We are a commune of inquiring, skeptical, politically centrist, capitalist, anglophile, traditionalist New England Yankee humans, humanoids, and animals with many interests beyond and above politics. Each of us has had a high-school education (or GED), but all had ADD so didn't pay attention very well, especially the dogs. Each one of us does "try my best to be just like I am," and none of us enjoys working for others, including for Maggie, from whom we receive neither a nickel nor a dime. Freedom from nags, cranks, government, do-gooders, control-freaks and idiots is all that we ask for.
Our Recent Essays Behind the Front Page
Friday, May 25. 2018
"Most people today believe that “law” and “legislation” are synonyms for each other, and that the phenomena to which each refers are commands issued by the state – commands issued to determine the behaviors of individuals most of whom are either inert blobs or self-destructive fools, and the rest of whom are predators. The fact that regularly observed rules of behavior – laws – emerge spontaneously among individuals going about their daily affairs is unknown to most people. The common but incorrect notion today is that society is engineered by the state through the “laws” that it issues. The uncommon but correct understanding is that the state is incapable of making laws; it can make only legislation. And whatever you think of the state’s record of legislating, you fall into error if you believe that the state makes law."
Don Boudreaux, here
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Since at least FDR's administration we have found the state is mandating ever more Marxist doctrine and the politicians can not understand why we finally arrived at Trump. Repeal legislation until we arrive back at the law...it's what made us great.
F.A. Hayek explains:
To the founders of constitutionalism the term "Law" had had a very precise narrow meaning. Only from limiting government by law in this sense was the protection of individual liberty expected. The philosophers of law in the nineteenth century finally defined it as rules regulating the conduct of persons towards others, applicable to an unknown number of future instances and containing prohibitions delimiting (but of course not specifying) the boundaries of the protected domain of all persons and organized groups...
Law was meant to prevent unjust conduct. Justice referred to principles equally applicable to all and was contrasted to all specific commands or priveleges referring to particular individuals and groups. But who believes today as James Madison could two hundred years ago, that the House of Representatives would be unable to make "law which will not have its full operation on themselves and their friends, as well as the great mass of society."
What happened with the apparent victory of the democratic ideal was that the power of laying down laws and the governmental power of issuing directions were placed into the hands of the same assemblies.
The result of this development was not merely that government was no longer under the law. It also brought it about that the concept of law itself lost its meaning. The so-called legislature was no longer (as John Locke had thought is should be) confined to giving laws in the sense of general rules. Everything the "legislature" resolved came to be called "law", and it was no longer called legislature because it gave laws, but "laws" became the name for everything which emanated from the "legislature". The hallowed term "law" thus lost all its old meaning, and it became the name for the commands of what the fathers of constitutionalism would have called arbitrary government. Government became the main business of the "legislature" and legislation subsidiary to it.
The term "arbitrary" no less lost its classical meaning. The word had meant "rule-less" or determined by particular will rather than according to recognized rules...
An omnipotent sovereign parliment, not confined to laying down general rules, means that we have an arbitrary government. What is worse, a government which cannot, even if it wished, obey any principles, but must maintain itself by handing out favours to particular groups. It must buy its authority by discrimination...
Well... Yeah... But you still go to jail either way.
IMHO our Supreme Court is TOO LAZY. We have thousands of questionable laws and the Supremes spend more time on vacation than they do hearing and ruling on the law. We citizens should not have to endure unconstitutional laws for years and sometimes forever while our Supremes fail tyo do their job. DITTO for congress and state legislators.
How many of us have ever formulated in our minds what law means? I am inclined to think that the most would give a meaning that was never the meaning of the word law, at least until a very few years ago; that is, the meaning which alone is the subject of this book, statute law. The notion of law as a statute, a thing passed by a legislature, a thing enacted, made new by representative assembly, is perfectly modem, and yet it has so thoroughly taken possession of our minds, and particularly of the American mind (owing to the forty-eight legislatures that we have at work, besides the National Congress, every year, and to the fact that they try to do a great deal to deserve their pay in the way of enacting laws), that statutes have assumed in our minds the main bulk of the concept of law as we formulate it to ourselves. I guess that the ordinary newspaper reader, when he talks about ‘laws" or reads about "law," thinks of statutes; but that is a perfectly modem concept; and the thing itself, even as we now understand it, is perfectly modem. There were no statutes within the present meaning of the word more than a very few centuries ago
Thus at first the American people got the notion of law-making; of the making of new law, by legislatures, frequently elected; and in that most radical period of all, from about 1830 to 1860, the time of “isms” and reforms — full of people who wanted to legislate and make the world good by law, with a chance to work in thirty different States — the result has been that the bulk of legislation in this country, in the first half of the last century, is probably one thousandfold the entire law-making of England for the five centuries preceding. And we have by no means got over it yet; probably the output of legislation in this country to-day is as great as it ever was. If any citizen thinks that anything is wrong, he, or she (as it is almost more likely to be), rushes to some legislature to get a new law passed. Absolutely different is this idea from the old English notion of law as something already existing. They have forgotten that completely, and have the modern American notion of law, as a ready-made thing, a thing made to-day to meet the emergency of to-morrow.
Popular Law-making: A Study of the Origin, History, and Present Tendencies of Law-making by Statute
by Frederic Jesup Stimson (1910)
law, from Old Norse *lagu "law," collective plural of lag "layer, measure, stroke," literally "something laid down, that which is fixed or set", Old English lagian "make a law, ordain."
I have a question: when a judge "re-writes" the intent of the law in order to be seen as a popular (modern, liberal, etc.) judge.That is to say what is it called when a judge deliberately over rides the "intent" of the law in order to "re-design" culture?
Apple Pie: I have a question: when a judge "re-writes" the intent of the law in order to be seen as a popular (modern, liberal, etc.) judge. That is to say what is it called when a judge deliberately over rides the "intent" of the law in order to "re-design" culture?
A judge that get appealed.
Judges have their own longstanding traditions and procedures, and answer to the judges above them in the hierarchy. Furthermore, judicial power is ultimately balanced by the other branches of government, the legislative and executive. It's not a perfect system, but doctrines, such as stare decisis, creates reasonable stability in the legal system.