What is Law
"'What is a law?' said he to himself. 'It is a measure to which, when once it is decreed, be it good or bad, everybody is bound to conform.'"
Divine law - from god
Human law - announced
Natural law - order in the world discovered through reason.
Basis of Law
"It is not because men have made laws that personality, liberty, and property exist. On the contrary, it is because personality, liberty, and property exist beforehand, that men make laws."
Second, common law is based on the notion that anything not expressly prohibited is legal. There is no need to get the permission of the authorities for a new initiative.
-- Daniel Hannan
Role of law
"It is not true that the mission of the law is to regulate our consciences, our ideas, our will, our education, our sentiments, our works, our exchanges, our gifts, and our enjoyments. Its mission is to prevent the rights of one from interfering with those of another, in any one of these things."
Scope of Law
"And as every individual has a right to have recourse to force only in cases of lawful defense, so collective force, which is only the union of individual forces, cannot be rationally used for any other end. The law, then, is solely the organization of individual rights, which existed before legitimate defense."
"But if the law were to be made upon the principle of fraternity, if it were to be proclaimed that from it proceed all benefits and all evils--that it is responsible for every individual grievance and for every social inequality--then you open the door to an endless succession of complaints, irritations, troubles, and revolutions."
Which laws to obey
an unjust law is no law at all
Good men must not obey the laws too well
Ralph Waldo Emerson
Must a citizen ever for a moment in the least degree resign his conscience to the legislator, if so why has every man a conscience then?
-- Henry David Thoreau
The law will never make men free, it is men who have got to make the law free
-- Henry David Thoreau
Types of law
- Written law is called the statute law, because composed of statutes or acts of parliament
- Unwritten is called the common law, because founded on an implied common consent, from long acquiescence in its authority
Characteristics of common law adjudication:
- Actual cases and controversies between persons with knowledge of dispute
- Information discovery procedures
- Evidence presentation and assessment procedures
- Published reports that summarize the facts, result, and holding of a decision
- Which also include reasons for the decision
- A doctrine of precedent in which holdings of previous cases are typically followed—enable different courts to converge upon a common set of rules and principles of decision. Hence the term “common-law” process.
English Common law - People can do what they like unless the law forbids it
Nepolianic Code tradition - People can only do what the law specirically allows
(This leads people to falsely assume the state is giving them rights.)
Problems with law
- They are not dynamic
- They bind people who were not part of the decision
- Liberty requires one objective set of laws that apply equally to all.
- Innocent people should be left alone and not spied on
- No-one deserves special laws that lumber their problems onto others
- Everyone has a right to due process in an open court
For something to become a law it has to be effected in practice.
The Regulators are just as clueless as anyone else
The rules government make stop private parties agreeing on their own terms tailored to their situation, thus imposing a high cost to society.
Law above conscience, which should take precedence? The law sometimes stops people acting according to their conscience.
Law for government
- The are so many laws , joe public cannot know what they are.
- Not having a constitution is like having an ungoverned government.
Miscarriage of law
Randy Barnett says
[T]he attempt to create and maintain a system of legal rules may miscarry in at least eight ways
- The first and most obvious lies in a failure to achieve rules at all, so that every issue must be decided on an ad hoc basis.
- A failure to publicize, or at least to make available to the affected party, the rules he is expected to observe;
- The abuse of retroactive legislation, which not only cannot itself guide action, but undercuts the integrity of rules prospective in effect, since it puts them under threat of retrospective change;
- A failure to make rules understandable
- The enactment of contradictory rules or
- Rules that require conduct beyond the powers of the affected party
- Introducing such frequent changes in the rules that the subject cannot orient his actions by them; and, finally
- A failure of congruence between the rules as announced and their actual administration.
Courts - add section on this website http://blogs.telegraph.co.uk/news/danielhannan/100263531/heres-why-the-courts-tend-to-lean-left/