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Prof. David Bernstein discusses the 1905 Supreme Court case “Lochner vs. New York”

Prof. David Bernstein of George Mason Univ. published in 2011 his book Rehabilitating Lochner. So vass ist ziss case Lochner, anyvay?

The Foot of All Knowledge explains:

Lochner v. New York, 198 U.S. 45 (1905), was a landmark United States Supreme Court case that held that “liberty of contract” was implicit in the Due Process Clause of the Fourteenth Amendment. The case involved a New York law that limited the number of hours that a baker could work each day to ten, and limited the number of hours that a baker could work each week to 60. By a 5–4 vote, the Supreme Court rejected the argument that the law was necessary to protect the health of bakers, deciding it was a labor law attempting to regulate the terms of employment, and calling it an “unreasonable, unnecessary and arbitrary interference with the right and liberty of the individual to contract.”

Lochner is one of the most controversial decisions in the Supreme Court’s history….[SNIP]

…and has until recently enjoyed a lousy reputation among the right-thinking (that is, the librul-Progressive, which is to say, not at all right-thinking) legal professoriate.

Professor Bernstein, along with Profs. Randy Barnett and Richard Epstein (as we inferred from his remarks in his last appearance on CCiZ) disagree on that, stout fellows that they are. They talk about legal esoterica such as Freedom of Contract and other stuff that is not for the tender and innocent ears of the Elite (or of various Union leaders or members and their legbreakers and enforcers).

David Bernstein is one of the contributors to Prof. Eugene Volokh’s law weblog The Volokh Conspiracy. (The Volokh Archives going back to 2002 are now found here.) Interviewer Josh Blackman is also an attorney and an Assistant Law Professor at the U. of South Texas. You can read his short summary of the interview at his website. You can also download the interview as a podcast there, watch the video there, click on over to Vimeo and watch it or download it as an mp4 there, or stay here and listen to the audio.

Epstein Thrashes Rubenfeld on Natural Law; Panel on Redistribution of Wealth

I would swear that I saw, for the first time ever, outright anger in Prof. Epstein’s face the first time I watched this clip. Never mind, you can hear it in his voice as he gives Yale Law School’s Prof. Jed Rubenfeld a concise and pithy jolly what-for for a**-hattery.

This is the final 5:48 of a panel discussion described as below. The whole thing is quite interesting. Steve Forbes also seems to have some understanding of what’s what. Andy Stern of the infamous SEIU brings along his flag and his violin. And the odious Prof Rubenfeld is…well, odious. Although his question in Part 11 is one we all get asked a lot, and I’m glad to have Prof. E.’s response.

Best part first. The series begins with Part 1, below Part 11 here. I think you can just click through the segments from there.

–J.

Uploaded on Nov 17, 2009

The Federalist Society presented this panel discussion on Redistribution of Wealth at the 2009 National Lawyers Convention on Thursday, November 12, 2009. Panelists included Prof. Richard A. Epstein of New York University Law School; Mr. Steve Forbes, Chairman and CEO of Forbes Inc. and Editor of Forbes Magazine; Prof. Jed Rubenfeld of Yale Law School; Mr. Andrew L. Stern, President of the Service Employees International Union; and Judge J. Harvie Wilkinson III of the U.S. Court of Appeals for the Fourth Circuit as the moderator. Part 11 of 11

The whole thing is very much worth seeing, highly recommended, and be sure you have your kidney basin at the ready for Prof. Rubenfeld’s first appearance:

Religious Exemptions in Law – Is Mr. Singh to blame?

Sikh Motorcycle Club

A group of religious fanatics terrorise the community :-)

Further to the brouhaha over at York University in Toronto, I got to thinking about the problem of religious exemptions in law and the various compromises that have arisen trying to balance the rules of secular society without violating freedom of religion. (more…)

The stupid viciousness of stateism – at the local level.

There is a hole in the pavement near where I live – some workmen are doing something or other. The hole is not very big – it would be easy to put a fence round the hole whilst still giving people room to walk round it, but no…….

Instead of just having a fence round the whole, the entire pavement is blocked. Of course people could walk on the pavement on the other side of the road (as is the case with some other work in the town…. actually forcing people to walk on the other side of the road is pointless in this case – but that would be another story), but the powers-that-be have another idea……

Instead of people walking on the other side of the road, there is a fencing along the middle of the main road,,. allowing people to walk in the road (rather that walk on the pavement on the other side of this narrow road). The fencing is right at a CHOKE POINT where the narrow main road crosses on a bridge into the town. Reducing a two lane busy road to a one lane road.

