Some regulations ok under capitalism?

[DavidOdden]

When assessing what the law means, you virtually NEVER go by the plain words of the statute.

I understand that you're describing the practice of the law: nevertheless, the case law surrounding a statute only tells you how the law has been contorted, not what it actually and objectively means. What you will no doubt have noticed is that antitrust law is based on a concept "restraint of trade" that is not defined (in the usual definitions chapter or elsewhere AFAIK).

And again, there is never an "objective" criteria to tell if the law has been violated which somehow doesn't involve a fact-finder (either jury or judge.)

The problem is when laws don't even include objective criteria that the fact-finder is supposed to apply.

The best we can do is a jury or a judge, and both are inherently subjective.

Well that is plainly false, although if you mean that as a castigation of current trends in judges and juries, I might go along with that. I particularly abjure juries, in particular the random moke approach to getting justice. This is not an irresolvable problem of fact-finding, it is a parochial flaw in our justice system that could be largely cured by rejecting the fallacious assumption that all citizens are equally qualified to assess the facts and the law objectively. In other words, we need jurors with an epistemology.

[Vladimir Berkov]

I understand that you're describing the practice of the law: nevertheless, the case law surrounding a statute only tells you how the law has been contorted, not what it actually and objectively means.

The thing is, that the case law surrounding a statute IS what that statute means. Again you seem to think there is an objectivity in the legal system which simply does not and cannot exist.

What you will no doubt have noticed is that antitrust law is based on a concept "restraint of trade" that is not defined (in the usual definitions chapter or elsewhere AFAIK).The problem is when laws don't even include objective criteria that the fact-finder is supposed to apply.

Again, I do not have enough knowledge of the case-law regarding anti-trust to know whether this is true or not.

Well that is plainly false, although if you mean that as a castigation of current trends in judges and juries, I might go along with that. I particularly abjure juries, in particular the random moke approach to getting justice. This is not an irresolvable problem of fact-finding, it is a parochial flaw in our justice system that could be largely cured by rejecting the fallacious assumption that all citizens are equally qualified to assess the facts and the law objectively. In other words, we need jurors with an epistemology.

In the first place, juries decide only matters of fact, not matters of law. Judges decide matters of law. And regardless of how well-qualified juries or judges are they are inherently subjective. Different judges and juries will have different takes on the law and the facts. This is why the legal system is tiered. If every judge could always objectively come to the same conclusion there would be no need for appellate courts or even a supreme court. And often even appellate courts are split on a legal issue, or the supreme court reverses itself.

[Maarten]

But if juries and judges are inherently subjective, does not the same hold true for everyone? What is the special thing about judicial activities that make them more subjective than other types of human activities? I doubt you are claiming that we are incapable of objective knowledge as humans. Why do you see a difference here?

The fact that they study human beings instead of other parts of reality doesn't make the process inherently subjective, I think. Otherwise the entire humanities would be doomed by implication.

[Vladimir Berkov]

But if juries and judges are inherently subjective, does not the same hold true for everyone? What is the special thing about judicial activities that make them more subjective than other types of human activities? I doubt you are claiming that we are incapable of objective knowledge as humans. Why do you see a difference here?

The fact that they study human beings instead of other parts of reality doesn't make the process inherently subjective, I think. Otherwise the entire humanities would be doomed by implication.

Law as a field of study is simply more subjective and is subject to different and less accurate standards of proof than other fields such as science or mathematics. With math for instance, either the math is correct or it is incorrect. In law there may be multiple correct yet contradictory answers. This does not mean all law is subjective, it simply means law always will have a subjective component.

[Maarten]

I am afraid I do not see that. By correct here I assume you mean that the answer is true?; that it reflects the facts properly? How can multiple, contradictory answers all be true?

Edited August 4, 2006 by Maarten

[DavidOdden]

The thing is, that the case law surrounding a statute IS what that statute means. Again you seem to think there is an objectivity in the legal system which simply does not and cannot exist.

Well, stare decisis is a principle sucked up to in common law tradition, but it is by no means a universal feature of the concept "law". In fact, I recall that the Austrian Constitution essentially prohibited stare decisis. In addition, you're confusing actual objective meaning with observed usage. Again you assert without evidence that there cannot be objectivity in law. The best you seem to be comping up with is the rampant subjectivity actually observed in the law, but that can be changed, as I pointed out.

In the first place, juries decide only matters of fact, not matters of law. Judges decide matters of law.

That's really not true. Juries do decide not only what factual conclusions are reached, but also how the law applies to those conclusions. That's why they have those damned jury instructions: to confuse the jury as to what the requirements of the law are. For example, 18 USC 1001 (a)(2) criminalizes knowingly and willfully making a material false statement, so a jury must judge whether the defendants act is described by that clause (so they must determine whether the facts that they have seen constitute material statements, false statements, and also whether the defendant must know that his statement is false (and if so, whether he did know).

Different judges and juries will have different takes on the law and the facts.

