So if HRSD rises to the level of appeals judge, he’ll need induction.
While we’re on the topic, do you both agree with what @necrovore said about stare decisis?
On 8/26/2024 at 1:54 PM, necrovore said:
I think there is something wrong about it, which seems to come from its “dual mandate” of finding the truth on the one hand, and upholding the stability of existing power structures on the other. (Doctrines such as stare decisis are examples of ideas driven by the latter, and that’s why for example the scientific method doesn’t have an analogue of stare decisis.)
I think that’s an example of the seemingly arbitrary that I’ve encountered in my very limited exposure to law. It has a ring of conservatism to it. From Cornell’s website:
"In Kimble v. Marvel Enterprises, the U.S. Supreme Court described the rationale behind stare decisis as “promot[ing] the evenhanded, predictable, and consistent development of legal principles, foster[ing] reliance on judicial decisions, and contribut[ing] to the actual and perceived integrity of the judicial process.” "
This reminds me a lot of the classic conservative argument that political authority is necessary for “maintaining order”, as though the form that such order takes is of secondary importance. Yet it also says:
“The previous deciding-court must have binding authority over the court”
This reminds me of the issue of corporate authority, in the sense that following orders “blindly” from one’s employer is rational (up to a point). A hierarchical structure like that necessarily requires trust in authority and is ultimately more efficient than the anarchist nightmare of collective ownership. But that principle is based on the idea that an employee’s primary task is to follow orders (do what’s in their job description) rather than concern themselves with the big picture (the welfare of the company as a whole). It strikes me as dubious that a court system ought to be set up in the same way, especially when the authority would be past decision rather than present command.
Stare decisis can be re-stated as the idea that law is the application of general principles, not subjective and emotional reactions. Without any legal principles, sale of goods becomes quite haphazard. You might offer $3.00 for a gallon of milk, the person may take your money but then refuse to give you the milk. If disputes are judged on a case-by-case basis with no underlying principles, the farmer might prevail in one instance and get to keep the money and milk (because the court issues judgments at random), but in another exactly analogous instance the judgment might be that the buyer gets to keep the milk without paying. The courts long ago identified a principle that reliably guides such disputes, and that principle has been adhered to ever since. The Latin term describing this doctrine of following established legal rules is stare decisis.
Rand identifies “objective law” as one defines, objectively, what constitutes a crime, or what is forbidden, and the kind of penalty that a man would incur if he performs the forbidden action. Stare decisis is a specific cog in the machine of objective law. It exists to fill a regrettable void in our political system, that legislators are free to enact contradictory laws, which nullifies the concept of objective law. It has always been the case that judges must interpret encoded laws in order to determine whether a law has been followed or violated. A law is a conceptual abstraction, saying “If A, B and C are true, D is prohibited”. The judgment that A, B and C are the case is not self-evident, it requires a conceptual understanding of what it means to be “A”, likewise what acts constitute “D”. Legislators may make a half-assed attempt to hint at what “A” means, eventually, the courts will have to articulate a more precise definition of “A”. For example, one fundamental law in the US is that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press…”. When that was written, printing literally involved a mechanical press similar to a grape press. The First Amendment has to be interpreted so that a venue publishing on the internet, which uses no such object, is still protected as an instance of “the press”. We do not invalidate prior laws when new facts come into existence. The identification of abstract principles is the means by which law gain consistency over time, in the face of the non-omniscience of original authors or even the willful refusal to precisely state what is to be prohibited.
The alternative to stare decisis is that each judge follows their subjective sense of justice and render decisions on an arbitrary case by case basis, following no principle. This may shift the burden back to legislatures, forcing them to re-state the law to be more precise and to fill in the gap of judge-made law (where an appeals court discerns a principle resolving an ambiguity in statutory law, creating “precedent” for future interpretations).
The idea that stare decisis has to do with “maintaining power structures” is completely misguided. It is a principle that implements “objective justice”. The only problem with it is that principles can be correctly identified or incorrectly identified, there is no meta-principle that allows us to hand over legal judgments to a bot like ChatGPT, these precedential principles have to be guided by even higher-level principles.
26 minutes ago, DavidOdden said:
Stare decisis can be re-stated as the idea that law is the application of general principles, not subjective and emotional reactions.