Yes. you guessed it gentle reader, there are terrible nightmare traffic jams.

I do not claim that this is sabotage – that the officials who gave the orders have a deliberate plan to cause chaos. The regulations (“health and safety” or whatever) are just stupid – and they are applied with a lack of concern for the harm they do, that does indeed amount to viciousness.

Complain? There is no point – no point at all.

Complain to a local councillor? I am one – I know we have no power. Complain to a County Councillor? They have no power either. Complain to officials (of the “Highways Agency” or whatever) “we are just following policy” would be the response.

The road has no private owner, no one who really cares whether the people who try to use the road can use it or not.

It is all hopeless.

How William James of Harvard helped undermine moral responsiblity – agency.

Most libertarians (and conservatives) have some idea of the harm Harvard University (in spite of the good elements that have always existed there) has done to the United States and (by extension) the rest of the West.

For example, Harvard (via its relationship with Cambridge in England) helped push Keynesian “economics” thus undermining real economics – and leading to the credit bubble nightmare the world now faces.

Before this Harvard Law School actively discouraged study of the text of the Constitution of the United States and the other writings (showing the intentions) of those who wrote that text – pushing the study of “case law” instead, thus undermining constitutional limitations on government power in the United States.

It is true to say that both in economics and law many other American universities followed the example of Harvard – because of its prestige (based, in part, on its being the first American university and its vast resources).

However, before the harm it did in economics and law, Harvard did great harm in the study of human beings themselves (in what was called the study of the “nature of man”) – in philosophy and psychology.

Once American philosophy had been dominated by those who believed and defended three great principles.

The objective nature of the physical universe.

The objective nature of good and evil.

And the ability of humans to choose between good and evil – that humans were beings (agents) that they had the capacity (if they made the effort – a big “if”) to choose good and reject evil.

Both the Aristotelians who dominated Catholic education and the “Common Sense” thinkers who dominated Protestant education (sometimes called followers of “Scottish philosophy” of John Reid and so on – although the principles go back to 17th century thinkers such as Ralph Cudworth and before).

Harvard took the lead in attacking these principles – by the rise of the American “Pragmatist” School.

The “Pragmatists” are best summed up in the words of William James (one of the leading members of the group) “the right is just the expedient in our way of thinking” – and by this William James meant both “the right” in the sense of truth (there was no objective truth – whatever it was useful to be “true” was “true”) and in the sense of “good and evil” (right and wrong – in both senses), to the Pragmatists objective good and evil did not exist – they were “myths” just as objective truth was a “myth”..

The European “philosopher of violence” Sorel, was later to make use of this doctrine of “useful myths” – what did it matter if one told lies (to incite violence) if truth and lies did not really exist? If what was “true” was just what was “useful” to  the cause.

Mussolini did the same thing – what did it matter if both reason and evidence had refuted socialism? So much for reason and evidence! He might move from strict Marxism (because it was too easy to refute – at least for people who believe in such things as objective truth), but his new form of socialism (“Fascism”) would do – it would be based upon “myths”  and if there was no objective truth. lying was O.K. (indeed a new “truth”).

One can even see this in the writings of the Oslo murderer (he wanted his name to be famous – so I never use it) – William James was his most favoured philosopher (on his Facebook page – before it was taken down). So what if the people he murdered were unarmed kids – if his “truth” was that they were armed foes, and he was a “Knight Templar” was not his “truth” as valid as the “truth” of anyone else? And was not his “good” (murdering unarmed kids) not as valid as the “good” of anyone else?

Not even religious people were immune from the spell of William James – as Dietrich Bonhoeffer pointed out, one was more like to hear the name William James than Saint James in the Churches of the Progressives.

How can it be objectively wrong to murder millions of helpless people – if there is no such thing as objective wrong (or objective right)? Besides it is not convenient to try and save the helpless people being murdered – one might be hurt (or even killed) trying to save them, so it may be “your truth” that they should be saved, but it is not “my truth”.

Besides “modern scientific thought” had “proved” that one could not choose between good and evil (which do not objectively exist anyway) – choice is an “illusion”, one is really controlled by impersonal social forces of “class” and/or “race” in one’s “historical period”.