Well, yeah. That's because almost no jurors have an epistemology, and many judges have a rotten one. Give me a panel of strict constructionists and I will give you objective justice. Scalia is right on the money in his analysis of Church of the Holy Trinity v. US. The church violated a federal law, and the Supreme Court just invented total nonsense to negate the letter of the law. Congress passed a really dumb law, and it is the height of intellectual dishonesty to claim that somehow they "must have meant something else".

Decisions like Holy Trinity are what generates contempt for the law.

[Vladimir Berkov]

I am afraid I do not see that. By correct here I assume you mean that the answer is true?; that it reflects the facts properly? How can multiple, contradictory answers all be true?

Because in the law there often simply isn't one correct conclusion mandated by the facts. It often involves several factors which must be weighed, or facts which may be deemed important or not. For example, there isn't even a real "scientific" definition of "reasonable doubt."

Well, stare decisis is a principle sucked up to in common law tradition, but it is by no means a universal feature of the concept "law". In fact, I recall that the Austrian Constitution essentially prohibited stare decisis. In addition, you're confusing actual objective meaning with observed usage. Again you assert without evidence that there cannot be objectivity in law. The best you seem to be comping up with is the rampant subjectivity actually observed in the law, but that can be changed, as I pointed out.

I am not sure how any legal system can work well without case law. Without some type of stare decisis principle in the law there is no way for people to tell how the law will apply in future cases based on past decision, any decision could be different than any other decision. I am not sure how you pointed out that the subjectivity inherent in the law can be changed. All you said was that juries should be more qualified, which is a completely different issue.

That's really not true. Juries do decide not only what factual conclusions are reached, but also how the law applies to those conclusions. That's why they have those damned jury instructions: to confuse the jury as to what the requirements of the law are. For example, 18 USC 1001 (a)(2) criminalizes knowingly and willfully making a material false statement, so a jury must judge whether the defendants act is described by that clause (so they must determine whether the facts that they have seen constitute material statements, false statements, and also whether the defendant must know that his statement is false (and if so, whether he did know).

Obviously deciding matters of fact ultimately result in the application of the law, but that doesn't mean that the jury is deciding issues of law. The judge essentially tells the jury what the law is, the jury then decides based on the evidence whether the law has been violated essentially by looking at the elements of the offense. Except for in cases of jury nullification, the jury acts as the factfinder and not the decider of law.

Well, yeah. That's because almost no jurors have an epistemology, and many judges have a rotten one. Give me a panel of strict constructionists and I will give you objective justice. Scalia is right on the money in his analysis of Church of the Holy Trinity v. US. The church violated a federal law, and the Supreme Court just invented total nonsense to negate the letter of the law. Congress passed a really dumb law, and it is the height of intellectual dishonesty to claim that somehow they "must have meant something else".

Even assuming you somehow have all judges have identical views on statutory interpretation (which is something which exists only in the realm of fantasy anyway) there is still the possibility for divergence of opinions. All "strict constructionists" don't have the exact same opinion on a given clause. Yes, there are jurists out there who try to broaden the meaning or change the meaning of a statute from the bench. And yes it is a problem. But it is a separate problem from the fact that judges inherently will always have differing opinions on the law based on the simple fact that they are all individual people rather than a collective hive-mind.

[Maarten]

Because in the law there often simply isn't one correct conclusion mandated by the facts. It often involves several factors which must be weighed, or facts which may be deemed important or not. For example, there isn't even a real "scientific" definition of "reasonable doubt."

Because in life there often simply isn't one correct conclusion mandated by the facts. It often involves several factors which must be weighed, or facts which may be deemed important or not.

You could just as easily say that; but, none of us (I would think) subscribes to the view that because there are multiple values a person could hold it is therefore somehow impossible to tell which ones are better than others. What you need is a proper hierarchy here, and a standard of some kind, to tell which of the facts is more important.

Just as human life in general requires certain objectively determinable facts or values, so does law. I mean, there is probably even more variation in how people think you should live; does that make it impossible to be Objective in ethics?

[DavidOdden]

I am not sure how any legal system can work well without case law.

Drafting skills become important. Simply stop writing statutes that are ambiguous, make lenity be the only "interpretive" principle, and have it be a constitutional requirement that a law proven to be ambiguous must be restated within 6 months or be stricken. The only rational reason for reliance on case law is the problem of ambiguity; otherwise, precedent leads to bad law.

Without some type of stare decisis principle in the law there is no way for people to tell how the law will apply in future cases based on past decision, any decision could be different than any other decision.

On the contrary, you will be able to tell from the wording of the law itself how the law is to be applied.

I am not sure how you pointed out that the subjectivity inherent in the law can be changed. All you said was that juries should be more qualified, which is a completely different issue.

