Archive for the 'Law' Category

Bill O’Reilly Attempts to Belittle the Positive Impact of Copblocking

Tuesday, July 22nd, 2014

On July 21st, 2014, Cop Block – the decentralized project – was mentioned on the O’Reilly Factor.

It is interesting what Bill O’Reilly and Megyn Kelly choose to say, and what they choose to omit, or infer.

Check it out. And think for yourself.

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The O’Reilly Factor
July 21, 2014

“Spying” implies a secretive act. Filming the police creates an objective record, something that should be supported by those who value truth – police and non-police alike.

Controversial to those who fear transparency.

This clip is taken from a segment that aired July 16, 2014 on Dallas-Ft. Worth KXAS NBC5.

Joe Tye is active with Texas Cop Block. Jose Vela is active with Dallas Cop Block. [more with Jose: Jose Vela on Dallas Cop Block & Policing the Police]

  • Dallas Cop Block – Facebook / YouTube / dallascopblock@gmail.com
  • Texas Cop Block – Facebook / texascopblock@gmail.com

The Dallas-Ft. Worth area is also home to Tarrant Co. Peaceful Streets, Mesquite Cop Block, Lewisville Cop Block and White Settlement Cop Block. Known Groups: http://CopBlock.org/Groups

From CopBlock.org/About: We do not “hate cops.” We believe  that no one – not even those with badges – has extra rights. The failure to realize and act on that is to our detriment. By focusing the disinfecting light of transparency on public officials we safeguard not just our rights but those of future generations.

Is the priority of police employees their own safety or the safety of those they claim to protect? Dale Brown of Detroit’s Threat Management Center has some on-point remarks to that question.

“Enough stress on police”?  If police employes find their chosen gig too stressful, they’re always free to leave and find something productive to do.

“Clowns” “Paul Bunyan”? Using ad hominem attacks  distract from the real conversation – the double standards claimed and acted upon by individuals based on their place of employment.

If you choose to travel on two wheels, connect with Bikers Against Discrimination to know your rights. Also, see: CopBlock.org/KnowYourRights

Police are trained to escalate their use of force to gain compliance. Police watchers, on the other hand, are encouraged to remain calm, cool and collected.

Those “idiots” are people whom police claim to “serve” Is it surprising that some may have animosity toward police employees, who hassle, ransom or cage them for engaging in actions that cause no victim?

Are you a police employee? CopBlock.org/WelcomeLEOs

This statement by Ms. Kelly makes clear why so many have coalesced around the ideas of Copblocking

Police, despite well-meaning intentions, work for an outfit that’s based on double-standards – the claimed “right” to steal from others in the community, to then protect them. They have no incentive to satisfy their “customers” and courts say that they have no duty to protect you.

The content is titled “When Should You Shoot A Cop” – a big difference. If you own yourself, and have the right to defend yourself against an aggressor, it matters not what attire that aggressor wears, or where they work.

Ademo isn’t alone – millions have been wronged by those in the injustice system, and throughout history, by individuals who parrot “I’m just doing my job”

“Got caught”? Is Mr. O’Reilly so authoritarian that he believes individuals engaging in consensual interactions that harm no one else should be caged? What about the person who sold him his suit? Or his car?

Video recording anyone in public is “legal” but some self- proclaimed rulers may threaten or levy “wiretapping” charges in an attempt to deter the practice. See: CopBlock.org/FilmThePolice

Legislation does not equal law. Be careful not to conflate the former with the latter as it bestows upon the writers of legalese the arbitrary authority they seek.

If the police and their friends in legaland are left to define “interfere” or “harass” might they be inclined to kidnap and cage people, and levy baseless threats?

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Much love to everyone working to share truth, and to shine the disinfecting light of transparency on those who act in the wrong.

You are the network, and together, we’re shifting away from a reality that positions some as rulers and others as ruled, and instead, maximizes individual freedom and personal responsibility.

 

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Bill O’Reilly Attempts to Belittle the Positive Impact of Copblocking is a post from Cop Block - Badges Don't Grant Extra Rights

Police Work: It’s Not Even Close to Honest Work

Thursday, March 20th, 2014
jim-davies-police-officer-not-honest-work-copblock

Jim Davies

The text below comes from Jim Davies, who maintains a page called Quit Gov, where he states in no uncertain terms that “to work for government is fundamentally dishonest,” and lists a couple dozen occupations in a drop-down menu and encourages the reader to “take a look at one other page that comments on the work that you are doing.” The text below comes from the page titled “Police Officer.”

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Police Work: It’s Not Even Close to Honest Work
by Jim Davies

Under this job title I’m including all law-enforcement departments, not just local P.D.s [police departments]; State troopers, FBI, DEA, TSA, BATF, the lot; and I’m including all who work for such organizations, not just those with a uniform or badge who meet the public. If that includes you, you’re working for the sharp end of government. Without you, government would be toothless.

You’ll have read the page in which government and the Mafia are compared, so you’ll have a general idea why this is a problem. And congratulations, for taking this closer look!

Every human being is his or her own self-owner. We each have a natural right to operate our own lives, without intrusion. If someone violates that right, then (and then alone!) action to remedy the matter is appropriate; whatever aspect of his self-ownership right has been violated (injury, theft of property…) needs to be put right. A justice system will be needed, in the coming free society, and part of that system will be firms competing for the business of finding and apprehending the violator. They will not be called “police” and they will have no special rights that ordinary folk don’t have; if they treat suspects with inadequate respect, they will do so on their own responsibility and put themselves at risk of being sued for compensation.

police-employees-think-about-your-actions-copblock-welcome-leos

Contrast the practice endorsed by the Supreme Court under which those arrested even for minor infractions can legally be strip searched; watch this short video. According to the government’s guardians of the Fourth Amendment prohibition against searches without reason, you may now be duty-bound to submit a sovereign American to that gross indignity. How does that make you feel? – disgusted, that a job once respected is now classed by public opinion alongside those of pimps, bullies and voyeurs? – or thrilled, with the new rush of power it gives you over your fellow human beings?

So let’s think about where today’s policeman gets his supposed authority to stop people who are not harming anyone else, and who are not suspects for having done so. What entitles a cop to enter someone’s home, without invitation? – or to stop his vehicle on the road, when he is driving without specific danger to someone else? Or to cuff and arrest him, and place him behind bars, when peacefully smoking a joint or engaging in voluntary trade?

The standard answer is of course that the victim may be breaking some “law.” Hence the modern title for cops; not so much “peace officers”, rather “law enforcers.” But what is the authority of a “law”? What is a law, anyway?

A law is simply a one-sided contract. A group of people persuade some others to “vote” for them to join a “legislature”, whose whole business is to write them. Now, if 100% of the community voluntarily agrees to that arrangement (explicitly agreeing to submit to the laws so written, even if they dislike them) the contract would be two-sided; and that does take place in the context of a private club. But as you know, we’re not dealing with a private club. Here, the fiction is used that everyone is subject to all laws, regardless. You and I can submit ourselves to a set of rules, but nobody can submit someone else to a set of rules!

So it’s no excuse, if you interfere with a peaceful person, to say “it’s the law!”

the-most-heinous-crimes-just-following-orders-copblock
I’ll not digress to discuss police brutality that is not sanctioned by some law. There are many examples of it to be found on the Internet – for example,
here – and surprisingly, even the fictional but reality-based TV show “NYPD Blue” often portrayed detectives slapping a suspect around to try to make him talk. I wonder whether you ever saw such treatment in your precinct. The point I’m making is that police interference is unacceptable even when it is “permitted” by law. Suppose for example a law exists to prohibit the open carrying of handguns. A cop sees someone doing it, and sets out to arrest the carrier – who ignores the cop, knowing he has a natural human right to carry any weapon he may see fit, and the cop shoots him dead. That’s legalized murder, and the cop is committing it.

Was he “just doing his job” or “just obeying orders”? Is he free of responsibility? That’s a defense that was denied, in 1946 in Nürnberg. Those government people were acting legally, when they waged war and slaughtered captives; but they had consciences and were judged responsible for listening to them. So are you. Listen to it now.

Self-esteem is a vital part of life. We all need a purpose, a raison d’être, a way to feel pride in what we have been able to accomplish, a basis for ambition to achieve more in future.

Working for government undermines your basis for self-esteem and scars the conscience. Make a clean break; offer your skills elsewhere. Get an honest job – even if at first you have to take a pay cut. You’ll not regret it; at life’s end you will look back in pride and pleasure, and be able to say, “I helped build that!”

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Police Work: It’s Not Even Close to Honest Work is a post from Cop Block - Badges Don't Grant Extra Rights

Do you Consent to Be Governed? Myths and Facts

Monday, January 20th, 2014

The text below was authored by Randy Stroud and originally posted to SovereignTactics.org under the title “Do you Consent to Be Governed? Myths and Facts (YOU ARE A SLAVE). 

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by Randy Stroud

Slaves once believed that they too could not survive without the guidance of their owners. The masters convinced them they would starve to death if they tried to leave. When white sympathizers argued that slaves were not needed, proponents of slavery argued, “But who will pick the cotton?”  (Technology solved that problem!)

However, people continue to argue to this day that through the constitution (which we never signed), we all consent to be governed, because we use government sidewalks, we call the police when we are injured, etc…… however, do we really consent?  Do we really have any other alternatives that haven’t been made illegal?

“Consent of the governed” is a phrase from the United States Declaration of Independence. It is synonymous with a political theory wherein a government‘s legitimacy andmoral right to use state power is only justified and legal when derived from the people or society over which that political power is exercised. This theory of “consent” is historically contrasted to the divine right of kings and has often been invoked against the legitimacy of colonialism. Article 21 of the Universal Declaration of Human Rights states that “The will of the people shall be the basis of the authority of government”.  - Cited from Wikipedia

How many times have you heard a judge, police officer, or state supporter tell you things like:

The government get’s it’s power from the people. The government get’s it’s authority through the democratic process delegated to the people. You have committed a crime against the people. You obey these laws, because you have consented to be governed by the people by living on these lands.

What is the one thing these statements have in common? They all operate from a collectivist platform. Statists believe in the “social contract” theory. The idea that through the constitution, through using public roads, and having a birth certificate, you are inherently under the authority of the government. However, these arguments are severely flawed.

Firstly, for a contract to be valid, it must be done under full disclosure, it must contain the signature of the contract creator and the wet signature of the customer who agrees to its terms, nor can a valid contract be created under duress. The birth certificate, nor does the constitution abide by these basic contract rules. And as far as using government services, when the government has claimed eminent domain and has successfully monopolized most of societies essential services, we are left with little choice on whether or not we should use them, if we want to have productive lives. It’s not like private companies are allowed to compete with government provided services. However, even as a man who does not pay income taxes, he will still fund the roads, since the taxes collected on gasoline are apportioned towards infrastructure. Sales taxes, excise taxes, etc…..are unavoidable for the general population, even among so called “illegal immigrants.” Everyone pays taxes, not by choice, but because the mafia (government) forces us into their protection racket scheme either directly or indirectly to some degree or another.

Now, this brings me to address the title of this post. Do we truly consent towards being governed and does the state even exist, or is it merely just a corporate title? The answer is obvious. We are the coerced clients of a monopolized insurance company known as the Government. Many will say, “If you don’t like the government and it’s laws, then leave!”

Martin Luther King Jr. was told this often by police, yet he still chose to fight for his beliefs, and thank god he did!  The fact is, my geographic location does not make me loyal to any state. The “United States, Russia, China, Japan” are just names that have been popularized, but are not factually “real” things.  If they were real things, then we would be able to see them hold them in our hands. But, they are not real, they are just figments of our imagination, while it is compulsory to support these false idols. It truly is a form of slavery. And yes, some of the “slave owners” are nicer than others, but the fact is that all politicians, no matter how well intended, are operating as plantation masters, all funded through the involuntary servitude of the tax-payers.

If you are still an unbeliever towards the message of Voluntaryism, and you falsely believe that pieces of paper have “secured” your rights, then why is the US government so out of control? Pieces of paper cannot protect you from tyranny, only your convictions and your actions.

The next time you are in court for a speeding ticket, quote the Declaration of Independence and say,

“The founders told us that, ‘The government derives its power from the people, and their consent to be governed. They have the right to alter or abolish the government at any time.’ Therefore, Iam informing the courts that I do not consent to these proceedings.”

The judge will simply smirk and say, “That’s fine, but here is the statue that you broke, now pay the fine or else I will have a warrant for your arrest.”

The truth of the matter is, the government has claimed the moral high ground. After getting your parents to contract you into their system, via public education and the birth certificate, after 13 years in public school, reciting the pledge of allegiance thousands of times, by the time you are 18, questioning the validity of the government isn’t even a thought for most people. Mentioning free-market societies, voluntaryism, and the non-aggression principle is looked at as “liberal thoughts,” or “hog wash” when in reality, voluntaryism is the most morally consistent ideology I have ever encountered.

The implication is that, it is morally wrong to initiate force upon someone’s life or the products of their labor, unless that person has initiated violence towards you. Under this circumstance, you have the right to defend yourself.

Through technology, private firms, philosophy, and innovation, government WILL be rendered obsolete. The invention of the printing press allowed the poorest man to have a Bible, which caused mass enlightenment. Suddenly, a man no longer had to get interpretations of the Bible from the priest, he could finally afford to have a mass produced copy for himself, he no longer had to listen to second-hand opinions, he could create his own. And through the advancements of technology and philosophy, the autonomous human is becoming a reality.

Once we accept that government is funded and operated as a coercive mafia, whom has monopolized our most essential services, and has effectively farmed us like domesticated animals, we can finally begin to dissolve certain delusions about our reality  It’s a tough pill to swallow at first, however, once accepted, we can begin to focus on agoristic decentralized institutions to compete with government institutions. Projects like ‘Mountain Hours” and “Cop Block” are great examples of that.

So what do you think? Can “Americans” choose whether or not they consent to be governed, or is it just all a show to give you the illusion that you are free to operate as your proper person?

What is a “law” or “Legislation” 

The government (correctly known as the “mafia”) is nothing more than a puffer fish. A puffer fish is small, tiny, and an easy meal for large predators such as whales or sharks. However,  the puffer fish has a unique natural ability to suck water into its body, expanding its size ten fold in an instant. This act is usually enough to scare off a would-be predator, as would any of us would be. Could you imagine talking to someone who then suddenly grew 25 feet tall?! You would probably run away screaming. But, after the predator runs away, the scary looking puffer fish goes back to it’s tiny, weak form, relieved that the enemy fell for his deception.