The Schoolmen (the scholastics) had been fond of saying “natural law is the law of God – but if God did not exist natural law would be EXACTLY THE SAME” – the “new” way of thinking (actually this evil is as old humanity – but I will not go into this here) held that natural law (right and wrong, good and evil) did not really exist for the religious or for atheists – and that (even if they did exist) humans were not beings (not agents) and could not choose between them anyway – choice (morality) being an “illusion”.

Thus the fury (righteous fury) of Dietrich Bonhoeffer with the “Christians” who either murdered the innocent (after all “what is innocence?” said the smooth talking scum) themselves, or stood by and did nothing as the innocent were murdered in front of them.

And it was not just in Germany. in the United States the eugenics movement was welcomed by the “religious progressive” – both the holding down and cutting up of women for being “inferior” (only Justice Pierce Butler, the “arch reactionary”, voted against forced sterilisation – the other eight Justices on the Supreme Court thought it was fine) and even plans to actively exterminate the “inferior” – even if this “inferiority” was actually a “useful myth”.

And even if is evil (although objective evil does not exist……) we do not “really” choose our actions – choice is just an “illusion” (so it is not my fault that I pushed these children into the gas chamber and then murdered them).

But how did William James (and his “intellectual” friends) undermine moral responsibility – agency. the courage to choose good and reject evil? To stand against the “social forces”?

How did the philosophy (and the psychology) of “Common Sense” thinkers such as James McCosh (the once famous President of Princeton) and Noah Porter (the once famous President of Yale) get replaced?

One looks in vain for in “Psychology” (1892) for a formal refutation of (for example) Noah Porter’s “The Human Intellect: With An Introduction Upon Psychology And The Soul” – which, before the work of William James, was the standard work on psychology in the United States. Indeed the name “Noah Porter” is not even mentioned in the book.

Instead we get this……..page 457 “Psychology” by William James (1892).

“But a psychologist cannot be expected to be thus impartial, having a great motive in favour of determinism. He wants to build a Science; and Science is a system of fixed relations. Where ever there are independent variables, there Science stops. So far, then, as our volitions may be independent variables, a scientific psychology must ignore that fact, and treat of them only so far as they are fixed functions. In other words, she must deal with the general laws of volition exclusively; with the impulsive and inhibitory character of ideas; with the nature of their appeals to the attention; with the conditions under which effort may arise, etc.; but not with the precise amounts of effort for these, if our wills be free, are impossible to compute, She thus abstracts from free-will, without necessarily denying its existence. Practically, however, such abstraction is not distinguished from rejection; and most actual psychologists have no hesitation in denying that free-will exists.”

The word “psychology” goes back to Ralph Cudworth in the 17th century – the great defender (against Thomas Hobbes) of human agency, the great denier that humans were just machines (not beings). And. by the way, the great attacker of the “chopping up” of the human mind between “will” and “reason” ( a perhaps mistaken practice of the scholastics). Noah Porter (the most famous writer on psychology in America ) had only died a couple of years before this book by William James was published, James McCosh (the great “Common Sense” philosopher) was actually still alive (he died in 1894). Reason (agency) had defenders (at that time) in almost every university in America – yet William James comes out with this tissue of lies – and that is what (thanks to Harvard – and its influence) future generations of students would be taught.

I will now translate what William James wrote into English – I will give its “practical” sense, to use his term. “Practically” (without his cowardly evasions – such as “without necessarily denying its existence”).

Humans are not beings, human volition (agency) does not exist. Humans are just machines – all of whose actions are predetermined. There is no real “choice” (it is an “illusion”). There is no moral difference between a human and a clockwork mouse. And we need not be concerned with enslavement of humans by the state – because humans are slaves (indeed machines – not beings) by nature anyway.

The utter denial of human freedom – no agency, no moral responsibility.

The victory of evil – total and absolute.

That is at the heart of modern academia (of “Nudge” by Cass Sunstein and all the rest of it) – and it came long before (indeed was the cause) of the corruption of such things as law and economics.

Why should humans make the great effort (suffer the terrible pain) required for agency (for standing against evil) if this is impossible? If humans are not really beings (not really agents) at all.

This is the heart of evil.

Hoist upon one’s own…

A man who has been jailed for raping a woman is waiting to find out whether he has contracted HIV from her.

Richard Thomas was sentenced to five years and four months after admitting raping the woman at her home in Leigh, Greater Manchester.

He knew she was ill but did not know she had HIV and collapsed when police told him, Liverpool Crown Court heard.