That's because I've denied that there is subjectivity inherent in law, except of course for ill-formed laws which boil down to saying "if the jury concludes". The federal statutes pertaining to monopolies require juries to convict based on their feelings. There is no definition of "restraint of trade" that can be applied objectively to facts that would lead a rational juror to a particular verdict. The juror must therefore use his subjective feelings. The issues are inseparable.

The judge essentially tells the jury what the law is, the jury then decides based on the evidence whether the law has been violated essentially by looking at the elements of the offense. Except for in cases of jury nullification, the jury acts as the factfinder and not the decider of law.

That would be true if judges could tell jurors what "the law" is, but usually they can't (I think "usually" is correct). Pattern instructions are often very poor in explaining what the law is, and there is little that a judge can do to overcome crappy instructions. Jurors then have to interpolate the remainder. People have died at the hand of the state because jurors had to invent law about the meaning of "mitigate". Anyhow, there is a vast gap between the words of the pattern instructions and the grasp that jurors have of those words, and that is where jurors make stuff up. Jurors must decide what the law requires, in order to determine if a person has done the acts proscribed by the law.

It occurs to me that you may not understand the concept "subjective" versus "objective". You seem to see "subjective" as meaning "volitional" and "objective" as meaning "autumatic". If you are confused about the concept "subjective", that could explain why you seem to keep insisting that all aspects of law are subjective.

[Vladimir Berkov]

Just as human life in general requires certain objectively determinable facts or values, so does law. I mean, there is probably even more variation in how people think you should live; does that make it impossible to be Objective in ethics?

The difference between law and math/science is that in math or science there is usually one correct correct answer to any given set of facts or preconditions (excluding quantum mechanics perhaps.) 2+3 will always equal 5, regardless of the person doing the calculation. In math you can't say "I think I will give the 2 less weight and thus 2+3 = 4 in this instance. In law you can and in most cases have to give weight to different factors which is a highly unscientific process.

Drafting skills become important. Simply stop writing statutes that are ambiguous, make lenity be the only "interpretive" principle, and have it be a constitutional requirement that a law proven to be ambiguous must be restated within 6 months or be stricken. The only rational reason for reliance on case law is the problem of ambiguity; otherwise, precedent leads to bad law.

The problem is it is basically impossible to write a statute which will cover all possible applications or legal situations. If there was, there would be no need of common-law or case law because it would be obvious what the legal solution was based simply on the statute in every instance. Case law isn't required because there are ambiguous statutes, it is required because of the nature of statutes.

On the contrary, you will be able to tell from the wording of the law itself how the law is to be applied.That's because I've denied that there is subjectivity inherent in law, except of course for ill-formed laws which boil down to saying "if the jury concludes".

Ok, tell me what the following law means and how it will be applied.

"Congress shall make no law abridging the freedom of production and trade."

Is a law outlawing child labor unconstitutional?

What about a law banning the trade of child pornography?

What about a law intended to stop software piracy that incidentally abridges trade?

How about a law outlawing production of hydrogen bombs?

Do prisoners have a right to produce and trade while serving time?

Does this law apply to the states or just the federal government?

Etc, etc, etc, etc.

The statute as written HAS to be applied to the legal situations which the statute may never have envisoned or which occur on the boundaries of its application. Simply look at the jurisprudence which surrounds the current Bill of Rights.

It occurs to me that you may not understand the concept "subjective" versus "objective". You seem to see "subjective" as meaning "volitional" and "objective" as meaning "autumatic". If you are confused about the concept "subjective", that could explain why you seem to keep insisting that all aspects of law are subjective.

I have never insisted that all aspects of law are subjective. I have only said that there will always be an element of subjectivity in the law and it is insane to dismiss our current legal structure simply because those elements are present in the judge and jury system.

[DavidOdden]

The problem is it is basically impossible to write a statute which will cover all possible applications or legal situations. If there was, there would be no need of common-law or case law because it would be obvious what the legal solution was based simply on the statute in every instance. Case law isn't required because there are ambiguous statutes, it is required because of the nature of statutes.

No, precedent only plays a role in correcting the mismatch between the objective meaning of the statute and either the originally intended meaning, or a twist of meaning required to get justice. The idea of a statute that "covers all possible applications" is either meaningless or trivial. A statute says what it says -- it thus describes what it applies to, end of story -- that's the trivial sense. I cannot begin to guess what you mean by "applies to all situations", for example a murder statute obviously wouldn't apply to a parking ticket. If a statute is not ambiguous (and vast numbers are), you need nothing but the knowledge of the language of the statute plus, of course, whatever constitutional framework it is embedded in. Give me an example of a law that "isn't applicable to all situations", where case law clarifies anything. And don't give me one with an ambiguity of scope or an improper confusion of "and" and "or" -- we've already covered horrid drafting practices.

This, then, is why case law isn't needed. (Common law is not particularly relevant anymore for criminal law -- anyhow, common law intrusions actually decrease legal clarity, rather than increasing it, since nobody actually knows "the common law").

Ok, tell me what the following law means and how it will be applied.

"Congress shall make no law abridging the freedom of production and trade."

