" becomes inconvenient to the goals and objectives of that hopeless body of dangerously foolish persons.

Because of the principles involved - or the lack of them, depending on how one chooses to view the situation - the only thing limiting what Congress may enact is the murderous ire of the people.  Thus far, the people have proven almost infinitely forbearing and therefore that little protection is essentially no protection at all.

Given this, there is absolutely nothing in principle to stop Congress from re-enacting Jim Crow laws.  But why stop at so timid a reach?  Why not just enact a law wherein one population is obliged to hunt another?  Perhaps they will instruct black people to hunt the whites, gather them together, and send them back to Africa.  It may sound crazy, but it is no more so than sending the black ones "back".  How can one be returned to a place they've yet to go initially?

How about a mandate for all women to wear the burka pursuant to sharia law?  How about death by stoning for all women failing to comply?

Yes, these are all wildly insane notions, and yet there is nothing to which one may point in terms of formal and enforceable principle that bars the enactment of such laws by necessity.  Forty years ago, who would have ever imagined laws such as PATRIOT and NDAA could ever see the light of enactment?  To have then predicted a day when such insanity would reign over the United States would have had those around you reaching for the phone to dial the nice men in white jackets to take you back to your padded cell and heavy thorazine load.  And yet, look at us now living under this leaden-grey pall as a matter of daily course, the Congress having enacted these outrageous assaults upon the sovereign rights of the people of America with virtual impunity.

It cannot be overly emphasized just how open-ended this process is and how unimaginably dangerous.  Please take the time to fully consider and appreciate just what it means to wield such arbitrary power.  Nothing is safe; not your rights, your health, family, possessions, investments, food sources, water, air, and so forth.  There is literally nothing that the legislators cannot touch precisely because there is no framework of principles to which the ordinary man may turn as a standard of assessment for judging that which the hand of government has wrought.  Without such a standard, there is nothing against which arbitrary law may be judged for legitimacy in accord with rational, complete, and correct principles of human relations.

Arguing against unjust statutes with "I don't like it", "it just feels wrong", and so forth avails one nothing.  One must be able to point to a rational and correct standard of judgment if they are to hold even the least reasonable hope of prevailing in such argumentation when resisting injustice.  But what should that standard be?

The answer may not be exactly easy, but there is at least one place where we can start: the very definition of "crime".  As we have previously seen, the current definitions are so freakishly absurd as to defy belief.  It is the circular meaninglessness of the word itself that must be corrected prior to moving forward.

Let us examine this a little more closely.  As is often the case, it is a good idea to begin with a definition or two.  From Black's Law Dictionary, "crime" is defined:

CRIME. A positive or negative act in violation of penal law; an offense against the State.

Note how the definition makes absolutely no reference to any irreducible, invariant, and objective concept or entity.  There is not so much as a single fundamental principle upon which the definition rests.  According to this definition, a crime is any act in violation of law, yet the metes and bounds of law are essentially nonexistent in any objective terms.  The metes and bounds as measured on Monday morning may not be the same as those measured by that afternoon.  "Crime" floats freely in the currents of the capricious ether.

In other words, the metes and bounds of that which constitutes a crime are whatever the legislator says they are and with which he can get away without those whom he ostensibly serves turning on him with torches and pitchforks.  Crime by this definition becomes nothing definite and upon which one may rely to learn, know, understand, and trust as a concept because it may be redefined at any time and for any reason whatsoever with no objective and rational rhyme or reason.  Crime may become the product of pure whim, devoid of any quality to which a man may point and call just, reasonable, or even tolerable.

As such, we are not only  not free, but are in fact  reduced to the status of abject slaves precisely because the legislator can in principle pass any law he wishes with almost guaranteed impunity.  This is the core principle at work in our world today.  There may be practical limitations at any given moment, but those can change arbitrarily and with no necessity of predictability.

Once again, from Black's, the definition of "law":

LAW. That which is laid down, ordained, or established.  That which must be obeyed and followed by citizens, subject to sanctions or legal consequences, is a "law."

Note here that nowhere does it make any mention of the source of establishment or by what objective basis law must be obeyed.  It simply states what law is.  Note also that the definitions of both "crime" and "law" are mutually circular in a vaguely implicit fashion. A crime is a violation of a law that defines a crime.  Taken as a whole, the true message is that law and crime are whatever those claiming power and authority say they are and for which the people will maintain tolerance.

When one stops to think about this with due care, this foundation upon which law as a practical matter is built is so shockingly flawed, so ridiculous, and so threatening to the rights and well being of the individual as to defy belief that this is the product of rational and benign minds.  No nominally sane and reasonable child, much less an adult, would accept this as sound and just.