Words fail. Raping someone you know to be ill is about the definition of “despicable”.

The sentence does seem insufficient. But the dying swan act must have been an hilarity for the coppers. As to the perp, well I could well play a concerto on this instrument.

“I’ve Got Nothing to Hide” and Other Misunderstandings of Privacy

The argument that no privacy problem exists if a person has nothing to hide is frequently made in connection with many privacy issues. When the government engages in surveillance, many people believe that there is no threat to privacy unless the government uncovers unlawful activity, in which case a person has no legitimate justification to claim that it remain private.

Professor Daniel J. Solove has posted this paper as a 28-page pdf to be read on-line or downloaded (at no charge), at

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=998565

TABLE OF CONTENTS

I. INTRODUCTION
II. THE “NOTHING TO HIDE” ARGUMENT
III. CONCEPTUALIZING PRIVACY
……….A. A Pluralistic Conception of Privacy
……….B. The Social Value of Privacy
IV. THE PROBLEM WITH THE “NOTHING TO HIDE” ARGUMENT
……….A. Understanding the Many Dimensions of Privacy
……….B. Understanding Structural Problems
V. CONCLUSION

I. INTRODUCTION

Since the September 11 attacks, the government has been engaging in extensive surveillance and data mining. Regarding surveillance, in December 2005, the New York Times revealed that after September 11, the Bush Administration secretly authorized the National Security Administration (NSA) to engage in warrantless wiretapping of American citizens’ telephone calls.1 As for data mining, which involves analyzing personal data for patterns of suspicious behavior, the government has begun numerous programs….

See Prof. Solove’s About page at

http://docs.law.gwu.edu/facweb/dsolove/

Posthumous Execution – A modern slant on an ancient tradition

“You asked a question two days ago that I will now answer for you. You are quite right, Mademoiselle. You cannot libel the dead.”Hercule Poirot in Death on the Nile

Since ancient times, it has been seen as a symbolic but rather futile gesture to seek final retribution upon your enemies by digging up their rotten corpse and undertaking the ritual steps of execution albeit with rather less effect than usual as the offending enemy has already escaped and is now thumbing his nose from the safety of the Halls of Mandos or your own particular incarnation of Mozart’s “Confutatis maledictis, flammis acribus addictis…” (“When the accused are confounded, and doomed to flames of woe…”) (more…)

Liberalism and Nationalism – a fatal 19th century alliance?

Libertarians sometimes say that we are really “classical liberals”, “19th century liberals”.

Of course if I actually found myself in Victorian Kettering my political opinions (against the establishment of a School Board, anti prohibition of booze, hostile to land nationalisation or even taxation…….) would mark me as a “Conservative” indeed an “arch Conservative” or a “blackhearted reactionary Conservative” (which, of course, is exactly what I am).

But let us leave aside these irritating “fact” things, and go off into generalities…..

There was a  strain of 19th century liberalism that was pro freedom (even if I can not find much evidence that it ever existed in Kettering – centre of the universe). Indeed “Liberalism” was the international movement that declared itself pro freedom – dedicated to reducing the size and scope of government.

In Britain such things as 1835 Muncipal Reform Act were intended to sweep away the corrupt Tory dominated closed corporations and lower the rates (the property taxes). Of course the actual result (in Manchester and virtually everywhere else) is that the rates went UP – but the intention was good. And, indeed, such Liberal party leaders as Gladstone really did work to reduce government spending and taxes – and with some success (at least till 1874). And some Conservative party leaders (such as Disraeli) were vile statist ………

However, the major liberal thinkers in Britain in the 19th century (at least the mid to late 19th century) present a confused picture. The thought of people such as J.S. Mill and Walter Bagehot (and so on) seems pro freedom when one first glances at it – but the more one examines it in detail the less pro freedom (pro driving back the size and scope of the state) it is.

But it would take an essay (or book) to show fully what I mean…………………………………………………………..

In Europe and Latin America also “Liberal” meant the party of freedom – but it does get a bit harder to argue the case in practice.

In Latin America “Liberal” basically meant “someone who robs the Church” as that is what Latin American Liberals seem to have concentrated on – with anticlericalism being a sort of religion in-its-self with them. But there were some Liberal (as in freedom) aspects – for example in the 1850s the Columbian Liberals got rid of slavery (also done by Liberal forces in other Latin American countries – the first being Chile in the early years of the 19th century). But there does seem to have been an obsession with “nation building” – with Liberals being associated with state education systems, and “national this” and “national that”.