The government (mafia) is no different. They are a group of men, making up less than 1% of the population, whom exclaim to the rest of society that they can provide services, protection, equality, and they will even let you get to vote on who gets to be in the “mafia.” Voting is getting to choose who your robber will be. Oh Democracy! Your violence is so obvious.

It all sounds great, until someone says, “Well, what if we don’t want your services?” Then the mafia (government) says, ”If you refuse our offer, we will send our enforcers (whom also make up less than 1% of the population), to kidnap you. We will call it “tax evasion.”

Upon hearing this, the rest of society becomes afraid, and decides to comply………but why? The rest of society far outnumbers the mafia, so why fear them? Why vote for new mafia members every few years? Why ask the mafia to stop wars? What ask them to stop taking your money? Why should the public ask these men for anything, when we as human beings, whom have like minded philosophies can simply do the things we want and we can organize voluntarily. If someone wanted society to have free-health care, then doctors who felt this way could organize and develop such a model, without imposing it on others. If a person wants protection, could he not hire his neighbor to protect his land while he is away? And what of reputations? Even without a mafia, reputations are still important, without a good reputation no one will buy your products and you will become an outcast of society.

The reasoning is simple. The 0.5% (the mafia), has convinced the 99.5% of people that they are “necessary” for their existence to continue. They have convinced the masses that they (the mafia) are more powerful than them. Even if every person in America decided that they no longer wanted to pay taxes, only one in a thousand would actually be willing to not pay and accept the battle that may come with it. The people see no alternative. People have been living this way for so long, their minds cannot imagine anything else. The abuse has become “the norm.” However, people once called the idea of “airplanes”  a “fantasy,” yet the Wright brothers proved society wrong.

We all agree that services and goods should not be offered on compulsory terms. No man would take a salesman seriously whom forced his customers to “buy” at gun point. So why do we give the government (mafia) so much lee-way? Once people can break free, and begin to create competing services, that can match or surpass government services, the people will begin to see the shift, and begin to hear the moral arguments.

Evidence of this has already been showed. UPS, Fed Ex, and E-mail are making government post offices obsolete. 3-D printers are making gun permits and the 2nd amendment “permissions” offered by the state laughable. Public Education is a joke compared to the free-reign we have to information on the Internet. Once the awakening happens, people will begin to realize that the size and strength of government is just an illusion. Once the “ants” figure out that we outnumber the government and without our “taxes,” they are essentially peons whom wouldnt last a minute without us.

Through logic, philosophy, and technology, the mafia WILL be rendered obsolete.

You are In the Matrix, you always have been…………….

(We are being farmed like animals, and we are exploited for our labor.)

The Matrix was a Hollywood filmed released in 1999 by the Wachowski brothers. Known for it’s martial arts choreography and sci-fi backdrop, the movie in and of itself is more of a documentary rather than a form of entertainment. Most people who watched the movie were dazzled by the “bullet time” panoramic camera views, but completely missed the overall point that the movie was trying to make.

We are slaves. We are farmed, groomed, and used as fuel to keep the machine created by the elite running at optimal levels. We are fed, entertained, and lulled into a state of cognitive dissonance and willful ignorance, because life is just easier that way, and the elite know, and we know it, whether or not we want to admit it. We are not free to move, work, speak, or earn a living without someone having us first monitored, licensed, and/or given the proper permissions.

If you watch the above video, pay attention to when Neo first awakes from the “dream-world.” He wakes up in a chamber, where he is hooked up to wires that feed him, feed him propaganda, and images of the matrix. Upon waking up from his coma, he looks around to see millions of others asleep in their chambers, hooked up to machines. He then sees electric currents being emitted from the bodies. He then realizes that human beings have been farmed as “batteries” to keep the machines (matrix) going, and the victims are none the wiser.

In a sense, this can be viewed as taxation. The government alone collected trillions of dollars in taxes. And what happens if you do not pay taxes? You are beaten, threatened, and locked in a cage. And those taxes were used to kill, assassinate, and loot people in third world countries. What happens if you try to build your own road or start your own police agency, or try to compete with the electric company? The mafia comes in and tells you that you aren’t allowed. What if you want to start a business? Well, you must obtain a special license. What if you want to own a gun or start a protest? You must have a special permit for that too. What if you want to collect rain water, sell lemonade, grow certain plants, get married to someone you love……….well you need special permissions from the government to do all of those things too.  What if you decide to not wear your seatbelt? Well, the government will arrest you, extort you of your money, even though there is no immediate victim, and tell you, “we are doing this for your own good because someone “might” get hurt in the future.”

While the government’s little brother is the media. The media will tell you that violence is “cool,” being slutty is the new “classy,” and having a bad attitude makes you “hip.”

In reality, the government in conjunction with the entertainment media outlets literally ARE the matrix. The matrix is just a fancy word for a monopolized, pacified, farmed, and controlled society. And the worst part is that, the very people whom receive this message will try to kill me, taunt me, or call me crazy, because they are so dependent, utterly reliant, comfortable, and in-love with the system, that they will defend it to their last breath, especially those who benefit from it the most (police, politicians, military, investors, welfare recipients, lobbyists etc…).

So, I challenge you all. Watch The Matrix again, and this time, look for the metaphors. Watch it from the perspective of how the government and mainstream entertainment has essentially, contracted, branded, brainwashed, and lulled us into a form of “willful” peonage.

The Declaration of Independence says that government gets their powers from the consent of the governed, yet in reality, we not given the option to opt-out or refused consent. Jefferson himself once said, “If men cannot be trusted to govern themselves, how can they be trusted to govern others?”

It is my hope, that through logic, philosophy, technology and through the supply and demand of the free-market,  that human beings can find peaceful voluntary ways to function in a society free of monopolized coercion that can/will render the government obsolete.

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For more from Randy Stroud see:

For related content see:

 

Do you Consent to Be Governed? Myths and Facts is a post from Cop Block - Badges Don't Grant Extra Rights

Can Federal Legislation Stop Unjust Arrests?

Thursday, January 16th, 2014

The text below was emailed to Cop Block. It was compiled by bewaremouse but drawn from the insight and input of over 20 contributors.

It makes the case that most police employees don’t purposefully aggress upon the rights of others. Rather, when that happens, it’s due to incorrect information they’re told at briefings. Specifically, that the broad interpretation of policies and statute catch-alls cause their default to be – “I’ll just arrest them and let the courts figure it out.”

The text below suggests that the best way to stop such occurrences is to educate those police employees – either through a certified letter or through in-person communication – on federal statutes 18 USC 241, 242 and 245. To put them on notice that if they act outside of the constitution it is they who is in the wrong. It continues by advocating that those targeted with frivolous charges fight them, and file counter-claims, as the implementation of unjust policies/interpretations won’t change until they’re challenged and found to be erroneous.

Whether you agree or disagree with the tactics covered, please share your thoughts below.

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Local police employees are informed of local ordinances and policies that violate federal laws concerning the restrictions of government set forward by the constitution. Thus, authorities overstep the guidelines set out by the constitution in the name of public safety, which is illegal, and could be coined “absurdity of the law.”

An example of absurdity of the law would be a law that states, “Any bloodletting in the streets would be punishable under the law.” Then an arrest is made under this law concerning a doctor performing an emergency procedure on an injured man that requiring an incision thus drawing blood in the street.

By interpreting a poorly worded law or statute the police make a regular practice violating constitutional restraints, as they please. The police are told in briefings of ever-increasing powers allowed by new interpretations, and thus arrest nearly anyone whether they have broken the law or not.

It is not the criminals getting off on technicality, it is the police making frivolous arrests based on them.

To go head to head with police employees only re-enforces the conflict. The police are not robots and find it hard to give up any perceived authority they may have. If an argument ensues – even if you’re correct – they will take take the safe way out and arrest everyone and let the judge sort out the mess.

Even after being found not guilty, the police will continue to take this safe way out until it is no longer accepted by the policies set by the department, or until federal intervention occurs – as finally happened to the stop-and-frisk policies in New York City.

Every arrest made based on illegal policies only makes it more likely others will be arrested under the same circumstances – it’s reinforcing and there’s no deterrent. Posing the same arguments only brings-about the same the results time after time.

The difference can be made by changing the approach. By engaging the police from their own point of view, with ideas they can relate to that is in their own best interest – their family, children and the future they wish to leave to them is a point of view all have in common.

As many police officers will point out there is the hard way and the easy way to do things. The third option is rarely considered and less often explored, which can be used by drawing a line all can see and respect.

At this time it is recomended to look up 18 USC 241, 242, 245 – these federal laws define what a police officer CAN NOT DO, rather then what they can do. Police in general are community minded and care not only for their jobs but care how they effect the community. Key elements of these laws:

18 USC § 241 – Conspiracy against rights
http://www.law.cornell.edu/uscode/text/18/241

If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or if two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured

18 USC § 242 – Deprivation of rights under color of law
http://www.law.cornell.edu/uscode/text/18/242

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives

18 USC § 245 – Federally protected activities
http://www.law.cornell.edu/uscode/text/18/245

(a)
(1) …nor shall anything in this section be construed as depriving State and local law enforcement authorities of responsibility for prosecuting acts that may be violations of this section and that are violations of State and local law…
(2)
(b) Whoever, whether or not acting under color of law, by force or threat of force willfully injures, intimidates or interferes with, or attempts to injure, intimidate or interfere with—
(1) …person or any class of persons from—
(B) affording another person or class of persons opportunity or protection to so participate; or
(5) any citizen because he is or has been, or in order to intimidate such citizen or any other citizen from lawfully aiding or encouraging other persons to participate … or participating lawfully in speech or peaceful assembly opposing any denial of the opportunity to so participate … include the use, attempted use, or threatened use of a dangerous weapon … the term “participating lawfully in speech or peaceful assembly”

This is something not covered in their day by day briefings. They have been trained to forget these little annoying federal laws, and they do not have them in mind when they pull you over or detain you for no apparent reason. When they are reminded of these laws and the fact local ordinances can not violate the root of federal law, they will consider this right away and determine how important it is for them to continue their so called investigation.

Of course if they are investigating something tangible and something to be truly concerned about they will let you know by explaining how important it is rather then skirting the issue or giving nonsense reasons as why they are questioning you. If they are bluffing or truly investigating a crime that you have no clue about, so long as you are not the one they are looking for, then cooperating with the police is not measured by how many rights you choose to give up. Instead ask for an incident report number and explain you will not answer any questions what so ever without a lawyer present.

By asking for the incident report number you can quickly determine if they are simply fishing or if they have had a complaint they are gathering information about. If they claim they don’t have an incident report number yet then you can expect they are fishing and have nothing that a report will be generated from.

If you have a real problem such as pointless intimidation, threats, or arrest and it is well documented, these things must be challenged in court! The only way to change laws is through a judge and a jury. (Jury nullification is a power the jury has over the statutes the state passes into law.) If found guilty appeal. File a counter claim and take the action to a federal level. Police do not wish this to have their actions tested against those federal statutes as they will be forced to abide by that decision. When you file give notice to the jurisdiction this is no longer a venue that has authority and after they simply drop the charges don’t back down and concede as they will just continue to impose the illegal law on someone that is not prepared to fight it, and again re-enforce the statute that would be decided against.

If you plan to be active in a area for any length of time or if you know there are problems already it would be a good idea to print out 18USC 241,242,245 and simply mail them certified letter to the police department and the mayor. This fulfills a major legal requirement. They are now acting knowingly and willfully against federal law.

When police officers stop people for no reason there are many tactics they use to be able to get charges. If asked these questions keep your mind about you – don’t attack or challenge them. (These are examples – using these can create problems, but you are well within your rights.)

“Can I see your ID”

  • Answer: “Am I being detained, do you suspect me of committing a crime?”
  • Officer: “I don’t know if there is a crime or not, that’s why I have to see your ID”
  • Answer: “Well then, there is no crime that would allow you to ask for ID for, giving you my ID wont tell you nothing but my name and address and certainly having a name is not a crime.”
  • Answer: “How is giving you my ID going to tell you if a crime has been committed?”
  • Answer: “Sorry I prefer to use “true ID” but I have been standing here for 10 minutes before you got here and I have seen no crime committed. Have you witnessed a crime?”
  • Answer: “Do you have an incident report number?” “If so I will be happy to give that to my attorney to have the report verified and my attorney can answer any question you may have then. I know of no crime that has been committed and would require a lawyer if you choose to question me concerning anything that may lead to criminal charges.”

“Why are you taking photos of the police officers?”

  • Answer: “Your making news”
  • Answer: “I’m backing you up we need to support our police department as much as possible, against hoodlums, drug dealers and criminal scum. RIGHT?”
  • Answer: “Well I was taking pictures of that over there but what your doing is much more interesting.”
  • Answer: “Your making news here and I can get paid for good footage.”

“You are watching our traffic stop and we don’t know who you are or what your doing.”

  • Answer: “Why would you be concerned with the general public doing what is everyday activities?”
  • Answer: “Have you had this fear of the general public for long?” “Have you spoken to your counselor about your paranoia of the general public?”
  • Answer: “You have nothing to fear about me, but if the general public frightens you so much it does concern me why you are allowed to run around armed and carry a badge.”
  • Answer: “Well I don’t know why you would be worried, have you done something that you are concerned about people finding out about?”
  • Answer: “Well anything your doing would be available with a freedom of information act, and if it is not, then what your doing could be illegal and be documented.”

“Do you have something to hide?”

  • Officer: Your interfering with our traffic stop and we don’t know that you could be a danger to us.”
  • Answer: “That is vary concerning to me, how long have you had this fear of the public and have you spoken to a counselor about this irrational paranoia you seem to have.”
  • Answer: (Call for a supervisor yourself do not request one from the scared officer)
  • Answer: “Well sir the reason I called you is that this officer expressed to me that he is extremely paranoid of the general publc and right now he is carrying a side arm.” “From what he told me it is frightening to think he may hurt someone for no reason.”

“We had an anonymous call that there was suspicious persons or activity”

  • Answer: “Oh then your not looking for a criminal, your looking for a victim, I have not seen anything. Do you need help to find this person?”
  • Answer: “I have been here for about 20 minutes, I havent seen anything suspicious.”
  • Answer: “Suspicious? Of what? What crime do you suspect has happened?”
  • Answer: “Well suspicious is not a crime, what crime do you believe you have witnessed?”

Concerning banners and signs… (If you attach a sign to a fence or fixture then you can be corrected and they will tell you to take it down and be within their authority to do so. However if you have two people holding a sign or banner then they have no authority to do anything at all.)