Well, first, it's not a law in the sense of statute, it is a constitutional provision. Also, it's badly written though has a nice literary twist to it -- stated as is, it is false and I wouild put it differently. As a constitutional provision, it limits the power of the government to make laws, just as the other constitutional provisions would (such as e.g. the 1st Amendment). The exact effect of that clause has to be determined by reference to the entire constitution (in contrast, the meaning of any statute can be determined by considering the constitution and just the particular statute -- plus any "pronouns" where a statute directly references another statute).

I'm assuming a rational Objectivist-type constitution as opposed to a socialist constitution. In that case, the Free Trade clause basically says that no act shall be made illegal solely on the basis of exchange of consideration. Thus, a law against hiring a hitman is not unconstitutional, because murder is illegal.

Is a law outlawing child labor unconstitutional?

What about a law banning the trade of child pornography?

What about a law intended to stop software piracy that incidentally abridges trade?

How about a law outlawing production of hydrogen bombs?

Do prisoners have a right to produce and trade while serving time?

One at a time: a law against hiring children is unconstitutional; a law prohibiting children from doing certain things like flying jet planes might be. The relevant distinction is, if a child can do it at all, he can be hired to do it -- that is, exchange of goods is not a valid basis for prohibiting children from working. The trade of pornography would not itself be illegal; however, sex with a child (let's say 8 years old) would be illegal. Since receipt of money is not the distinguishing factor, a law against having sex with a child would be constitutional (and not a violation of the Free Trade clause). Software piracy is a species of theft and there would actually be a clause requiring the protection of property rights (hence clearly no unconstitutionality of such a law). A law prohibiting the production of H-bombs for money would be unconstitutional; a law prohibiting the production of H-bombs would not necessarily be (it would be a separate clause, if there were an unconstitutionality). I don't have an answer to prisoner-rights questions in general, but one thing is clear, that if they have the right to X, then they can X for money. What the Free Trade clause does is prohibit any laws that takes mutual exchange of value (as oppose to one-way gift) to be the deciding factor in outlawing an act.

I'm still looking for even one concrete example of where the law must have a subjective element. Time's running out.

[Vladimir Berkov]

No, precedent only plays a role in correcting the mismatch between the objective meaning of the statute and either the originally intended meaning, or a twist of meaning required to get justice. The idea of a statute that "covers all possible applications" is either meaningless or trivial. A statute says what it says -- it thus describes what it applies to, end of story -- that's the trivial sense. I cannot begin to guess what you mean by "applies to all situations", for example a murder statute obviously wouldn't apply to a parking ticket. If a statute is not ambiguous (and vast numbers are), you need nothing but the knowledge of the language of the statute plus, of course, whatever constitutional framework it is embedded in. Give me an example of a law that "isn't applicable to all situations", where case law clarifies anything. And don't give me one with an ambiguity of scope or an improper confusion of "and" and "or" -- we've already covered horrid drafting practices.

For instance, some statutes ban "assault with a deadly weapon." What is a deadly weapon? The statute does not and cannot say. If the statute drafters explicitly list what they think are deadly weapons, such as guns, knives, bombs, etc. that would serve your purpose since in your ideal world, the only valid information about a statute can come from the statute itself. The problem is that such a list is necessarily underinclusive. For instance, let's say a man tries to beat another man to death with a tire iron. Under a statute which explicitly lists the weapons, he might not be guilty of the offense since although he did assault a man with a deadly weapon, the weapon wasn't enumerated in the statute. That is why it is useful to have case law as well as the input of judges and juries, because they will over time determine what type of facts apply to the statute. For instance, you won't find many cases in which a peashooter is found to be a deadly weapon. You probably will find cases where tire-irons, baseball bats, etc. have been found to be so.

I'm assuming a rational Objectivist-type constitution as opposed to a socialist constitution. In that case, the Free Trade clause basically says that no act shall be made illegal solely on the basis of exchange of consideration. Thus, a law against hiring a hitman is not unconstitutional, because murder is illegal.One at a time: a law against hiring children is unconstitutional; a law prohibiting children from doing certain things like flying jet planes might be. The relevant distinction is, if a child can do it at all, he can be hired to do it -- that is, exchange of goods is not a valid basis for prohibiting children from working. The trade of pornography would not itself be illegal; however, sex with a child (let's say 8 years old) would be illegal. Since receipt of money is not the distinguishing factor, a law against having sex with a child would be constitutional (and not a violation of the Free Trade clause). Software piracy is a species of theft and there would actually be a clause requiring the protection of property rights (hence clearly no unconstitutionality of such a law). A law prohibiting the production of H-bombs for money would be unconstitutional; a law prohibiting the production of H-bombs would not necessarily be (it would be a separate clause, if there were an unconstitutionality). I don't have an answer to prisoner-rights questions in general, but one thing is clear, that if they have the right to X, then they can X for money. What the Free Trade clause does is prohibit any laws that takes mutual exchange of value (as oppose to one-way gift) to be the deciding factor in outlawing an act.