In Europe the picture is not wonderful either.

In France things are best in terms of what “Liberal” meant – with the French “Liberal School of Political Economy” being solidly libertarian, the Say family, Bastiat and so on. And having a positive influence in the United States (the leading American free market economist of the 19th century was A.L. Perry – a follower of Bastiat). Even as late as the 1920s 1930s Irving Babbit (the leader of the “New Humanism” in literature) was a follower of French civilisation – and an enemy of the statism he associated with German thought.

Hard for us to think of French thinkers as defenders of “capitalist” civilisation – but perhaps we should remember such modern thinkers as Bertrand de Jouvenel and (leaving economics but not the defence of civilisation) Jacques Barzun – who died in Texas last year, the last living link with the old French civilisation, the civilisation that all those left bank degenerates revolted against.

Once French “Liberal School” thinkers (not British thinkers – as British liberal economic thought was a bit of a mess, Walter Baghot, J.S. Mill, Alfred Marshall) were indeed the main counter weight to Germanic statist thought in the United States.  It is only later that the “Austrian School”  took on the antistaist role of the French School in American thought – with, perhaps, the first Amercan thinker to be an open follower of the “Austrian School” being Frank Fetter.

People such as Richard Ely (and his followers “Teddy” Roosevelt and Woodrow Wilson) may have wanted to destroy Germany – but only because they wanted to turn the United States into a new (and more extreme) version of Germany. Of course a more extreme version of Imperial Germany was eventually created, but not in the United States (as the Progressives were pushed back by Conservative forces in America) – but by the National Socialists in the 1930s, who adopted many American Progressive ideas (such as the extermination of the “inferior”) which had met determined opposition in the United States itself (almost needless to say, the true evil of the American Progressive movement does not appear in mainstream American history books – where they are presented as true “liberals”).

But in Switzerland, Germany and Italy things were less clear than in France.

In Switzerland – liberalism became associated with centralisation (with the destruction of the independence of the Cantons after the was of 1947 – in order to persecute Catholics, religious persection of the Jesuits may be “Liberal” but it is not libertarian) and the increase in the size and scope of the Central government after the 1874 Constitution – and in stages since then. Although, it should be pointed out, that the 20th century Liberal party in Switzerland was opposed to further centralisation – and was considered the opposite of the Social Democrats who became part of the Swiss govenrment in 1959 (and still are part of the Swiss government).

In Germany things were not good either. German liberalism was obsessed with nationalism. This became clear in 1848 – when the energies of the liberals were entirely devoted to building up a “nation called Germany” (an idea about as positive as the obsession with a “nation called Europe” is now).

Such a “unification” could only lead to higher taxes and so on (because of the reduction of tax and regulation competition between the various polities of the old Germany) – but the liberals (for the most part) did not seem to care about that.

Indeed even the opposition (it is wrong to call it resistance – as the liberals did not fire a shot) to the extra Parliamentary taxation (plundering) of Bismark after 1861 was not opposition to higher taxes as such, but just over who should increase the taxes.

That taxes “had to be” increased, in order to build up the Prussian Army to “unify” Germany (by such things as attacking Denmark, Austria and France……) was taken for granted by most Germans “liberals”. They just wanted to be in charge of doing it.

The Prussian liberals eventually split – into the “National Liberals” (who were Bismark’s slaves – till he turned on them as a “party of Jews”), and the “Progressives” who just went on about “civil liberties” (keeping rather quiet about the private property rights upon which civil liberties really depend) who eventually became the slaves of the Social Democrats (who, it should be remembered, were full socialists in Germany till the conference of 1959 when they moderated their position).

Bismark’s takeover of places such as the Kingdom of Hanover (and the increase in taxes upon the local people) do not seem to have produced much opposition from German Liberals.

Even the later creation of the Prussian Welfare State (with its roots in the “Police State” thinking of Frederick the Great and so on – long before) and Progressive (graduated) income taxation – seem to have only been opposed by a few isolated Liberal thinkers (not the mass of Liberal thought).

It is somewhat of a mircle that the few isolated thinkers that were all that was left of  “economic liberalism” in Germany by the Second World War (in the face of the German “Historical School” effort to wipe them out) were able to lauch such a comeback after World War II – although they were helped by the utter collapse of the National Socialists (the Nazis) and the wretched mess that the international socialists (the Marxists) produced in  East Germany. People (especially Catholic Conservatives) were looking for something else – and the few pro private enterprise (as opposed to Progressive) “liberal” thinkers in Germany provided it.