  • Officer: “You cant be on the overpass with these signs, you must leave.”
  • Answer: “Are you obstructing my rights?”
  • Answer: “This is a public right away, even if it is privite property it is a public thoroughfare and cant be restricted.”
  • Answer: “The city does not have authority to infringe upon my immunity while exercising my rights.”

Police may be doing an investigation and be concerned about the person of interest getting away, which is a valid reason why they may deny any request. However to inflict their problems on you is still illegal and should be taken up elsewhere than internal affairs. There is no judge notified when you make a complaint and any investigation is quickly swept under the table. Don’t bother!

When you choose to, and if you are a die hard with a goal to make a difference, then the next item is for you regardless of the opening question.

If the police officer tells you that it is illegal to take photos of them or 100 other things that just is a lie, you may choose to take it to court allowing the officer to decide the outcome.

Fall silent. Look at them with a straight face. Reach carefully for the papers you no doubt carry with you at all times… hand them to the officer and tell him he is served and any further interference, intimidation, threats, may be considered illegal and he may face federal charges and up to nine years in a federal prison.

Remember they pretend to have authority over you. They don’t – they answer to the public. Pointing this out may not be popular with them but that is what’s wrong with what they have been told at daily briefings. They are told they now can do this and that never looking at what the law really is. Their instructions come from policy makers rather then the city attorney, who is only asked about very specific circumstances.

When you are out there following a lead for a story or if you just so happen across a real happening problem, when you make the choice to film it, you have committed to make a stand against the most frightening element of our society, and it could lead to your arrest. What you do and how you behave will either re-enforce the arrest or make it impossible for a honest cop to move against you. The later is preferred. For an officer to become better informed, and looking forward to what might be if he continues his actions, is the real change we wish to make. The police in general honest, just misinformed of the danger, threat, and purpose of those who appear to stand against them. They can’t be blamed and they can be stopped. The hard way, or the easy way. The easy way would be for them to look at the future they are making possible and choose themselves no longer to except illegal orders or statutes.

By separating those who would be corrupt from those who are not we have a strong government not afraid, with the public support, to challenge the corruption and place the offenders where they belong – IN JAIL!!!

Can Federal Legislation Stop Unjust Arrests? is a post from Cop Block - Badges Don't Grant Extra Rights

The Myth of the Rule of Law by John Hasnas

Wednesday, December 25th, 2013

“The Myth of the Rule of Law” was written by John Hasnas and originally published in 1995 in the Wisconsin Law Review no. 199.

Like the Brainpolice essay of the same name, this write-up is included at http://copblock.org/library because it pulls back the curtain on the largely unquestioned assumption about the “rule of law” as an objective ideal.

_______________________

john-hasnas-copblock

author John Hasnas

by John Hasnas (1)

Stop! Before reading this Article, please take the following quiz.

The First Amendment to the Constitution of the United States provides, in part:

“Congress shall make no law . . . abridging the freedom of speech, or of the press; . . . .” (2)

On the basis of your personal understanding of this sentence’s meaning (not your knowledge of constitutional law), please indicate whether you believe the following sentences to be true or false.

_____ 1) In time of war, a federal statute may be passed prohibiting citizens from revealing military secrets to the enemy.

_____ 2) The President may issue an executive order prohibiting public criticism of his administration.

_____ 3) Congress may pass a law prohibiting museums from exhibiting photographs and paintings depicting homosexual activity.

_____ 4) A federal statute may be passed prohibiting a citizen from falsely shouting “fire” in a crowded theater.

_____ 5) Congress may pass a law prohibiting dancing to rock and roll music.

_____ 6) The Internal Revenue Service may issue a regulation prohibiting the publication of a book explaining how to cheat on your taxes and get away with it.

_____ 7) Congress may pass a statute prohibiting flag burning.

Thank you. You may now read on.

In his novel 1984, George Orwell created a nightmare vision of the future in which an all-powerful Party exerts totalitarian control over society by forcing the citizens to master the technique of “doublethink,” which requires them “to hold simultaneously two opinions which cancel[] out, knowing them to be contradictory and believing in both of them.” (3) Orwell’s doublethink is usually regarded as a wonderful literary device, but, of course, one with no referent in reality since it is obviously impossible to believe both halves of a contradiction. In my opinion, this assessment is quite mistaken. Not only is it possible for people to believe both halves of a contradiction, it is something they do every day with no apparent difficulty.

Consider, for example, people’s beliefs about the legal system. They are obviously aware that the law is inherently political. The common complaint that members of Congress are corrupt, or are legislating for their own political benefit or for that of special interest groups demonstrates that citizens understand that the laws under which they live are a product of political forces rather than the embodiment of the ideal of justice. Further, as evidenced by the political battles fought over the recent nominations of Robert Bork and Clarence Thomas to the Supreme Court, the public obviously believes that the ideology of the people who serve as judges influences the way the law is interpreted.

This, however, in no way prevents people from simultaneously regarding the law as a body of definite, politically neutral rules amenable to an impartial application which all citizens have a moral obligation to obey. Thus, they seem both surprised and dismayed to learn that the Clean Air Act might have been written, not to produce the cleanest air possible, but to favor the economic interests of the miners of dirty-burning West Virginia coal (West Virginia coincidentally being the home of Robert Byrd, who was then chairman of the Senate Appropriations Committee) over those of the miners of cleaner-burning western coal. (4) And, when the Supreme Court hands down a controversial ruling on a subject such as abortion, civil rights, or capital punishment, then, like Louis in Casablanca, the public is shocked, shocked to find that the Court may have let political considerations influence its decision. The frequent condemnation of the judiciary for “undemocratic judicial activism” or “unprincipled social engineering” is merely a reflection of the public’s belief that the law consists of a set of definite and consistent “neutral principles” (5) which the judge is obligated to apply in an objective manner, free from the influence of his or her personal political and moral beliefs.

I believe that, much as Orwell suggested, it is the public’s ability to engage in this type of doublethink, to be aware that the law is inherently political in character and yet believe it to be an objective embodiment of justice, that accounts for the amazing degree to which the federal government is able to exert its control over a supposedly free people. I would argue that this ability to maintain the belief that the law is a body of consistent, politically neutral rules that can be objectively applied by judges in the face of overwhelming evidence to the contrary, goes a long way toward explaining citizens’ acquiescence in the steady erosion of their fundamental freedoms. To show that this is, in fact, the case, I would like to direct your attention to the fiction which resides at the heart of this incongruity and allows the public to engage in the requisite doublethink without cognitive discomfort: the myth of the rule of law.

I refer to the myth of the rule of law because, to the extent this phrase suggests a society in which all are governed by neutral rules that are objectively applied by judges, there is no such thing. As a myth, however, the concept of the rule of law is both powerful and dangerous. Its power derives from its great emotive appeal. The rule of law suggests an absence of arbitrariness, an absence of the worst abuses of tyranny. The image presented by the slogan “America is a government of laws and not people” is one of fair and impartial rule rather than subjugation to human whim. This is an image that can command both the allegiance and affection of the citizenry. After all, who wouldn’t be in favor of the rule of law if the only alternative were arbitrary rule? But this image is also the source of the myth’s danger. For if citizens really believe that they are being governed by fair and impartial rules and that the only alternative is subjection to personal rule, they will be much more likely to support the state as it progressively curtails their freedom.

In this Article, I will argue that this is a false dichotomy. Specifically, I intend to establish three points: 1) there is no such thing as a government of law and not people, 2) the belief that there is serves to maintain public support for society’s power structure, and 3) the establishment of a truly free society requires the abandonment of the myth of the rule of law.

II.

Imagine the following scene. A first-year contracts course is being taught at the prestigious Harvard Law School. The professor is a distinguished scholar with a national reputation as one of the leading experts on Anglo-American contract law. Let’s call him Professor Kingsfield. He instructs his class to research the following hypothetical for the next day.

A woman living in a rural setting becomes ill and calls her family physician, who is also the only local doctor, for help. However, it is Wednesday, the doctor’s day off and because she has a golf date, she does not respond. The woman’s condition worsens and because no other physician can be procured in time, she dies. Her estate then sues the doctor for not coming to her aid. Is the doctor liable?

Two of the students, Arnie Becker and Ann Kelsey, resolve to make a good impression on Kingsfield should they be called on to discuss the case. Arnie is a somewhat conservative, considerably egocentric individual. He believes that doctors are human beings, who like anyone else, are entitled to a day off, and that it would be unfair to require them to be at the beck and call of their patients. For this reason, his initial impression of the solution to the hypothetical is that the doctor should not be liable. Through his research, he discovers the case of Hurley v. Eddingfield, (6) which establishes the rule that in the absence of an explicit contract, i.e., when there has been no actual meeting of the minds, there can be no liability. In the hypothetical, there was clearly no meeting of the minds. Therefore, Arnie concludes that his initial impression was correct and that the doctor is not legally liable. Since he has found a valid rule of law which clearly applies to the facts of the case, he is confident that he is prepared for tomorrow’s class.

Ann Kelsey is politically liberal and considers herself to be a caring individual. She believes that when doctors take the Hippocratic oath, they accept a special obligation to care for the sick, and that it would be wrong and set a terrible example for doctors to ignore the needs of regular patients who depend on them. For this reason, her initial impression of the solution to the hypothetical is that the doctor should be liable. Through her research, she discovers the case of Cotnam v. Wisdom, (7) which establishes the rule that in the absence of an explicit contract, the law will imply a contractual relationship where such is necessary to avoid injustice. She believes that under the facts of the hypothetical, the failure to imply a contractual relationship would be obviously unjust. Therefore, she concludes that her initial impression was correct and that the doctor is legally liable. Since she has found a valid rule of law which clearly applies to the facts of the case, she is confident that she is prepared for tomorrow’s class.

The following day, Arnie is called upon and presents his analysis. Ann, who knows she has found a sound legal argument for exactly the opposite outcome, concludes that Arnie is a typical privileged white male conservative with no sense of compassion, who has obviously missed the point of the hypothetical. She volunteers, and when called upon by Kingsfield criticizes Arnie’s analysis of the case and presents her own. Arnie, who knows he has found a sound legal argument for his position, concludes that Ann is a typical female bleeding-heart liberal, whose emotionalism has caused her to miss the point of the hypothetical. Each expects Kingsfield to confirm his or her analysis and dismiss the other’s as the misguided bit of illogic it so obviously is. Much to their chagrin, however, when a third student asks, “But who is right, Professor?,” Kingsfield gruffly responds, “When you turn that mush between your ears into something useful and begin to think like a lawyer, you will be able to answer that question for yourself” and moves on to another subject.

What Professor Kingsfield knows but will never reveal to the students is that both Arnie’s and Ann’s analyses are correct. How can this be?

III.

What Professor Kingsfield knows is that the legal world is not like the real world and the type of reasoning appropriate to it is distinct from that which human beings ordinarily employ. In the real world, people usually attempt to solve problems by forming hypotheses and then testing them against the facts as they know them. When the facts confirm the hypotheses, they are accepted as true, although subject to reevaluation as new evidence is discovered. This is a successful method of reasoning about scientific and other empirical matters because the physical world has a definite, unique structure. It works because the laws of nature are consistent. In the real world, it is entirely appropriate to assume that once you have confirmed your hypothesis, all other hypotheses inconsistent with it are incorrect.

In the legal world, however, this assumption does not hold. This is because unlike the laws of nature, political laws are not consistent. The law human beings create to regulate their conduct is made up of incompatible, contradictory rules and principles; and, as anyone who has studied a little logic can demonstrate, any conclusion can be validly derived from a set of contradictory premises. This means that a logically sound argument can be found for any legal conclusion.

When human beings engage in legal reasoning, they usually proceed in the same manner as they do when engaged in empirical reasoning. They begin with a hypothesis as to how a case should be decided and test it by searching for a sound supporting argument. After all, no one can “reason” directly to an unimagined conclusion. Without some end in view, there is no way of knowing what premises to employ or what direction the argument should take. When a sound argument is found, then, as in the case of empirical reasoning, one naturally concludes that one’s legal hypothesis has been shown to be correct, and further, that all competing hypotheses are therefore incorrect.

This is the fallacy of legal reasoning. Because the legal world is comprised of contradictory rules, there will be sound legal arguments available not only for the hypothesis one is investigating, but for other, competing hypotheses as well. The assumption that there is a unique, correct resolution, which serves so well in empirical investigations, leads one astray when dealing with legal matters. Kingsfield, who is well aware of this, knows that Arnie and Ann have both produced legitimate legal arguments for their competing conclusions. He does not reveal this knowledge to the class, however, because the fact that this is possible is precisely what his students must discover for themselves if they are ever to learn to “think like a lawyer.”

IV.

Imagine that Arnie and Ann have completed their first year at Harvard and coincidentally find themselves in the same second-year class on employment discrimination law. During the portion of the course that focuses on Title VII of the Civil Rights Act of 1964, (8) the class is asked to determine whether § 2000e-2(a)(1), which makes it unlawful “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin,” permits an employer to voluntarily institute an affirmative action program giving preferential treatment to African-Americans. Perhaps unsurprisingly, Arnie strongly believes that affirmative action programs are morally wrong and that what the country needs are color-blind, merit-based employment practices. In researching the problem, he encounters the following principle of statutory construction: When the words are plain, courts may not enter speculative fields in search of a different meaning, and the language must be regarded as the final expression of legislative intent and not added to or subtracted from on the basis of any extraneous source. (9) In Arnie’s opinion, this principle clearly applies to this case. Section 2000e-2(a)(1) prohibits discrimination against any individual because of his race. What wording could be more plain? Since giving preferential treatment to African-Americans discriminates against whites because of their race, Arnie concludes that § 2000e-2(a)(1) prohibits employers from voluntarily instituting affirmative action plans.

Perhaps equally unsurprisingly, Ann has a strong belief that affirmative action is moral and is absolutely necessary to bring about a racially just society. In the course of her research, she encounters the following principle of statutory construction: “It is a familiar rule, that a thing may be within the letter of [a] statute and yet not within the statute because not within its spirit, nor within the intention of its makers”‘; (10) and that an interpretation which would bring about an end at variance with the purpose of the statute must be rejected. (11) Upon checking the legislative history, Ann learns that the purpose of Title VII of the Civil Rights Act is to relieve “the plight of the Negro in our economy” and “open employment opportunities for Negroes in occupations which have been traditionally closed to them.” (12) Since it would obviously contradict this purpose to interpret § 2000e-2 to make it illegal for employers to voluntarily institute affirmative action plans designed to economically benefit African-Americans by opening traditionally closed employment opportunities, Ann concludes that § 2000e-2 does not prohibit such plans.