I'm still looking for even one concrete example of where the law must have a subjective element. Time's running out.

The problem is, that you basically proved my point for me. In trying to assess the constitutionality of the proposed laws you used legal and ethical references OUTSIDE the words of the statute. For instance, it would be perfectly reasonable for another person to find a law against hiring a hitman IS constitutional based on the clause. You have essentially created an interpretive framework for assessing laws which may infringe on the clause, and that is exactly what caselaw does. Caselaw is where judges over time create useful frameworks for dealing with interpretive and judgemental matters. Proper precedent doesn't distort the meaning of the statute, it clarifies it and makes it easily applicable in future cases. Good precedent and case law makes the law consistant and predictable.

For instance, with no case law a district judge in Kansas might find a law against hiring hitmen unconstitutional whereas a district judge in Texas finds a similar law constitutional. The options are either to let such contradictions exist or else have a higher court judge the matter itself and determine which judge's interpretation (if any) is correct. Once the higher court makes that decision, it gives all district judges in all states a way to consistantly apply the statute via prior precedent.

This is why, even beyond any ethical or statutory interpretation arguments, it would be absurd to essentially deal with every legal issue de novo. Every judge would in every case have to determine for himself what the statute means, how it is applied, what factors to use, how to weigh the factors, and what decision is consistant with the statute. This would be an enormouse drain on judicial economy as well as resulting in poor decision-making. District and state judges are often bright, but also often lack the interest or skill of appellate judges in constitutional interpretation. Your method essentially requires every judge to act like a Supreme Court justice.

I am not sure how to explain this better to you. I don't know if you have any legal education whatsoever, but for someone like myself who does have a legal education your proposed "solution" just appears vastly unworkable and illogical. I agree that much of the current law (both statutory and case-law) in this country is flawed. But the problem is not the system but rather the people in the system. It isn't the appellate system or principles of stare decisis which result in non-Objective law. It is the fact that most people (including lawyers and legislators) are not Objectivists and thus don't operate by Objectivist principles. The solution is not to scrap the system, but to get right-thinking people INTO the system primarily as legislators, but also as judges, who can get the law back on track.

If Objectivists want to see change in the law that is the only way it is going to happen. It is not going to come about by upending the very framework of our legal system which has hundreds of years of tradition behind it. Once you see legislators and Supreme Court justices with an Objectivist mindset the problem will essentially solve itself.

Edited August 6, 2006 by Vladimir Berkov

[blackdiamond]

Vladimir, what is non-Objective (capital 'O') law?

It isn't the appellate system or principles of stare decisis which result in non-Objective law.

Your very next sentence gives a clue to what you mean:

It is the fact that most people (including lawyers and legislators) are not Objectivists and thus don't operate by Objectivist principles.

I think you and Mr. Odden might be not talking about the same thing - or at the very least, you are equivocating - which could make this very interesting debate very difficult to follow. You used capital O, he used small o - which means he is not talking about "Objectivist law" per se, but simply "objective law". Even bad (anti-Objectivist, anti-constitutional) laws would be much better off being objective - it would be easier (possible) to demonstrate their absurdity if they can be fixed in reality.

DavidOdden:No, it is not just hard, it is impossible, and that is exactly what it means for a law to be non-objective. There are no objective criteria for judging that the law has been violated, only the subjective feeling of the jury.

[DavidOdden]

For instance, some statutes ban "assault with a deadly weapon." What is a deadly weapon? The statute does not and cannot say.

Ah, I think I see where your problem stems from. A deadly weapon is a specific type of weapon, one whose nature is to inflict damage on its victim that often leads to death. So it is by looking at the nature of the facts of the weapon that we determine whether a weapon is deadly or otherwise. Guns, knives and bombs would be, and pepper spray, tire irons and baseball bats wouldn't be. It is not necessary to enumerate all such weapons, you just need to understand the concepts "deadly" and "weapon". It is assumed, even now, that citizens understand the basic concepts contained in a statute (albeit poorly, sometimes), so no law needs to define "property" in order for us to have a statute against theft. It is rarely necessary to redefine words in order to write law, so applying ordinary meaning here would be good enough.

I could imagine the future invention of a "disrupter" gun that is a really ramped-up stun gun, which kills its victim say 10% of the time. When the day comes that such a weapon exists or even is highly likely to exist, statutes referring to the concept "deadly weapon" would have to be rewritten (presuming that there is a philosophical resolution that tells you whether the distupter whould be included or excluded) to address this new knowledge. I will continue to carp on this point, that laws must be subject to constant scrutiny to be sure that they serve the purpose that they are intended to, and rewritten to remove detected flaws.