People (not just big “capitalists”) all sorts of people were looking for ideas that WORKED (a very German demand – as in the positive side of the German spirit) and the, relatively, free market policies offered to Germany from 1948 onwards did work.

And 19th century Italy?

Perhaps worst of all.

Mussolini was to say that his Fascism (all power to the state) was the “opposite of liberalism” (with its desire to reduce the size and scope of the state).

But there is little evidence for this in 19th century Italy (bar a few islolated thinkers) – on the contrary Italian Liberalism was obsessed with “unification”.

What did this mean in practice? In meant language persecution (with places like Venice having Tuscan forced down upon the people – as “standard Italian”), it meant conscription (for example Sicily did not have conscription before “unification”), it meant plundering (of Churches in Rome – and of private banks in Naples, whose wealth went to the new “Italian Treasury”) and it meant HIGHER TAXES.

Taxes in the South of Italy (the old Kingdom of Naples and Sicily) basically doubled – no wonder so many Southern Italians fled their “liberation” to go all the way to the United States. But a century and a half of brainwashing state eduation have made Italians forget all this – and resistance (which lasted for decades in Sicily) is written up as “bandit activity”.

In spite of its high taxes, the Liberal Kingdom of Italy was always on the verge of bankrutpcy – going from pratfall to pratfall till it collapsed in the face of the Fascists in the 1920s.

What to make of all this?

Well Karl Marx had no trouble explaining the contradiction between the pro freedom words of the Liberals and there less than pro freedom actions.

To him liberalism was just an “ideology” representing the “interests of the capitalists” – so governments would do what was in the interests of these “capitalists”.

The trouble with the Marxist account is that it is not true. For example some big business enterprises may have gained by Italian government’s Imperial adventures – but most big business enterprises lost by the high taxation and the messed up national finances.

In Germany Bismark never ruled in the interests of business – on the contrary he secretly subsidized the first socialists (whose movement he only turned against when it became powerful) in order to scare business people into not imposing his high tax policies (it is me or the Reds lads), and the people who followed Bismark were worse than he was. It is always possible to find business enterprises who benefit from statism – but that does not alter the fact that most of “big business” LOSES by it.

So what does explain why liberalism fell so short of its promise?

Anti clericalism is part of it – for example in Germany the Liberals mostly strongly supported Bismark’s “War of Culture” persecution of the Roman Catholics. Hardly a libertarian position – and one that made their own position, as Liberals, an isolated one. After all why should the Catholics support the Liberals when Bismark turned upon the latter as a “party of Jews”? The Liberals had not supported the freedom of the Catholics. And the Catholics (from 1891) fell more and more into forms of economic interventionism of their own – becomming the divided group of people they still are (Catholic “Social Teaching” is actually riven by rival “interpretations”).

But the main factor was the obsession with the “nation”.

Liberals rejected loyality to the old Kings and Princes (or to the little Free Cities) and they certainly rejected loyality to an international Church.

But they had a loyalty of their own – to the new “nation state” (whether in Latin America, Europe, or the “New Nationalism” and “New Freedom” of the American Progressive moverment which corrupted American liberalism – once American liberals had opposed the Progressives, but by the 1920s they had become one and the same, only the most reactionary elements in American life, the American versions of “Colonel Blimp and the old school tie” stood up in defence of Civilisation against the Progressive onslaught of eugenics and other horrors – much as the Hapsburgs, and other such, stood against it in Europe).

This Progressive nationalism (the interests of “the nation”, “the people”), not the “squalid interests of the capitalists”, eventually became the guiding light of liberalism.

But it collapsed in the horror of the unlimited “total wars” – the First World War and the Second World War.

“Well at least liberals have rejected nationalism now Paul”.

Yes they certainly have – so totally that they have forgotten that they were nationalists – and, sadly, they have replaced it with something WORSE.

There was always an elment in the New Liberalism (Progressivism) that was not satisfied with nationalism – after all some nations might collapse into “reactionary” forms of thought (perhaps even such “absurdities” as “natural law” like the more reactionary Catholics, Protestants and Jews).