The next day, Arnie presents his argument for the illegality of affirmative action in class. Since Ann has found a sound legal argument for precisely the opposite conclusion, she knows that Arnie’s position is untenable. However, having gotten to know Arnie over the last year, this does not surprise her in the least. She regards him as an inveterate reactionary who is completely unprincipled in pursuit of his conservative (and probably racist) agenda. She believes that he is advancing an absurdly narrow reading of the Civil Rights Act for the purely political end of undermining the purpose of the statute. Accordingly, she volunteers, and when called upon, makes this point and presents her own argument demonstrating that affirmative action is legal. Arnie, who has found a sound legal argument for his conclusion, knows that Ann’s position is untenable. However, he expected as much. Over the past year he has come to know Ann as a knee-jerk liberal who is willing to do anything to advance her mushy-headed, left-wing agenda. He believes that she is perversely manipulating the patently clear language of the statute for the purely political end of extending the statute beyond its legitimate purpose.

Both Arnie and Ann know that they have found a logically sound argument for their conclusion. But both have also committed the fallacy of legal reasoning by assuming that under the law there is a uniquely correct resolution of the case. Because of this assumption, both believe that their argument demonstrates that they have found the objectively correct answer, and that therefore, the other is simply playing politics with the law.

The truth is, of course, that both are engaging in politics. Because the law is made up of contradictory rules that can generate any conclusion, what conclusion one finds will be determined by what conclusion one looks for, i.e., by the hypothesis one decides to test. This will invariably be the one that intuitively “feels” right, the one that is most congruent with one’s antecedent, underlying political and moral beliefs. Thus, legal conclusions are always determined by the normative assumptions of the decisionmaker. The knowledge that Kingsfield possesses and Arnie and Ann have not yet discovered is that the law is never neutral and objective.

V.

I have suggested that because the law consists of contradictory rules and principles, sound legal arguments will be available for all legal conclusions, and hence, the normative predispositions of the decisionmakers, rather than the law itself, determine the outcome of cases. It should be noted, however, that this vastly understates the degree to which the law is indeterminate. For even if the law were consistent, the individual rules and principles are expressed in such vague and general language that the decisionmaker is able to interpret them as broadly or as narrowly as necessary to achieve any desired result.

To see that this is the case, imagine that Arnie and Ann have graduated from Harvard Law School, gone on to distinguished careers as attorneys, and later in life find, to their amazement and despair, that they have both been appointed as judges to the same appellate court. The first case to come before them involves the following facts:

A bankrupt was auctioning off his personal possessions to raise money to cover his debts. One of the items put up for auction was a painting that had been in his family for years. A buyer attending the auction purchased the painting for a bid of $100. When the buyer had the painting appraised, it turned out to be a lost masterpiece worth millions. Upon learning of this, the seller sued to rescind the contract of sale. The trial court granted the rescission. The question on appeal is whether this judgment is legally correct.

Counsel for both the plaintiff seller and defendant buyer agree that the rule of law governing this case holds that a contract of sale may be rescinded when there has been a mutual mistake concerning a fact that was material to the agreement. The seller claims that in the instant case there has been such a mistake, citing as precedent the case of Sherwood v. Walker. (13) In Sherwood, one farmer sold another farmer a cow which both farmers believed to be sterile. When the cow turned out to be fertile, the seller was granted rescission of the contract of sale on the ground of mutual mistake. (14) The seller argues that Sherwood is exactly analogous to the present controversy. Both he and the buyer believed the contract of sale was for an inexpensive painting. Thus, both were mistaken as to the true nature of the object being sold. Since this was obviously material to the agreement, the seller claims that the trial court was correct in granting rescission.

The buyer claims that the instant case is not one of mutual mistake, citing as precedent the case of Wood v. Boynton. (15) In Wood, a woman sold a small stone she had found to a jeweler for one dollar. At the time of the sale, neither party knew what type of stone it was. When it subsequently turned out to be an uncut diamond worth $700, the seller sued for rescission claiming mutual mistake. The court upheld the contract, finding that since both parties knew that they were bargaining over a stone of unknown value, there was no mistake. (16) The buyer argues that this is exactly analogous to the present controversy. Both the seller and the buyer knew that the painting being sold was a work of unknown value. This is precisely what is to be expected at an auction. Thus, the buyer claims that this is not a case of mutual mistake and the contract should be upheld.

Following oral argument, Arnie, Ann, and the third judge on the court, Bennie Stolwitz, a non-lawyer appointed to the bench predominantly because the governor is his uncle, retire to consider their ruling. Arnie believes that one of the essential purposes of contract law is to encourage people to be self-reliant and careful in their transactions, since with the freedom to enter into binding arrangements comes the responsibility for doing so. He regards as crucial to his decision the facts that the seller had the opportunity to have the painting appraised and that by exercising due care he could have discovered its true value. Hence, he regards the contract in this case as one for a painting of unknown value and votes to overturn the trial court and uphold the contract. On the other hand, Ann believes that the essential purpose of contract law is to ensure that all parties receive a fair bargain. She regards as crucial to her decision the fact that the buyer in this case is receiving a massive windfall at the expense of the unfortunate seller. Hence, she regards the contract as one for an inexpensive painting and votes to uphold the trial court’s decision and grant rescission. This leaves the deciding vote up to Bennie, who has no idea what the purpose of contract law is, but thinks that it just doesn’t seem right for the bankrupt guy to lose out, and votes for rescission.

Both Arnie and Ann can see that the present situation bodes ill for their judicial tenure. Each believes that the other’s unprincipled political manipulations of the law will leave Bennie, who is not even a lawyer, with control of the court. As a result, they hold a meeting to discuss the situation. At this meeting, they both promise to put politics aside and decide all future cases strictly on the basis of the law. Relieved, they return to court to confront the next case on the docket, which involves the following facts:

A philosophy professor who supplements her academic salary during the summer by giving lectures on political philosophy had contracted to deliver a lecture on the rule of law to the Future Republicans of America (FRA) on July 20, for $500. She was subsequently contacted by the Young Socialists of America, who offered her $1000 for a lecture to be delivered on the same day. She thereupon called the FRA, informing them of her desire to accept the better offer. The FRA then agreed to pay $1000 for her lecture. After the professor delivered the lecture, the FRA paid only the originally stipulated $500. The professor sued and the trial court ruled she was entitled to the additional $500. The question on appeal is whether this judgment is legally correct.

Counsel for both the plaintiff professor and defendant FRA agree that the rule of law governing this case holds that a promise to pay more for services one is already contractually bound to perform is not enforceable, but if an existing contract is rescinded by both parties and a new one is negotiated, the promise is enforceable. The FRA claims that in the instant case, it had promised to pay more for a service the professor was already contractually bound to perform, citing Davis & Co. v. Morgan (17) as precedent. In Davis, a laborer employed for a year at $40 per month was offered $65 per month by another company. The employer then promised to pay the employee an additional $120 at the end of the year if he stayed with the firm. At the end of the year, the employer failed to pay the $120, and when the employee sued, the court held that because he was already obligated to work for $40 per month for the year, there was no consideration for the employer’s promise; hence, it was unenforceable. (18) The FRA argues that this is exactly analogous to the present controversy. The professor was already obligated to deliver the lecture for $500. Therefore, there was no consideration for the FRA’s promise to pay an additional $500 and the promise is unenforceable.

The professor claims that in the instant case, the original contract was rescinded and a new one negotiated, citing Schwartzreich v. Bauman-Basch, Inc. (19) as precedent. In Schwartzreich, a clothing designer who had contracted for a year’s work at $90 per week was subsequently offered $115 per week by another company. When the designer informed his employer of his intention to leave, the employer offered the designer $100 per week if he would stay and the designer agreed. When the designer sued for the additional compensation, the court held that since the parties had simultaneously rescinded the original contract by mutual consent and entered into a new one for the higher salary, the promise to pay was enforceable. (20) The professor argues that this is exactly analogous to the present controversy. When the FRA offered to pay her an additional $500 to give the lecture, they were obviously offering to rescind the former contract and enter a new one on different terms. Hence, the promise to pay the extra $500 is enforceable.

Following oral argument, the judges retire to consider their ruling. Arnie, mindful of his agreement with Ann, is scrupulously careful not to let political considerations enter into his analysis of the case. Thus, he begins by asking himself why society needs contract law in the first place. He decides that the objective, nonpolitical answer is obviously that society needs some mechanism to ensure that individuals honor their voluntarily undertaken commitments. From this perspective, the resolution of the present case is clear. Since the professor is obviously threatening to go back on her voluntarily undertaken commitment in order to extort more money from the FRA, Arnie characterizes the case as one in which a promise has been made to pay more for services which the professor is already contractually bound to perform, and decides that the promise is unenforceable. Hence, he votes to overturn the trial court’s decision. Ann, also mindful of her agreement with Arnie, is meticulous in her efforts to ensure that she decides this case purely on the law. Accordingly, she begins her analysis by asking herself why society needs contract law in the first place. She decides that the objective, nonpolitical answer is obviously that it provides an environment within which people can exercise the freedom to arrange their lives as they see fit. From this perspective, the resolution of the present case is clear. Since the FRA is essentially attempting to prevent the professor from arranging her life as she sees fit, Ann characterizes the case as one in which the parties have simultaneously rescinded an existing contract and negotiated a new one, and decides that the promise is enforceable. Hence, she votes to uphold the trial court’s decision. This once again leaves the deciding vote up to Bennie, who has no idea why society needs contract law, but thinks that the professor is taking advantage of the situation in an unfair way and votes to overturn the trial court’s ruling.

Both Arnie and Ann now believe that the other is an incorrigible ideologue who is destined to torment him or her throughout his or her judicial existence. Each is quite unhappy at the prospect. Each blames the other for his or her unhappiness. But, in fact, the blame lies within each. For they have never learned Professor Kingsfield’s lesson that it is impossible to reach an objective decision based solely on the law. This is because the law is always open to interpretation and there is no such thing as a normatively neutral interpretation. The way one interprets the rules of law is always determined by one’s underlying moral and political beliefs.

VI.

I have been arguing that the law is not a body of determinate rules that can be objectively and impersonally applied by judges; that what the law prescribes is necessarily determined by the normative predispositions of the one who is interpreting it. In short, I have been arguing that law is inherently political. If you, my reader, are like most people, you are far from convinced of this. In fact, I dare say I can read your thoughts. You are thinking that even if I have shown that the present legal system is somewhat indeterminate, I certainly have not shown that the law is inherently political. Although you may agree that the law as presently constituted is too vague or contains too many contradictions, you probably believe that this state of affairs is due to the actions of the liberal judicial activists, or the Reaganite adherents of the doctrine of original intent, or the self-serving politicians, or the _______________________________________ (feel free to fill in your favorite candidate for the group that is responsible for the legal system’s ills). However, you do not believe that the law must be this way, that it can never be definite and politically neutral. You believe that the law can be reformed; that to bring about an end to political strife and institute a true rule of law, we merely need to create a legal system comprised of consistent rules that are expressed in clear, definite language.

It is my sad duty to inform you that this cannot be done. Even with all the good will in the world, we could not produce such a legal code because there is simply no such thing as uninterpretable language. Now I could attempt to convince you of this by the conventional method of regaling you with myriad examples of the manipulation of legal language (e.g., an account of how the relatively straightforward language of the Commerce Clause giving Congress the power to “regulate Commerce . . . among the several States” (21) has been interpreted to permit the regulation of both farmers growing wheat for use on their own farms (22) and the nature of male-female relationships in all private businesses that employ more than fifteen persons (23)). However, I prefer to try a more direct approach. Accordingly, let me direct your attention to the quiz you completed at the beginning of this Article. Please consider your responses.

If your response to question one was “True,” you chose to interpret the word “no” as used in the First Amendment to mean “some.”

If your response to question two was “False,” you chose to interpret the word “Congress” to refer to the President of the United States and the word “law” to refer to an executive order.

If your response to question three was “False,” you chose to interpret the words “speech” and “press” to refer to the exhibition of photographs and paintings.

If your response to question four was “True,” you have underscored your belief that the word “no” really means “some.”

If your response to question five was “False,” you chose to interpret the words “speech” and “press” to refer to dancing to rock and roll music.

If your response to question six was “False,” you chose to interpret the word “Congress” to refer to the Internal Revenue Service and the word “law” to refer to an IRS regulation.

If your response to question seven was “False,” you chose to interpret the words “speech” and “press” to refer to the act of burning a flag.

Unless your responses were: 1) False, 2) True, 3) True, 4) False, 5) True, 6) True, and 7) True, you chose to interpret at least one of the words “Congress,” “no,” “law,” “speech,” and “press” in what can only be described as something other than its ordinary sense. Why did you do this? Were your responses based on the “plain meaning” of the words or on certain normative beliefs you hold about the extent to which the federal government should be allowed to interfere with citizens’ expressive activities? Were your responses objective and neutral or were they influenced by your “politics”?

I chose this portion of the First Amendment for my example because it contains the clearest, most definite legal language of which I am aware. If a provision as clearly drafted as this may be subjected to political interpretation, what legal provision may not be? But this explains why the legal system cannot be reformed to consist of a body of definite rules yielding unique, objectively verifiable resolutions of cases. What a legal rule means is always determined by the political assumptions of the person applying it. (24)

VII.

Let us assume that I have failed to convince you of the impossibility of reforming the law into a body of definite, consistent rules that produces determinate results. Even if the law could be reformed in this way, it clearly should not be. There is nothing perverse in the fact that the law is indeterminate. Society is not the victim of some nefarious conspiracy to undermine legal certainty to further ulterior motives. As long as law remains a state monopoly, as long as it is created and enforced exclusively through governmental bodies, it must remain indeterminate if it is to serve its purpose. Its indeterminacy gives the law its flexibility. And since, as a monopoly product, the law must apply to all members of society in a one-size-fits-all manner, flexibility is its most essential feature.

It is certainly true that one of the purposes of law is to ensure a stable social environment, to provide order. But not just any order will suffice. Another purpose of the law must be to do justice. The goal of the law is to provide a social environment which is both orderly and just. Unfortunately, these two purposes are always in tension. For the more definite and rigidly- determined the rules of law become, the less the legal system is able to do justice to the individual. Thus, if the law were fully determinate, it would have no ability to consider the equities of the particular case. This is why even if we could reform the law to make it wholly definite and consistent, we should not.

