Periodically, the question comes up, “what is the law?”
None answered this question any better than W.S. Gilbert, who wrote into Iolanthe an introit or opening number for the Lord Chancellor of England to sing, “The Law is the true embodiment of everything that’s excellent, it has not kind of fault or flaw, and I, my lords, embody the law.”
As a practical matter, it does seem that Judges just come down from on high and tell you, as the Lord Chancellor did, that whether they sit on a “supreme” or a “superior” court in a “circuit” or a “district”, they ARE in fact both SUPREME and SUPERIOR and they get to tell you what the law is, whether there is a jury empaneled or not.
But in reality, Law is FORMAL and ONGOING DIALOGUE about what has happened in the past and what ought to happen under a given set of circumstances in the future. Law is first and foremost a dialogue about norms of behavior, and exceptions to those norms.
Up to a point, this is all you need to know: whether you are negotiating a contract in Birmingham, England, Birmingham, Alabama, Binghamton, New York, Bogotá, Colombia, or Buenos Aires, Argentina—you are engaged in a dialogue that will create a relatively “small piece of private legislation”—a new law, governing a limited number of people and circumstances, which is what a contract is—so take your job as a negotiating legislator seriously. You are creating a series of obligations which arise from agreement.
You need to take it seriously because that aspect of negotiating new law is just about creating a stage on which to enact some kind of business or personal transaction which is important enough that you want its performance to be obligatory—you want to formalize the enactment of a transaction so that, if necessary, that transaction can be FORCED by society or some third party acting on behalf of society, if you need invoke such powers. And the invocation of such powers has a whole bunch of other ramifications as we turn from the arena of transactional law to that of litigation (from agreement to disagreement) and then to resolution. Every society, from the simplest hunter-gatherer bands to the United Nations, has some variation of all these formalized, some would say “ritualized” steps.
Anthropologists from Lewis Henry Morgan to Sally Falk Moore, and comparativist students of classical history from Numa Denis Fustelle des Coulanges (The Ancient City) to Georges Dumézil have been studying this question for two centuries now in the modern scientific vein. Many modern anthropologists cite Clifford Geertz and by utilizing Geertzean analysis state that law involves the historically real enactment of mythic formulas (See, e.g. Marshall Sahlins, Historical Metaphors and Mythic Realities). But the basic conclusions that law (or the related concept of “rule” or “rulership”, involving a series of taboos and their application to everyday life) involve a kind of “ritual” or series of ritualistic formulations for the enforcement of “social norms” concerning behavior. This definition rarely helps people in any practical way.
In my opinion, and based on my experience, a practical definition of the law is:
“Law is the Practical Instrument to Implement Politically Formulated Policies”.
Peyton has been working for me for six and a half years and it took him a very long time to realize the truth here: Law from even 13 years ago may ALREADY be a relic of policies which no longer have political support or vigor.
In 1999, nothing like the mortgage foreclosure and eviction crisis that started in 2007-2008 HAD EVER HAPPENED BEFORE IN THE UNITED STATES. There had never been a concerted National Policy, starting at the highest levels of government, to wipe out private property ownership.
In short, in 1999 the Bush-Obama socialist-to-communist revolution had not yet started, although some significant legal groundwork for that revolution had been laid. For example, the notion that mortgage notes were a class of securities beyond the realm of securities fraud regulation goes all the way back to the Supreme Court’s adoption of the Second Circuit’s “Judicially Crafted List of Exceptions” in 1990. Reves v Ernst and Young, 494 US 56, 110 SCt 945 (1990).
At the present time, it is pretty obvious that the Courts have their marching orders about the need to throw a bone to particularly active and loud people here and there while absolutely wiping out 99% of the homeownership in favor of rental—BY the government/banks/financial interests FOR the government/banks/financial interests.
Because I believe in maintaining private property, against the banks, against confiscatory taxation, if necessary by violent revolution, I have no compunction about fighting FOR adverse possession anytime and all the time, but we have to realize we have to come up with MUCH better and newer arguments than tired rehearsals of the current deviations from the common law. The communists in Government and Banking WANT to abolish the common law—that is THEIR POLICY.
And that’s why, as I have told you all, I am looking to new theories such as the Writ of Amparo and Anti-trust/Price Fixing—to catch the Powers that Be Offguard and to force them to eat their own words and choke on them.
The most sophisticated judges on the modern U.S. Courts have been asserting repeatedly the need to draw on Foreign Law as a resource INSTEAD of merely rehashing the common law and the common law—so let’s make them explain why we shouldn’t have the Writ of Amparo in the USA.
Socialist commentators have been criticizing the government for not using the Antitrust and Securities Laws to enable the government to take over more companies and businesses, so why not use these same Antitrust and Securities Laws to enable THE PEOPLE to take over more companies, properties, and businesses AGAINST the totalitarian creep of government?
If the United States Constitution be treated as a very important, nearly sacred, contract on how to make law, for example, are Executive Orders “Law”? What force and effect, if any, should they have? Because such orders are nowhere specified or allowed in the Constitution. So what aspect of the Constitutional Contract permits “legislation” by Decree? 06-02-1952 Youngstown Sheet & Tube Co v Sawyer 343 US 579 72 SCt 363 SCOTUS May-June 1952. And what is the remedy when even Congress agrees that the President has powers beyond those authorized in the Constitution?
If anybody wants to see me I’m back IN LA at least for this weekend and Peyton is on his way back to Texas.