BTW it is not at all obvious that the law should care about deadly weapons, since assault is already a crime. Without more of the context, it's not possible to tell if the distinction "deadly weapon" vs. "non-deadly weapon" is legally valid. I have not seen any argument that supports a distinction, so I think the law should be stated simply in terms of "weapon". Now, please note that every law must be justified and have a purpose, so if there is a purpose in making the dealy/non-deadly distinction, that purpose would be known (this is one of my constitutional hobbie-horse, namely the requirement of a "purpose clause" which is the standard for evaluating the validity and applicability of the law). Such a purpose clause to an assault statute would tell you whether the hypothetical disrupter gun would be included or excluded from this assault statute.

The problem is, that you basically proved my point for me. In trying to assess the constitutionality of the proposed laws you used legal and ethical references OUTSIDE the words of the statute.

Well, are you operating under the erroneous assumption that I think a statute can be an entirely self-contained entity? I have said nothing that would suggest that. It is obvious that ordinary meanings of words are external to the statute; it is obvious that any system of objective laws must be embedded in a constitutional framework. Why would I need to say that explicitly. I do hereby say so.

For instance, it would be perfectly reasonable for another person to find a law against hiring a hitman IS constitutional based on the clause.

You are not even reading what I'm saying, apparently. A law which specifically criminalized murder for hire and does not criminalize murder for free would be unconstitutional, because the Free Trade clause prohibits making "for money" be the distinguishing consideration between legal and illegal. If murder is legal, murder for hire is legal; if murder is illegal, murder for hire is illegal. No reasonable person can twist the Free Trade clause and make just murder for hire legal (or illegal).

You have essentially created an interpretive framework for assessing laws which may infringe on the clause, and that is exactly what caselaw does.

No, not even in the slightest. You can inspect the constitution and the statute and determine what the law says. Period. No precedent is needed to tell you what is legal.

For instance, with no case law a district judge in Kansas might find a law against hiring hitmen unconstitutional whereas a district judge in Texas finds a similar law constitutional.

This is just plain silly. A law against murder is required. The Free Trade clause prohibits distinguishing "for hire" as a basis for criminalizing an act. That is the end of that. The judge in Texas is just wrong, and so plainly wrong that he should be disbarred.

As I said, your time is running out -- it has run out. You do not seem to be paying enough attention to the poins that I'm making -- all you're doing is responding with unsubstantiated assertions about the value of legal precedent in discovering or creating "true meaning" for statutes. You are assuming without question or even rational thought that the current system of law as practiced in the US is the best possible system. It is not. The main problem with law is exactly the attitude that you are expressing: that law is a subjective, mysterious unknowable thing which serves no purpose other than to "be the law". Since we are making no progress whatsoever, our discussion is over.

[Vladimir Berkov]

All I can say is hopefully you never become a lawyer.

[DavidOdden]

Likewise.

[Vladimir Berkov]

Likewise.

Too late.

[dark_unicorn]

The difference between law and math/science is that in math or science there is usually one correct correct answer to any given set of facts or preconditions (excluding quantum mechanics perhaps.) 2+3 will always equal 5, regardless of the person doing the calculation. In math you can't say "I think I will give the 2 less weight and thus 2+3 = 4 in this instance. In law you can and in most cases have to give weight to different factors which is a highly unscientific process.

So the law is a matter of arbitrary opinion, in the hands of judges and random collections of simpleton jurists, by this estimation? After reading this explanation of how the law is supposed to work according to scholars, I now have a clearer picture of why people dread going to court and will often seek out of court settlements in the case of civil trials. This also explains a good deal of the corruption, ambulance chasing, and plunder tactics that many lawyers seem able to 100% get away with. If such beliefs persist, the old quote of "Kill all the lawyers" could indeed become a reality, and I'm not sure I could say I'd feel sorry for them.

Edited August 7, 2006 by dark_unicorn

[Vladimir Berkov]

The fact that legal work is largely a matter of individual judgment doesn't mean it is a matter of arbitrary opinion. For instance, the fact that different jurists will give different weights to the same factors doesn't mean their decisions were arbitrary. It simply means that people have different minds.

The reason why innocent people dread going to court is that even if they "win", they still lose in the sense that they had to go through an expensive, time-consuming and stressful legal process.

In civil matters, going to court is essentially weighed against the costs of settlement. Since going to trial is very expensive settlement often simply is a better option.

I suppose you can blame part of this on the way our legal system works, in that plaintiffs often have little disincentive to legal action since most plaintiff's attorneys work on a contingency fee basis and if the case is lost the plaintiff is really no worse off than when he started. But changing this would be a very complex and challenging task as you wouldn't want to bias the system so much in favor of defendants that legitimate plaintiffs are unable to recover legitimate damages.

[softwareNerd]

Some posts above imply that law created by a judge or a jury is subjective merely because it was made by a judge or a jury rather than by a legislature. The argument seems to go as follows:

1. There exists an law that is knownHowever
   
2. , that law is silent on some specific detail; so, a decision will be made during an actual case.
   