Consider one of the favorite proposals of those who disagree. Those who believe that the law can and should be rendered fully determinate usually propose that contracts be rigorously enforced. Thus, they advocate a rule of law stating that in the absence of physical compulsion or explicit fraud, parties should be absolutely bound to keep their agreements. They believe that as long as no rules inconsistent with this definite, clearly-drawn provision are allowed to enter the law, politics may be eliminated from contract law and commercial transactions greatly facilitated.

Let us assume, contrary to fact, that the terms “fraud” and “physical compulsion” have a plain meaning not subject to interpretation. The question then becomes what should be done about Agnes Syester. (25) Agnes was “a lonely and elderly widow who fell for the blandishments and flattery of those who” ran an Arthur Murray Dance Studio in DesMoines, Iowa. (26) This studio used some highly innovative sales techniques to sell this 68-year-old woman 4,057 hours of dance instruction, including three life memberships and a course in Gold Star dancing, which was “the type of dancing done by Ginger Rogers and Fred Astair only about twice as difficult,” (27) for a total cost of $33,497 in 1960 dollars. Of course, Agnes did voluntarily agree to purchase that number of hours. Now, in a case such as this, one might be tempted to “interpret” the overreaching and unfair sales practices of the studio as fraudulent (28) and allow Agnes to recover her money. However, this is precisely the sort of solution that our reformed, determinate contract law is designed to outlaw. Therefore, it would seem that since Agnes has voluntarily contracted for the dance lessons, she is liable to pay the full amount for them. This might seem to be a harsh result for Agnes, but from now on, vulnerable little old ladies will be on notice to be more careful in their dealings.

Or consider a proposal that is often advanced by those who wish to render probate law more determinate. They advocate a rule of law declaring a handwritten will that is signed before two witnesses to be absolutely binding. They believe that by depriving the court of the ability to “interpret” the state of mind of the testator, the judges’ personal moral opinions may be eliminated from the law and most probate matters brought to a timely conclusion. Of course, the problem then becomes what to do with Elmer Palmer, a young man who murdered his grandfather to gain the inheritance due him under the old man’s will a bit earlier than might otherwise have been the case. (29) In a case such as this, one might be tempted to deny Elmer the fruits of his nefarious labor despite the fact that the will was validly drawn, by appealing to the legal principle that no one should profit from his or her own wrong. (30) However, this is precisely the sort of vaguely-expressed counter-rule that our reformers seek to purge from the legal system in order to ensure that the law remains consistent. Therefore, it would seem that although Elmer may spend a considerable amount of time behind bars, he will do so as a wealthy man. This may send a bad message to other young men of Elmer’s temperament, but from now on the probate process will be considerably streamlined.

The proposed reforms certainly render the law more determinate. However, they do so by eliminating the law’s ability to consider the equities of the individual case. This observation raises the following interesting question: If this is what a determinate legal system is like, who would want to live under one? The fact is that the greater the degree of certainty we build into the law, the less able the law becomes to do justice. For this reason, a monopolistic legal system composed entirely of clear, consistent rules could not function in a manner acceptable to the general public. It could not serve as a system of justice.

VIII.

I have been arguing that the law is inherently indeterminate, and further, that this may not be such a bad thing. I realize, however, that you may still not be convinced. Even if you are now willing to admit that the law is somewhat indeterminate, you probably believe that I have vastly exaggerated the degree to which this is true. After all, it is obvious that the law cannot be radically indeterminate. If this were the case, the law would be completely unpredictable. Judges hearing similar cases would render wildly divergent decisions. There would be no stability or uniformity in the law. But, as imperfect as the current legal system may be, this is clearly not the case.

The observation that the legal system is highly stable is, of course, correct, but it is a mistake to believe that this is because the law is determinate. The stability of the law derives not from any feature of the law itself, but from the overwhelming uniformity of ideological background among those empowered to make legal decisions. Consider who the judges are in this country. Typically, they are people from a solid middle- to upper-class background who performed well at an appropriately prestigious undergraduate institution; demonstrated the ability to engage in the type of analytical reasoning that is measured by the standardized Law School Admissions Test; passed through the crucible of law school, complete with its methodological and political indoctrination; and went on to high-profile careers as attorneys, probably with a prestigious Wall Street-style law firm. To have been appointed to the bench, it is virtually certain that they were both politically moderate and well-connected, and, until recently, white males of the correct ethnic and religious pedigree. It should be clear that, culturally speaking, such a group will tend to be quite homogeneous, sharing a great many moral, spiritual, and political beliefs and values. Given this, it can hardly be surprising that there will be a high degree of agreement among judges as to how cases ought to be decided. But this agreement is due to the common set of normative presuppositions the judges share, not some immanent, objective meaning that exists within the rules of law.

In fact, however, the law is not truly stable, since it is continually, if slowly, evolving in response to changing social mores and conditions. This evolution occurs because each new generation of judges brings with it its own set of “progressive” normative assumptions. As the older generation passes from the scene, these assumptions come to be shared by an ever-increasing percentage of the judiciary. Eventually, they become the consensus of opinion among judicial decisionmakers, and the law changes to reflect them. Thus, a generation of judges that regarded “separate but equal” as a perfectly legitimate interpretation of the Equal Protection Clause of the Fourteenth Amendment (31) gave way to one which interpreted that clause as prohibiting virtually all governmental actions that classify individuals by race, which, in turn, gave way to one which interpreted the same language to permit “benign” racial classifications designed to advance the social status of minority groups. In this way, as the moral and political values conventionally accepted by society change over time, so too do those embedded in the law.

The law appears to be stable because of the slowness with which it evolves. But the slow pace of legal development is not due to any inherent characteristic of the law itself. Logically speaking, any conclusion, however radical, is derivable from the rules of law. It is simply that, even between generations, the range of ideological opinion represented on the bench is so narrow that anything more than incremental departures from conventional wisdom and morality will not be respected within the profession. Such decisions are virtually certain to be overturned on appeal, and thus, are rarely even rendered in the first instance.

Confirming evidence for this thesis can be found in our contemporary judicial history. Over the past quarter-century, the “diversity” movement has produced a bar, and concomitantly a bench, somewhat more open to people of different racial, sexual, ethnic, and socio-economic backgrounds. To some extent, this movement has produced a judiciary that represents a broader range of ideological viewpoints than has been the case in the past. Over the same time period, we have seen an accelerated rate of legal change. Today, long-standing precedents are more freely overruled, novel theories of liability are more frequently accepted by the courts, and different courts hand down different, and seemingly irreconcilable, decisions more often. In addition, it is worth noting that recently, the chief complaint about the legal system seems to concern the degree to which it has become “politicized.” This suggests that as the ideological solidarity of the judiciary breaks down, so too does the predictability of legal decisionmaking, and hence, the stability of the law. Regardless of this trend, I hope it is now apparent that to assume that the law is stable because it is determinate is to reverse cause and effect. Rather, it is because the law is basically stable that it appears to be determinate. It is not rule of law that gives us a stable legal system; it is the stability of the culturally shared values of the judiciary that gives rise to and supports the myth of the rule of law.

IX.

It is worth noting that there is nothing new or startling about the claim that the law is indeterminate. This has been the hallmark of the Critical Legal Studies movement since the mid-1970s. The “Crits,” however, were merely reviving the earlier contention of the legal realists who made the same point in the 1920s and 30s. And the realists were themselves merely repeating the claim of earlier jurisprudential thinkers. For example, as early as 1897, Oliver Wendell Holmes had pointed out:

The language of judicial decision is mainly the language of logic. And the logical method and form flatter that longing for certainty and for repose which is in every human mind. But certainty generally is illusion, and repose is not the destiny of man. Behind the logical form lies a judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment, it is true, and yet the very root and nerve of the whole proceeding. You can give any conclusion a logical form. (32)

This raises an interesting question. If it has been known for 100 years that the law does not consist of a body of determinate rules, why is the belief that it does still so widespread? If four generations of jurisprudential scholars have shown that the rule of law is a myth, why does the concept still command such fervent commitment? The answer is implicit in the question itself, for the question recognizes that the rule of law is a myth and like all myths, it is designed to serve an emotive, rather than cognitive, function. The purpose of a myth is not to persuade one’s reason, but to enlist one’s emotions in support of an idea. And this is precisely the case for the myth of the rule of law; its purpose is to enlist the emotions of the public in support of society’s political power structure.

People are more willing to support the exercise of authority over themselves when they believe it to be an objective, neutral feature of the natural world. This was the idea behind the concept of the divine right of kings. By making the king appear to be an integral part of God’s plan for the world rather than an ordinary human being dominating his fellows by brute force, the public could be more easily persuaded to bow to his authority. However, when the doctrine of divine right became discredited, a replacement was needed to ensure that the public did not view political authority as merely the exercise of naked power. That replacement is the concept of the rule of law.

People who believe they live under “a government of laws and not people” tend to view their nation’s legal system as objective and impartial. They tend to see the rules under which they must live not as expressions of human will, but as embodiments of neutral principles of justice, i.e., as natural features of the social world. Once they believe that they are being commanded by an impersonal law rather than other human beings, they view their obedience to political authority as a public-spirited acceptance of the requirements of social life rather than mere acquiescence to superior power. In this way, the concept of the rule of law functions much like the use of the passive voice by the politician who describes a delict on his or her part with the assertion “mistakes were made.” It allows people to hide the agency of power behind a facade of words; to believe that it is the law which compels their compliance, not self-aggrandizing politicians, or highly capitalized special interests, or wealthy white Anglo-Saxon Protestant males, or _______________ (fill in your favorite culprit).

But the myth of the rule of law does more than render the people submissive to state authority; it also turns them into the state’s accomplices in the exercise of its power. For people who would ordinarily consider it a great evil to deprive individuals of their rights or oppress politically powerless minority groups will respond with patriotic fervor when these same actions are described as upholding the rule of law.

Consider the situation in India toward the end of British colonial rule. At that time, the followers of Mohandas Gandhi engaged in nonviolent civil disobedience by manufacturing salt for their own use in contravention of the British monopoly on such manufacture. The British administration and army responded with mass imprisonments and shocking brutality. It is difficult to understand this behavior on the part of the highly moralistic, ever-so-civilized British unless one keeps in mind that they were able to view their activities not as violently repressing the indigenous population, but as upholding the rule of law.

The same is true of the violence directed against the nonviolent civil rights protestors in the American South during the civil rights movement. Although much of the white population of the southern states held racist beliefs, one cannot account for the overwhelming support given to the violent repression of these protests on the assumption that the vast majority of the white Southerners were sadistic racists devoid of moral sensibilities. The true explanation is that most of these people were able to view themselves not as perpetuating racial oppression and injustice, but as upholding the rule of law against criminals and outside agitators. Similarly, since despite the . 60s rhetoric, all police officers are not “fascist pigs,” some other explanation is needed for their willingness to participate in the “police riot” at the 1968 Democratic convention, or the campaign of illegal arrests and civil rights violations against those demonstrating in Washington against President Nixon’s policies in Vietnam, or the effort to infiltrate and destroy the sanctuary movement that sheltered refugees from Salvadorian death squads during the Reagan era or, for that matter, the attack on and destruction of the Branch Davidian compound in Waco. It is only when these officers have fully bought into the myth that “we are a government of laws and not people,” when they truly believe that their actions are commanded by some impersonal body of just rules, that they can fail to see that they are the agency used by those in power to oppress others.

The reason why the myth of the rule of law has survived for 100 years despite the knowledge of its falsity is that it is too valuable a tool to relinquish. The myth of impersonal government is simply the most effective means of social control available to the state.

X.

During the past two decades, the legal scholars identified with the Critical Legal Studies movement have gained a great deal of notoriety for their unrelenting attacks on traditional, “liberal” legal theory. The modus operandi of these scholars has been to select a specific area of the law and show that because the rules and principles that comprise it are logically incoherent, legal outcomes can always be manipulated by those in power to favor their interests at the expense of the politically “subordinated” classes. The Crits then argue that the claim that the law consists of determinate, just rules which are impartially applied to all is a ruse employed by the powerful to cause these subordinated classes to view the oppressive legal rulings as the necessary outcomes of an objective system of justice. This renders the oppressed more willing to accept their socially subordinated status. Thus, the Crits maintain that the concept of the rule of law is simply a facade used to maintain the socially dominant position of white males in an oppressive and illegitimate capitalist system.

In taking this approach, the Crits recognize that the law is indeterminate, and thus, that it necessarily reflects the moral and political values of those empowered to render legal decisions. Their objection is that those who currently wield this power subscribe to the wrong set of values. They wish to change the legal system from one which embodies what they regard as the hierarchical, oppressive values of capitalism to one which embodies the more egalitarian, “democratic” values that they usually associate with socialism. The Crits accept that the law must be provided exclusively by the state, and hence, that it must impose one set of values on all members of society. Their contention is that the particular set of values currently being imposed is the wrong one.

Although they have been subjected to much derision by mainstream legal theorists, (33) as long as we continue to believe that the law must be a state monopoly, there really is nothing wrong, or even particularly unique, about the Crits’ line of argument. There has always been a political struggle for control of the law, and as long as all must be governed by the same law, as long as one set of values must be imposed upon everyone, there always will be. It is true that the Crits want to impose “democratic” or socialistic values on everyone through the mechanism of the law. But this does not distinguish them from anyone else. Religious fundamentalists want to impose “Christian” values on all via the law. Liberal Democrats want the law to ensure that everyone acts so as to realize a “compassionate” society, while conservative Republicans want it to ensure the realization of “family values” or “civic virtue.” Even libertarians insist that all should be governed by a law that enshrines respect for individual liberty as its preeminent value.

The Crits may believe that the law should embody a different set of values than liberals, or conservatives, or libertarians, but this is the only thing that differentiates them from these other groups. Because the other groups have accepted the myth of the rule of law, they perceive what they are doing not as a struggle for political control, but as an attempt to depoliticize the law and return it to its proper form as the neutral embodiment of objective principles of justice. But the rule of law is a myth, and perception does not change reality. Although only the Crits may recognize it, all are engaged in a political struggle to impose their version of “the good” on the rest of society. And as long as the law remains the exclusive province of the state, this will always be the case.

XI.

What is the significance of these observations? Are we condemned to a continual political struggle for control of the legal system? Well, yes; as long as the law remains a state monopoly, we are. But I would ask you to note that this is a conditional statement while you consider the following parable.