The most “learned” (in the sense of the vile twisted “wisdom” one gets from, say, studying the works of Sauron – the basis of so much social sciences and humanities work in the universities and schools….) Progressives were never really satisfied with the tup thumping Proto National Statism of someone like “Teddy” Roosevelt – a man whose bark was often worse than his bite – for example he might not with agreement to an argument that blacks were inferior, but exterminate them? not a chance, he “even” used the same toilets as black people – which an “intellectual” such as Woodrow Wilson would never do. Deep down there was still something of the reactionary “gentleman” about T. Roosevelt (for all his Progressive ideas). And there was a fear that such people could never “rise above” the petty and weak ideas of their national traditions.

A true Progressive intellectual (such as Woodrow Wilson) thought on a WORLD scale.

They still worshipped the state – but it was (in their muddy dreams) a WORLD state. With nowhere, anywhere, for the “reactionary” and “inferior” to flee to.

Only a world state could ever truly be the new “God” – to replace the old fashioned (“bearded man in the sky”) view of God, that Progressive “Social Gospel” thought wished to transform into a religion of “the people” and “collective salvation”.

Even Woodrow Wilson never quite “freed himself” from the “moral chains of good and evil” that had been taught to him in childhood – and by the habits of his nation.

Marxism and other developments of international collectivism really made an impact later – cutting off the last links with concepts of “good” and “evil” in terms of personal conduct and honour.

The world state would not be a “state” – it would be “the people” the new “God”. And good would be (as with extreme theological “voluntarism” which is similar to legal and philosophical “Positivism”) whatever served the interests of this new “God” as worked out by the “enlightened elite”. Whether they called themselves, Marxist, Progressive, or “Liberal”.

As terrible as the 19th century alliance between Liberalism and Nationalism was – the 21st century alliance between Liberalism and COLLECTIVIST “internationalism” may prove to be even worse.

Richard A. Epstein, interviewed for Reason TV

Richard A. Epstein, interviewed by Nick Gillespie of Reason TV on Obama Itself, a practical flaw at the heart of the regulatory regime, and ObamaCare in particular. ~12 1/2 min.

Excerpts from a relatively long Description; then, below the URL, one of the Comments.

–J.

Uploaded on Nov 22, 2010

Few legal scholars have blown as many minds and had the tangible impact that Richard Epstein has managed. His 1985 volume, Takings: Private Property and the Power of Eminent Domain is a case in point. Epstein made the hugely controversial argument that regulations and other government actions such as environmental regulations that substantially limit the use of or decrease the value of property should be thought of as a form of eminent domain and thus strictly limited by the Constitution. The immediate result was a firestorm of outrage followed by an acknowledgment that the guy was onto something.

As Epstein told Reason in a 1995 interview, “I took some pride in the fact that [Sen.] Joe Biden (D-Del.) held a copy of Takings up to a hapless Clarence Thomas back in 1991 and said that anyone who believes what’s in this book is certifiably unqualified to sit in on the Supreme Court. That’s a compliment of sorts…. But I took even more pride in the fact that, during the Breyer hearings [in 199X], there were no such theatrics, even as the nominee was constantly questioned on whether he agreed with the Epstein position on deregulation as if that position could not be held by responsible people.”

. . .

Reason’s Nick Gillespie interviewed Epstein at NYU’s law building in October. The conversation was wide-ranging and high-energy–another Epsteinian virtue. They talked about legal challenges to ObamaCare, the effects of stimulus spending and TARP bailouts, and a former University of Chicago adjunct faculty member by the name of Barack Obama, with whom Epstein regularly interacted in the 1990s and early 2000s.

“He passed through Chicago without absorbing much of the internal culture,” says Epstein of the president. “He’s amazingly good at playing intellectual poker. But that’s a disadvantage, because if you don’t put your ideas out there to be shot down, you’re never gonna figure out what kind of revision you want.”

I think Prof. Epstein is inherently a Nice Guy, and that although in some respects he had the Sith’s number all along (“No!  He has a good mind for some things, but it’s not a first-class intellectual mind”–paraphrased from, some comment he made somewhere), even as of this interview I think he was too inclined to believe the “ignorance” as opposed to the “willful, planned destruction” interpretation of Its ruinous “presidency.”

https://www.youtube.com/watch?v=DRut_LTJpwI

****COMMENT:

SB87JB 2 months ago [i.e. ~ 12/1/12 --J.]