3. Therefore, to the extent of the new clarification, the law is subjective
   

I disagree with the use of the term "subjective" to mean "non existent". If the original law does not specify some specific detail, I would not say that the law for that situation is "subjective"; I'd say that there is no specific law (either it does not exist or it is not specific).

If a legislature realizes this gap before a case comes to trial, they can use the facts of reality and the more abstract laws (e.g. the constitution on down) to specify more detailed laws. Else, this task rests with the court. The legislature and the court may also mess up the process by formulating subjective law: laws with insufficient referents in reality to allow a rational person to know what it means; or, laws that are contradictory.

An old example in law relating to murder would be the "year and a day rule", which -- I understand -- was formulated as case law. The objectivity or subjectivity of such a rule would depend on its nature, and would not be affected by whether it was created by a legislator or by a court.

In the 1700's some people argued that listing specific rights in a "bill of rights" would open the way for other unmentioned rights to be denied. In retrospect, if those specific rights had not been listed, then courts -- or future legislators -- would have been forced to clarify them. Better then, that the original law be as specific as possible.

Still, it is perfectly fine for future courts and legislators to continue to clarify the exact meaning of the law.

[DavidOdden]

My argument is that that the objectively controlled judgment of judges and juries regarding facts and conclusion, mediated by principles, is good, and the subjective creation of conclusions from one's "feelings" about a case is bad. It is relatively unimportant how the law comes into existence -- it is of paramount importance to know what the law is, and to be able to predict a legal outcome from knowledge of the principles and facts.

I think that laws are actually silent on all specific details, but that the conclusion is implicit in the law, if the principles are applied objectively, that is, without creating or suppressing principles by whim.

[dark_unicorn]

1. The fact that legal work is largely a matter of individual judgment doesn't mean it is a matter of arbitrary opinion. For instance, the fact that different jurists will give different weights to the same factors doesn't mean their decisions were arbitrary. It simply means that people have different minds.

2. The reason why innocent people dread going to court is that even if they "win", they still lose in the sense that they had to go through an expensive, time-consuming and stressful legal process.

3. In civil matters, going to court is essentially weighed against the costs of settlement. Since going to trial is very expensive settlement often simply is a better option.

4. I suppose you can blame part of this on the way our legal system works, in that plaintiffs often have little disincentive to legal action since most plaintiff's attorneys work on a contingency fee basis and if the case is lost the plaintiff is really no worse off than when he started. But changing this would be a very complex and challenging task as you wouldn't want to bias the system so much in favor of defendants that legitimate plaintiffs are unable to recover legitimate damages.

1. This is extremely vague, what criteron would you draw upon to distinguish arbitrary opinion from differing opinions regarding established factors? For instance, take the OJ trial about 10 years ago. A rational jury (if there is such a thing any more) would have focused primarily on the DNA evidence linking him to the crime itself. However, the jury that was selected chose to focus in on sociological factors such as the differing race and financial backgrounds of the defendant and the victim. The result was a complete retreat from scientific evidence into subjective conjecture regarding the guilt of someone whom, according to some rather murky reasoning, had been culturally alienated due to events transpiring against his race decades ago. It opens up the field of law into the mystical notion that a crime against one person can be projected into the senario of a completely separate event in a different time metaphysically.

You may say that this is not what our laws are about, but many Harvard Law Profesors would disagree heavily with you. And as you so eloquently put it, differing opinions are equally valid.

2. Step one is thus accomplished, civil trials are highly costly and thus favor the plaintiff, regardless of merit. Step two is connecting this to the system of law we have set up, which exposes a rather lucrative racket for the pragmatic lawyer whose opinions on matters of law evolves with the bank account of his next victim. But who are we to question him, he is merely doing his part to aid in the diversity of opinion in matters of law that we simply MUST make sacrifices in order to maintain.

3. Exactly, just like paying protection is a better option than getting roughed up or having your property vandalized.

4. You seem to be heavily focused on the end result of the matter, whether or not the legitimate party is compensated or shielded from erronius accusations. However, I don't see much talk about the methodology that would make this come about, which would be objectivity in matters of law. If you think that what DavidOdden is suggesting is not possible, and that revamping our entire system through philosophical education is a waste of time, what is the purpose of distinguishing between what really happened in a given case versus what the court outcome is? If we can not know what actually happened, despite modern technology and advanced fact finding methods, why not just throw our full faith in the system and be done with it? If the court says that a pig has wings, who are we to question them?

Edited August 9, 2006 by dark_unicorn

[Vladimir Berkov]

I think there is a lot of confusion of issues going on in this thread, darkunicorn, so I'll try to sort them out in a coherent way so that we may focus in on a useful discussion.

There are three main issues here regarding the law.

1.) Substantive - this concerns what the statutes actually say on the books, plus the relevant case-law interpreting them.

2.) Procedural - these are the rules of legal procedure which the parties and courts must follow.

3.) Human Element - this concerns the personal decisions people make concerning the law in places where the law gives them discretion.