A long time ago in a galaxy far away, there existed a parallel Earth that contained a nation called Monosizea. Monosizea was remarkably similar to the present-day United States. It had the same level of technological development, the same social problems, and was governed by the same type of common law legal system. In fact, Monosizea had a federal constitution that was identical to that of the United States in all respects except one. However, that distinction was quite an odd one. For some reason lost to history, the Monosizean founding fathers had included a provision in the constitution that required all shoes manufactured or imported into Monosizea to be the same size. The particular size could be determined by Congress, but whatever size was selected represented the only size shoe permitted in the country.

As you may imagine, in Monosizea, shoe size was a serious political issue. Although there were a few radical fringe groups which argued for either extremely small or extremely large sizes, Monosizea was essentially a two-party system with most of the electorate divided between the Liberal Democratic party and the Conservative Republican party. The Liberal Democratic position on shoe size was that social justice demanded the legal size to be a large size such as a nine or ten. They presented the egalitarian argument that everyone should have equal access to shoes, and that this could only be achieved by legislating a large shoe size. After all, people with small feet could still use shoes that were too large (even if they did have to stuff some newspaper into them), but people with large feet would be completely disenfranchised if the legal size was a small one. Interestingly, the Liberal Democratic party contained a larger than average number of people who were tall. The Conservative Republican position on shoe size was that respect for family values and the traditional role of government required that the legal size be a small size such as a four or five. They presented the moralistic argument that society’s obligation to the next generation and government’s duty to protect the weak demanded that the legal size be set so that children could have adequate footwear. They contended that children needed reasonably well- fitting shoes while they were in their formative years and their feet were tender. Later, when they were adults and their feet were fully developed, they would be able to cope with the rigors of barefoot life. Interestingly, the Conservative Republican party contained a larger than average number of people who were short.

Every two years as congressional elections approached, and especially when this corresponded with a presidential election, the rhetoric over the shoe size issue heated up. The Liberal Democrats would accuse the Conservative Republicans of being under the control of the fundamentalist Christians and of intolerantly attempting to impose their religious values on society. The Conservative Republicans would accuse the Liberal Democrats of being misguided, bleeding-heart do-gooders who were either the dupes of the socialists or socialists themselves. However, after the elections, the shoe size legislation actually hammered out by the President and Congress always seemed to set the legal shoe size close to a seven, which was the average foot size in Monosizea. Further, this legislation always defined the size in broad terms so that it might encompass a size or two on either side, and authorized the manufacture of shoes made of extremely flexible materials that could stretch or contract as necessary. For this reason, most averaged-sized Monosizeans, who were predominantly politically moderate, had acceptable footwear.

This state of affairs seemed quite natural to everyone in Monosizea except a boy named Socrates. Socrates was a pensive, shy young man who, when not reading a book, was often lost in thought. His contemplative nature caused his parents to think of him as a dreamer, his schoolmates to think of him as a nerd, and everyone else to think of him as a bit odd. One day, after learning about the Monosizean Constitution in school and listening to his parents discuss the latest public opinion poll on the shoe size issue, Socrates approached his parents and said:

I have an idea. Why don’t we amend the constitution to permit shoemakers to manufacture and sell more than one size shoe. Then everyone could have shoes that fit and we wouldn’t have to argue about what the legal shoe size should be anymore.

Socrates’ parents found his naive idealism amusing and were proud that their son was so imaginative. For this reason, they tried to show him that his idea was a silly one in a way that would not discourage him from future creative thinking. Thus, Socrates’ father said:

That’s a very interesting idea, son, but it’s simply not practical. There’s always been only one size shoe in Monosizea, so that’s just the way things have to be. People are used to living this way, and you can’t fight city hall. I’m afraid your idea is just too radical.

Although Socrates eventually dropped the subject with his parents, he was never satisfied with their response. During his teenage years, he became more interested in politics and decided to take his idea to the Liberal Democrats. He thought that because they believed all citizens were entitled to adequate footwear, they would surely see the value of his proposal. However, although they seemed to listen with interest and thanked him for his input, they were not impressed with his idea. As the leader of the local party explained:

Your idea is fine in theory, but it will never work in practice. If manufacturers could make whatever size shoes they wanted, consumers would be at the mercy of unscrupulous business people. Each manufacturer would set up his or her own scale of sizes and consumers would have no way of determining what their foot size truly was. In such a case, profit-hungry shoe sales people could easily trick the unwary consumer into buying the wrong size. Without the government setting the size, there would be no guarantee that any shoe was really the size it purported to be. We simply cannot abandon the public to the vicissitudes of an unregulated market in shoes.

To Socrates’ protests that people didn’t seem to be exploited in other clothing markets and that the shoes manufactured under the present system didn’t really fit very well anyway, the party leader responded:

The shoe market is unique. Adequate shoes are absolutely essential to public welfare. Therefore, the ordinary laws of supply and demand cannot be relied upon. And even if we could somehow get around the practical problems, your idea is simply not politically feasible. To make any progress, we must focus on what can actually be accomplished in the current political climate. If we begin advocating radical constitutional changes, we’ll be routed in the next election.

Disillusioned by this response, Socrates approached the Conservative Republicans with his idea, explaining that if shoes could be manufactured in any size, all children could be provided with the well-fitting shoes they needed. However, the Conservative Republicans were even less receptive than the Liberal Democrats had been. The leader of their local party responded quite contemptuously, saying:

Look, Monosizea is the greatest, freest country on the face of the planet, and it’s respect for our traditional values that has made it that way. Our constitution is based on these values, and it has served us well for the past 200 years. Who are you to question the wisdom of the founding fathers? If you don’t like it in this country, why don’t you just leave?

Somewhat taken aback, Socrates explained that he respected the Monosizean Constitution as much as they did, but that did not mean it could not be improved. Even the founding fathers included a process by which it could be amended. However, this did nothing to ameliorate the party leader’s disdain. He responded:

It’s one thing to propose amending the constitution; it’s another to undermine it entirely. Doing away with the shoe size provision would rend the very fabric of our society. If people could make whatever size shoes they wanted whenever they wanted, there would be no way to maintain order in the industry. What you’re proposing is not liberty, it’s license. Were we to adopt your proposal, we would be abandoning the rule of law itself. Can’t you see that what you are advocating is not freedom, but anarchy?

After this experience, Socrates came to realize that there was no place for him in the political realm. As a result, he went off to college where he took up the study of philosophy. Eventually, he got a Ph.D., became a philosophy professor, and was never heard from again.

So, what is the point of this outlandish parable? I stated at the beginning of this section that as long as the law remains a state monopoly, there will always be a political struggle for its control. This sounds like a cynical conclusion because we naturally assume that the law is necessarily the province of the state. Just as the Monosizeans could not conceive of a world in which shoe size was not set by the government, we cannot conceive of one in which law is not provided exclusively by it. But what if we are wrong? What if, just as Monosizea could eliminate the politics of shoe size by allowing individuals to produce and buy whatever size shoes they pleased, we could eliminate the politics of law by allowing individuals to adopt whatever rules of behavior best fit their needs? What if law is not a unique product that must be supplied on a one-size-fits-all basis by the state, but one which could be adequately supplied by the ordinary play of market forces? What if we were to try Socrates’ solution and end the monopoly of law?

XII.

The problem with this suggestion is that most people are unable to understand what it could possibly mean. This is chiefly because the language necessary to express the idea clearly does not really exist. Most people have been raised to identify law with the state. They cannot even conceive of the idea of legal services apart from the government. The very notion of a free market in legal services conjures up the image of anarchic gang warfare or rule by organized crime. In our system, an advocate of free market law is treated the same way Socrates was treated in Monosizea, and is confronted with the same types of arguments.

The primary reason for this is that the public has been politically indoctrinated to fail to recognize the distinction between order and law. Order is what people need if they are to live together in peace and security. Law, on the other hand, is a particular method of producing order. As it is presently constituted, law is the production of order by requiring all members of society to live under the same set of state-generated rules; it is order produced by centralized planning. Yet, from childhood, citizens are taught to invariably link the words “law” and “order.” Political discourse conditions them to hear and use the terms as though they were synonymous and to express the desire for a safer, more peaceful society as a desire for “law and order.”

The state nurtures this confusion because it is the public’s inability to distinguish order from law that generates its fundamental support for the state. As long as the public identifies order with law, it will believe that an orderly society is impossible without the law the state provides. And as long as the public believes this, it will continue to support the state almost without regard to how oppressive it may become.

The public’s identification of order with law makes it impossible for the public to ask for one without asking for the other. There is clearly a public demand for an orderly society. One of human beings’ most fundamental desires is for a peaceful existence secure from violence. But because the public has been conditioned to express its desire for order as one for law, all calls for a more orderly society are interpreted as calls for more law. And since under our current political system, all law is supplied by the state, all such calls are interpreted as calls for a more active and powerful state. The identification of order with law eliminates from public consciousness the very concept of the decentralized provision of order. With regard to legal services, it renders the classical liberal idea of a market-generated, spontaneous order incomprehensible.

I began this Article with a reference to Orwell’s concept of doublethink. But I am now describing the most effective contemporary example we have of Orwellian “newspeak,” the process by which words are redefined to render certain thoughts unthinkable. (34) Were the distinction between order and law well-understood, the question of whether a state monopoly of law is the best way to ensure an orderly society could be intelligently discussed. But this is precisely the question that the state does not wish to see raised. By collapsing the concept of order into that of law, the state can ensure that it is not, for it will have effectively eliminated the idea of a non-state generated order from the public mind. Under such circumstances, we can hardly be surprised if the advocates of a free market in law are treated like Socrates of Monosizea.

XIII.

I am aware that this explanation probably appears as initially unconvincing as was my earlier contention that the law is inherently political. Even if you found my Monosizea parable entertaining, it is likely that you regard it as irrelevant. You probably believe that the analogy fails because shoes are qualitatively different from legal services. After all, law is a public good which, unlike shoes, really is crucial to public welfare. It is easy to see how the free market can adequately supply the public with shoes. But how can it possibly provide the order-generating and maintaining processes necessary for the peaceful coexistence of human beings in society? What would a free market in legal services be like?

I am always tempted to give the honest and accurate response to this challenge, which is that to ask the question is to miss the point. If human beings had the wisdom and knowledge-generating capacity to be able to describe how a free market would work, that would be the strongest possible argument for central planning. One advocates a free market not because of some moral imprimatur written across the heavens, but because it is impossible for human beings to amass the knowledge of local conditions and the predictive capacity necessary to effectively organize economic relationships among millions of individuals. It is possible to describe what a free market in shoes would be like because we have one. But such a description is merely an observation of the current state of a functioning market, not a projection of how human beings would organize themselves to supply a currently non-marketed good. To demand that an advocate of free market law (or Socrates of Monosizea, for that matter) describe in advance how markets would supply legal services (or shoes) is to issue an impossible challenge. Further, for an advocate of free market law (or Socrates) to even accept this challenge would be to engage in self-defeating activity since the more successfully he or she could describe how the law (or shoe) market would function, the more he or she would prove that it could be run by state planners. Free markets supply human wants better than state monopolies precisely because they allow an unlimited number of suppliers to attempt to do so. By patronizing those who most effectively meet their particular needs and causing those who do not to fail, consumers determine the optimal method of supply. If it were possible to specify in advance what the outcome of this process of selection would be, there would be no need for the process itself.

Although I am tempted to give this response, I never do. This is because, although true, it never persuades. Instead, it is usually interpreted as an appeal for blind faith in the free market, and the failure to provide a specific explanation as to how such a market would provide legal services is interpreted as proof that it cannot. Therefore, despite the self-defeating nature of the attempt, I usually do try to suggest how a free market in law might work.

So, what would a free market in legal services be like? As Sherlock Holmes would regularly say to the good doctor, “You see, Watson, but you do not observe.” Examples of non-state law are all around us. Consider labor-management collective bargaining agreements. In addition to setting wage rates, such agreements typically determine both the work rules the parties must abide by and the grievance procedures they must follow to resolve disputes. In essence, such contracts create the substantive law of the workplace as well as the workplace judiciary. A similar situation exists with regard to homeowner agreements, which create both the rules and dispute settlement procedures within a condominium or housing development, i.e., the law and judicial procedure of the residential community. Perhaps a better example is supplied by universities. These institutions create their own codes of conduct for both students and faculty that cover everything from academic dishonesty to what constitutes acceptable speech and dating behavior. In addition, they not only devise their own elaborate judicial procedures to deal with violations of these codes, but typically supply their own campus police forces as well. A final example may be supplied by the many commercial enterprises that voluntarily opt out of the state judicial system by writing clauses in their contracts that require disputes to be settled through binding arbitration or mediation rather than through a lawsuit. In this vein, the variegated “legal” procedures that have recently been assigned the sobriquet of Alternative Dispute Resolution (ADR) do a good job of suggesting what a free market in legal service might be like. (35)

Of course, it is not merely that we fail to observe what is presently all around us. We also act as though we have no knowledge of our own cultural or legal history. Consider, for example, the situation of African-American communities in the segregated South or the immigrant communities in New York in the first quarter of the twentieth century. Because of prejudice, poverty and the language barrier, these groups were essentially cut off from the state legal system. And yet, rather than disintegrate into chaotic disorder, they were able to privately supply themselves with the rules of behavior and dispute-settlement procedures necessary to maintain peaceful, stable, and highly structured communities. Furthermore, virtually none of the law that orders our interpersonal relationships was produced by the intentional actions of central governments. Our commercial law arose almost entirely from the Law Merchant, a non-governmental set of rules and procedures developed by merchants to quickly and peacefully resolve disputes and facilitate commercial relations. Property, tort, and criminal law are all the products of common law processes by which rules of behavior evolve out of and are informed by the particular circumstances of actual human controversies. In fact, a careful study of Anglo-American legal history will demonstrate that almost all of the law which facilitates peaceful human interaction arose in this way. On the other hand, the source of the law which produces oppression and social division is almost always the state. Measures that impose religious or racial intolerance, economic exploitation, one group’s idea of “fairness,” or another’s of “community” or “family” values virtually always originate in legislation, the law consciously made by the central government. If the purpose of the law really is to bring order to human existence, then it is fair to say that the law actually made by the state is precisely the law that does not work.