Perhaps, but if you end up in court, it’s an open question whether the judge will think of stare decisis that way.
It’s true that a government has to be run based on principles (as opposed to not having principles) but it matters quite a bit what kind of principles they are_. Evil_ principles are worse than none, especially when they become deeply entrenched and uncontroversial.
A proper Objectivist legal system would require that the law be subordinate to both reality (fact and truth) and the requirements of human life, but currently, although it’s possible to for the Supreme Court to throw out a law on the basis that it’s unconstitutional, it’s not generally possible for the Supreme Court to throw out a law on the basis that the facts don’t support it, or that it’s a hazard to human life. This also means that people appealing their cases to the Supreme Court cannot use those kinds of arguments, because the Supreme Court would reject them. The result, perhaps unsurprisingly, is a proliferation of laws and rulings that aren’t supported by facts and that are hazards to human life. These then become precedents and then “bedrock” traditions and legal principles that are difficult to correct.
Among non-Objectivists, reality and the requirements of human life can both prove to be rather slippery (e.g., Christians will argue that God is part of reality, and that obeying God’s commandments is a requirement of human life, and then you have Joe Biden saying that free speech “kills people,” etc.). This raises the possibility that a non-Objectivist judge, especially on the Supreme Court, could create a lot of trouble by (accidentally or deliberately) misidentifying facts and making incorrect rulings. However, that sort of thing seems to be happening anyway, and these are arguments that need to be made, and the stakes are just as high whether the argument is made inside the system or outside it.
7 hours ago, necrovore said:
Perhaps, but if you end up in court, it’s an open question whether the judge will think of stare decisis that way.
If you end up in court, the judge will not think of stare decisis at all. That is a concept reserved for appeal of lower court judgments. The trial court just just looks to see what “the law” is. The fact that a principle can be evil does not mean that principles are evil and that stare decisis is an evil principle. However, disintegration is a greater evil than misintegration.
The problem with law is that there is no real requirement that laws be justified. The exception is that when one (higher: constitutional) law states a fundamental right, the courts can and do more carefully scrutinize the rationale for the law. If it doesn’t involve a constitutional conflict, the sky’s the limit. The two structural flaws in the US legal system are (a) the limits on federal power are not worded strongly enough, e.g. the Commerce Clause has become a general “The feds can do anything” clause and (b) there are no immutable limits on the awesome power of state governments – incorporation of rights against the states is limited and a court-created piece of law that only survives thanks to stare decisis.
All court rulings are made by people who have free will and who can decide to follow some evil principle, just as legislators can freely choose to write evil laws and presidential appointees can freely choose to fill in the blanks in laws with evil clauses and interpretations. On occasion, the people in the judges seat will decide that presidential appointees do not have the power to freely fill in the blanks, but on other occasions the same clowns will deny the existence of a long-standing right that was the epitome of stare decisis. None of this is news, and nobody has ever some up with anything resembling an enforceable limit on law-writing and interpretation that limits laws to protection of individual rights. At this point, “individual rights” is not at all on the political agenda in America or any other country that I know of. You don’t even see “freedom” being a substantial political issue. Wingnut RFK gets more talk than the Libertarian party, because there is negligible interest in the US in what the LP has to offer.
13 hours ago, DavidOdden said:
However, disintegration is a greater evil than misintegration.
I don’t know about that. Disintegration creates a vacuum which is easy to fill, which is why the Communists like using it to destroy other cultures and then pave the way for themselves, but misintegration tends to be “sticky” which is why it has dominated history.
On 8/29/2024 at 1:44 PM, DavidOdden said:
I don’t think any part of law involves understanding convolution, vector spaces, FFTs etc,
Patent law?
My original point was not about stare decisis in particular, but was just that courts often (or always?) have a “dual mandate” between finding the truth and upholding the existing power structure.
They might not recognize it as a “dual mandate” because they will of course try to uphold their existing power structure as a product of the truth, too. Most of the cases they consider won’t require them to challenge that assumption.
However, for example, even if you can prove that a monarchy is wrong, you cannot expect to present that proof to an English court and have them say, “Oh, we hadn’t thought of that,” and dissolve the monarchy.
That is not going to happen. They will almost certainly have some doctrine that would allow them to throw out your case. I’m pretty sure it will not be stare decisis but they will have something.