For the sake of a better rounded awareness, let us finally take from Black's the definition for "justice", from which we may then understand what it means to be "just":

JUSTICE: In Jurisprudence. The constant and perpetual disposition to render every man his due.

Given these definitions and if we will be so bold as to presume that the goal of law is justice, how possibly can justice be served if laws and crimes are by their very definitions utterly arbitrary with no principled and immutable mechanism of restraint?  The crystal clear and unequivocal answer is that it cannot be served under such conditions with any faith and reliability from the standpoints of those whom the law purports to serve.

If this is indeed the case, what then is to be done about it, if anything?

The answer, in practice, is difficult.  In theory, however, it is rather simple, elegant, and straightforward.  Let us therefore confine ourselves with the theory, for once we come to apprehend the what, it then becomes better possible to determine the how.

If we begin at the beginning by asking the question of why we should even have law, the concept of justice rapidly comes to mind: to render every man his due.  But what is a man's due?  That answer has proven elusive for many, yet it is plain and simple: his rights.  Nothing more, and nothing less.   For a brief discussion on that topic, see "The Canon Of Individual Sovereignty".  The Canon derives a small handful of fundamental principles by which all proper human relations are conducted.  It provides the irreducible and invariant foundation upon which all other human endeavors are built and to which they must yield and stand secondary.  Without this immutable barrier beyond which none may pass, there exists no solid, reliable, and trustworthy standard by which one may judge his own actions as well as those of his fellows.  It is the simple standard by which one may know right action from wrong.

With such a standard in hand, one may then turn to the notion of justice, which by the given definition concerns itself with ensuring that which is due to all men, which is nothing more or less than his rights, his just claims to life.  Having apprehended this knowledge, it then becomes possible to discard the hopelessly wrong definitions of "crime" and "law" in favor of the correct ones.  To that end, let us see whether we can at least arrive at a respectable first draft of each term.

Redefinition of CRIME: Any unjustifiable act, whether positive or negative, whereby the actor brings demonstrable, qualified, and possibly quantifiable harm to another without the other's consent and in violation of the his rights.

Note the careful wording.  In order for a crime to have been committed, the act must bring harm to another  in an unjustifiable way and that harm must be objectively demonstrable in terms of character and possibly quantity.  By this definition, murder is clearly a crime, whereas killing in defense of life, limb, and property is not because defense is a justifying basis for action.  Likewise, though perhaps emotionally less convincing for some, if one man kills another as per the other's request and it can be shown that the request was made freely and without coercion, no crime has occurred.

Theft is a crime because the thief has brought harm to his victim in the form of removing property that is not his to take.

Redefinition of LAW: That which is laid down, ordained, or established to address issues of crimes committed by one person or group against another person or group.  That which must be obeyed and followed by citizens, such that no crime be committed and to which one may be subject to sanctions or legal consequences for violation, is a "law."

With these two new definitions at hand, the practical matter of law in both terms of enactment and administration take on an entirely new character.  Because "crime" is clearly defined such that its metes and bounds are specified in terms of irreducible principles or its derivatives, the formulation of law is now constrained because "law" is now defined very specifically as addressing "issues of crime".  If a proposed bill fails to address an issue of crime, then even if it be enacted it is still not a law and people would therefore be under no obligation to comply with its mandates and restrictions.

Additionally, this restructuring of law based on the new definitions eliminates all crimes mala prohibita because no harm may be demonstrated to have been caused.  For example, if I carry a firearm or other weapon for all morally legitimate purposes, no man or institution may charge me with a crime because the bearing of arms brings no harm to others.  If Johnny Dumb decides he is going to start purchasing heroin and inject it into his veins, the act per se brings no unwelcome harm to others and therefore no crime exists. If, however, after having injected himself with heroin he gets into his automobile and injures someone due to his drug induced incapacity, he would be guilty of having brought harm to another, a crime, and his use of heroin and the irresponsible choice he made to operate a vehicle resulting in injury to a third part could well be regarded as an aggravating factor.

If justice is indeed a worthy goal and is to be properly served, the law and its practice must be sensible to the common man, reasonable, reliable, and must engender a sense of trust in those whom it ostensibly serves. It must, in a word, be just. Anything less than this renders law of less than zero value, for it becomes the agent and instrument of the very harms from which it is supposed to protect us.

While I am sure my proposed alterations could strand some improvement, I am confident that this is a reasonable start.  I hold no illusions of this ever coming to pass, but it is nevertheless a good thing to give people something to which to turn their thoughts, especially in times as troubled as these where usurpers and tyrants run amok across the face of the planet in endless violation and destruction of human freedom and prosperity.

Until next time, please accept my fondest wishes.

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