Unfortunately, no matter how suggestive these examples might be, they represent only what can develop within a state-dominated system. Since, for the reasons indicated above, it is impossible to out-think a free market, any attempt to account for what would result from a true free market in law would be pure speculation. However, if I must engage in such speculation, I will try to avoid what might be called “static thinking” in doing so. Static thinking occurs when we imagine changing one feature of a dynamic system without appreciating how doing so will alter the character of all other features of the system. For example, I would be engaging in static thinking were I to ask how, if the state did not provide the law and courts, the free market could provide them in their present form. It is this type of thinking that is responsible for the conventional assumption that free market legal services would be “competing governments” which would be the equivalent of organized gang warfare. Once this static thinking is rejected, it becomes apparent that if the state did not provide the law and courts, they simply would not exist in their present form. This, however, only highlights the difficulty of describing free market order-generating services and reinforces the speculative nature of all attempts to do so.

One thing it seems safe to assume is that there would not be any universally binding, society-wide set of “legal” rules. In a free market, the law would not come in one-size-fits-all. Although the rules necessary to the maintenance of a minimal level of order, such as prohibitions against murder, assault, and theft, would be common to most systems, different communities of interest would assuredly adopt those rules and dispute-settlement procedures that would best fit their needs. For example, it seems extremely unlikely that there would be anything resembling a uniform body of contract law. Consider, as just one illustration, the differences between commercial and consumer contracts. Commercial contracts are usually between corporate entities with specialized knowledge of industrial practices and a financial interest in minimizing the interruption of business. On the other hand, consumer contracts are those in which one or both parties lack commercial sophistication and large sums do not rest upon a speedy resolution of any dispute that might arise. In a free market for legal services, the rules that govern these types of contracts would necessarily be radically different.

This example can also illustrate the different types of dispute-settlement procedures that would be likely to arise. In disputes over consumer contracts, the parties might well be satisfied with the current system of litigation in which the parties present their cases to an impartial judge or jury who renders a verdict for one side or the other. However, in commercial disputes, the parties might prefer a mediational process with a negotiated settlement in order to preserve an ongoing commercial relationship or a quick and informal arbitration in order to avoid the losses associated with excessive delay. Further, it is virtually certain that they would want mediators, arbitrators, or judges who are highly knowledgeable about commercial practice, rather than the typical generalist judge or a jury of lay people.

The problem with trying to specify the individuated “legal systems” which would develop is that there is no limit to the number of dimensions along which individuals may choose to order their lives, and hence no limit to the number of overlapping sets of rules and dispute resolution procedures to which they may subscribe. An individual might settle his or her disputes with neighbors according to voluntarily adopted homeowner association rules and procedures, with co-workers according to the rules and procedures described in a collective bargaining agreement, with members of his or her religious congregation according to scriptural law and tribunal, with other drivers according to the processes agreed to in his or her automobile insurance contract, and with total strangers by selecting a dispute resolution company from the yellow pages of the phone book. Given the current thinking about racial and sexual identity, it seems likely that many disputes among members of the same minority group or among women would be brought to “niche” dispute resolution companies composed predominantly of members of the relevant group, who would use their specialized knowledge of group “culture” to devise superior rules and procedures for intra-group dispute resolution. (36)

I suspect that in many ways a free market in law would resemble the situation in Medieval Europe before the rise of strong central governments in which disputants could select among several fora. Depending upon the nature of the dispute, its geographical location, the parties’ status, and what was convenient, the parties could bring their case in either village, shire, urban, merchant, manorial, ecclesiastical, or royal courts. Even with the limited mobility and communications of the time, this restricted market for dispute-settlement services was able to generate the order necessary for both the commercial and civil advancement of society. Consider how much more effectively such a market could function given the current level of travel and telecommunication technology. Under contemporary conditions, there would be an explosion of alternative order-providing organizations. I would expect that, late at night, wedged between commercials for Veg-o-matic and Slim Whitman albums, we would find television ads with messages such as, “Upset with your neighbor for playing rock and roll music all night long? Is his dog digging up your flower beds? Come to Acme Arbitration Company’s grand opening two for one sale.”

I should point out that, despite my earlier disclaimer, even these suggestions embody static thinking since they assume that a free market would produce a choice among confrontational systems of justice similar to the one we are most familiar with. In fact, I strongly believe that this would not be the case. The current state-supplied legal system is adversarial in nature, pitting the plaintiff or prosecution against the defendant in a winner-take-all, loser-get-nothing contest. The reason for this arrangement has absolutely nothing to do with this procedure’s effectiveness in settling disputes and everything to do with the medieval English kings’ desire to centralize power. For historical reasons well beyond the scope of this Article, the Crown was able to extend its temporal power relative to the feudal lords as well as raise significant revenue by commanding or enticing the parties to local disputes to bring their case before the king or other royal official for decision. (37) Our current system of adversarial presentation to a third-party decisionmaker is an outgrowth of these early “public choice” considerations, not its ability to successfully provide mutually satisfactory resolutions to interpersonal disputes.

In fact, this system is a terrible one for peacefully resolving disputes and would be extremely unlikely to have many adherents in a free market. Its adversarial nature causes each party to view the other as an enemy to be defeated, and its winner-take-all character motivates each to fight as hard as he or she can to the bitter end. Since the loser gets nothing, he or she has every reason to attempt to reopen the dispute, which gives rise to frequent appeals. The incentives of the system make it in each party’s interest to do whatever he or she can to wear down the opponent while being uniformly opposed to cooperation, compromise, and reconciliation. That this is not the kind of dispute-settlement procedure people are likely to employ if given a choice is evidenced by the large percentage of litigants who are turning to ADR in an effort to avoid it.

My personal belief is that under free market conditions, most people would adopt compositional, rather than confrontational, dispute settlement procedures, i.e., procedures designed to compose disputes and reconcile the parties rather than render third party judgments. This was, in fact, the essential character of the ancient “legal system” that was replaced by the extension of royal jurisdiction. Before the rise of the European nation-states, what we might anachronistically call judicial procedure was chiefly a set of complex negotiations between the parties mediated by the members of the local community in an effort to reestablish a harmonious relationship. Essentially, public pressure was brought upon the parties to settle their dispute peacefully through negotiation and compromise. The incentives of this ancient system favored cooperation and conciliation rather than defeating one’s opponent. (38)

Although I have no crystal ball, I suspect that a free market in law would resemble the ancient system a great deal more than the modern one. Recent experiments with negotiated dispute-settlement have demonstrated that mediation 1) produces a higher level of participant satisfaction with regard to both process and result, 2) resolves cases more quickly and at significantly lower cost, and 3) results in a higher rate of voluntary compliance with the final decree than was the case with traditional litigation. (39) This is perhaps unsurprising, given that mediation’s lack of a winner-take-all format encourages the parties to seek common ground rather than attempt to vanquish the opponent and that, since both parties must agree to any solution, there is a reduced likelihood that either will wish to reopen the dispute. Given human beings’ manifest desire to retain control over their lives, I suspect that, if given a choice, few would willingly place their fate in the hands of third-party decisionmakers. Thus, I believe that a free market in law would produce a system that is essentially compositional in nature.

XIV.

In this Article, I have suggested that when it comes to the idea of the rule of law, the American public is in a state of deep denial. Despite being surrounded by evidence that the law is inherently political in nature, most people are nevertheless able to convince themselves that it is an embodiment of objective rules of justice which they have a moral obligation to obey. As in all cases of denial, people participate in this fiction because of the psychological comfort that can be gained by refusing to see the truth. As we saw with our friends Arnie and Ann, belief in the existence of an objective, non-ideological law enables average citizens to see those advocating legal positions inconsistent with their values as inappropriately manipulating the law for political purposes, while viewing their own position as neutrally capturing the plain meaning immanent within the law. The citizens’ faith in the rule of law allows them to hide from themselves both that their position is as politically motivated as is their opponents’ and that they are attempting to impose their values on their opponents as much as their opponents are attempting to impose their values on them. But, again, as in all cases of denial, the comfort gained comes at a price. For with the acceptance of the myth of the rule of law comes a blindness to the fact that laws are merely the commands of those with political power, and an increased willingness to submit oneself to the yoke of the state. Once one is truly convinced that the law is an impersonal, objective code of justice rather than an expression of the will of the powerful, one is likely to be willing not only to relinquish a large measure of one’s own freedom, but to enthusiastically support the state in the suppression of others’ freedom as well.

The fact is that there is no such thing as a government of law and not people. The law is an amalgam of contradictory rules and counter-rules expressed in inherently vague language that can yield a legitimate legal argument for any desired conclusion. For this reason, as long as the law remains a state monopoly, it will always reflect the political ideology of those invested with decisionmaking power. Like it or not, we are faced with only two choices. We can continue the ideological power struggle for control of the law in which the group that gains dominance is empowered to impose its will on the rest of society, or we can end the monopoly.

Our long-standing love affair with the myth of the rule of law has made us blind to the latter possibility. Like the Monosizeans, who after centuries of state control cannot imagine a society in which people can buy whatever size shoes they wish, we cannot conceive of a society in which individuals may purchase the legal services they desire. The very idea of a free market in law makes us uncomfortable. But it is time for us to overcome this discomfort and consider adopting Socrates’ approach. We must recognize that our love for the rule of law is unrequited, and that, as so often happens in such cases, we have become enslaved to the object of our desire. No clearer example of this exists than the legal process by which our Constitution was transformed from a document creating a government of limited powers and guaranteed rights into one which provides the justification for the activities of the all-encompassing super-state of today. However heart-wrenching it may be, we must break off this one-sided affair. The time has come for those committed to individual liberty to realize that the establishment of a truly free society requires the abandonment of the myth of the rule of law.

_______________________

  1. J.D., Ph.D., Philosophy, Duke University, LL.M., Temple University. Assistant Professor of Business Ethics, Georgetown University and Senior Research Fellow, Kennedy Institute of Ethics. An earlier version of this Article was presented as a lecture at the Institute for Humane Studies Liberty and Society Summer Seminar. Many thanks are owed to Ann C. Tunstall for her help.
  2. U.S. Const. amend. I.
  3. George Orwell, 1984, at 32 (Commemorative 1984 ed., The New Am. Library 1983) (1949).
  4. See Iain McLean, Public Choice 71-76 (1987).
  5. See Herbert Weschler, Toward Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1 (1959).
  6. 59 N.E. 1058 (Ind. 1901).
  7. 104 S.W. 164 (Ark. 1907).
  8. 42 U.S.C. S 2000e-2 (1988).
  9. See United Steelworkers v. Weber, 443 U.S. 193, 228 n.9 (1979) (Rehnquist, J., dissenting)
  10. Id. at 201 (quoting Holy Trinity Church v. United States, 143 U.S. 457, 459 (1892)).
  11. Id. at 202.
  12. 110 Cong. Rec. 6548 (1964).
  13. 33 N.W. 919 (Mich. 1887).
  14. Id. at 923-24.
  15. 64 Wis. 265, 25 N.W. 42 (1885).
  16. Id. at 45.
  17. 43 S.E. 732 (Ga. 1903).
  18. Id. at 733.
  19. 131 N.E. 887 (N.Y. 1921).
  20. Id. at 890.
  21. U.S. Const. art. I, § 8, cl. 3.
  22. See Wickard v. Filburn, 317 U.S. 111, 128-29 (1942).
  23. The federal government regulates sexual harassment in the workplace under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e(b) (1988), which was enacted pursuant to the Commerce Clause.
  24. On this point, it may be relevant to observe that as I write these words, the President and Congress of the United States are engaged in a vigorous debate over what percentage of the American public must have health insurance for there to be universal coverage.
  25. The facts of the case being described are drawn from Syester v. Banta, 133 N.W.2d 666 (Iowa 1965).
  26. Id. at 668.
  27. Id. at 671.
  28. As the court did in the actual case. Id. at 674-75.
  29. See Riggs v. Palmer, 22 N.E. 188 (N.Y. 1889).
  30. As the court did in the actual case. Id. at 191.
  31. U.S. Const. amend. XIV, § 1.
  32. Oliver Wendell Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 465-66 (1897).
  33. The Crits have been accused of being intellectual nihilists and attacked for undermining the commitment to the rule of law that is necessary for the next generation of lawyers to engage in the principled, ethical practice of law. For this reason, their mainstream critics have suggested that the Crits have no business teaching in the nation’s law schools. See, e.g., Paul D. Carrington, Of Law and the River, 34 J. Legal Educ. 222, 227 (1984).
  34. See Orwell, supra note 2, at 46.
  35. The National Law Journal has noted, “Much of corporate America is creating its own private business .courts’ that are far removed from the public courthouses.” William H. Schroder Jr., Private ADR May Offer Increased Confidentiality, Nat’l L.J., July 25, 1994, at C14.
  36. I am fairly confident that the parties to such disputes will not choose to have them resolved by a panel composed almost exclusively of White Anglo-Saxon Protestants as is the case today.
  37. The story of how royal jurisdiction came to supplant all others and why the adversarial system of litigation replaced the earlier methods of settling disputes is fascinating one, but one which obviously cannot be recounted here. Those interested in pursuing it may wish to consult Harold J. Berman, Law and Revolution (1983); Leonard W. Levy, Origins of the Fifth Amendment (1986).
  38. Once again, any extended account of the roots of our legal system is beyond the scope of this Article. For a useful general description, see Berman, supra note 36, at 49-84.
  39. See Joshua D. Rosenberg, Court Studies Confirm That Mandatory Mediation Works, Nat’l L.J., Apr. 11, 1994, at C7.

The Myth of the Rule of Law by John Hasnas is a post from Cop Block - Badges Don't Grant Extra Rights

Plessy Proves Legislation Is Not Law

Monday, November 25th, 2013
homer-plessy-legislation-is-not-law-copblock

Homer Plessy caused no victim yet the “authorities” said he acted in the wrong and thus had to pay a ransom…

When in New Orleans, the ninth stop of the Police Accountability Tour, Pete Eyre & Garret Ean sought to underscore the fact that legislation is not law by pointing to a situation that unfolded there not too long ago – the ransom levied against peaceful traveler Homer Plessy because he rode in a “white’s only” train car, which was said to be illegal.

POLICE ACCOUNTABILITY TOUR
[overview] http://copblock.org/tour
[stops] http://copblock.org/tourstops
[playlist] http://www.youtube.com/playlist?list=PLQKn6VyrLIpekRhC_sqm5xU2dCLiiJAzd
[support] http://wepay.com/donate/patour2013 [or with BTC] 1Hy8xL2ey3GwFLTEd3NTS76A3bWMnQ2dRP

In the video Garret mentioned Lysander Spooner’s tract – The Constitution of No Authority, which is definitely worth becoming familiar with. It’s not a stretch to say that it may present to you a completely new way to look at the united states constitution and other legalese documents that some claim you’re beholden to despite the fact that you’ve never signed them.

 If you’d prefer to read ”The Constitution of No Authority”, on the lower-right corner of the embedded document below, type “272″ to be taken essay.