Odden's argument was basically that our current legal system is fatally flawed in all three areas. Your argument from what I can tell is that the procedural and human elements are what are leading to the problems.

I would say that you are misplacing blame on the rules of legal procedure which should instead be laid solely at the feet of the people involved in the legal system (aka the human element.)

The law doesn't state what outcome a jury should reach. If you don't like the OJ Simpson verdict the blame rests with one group, the jurors, who apparently you think were irrational in their deliberations. But this is not really an argument against our legal system. It is simply a claim that the general public (and hence jurors) are irrational. The proper solution is thus not to upend the legal system but to get the general public to think and act in a more rational matter. This is from what I can tell, the essence of what the Ayn Rand Institute tries to do.

Your proposal for "objectivity in the law" really has nothing to do with your claim that the system is biased in favor of plaintiffs. Whether the system is pro-plaintiff, pro-defendant, or neutral has nothing to do with whether the law is objective or not. You can have objective law which leads to any one of the aforementioned results.

Whether the system should be "tweaked" to realign the balance between plaintiff and defendant is a complicated question for legal scholars. There is no objectively mandated balance which must exist, outside the requirements of justice which in general terms, require that legitimate plaintiffs should recover and innocent defendants should not be forced to pay.

[Dismuke]

I think that laws are actually silent on all specific details, but that the conclusion is implicit in the law, if the principles are applied objectively, that is, without creating or suppressing principles by whim.

Unfortunately, the conclusion is not necessarily implicit in the law precisely because there do exist the specific details. In other words, it is necessary for one to apply the principles to a very specific, unique set of concretes where the evidence is often limited and sometimes contradictory. The law is not going to tell you how much weight you should give to one piece of evidence over another or whether some of the evidence ought to be disregarded. In the end, the proper application of the appropriate principles is a judgment call.

For example, imagine a bitterly contested custody dispute. Let's say the merits of the case for and against both the mother and father are more or less equal. There are certain laws and principles that one needs to consult for guidance on how the dispute should be resolved - but they are silent about whether the character and past behavior of the mother or the father gives one a stronger case over the other. One has to balance the rights and best interests of the child with the rights of the respective parents. But exactly what constitutes the best interests of the child - well, again, that is not always obvious. Ultimately, such things are a matter of individual judgment - and rational individuals with a full understanding of and in full agreement with the very same principles can and frequently do come to very difficult conclusions when it comes to applying those principles.

The fact that certain aspects of our justice system are based on individual judgment does not make the system flawed - though flawed judgments can and do happen. Human beings are not omniscient so their judgments are sometimes mistaken. Conservative types often decry the "imperfection" of human beings and human institutions. But that assumes omniscience as the standard of perfection - and that simply is not a valid standard. Clearly the legal system should have as many built in safeguards and checks and balances against potentially erroneous judgments as possible. But there is simply no way that one can avoid the need for judges and juries to have to rely on their own best judgment - and if judges and juries are simply incapable of being able to make such judgments in a rational manner and are easily swayed by things such as appeals to emotion and junk science, as Vladimir points out, the problem is essentially cultural. The best legal system in the world cannot exist and function in a wider culture that is completely at odds with it.

Edited August 9, 2006 by Dismuke

[Dismuke]

The proper solution is thus not to upend the legal system but to get the general public to think and act in a more rational matter. This is from what I can tell, the essence of what the Ayn Rand Institute tries to do.

Vladimir - you make an extremely excellent and important point here that cannot be emphasized enough.

Virtually ever aspect of our culture which is still sane and decent has been coasting along for quite some while either on the basis of blind tradition or on the basis of a sense-of-life left over and handed down from a better era. So long as that remains the case, such things will continue to be vulnerable and be eaten away by the constant assaults on them by the irrationalists. Out legal system is no exception.

I have occasionally heard Libertarian types argue that some absurd law or government regulation is invalid on constitutional grounds and that all one has to do to overturn such laws - for example, the income tax - is to get an opportunity to present just the right court case without it being dismissed out of hand as being frivolous. Even if such cases are indeed valid (I usually don't know enough to judge one way or another), the very notion is a total pipe dream. Exactly what judge or jury in today's world is going to be convinced?

Until we reform our culture, there is absolutely nothing in the world that is going to stop juries from being persuaded by appeals to junk science and emotion. There is absolutely nothing in the world other than reforming the culture that will stop prominent businessmen from going out of their way to appease and win favor with those who very openly wish to destroy them. There is nothing in this world other than reforming the culture that will prevent the very people who DO value our country and DO wish us to be victorious in the war and ARE well-intentioned from engaging in the sort of suicidal and appeasing sort of pragmatism that is so sickerly visible in the Bush Administration's approach towards the thugs and terrorists and their domestic New Left fifth column allies. The only hope we have in the short term is to hold down the fort long enough to be able to make our case in the long run.

In the long run, if we fail to reverse the direction of the culture - well, we will be screwed in so many areas that a corrupt legal system will be just one of many problems.