Alternatives to Top-Down Provision of Protection PART1

To expose yourself to other content that you may find thought-provoking, head over to CopBlock.org/Library.

knowledge-over-coercion-copblock

Plessy Proves Legislation Is Not Law is a post from Cop Block - Badges Don't Grant Extra Rights

Atlanta Police Not Too Talkative, Save for the Undercovers

Monday, November 18th, 2013

When in Atlanta, the 8th stop of the Police Accountability Tour, Pete & Garret, joined by Mike from Cop Block Central FL and Jeff from Tampa Cop Watch, hit the streets armed with cameras and a desire to help create a safer community.

Our friends active with East Atlanta Copwatch noted that the Atlanta police employees are told that should they interfere with someone’s right to record them, they will be fired. That was part of a 2011 settlement that came about from an interaction that happened in 2010. A video interview with the East Atlanta Copwatchers will soon be live and added to the Police Accountability video playlist.

POLICE ACCOUNTABILITY TOUR
[overview] http://CopBlock.org/Tour
[stops] http://CopBlock.org/TourStops
[playlist] https://www.youtube.com/playlist?list=PLQKn6VyrLIpekRhC_sqm5xU2dCLiiJAzd
[support] http://WePay.com/donate/PATour2013 [or with BTC] 1Hy8xL2ey3GwFLTEd3NTS76A3bWMnQ2dRP

COP BLOCK CENTRAL FLORIDA
- https://www.facebook.com/pages/Copblock-central-fl/132784107923
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- http://www.youtube.com/user/MrMBurns80

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- http://twitter.com/tampacopwatch
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- tampacopwatch@gmail.com

OTHER GROUP CONTACT INFO
- http://copblock.org/groups

RELATED PLAYLISTS FROM ATLANTA
- via YouTube.com/CopBlockRaw
- via YouTube.com/Fr33manTVRaw

Atlanta Police Not Too Talkative, Save for the Undercovers is a post from Cop Block - Badges Don't Grant Extra Rights

Speed Limit Showcases Ineffectiveness of “Law” [VIDEO]

Sunday, April 14th, 2013

In 2006 a group of students at Georgia State University went on a leisurely drive – their vehicles traveling abreast at 55mph on I-85 in Atlanta. Their end-result, A Meditation On The Speed Limit Cast & Crew, showcased just how arbitrary is the “law.”

The folks depicted in this video made their point by following what is purported to be the “law,” when in reality, it’s just man-made legislation.

Clearly almost everyone on the road – prior to these college students constraining their speed via their rolling roadblock – chose to travel faster than 55mph. The ability and competency of almost all drivers to operate their vehicles in a safe manner despite the dictates put-forth by such folks makes clear that blindly following proscribed constraints isn’t always best.

Think about it – if the “law” is absolute and objective, how can it hinge on an arbitrary political boundary or on the whims of some self-proclaimed authority?

RELATED:

Art by Dave Dixon

Art by Dave Dixon

Speed Limit Showcases Ineffectiveness of “Law” [VIDEO] is a post from Cop Block - Badges Don't Grant Extra Rights

What Is Jury Nullification?

Monday, April 8th, 2013

Submitted by Captain Six

From Station.6.Underground

What is Jury Nullification? You won’t find it defined in your dictionary or described in your encyclopedia. You weren’t taught about it in school, and indeed it is even considered a crime to tell other people about it in some circumstances. Imagine that for a moment – it is a crime to inform a citizen as to their right, even the scope of their duty while serving on a jury.

According to the Wikipedia entry:

Jury nullification is a constitutional doctrine which allows juries to acquit criminal defendants who are technically guilty, but who do not deserve punishment. It occurs in a trial when a jury reaches a verdict contrary to the judge’s instructions as to the law. 

A jury verdict contrary to the letter of the law pertains only to the particular case before it. If a pattern of acquittals develops, however, in response to repeated attempts to prosecute a statutory offence, this can have the de facto effect of invalidating the statute. A pattern of jury nullification may indicate public opposition to an unwanted legislative enactment…

Most Americans have never even heard of such a doctrine. Thanks to numerous TV shows and real-life judges telling us that the only function of the jury is to render a decision based strictly upon the facts of the case, a key tenet of the justice system envisioned by the Founding Fathers has been lost. You see, it is not only the job of the jury to weigh guilt or innocence against the letter of the law, but also to judge the just nature of the statutes themselves. In this way, The People ultimately retain power over the government, rather than the government dictating to The People what is and what is not justice. This tenet is instrumental in protecting ourselves, as The People, from tyrannical laws and cronyism. This is why we have a jury system in the first place, not simply to act as a cog in the wheel of the justice system, but to be the justice in the system.

Let us imagine for a moment, that you live in a city where the Mayor makes soda-pop illegal. So illegal that he actually signs into law a criminal statute that makes it a jailable offense to dispense soda-pop. He makes a public campaign to warn about the evils of soda-pop, how detrimental it is to your health, while being crowned king of national doughnut day, and holding a vast amount stock in the city’s number-one importer of iced-tea.

Fascist Food and Nutrition Nazis

Now let us imagine that you are sitting on the jury for a criminal trial of a single-mom arrested for selling soda-pop to her neighbor, which had been “smuggled” in from outside of the city limits, and that the transaction was captured on an audio-video recording by police. You see that she is plainly guilty of violating the law, technically, but can’t in good-conscience send her off to jail for a year. You, and other jury members voice that dilemma to the judge, who then instructs you to render a verdict based strictly on the facts of the case, the evidence presented, and that all other considerations have no bearing on your duty to render a verdict. What do you do? It appears that you have no choice, and you find her guilty.

But if you had actually been a FULLY INFORMED JUROR, rather than just listening to the instructions of the judge who owed his career to the Mayor, you would have known that you did have an alternative. That it was not actually illegal for you to ignore the judge’s instructions, and that you could have rendered a verdict based on your conscience rather than a law in a book. You would have known that Jury Nullification not only gives you this right, but that it is your duty as a juror to render your verdict in such a manner. In this way, you see, not only have you protected the accused from overzealous and tyrannical prosecution, but you have also struck a blow against cronyism. Cronyism by the Mayor who stands to make a profit from the law he made, in relation to the company stocks he owns and the companies that own him. Cronyism by police and prosecutors who turn a profit on the backs of the taxpayers for every arrest and prosecution they make, maintaining their job security and giving the United States the largest prison population in the world in the process.

Imagine how many ridiculous laws would be suddenly rendered obsolete. Imagine how many frivolous prosecutions would be avoided. Imagine how many people would not be sitting in prison today for victimless crimes. Imagine how much lower your taxes would be if you didn’t have to pay for all this nonsense. Imagine how powerless the government would suddenly find itself, in the face of a population that was no longer going to take any of their shit.

Maybe that’s why the principle of Jury Nullification is the most taboo subject in our justice system today, and has been continually eroded in landmark decisions by the courts since 1895, as time has distanced us from the core principles of liberty on which this nation was founded.

In 1794, the case of Georgia v. Brailsford was being heard before the Supreme Court of the United States (SCOTUS). The court’s first Chief Justice, John Jay, established precedent that the Common Law practice of Jury Nullification was valid in the United States. He wrote, in part…

“It may not be amiss, here, Gentlemen, to remind you of the good old
rule, that on questions of fact, it is the province of the jury, on
questions of law, it is the province of the court to decide. But it must
be observed that by the same law, which recognizes this reasonable
distribution of jurisdiction, you have nevertheless a right to take upon
yourselves to judge of both, and to determine the law as well as the fact in controversy.
On this, and on every other occasion, however, we
have no doubt, you will pay that respect, which is due to the opinion of
the court: For, as on the one hand, it is presumed, that juries are the
best judges of facts; it is, on the other hand, presumbable, that the
court are the best judges of the law. But still both objects are
lawfully, within your power of decision.”

That precedent held, unmolested, for 99 years. Prior to the Civil War, the Fugitive Slave Act made it a Federal Crime to help escaped slaves, but jury nullification was instrumental in undermining that law and bringing an end to slavery America. Jurors refused to render a guilty verdict against those who had helped escaped slaves. But in 1895, the Supreme Court of the United States struck it’s first blow against the Common Law principle of Jury Nullification. In Sparf v. United States, SCOTUS held in a 5-4 decision that federal judges were not required to inform jurors of their inherent right to judge the law in a case.

In the 1969, the Fourth Circuit upheld in the case of U.S. v. Moylan that a court could refuse to allow instruction to a jury regarding nullification, yet hypocritically upheld the jurors inherent right to nullify. In other words, they were denying the right of the juror to be informed of their right, while still maintaining the validity of Jury Nullification stating,

“If the jury feels the law is unjust, we recognize the undisputed power of
the jury to acquit.”

In the 1972 case of United States v Dougherty  the U.S. Court of Appeals for the District of Columbia Circuit maintained that the courts could deny the defense a chance to instruct a jury on their right to nullify.

In 1988, in U.S. v. Krzyske, the jury asked the judge about jury nullification. The judge responded “There is no such thing as valid jury nullification.” The jury convicted the defendant, and the judge’s answer was upheld on appeal. Another judge did dissent however, and cited United States v. Wilson, 629 F. 2d 439 – Court of Appeals, 6th Circuit 1980, that the panel had unanimously decided “In criminal cases, a jury is entitled to acquit the defendant because it has no sympathy for the government’s position.”

In 1997, the Second Circuit ruled that jurors can be removed if there is evidence that they intend to nullify the law, under Federal Rules of Criminal Procedure 23(b). There have even been instances of jurors being removed and mistrials declared after informed-jury activists distributed literature near courthouses.

Now here’s one final gut-check for the uninformed public. We often assume that it is the job of the defense attorney to defend their client to the best of their ability, with all of the knowledge at their disposal. This is not true, however. Attorneys, including defense attorneys, are an Officer of the Court. This means that their first duty is to the law, and not their client. With a sworn oath to uphold the law, they are forbidden from advocating jury nullification. Your lawyer works for the court, not you.

If you ever sit on a jury, remember one important fact. You do not work for the court.

Lawmall.com

A History of Jury Nullification

The Straight Dope
stationsixunderground@gmail.com
Yes

What Is Jury Nullification? is a post from Cop Block - Badges Don't Grant Extra Rights

How’s that medicine taste, buddy?

Monday, February 11th, 2013

It is no secret that police, and their bootlickers, believe themselves to be a higher order of human than the rest of us. For instance, in many states, assault on an officer carries a higher penalty than assault on a lowly peon such as you or me. In many states homicide of a police officer also carries a higher sentence than homicide of the rest of us.

Police shoot people’s dogs All. The. Fucking. Time. If those 4 links were not sufficient evidence of their penchant for killing dogs, see more here and here. The last link there is particularly fun, involving a situation wherein police raided the wrong house, shot the family dog, and handcuffed the children next to their dead dog. Super compassionate, and not to mention classy. Over and over, these dog-killing police are cleared of wrongdoing or found to have been justified in their actions. On the other hand, the same standards do not seem to apply to them. If you so much as resist against their violent and horrifying K-9s, your ass is going to jail.

Forget the dogs, how about our fellow human beings? As long as cops accompany all kinds of murder with 5 magic words – “I feared for my life” – they’re pretty much home free. They are free to murder people running in the other direction; unarmed people laying down on the ground; hobbling, half-deaf elderly people; people lawfully carrying weapons; etc.

Not so long ago, 16 New York City police officers were arraigned in connection with over 1,600 counts of ticket fixing,  wherein these cops made traffic tickets magically disappear for their friends and family. The hallowed police were apparently incensed that they (supreme beings, obviously) were being  forced to abide by the very laws they swore to uphold, and a whole horde of them protested violently at the courthouse.

Every time any innocent person suffers at the hands of police abuse, or every time a pet dies, the police and their goddamn supporters respond with the following (or some variant thereof) -

  • It was a necessary measure to get the job done
  • The victim had it coming, because he was doing ________ [insert some petty transgression here, e.g. drinking in public, jaywalking, smoking weed, etc.]
  • The law is the law! Ignorance of the law is no excuse!
  • You don’t know how hard it is to be a police officer, so STFU!
  • Just doing their jobs. Go take it up with a legislator.

Thus, you can imagine that I wasn’t very sympathetic when these fuckers got a taste of their own medicine in more than one instance of blatant “injustice” recently.

An Indiana police officer and his wife are facing jail time for rescuing an orphaned deer. The deer was badly injured, and out of the goodness of their hearts, the Councellers nursed back to health. However, an Indiana Conservation Officer stopped by their home to advise them the deer should be euthanized. Further, Jeff Counceller, a police officer in Connersville, and his wife, were charged with unlawful possession of a deer. This charge is a misdemeanor which could result in 60 days in jail time and cost up to $2,000 in fines (more here).

LOL!

Now, let’s repeat to the good Officer Counceller what he must have said to every innocent victim he has ever ticketed and/or jailed for stupid shit -

  • It was a necessary measure to get the job done
  • You had it coming, because you were doing something illegal!
  • The law is the law! Ignorance of the law is no excuse!
  • You don’t know how hard it is to be an Indiana Conservation Officer, so STFU!
  • Just doin’ my job, brah! Go find your local legislator! Don’t know one? Tough luck.

Make no mistake – this would be no laughing matter if it had happened to a mere peon, or my fellow man, and I certainly do not support criminalization of helping local wildlife. However, this should give police and their supporters pause for thought with regard to their habit of violent enforcement, which usually falls disproportionately on everyone else, rather than themselves.

In another laughable incident, an off-duty Hollywood police officer and an off-duty DEA agent got in a scuffle over a minor traffic incident. The DEA agent alleges the police officer grew unnecessarily irate because the DEA agent was speeding in his neighborhood. This resulted in the officer screaming “Yeah well I hope you die,” striking the agent in the face, and attempting to choke him (more here), according to the lawsuit filed by the DEA agent. The lawsuit also alleges that Hollywood police threatened to “set up” the DEA agent to get him fired, and attempted to cover the errors and crimes of Hollywood police.

So the DEA agent, a guy who dedicates his life to ruining the lives of harmless potheads (and other partiers, or drug addicts who need help), suffers at the hands of law enforcement himself. He is violently attacked, and the victim of framing and lies. Not so fun when it happens to you, is it? It’s probably too much to hope that these the law enforcement individuals involved here will learn a lesson and feel sympathy for the people they terrorize daily.

So I’ll just laugh instead.

 

How’s that medicine taste, buddy? is a post from Cop Block - Badges Don't Grant Extra Rights