. . . Yeah sure it’s embarrassing that [pre-Obamacare] people will die from no health insurance, but now people will die from no health insurance after being forced to pay a fee to have no health insurance because they can not afford the “cheap” universal coverage, which only offers 60% coverage for the lower class. It honestly makes our old corrupt corporate healthcare system look utopian.

One law for us…

…and another for them.

A muslim who raped a 13-year-old girl he groomed on Facebook has been spared a prison sentence after a judge heard he went to an Islamic faith school where he  was taught that women are worthless.

I don’t recall that being included in the national curriculum.

Adil Rashid, 18, claimed he was not aware that it was illegal for him to have sex with the girl because his education left him ignorant of British law.

Where’s he been living?  Under a rock?  In some dark cave?  Has he never watched TV or read a newspaper?

Yesterday Judge Michael Stokes handed Rashid a suspended sentence, saying: ‘Although chronologically 18, it is quite clear from the reports that you are very naive and immature when it comes to sexual matters.’

As mitigating circumstances go this one is thinner than a stick insect’s todger.  Worked like a charm though, didn’t it.

Earlier Nottingham Crown Court heard that such crimes usually result in a four to seven-year prison sentence.

Used to result in a four to seven-year prison sentence.  The precedent this moron of a judge has just set into law has handed paedos of a particular hue a get out of jail free card.  What the Scammel happened to ignorance is no defence?  What happened to justice?  I’ll tell you what’s happened to it.  Our wonderful judiciary just cut off the blind old biddy’s head with that sword of hers and shoved the scales down the hole in her neck!

But the judge said that because Rashid was ‘passive’ and ‘lacking assertiveness’, sending him to jail might cause him ‘more damage than good’.

I guess Rashid dressing up to look like a schoolboy and standing in the dock clasping his hands in front and staring contritely at his feet did the trick, eh?

Rashid, from Birmingham, admitted he had sex with the girl, saying he had been ‘tempted by her’ after they met online.

It was all the girl’s fault.  She wasn’t done up in a tent like a human letterbox so Rashid didn’t have a choice.

Gimme a frigging break!  This is Britain we’re talking about, not some medieval shithole.  We don’t have Sharia courts here.

Oh, wait…

They initially exchanged messages on Facebook before sending texts and chatting on the phone over a two-month period.

They then met up in Nottingham, where Rashid had booked a room at a Premier Inn.

Yeah, he was so naive, passive and lacking assertiveness he had the forethought to pre-book a room in the hotel.

The girl told police they stayed at the hotel for two hours and had sex after Rashid went to the bathroom and emerged wearing a condom.

Wait.  What the…?

Let’s perform a little re-wind.

…you are very naive and immature when it comes to sexual matters.

Not so naive and immature he didn’t know about condoms and what they are for.  Clearly not much of a lily-white ingénue then.  Yet the judge chose to ignore that this paragon of Islamic values went equipped.

I’d say the only naive and immature tosser in the courtroom was Judge Stokes because he’s been had over good and proper.

Rashid then returned home and went straight to a mosque to pray.

Because praying to a Dark Ages warlord who had a nine year old bride is what you do after having sex with a child in a country that locks up paedophiles.  Or at least used to.

He was arrested the following week after the girl confessed what had happened to a school friend, who informed one of her teachers.

It’s a pity the silly girl didn’t confide to her very sensible friend before she met Rashid in the flesh, so to speak.

He told police he knew the girl was 13 but said he was initially reluctant to have sex before relenting after being seduced.

The accused was so reluctant he went to the expense of booking a room and nipping into a chemist for a pack of three. I say chemist since I’m assuming that procuring johnnies from a dispenser in the hotel lavvy is haram.  Or he could have got them from a third party of course.

Earlier the court heard how Rashid had ‘little experience of women’ due to his education at an Islamic school in the UK, which cannot be named for legal reasons.

The name of a school that labels a seven year old a racist for asking another child an innocent question about his skin colour gets splashed all over the papers.  So how come the name of the “school” that teaches its male pupils that women are scum and can be treated as scum gets a pass?  Surely this poison should be weeded out, not protected?

After his arrest, he told a psychologist that he did not know having sex with a 13-year-old was against the law. The court heard he found it was illegal only when he was informed by a family member.

At which point he was so full of remorse for breaking the law he gave himself up to the police.  Oh, wait.  No he didn’t.

In other interviews with psychologists, Rashid claimed he had been taught in his school that ‘women are no more worthy than a lollipop that has been dropped on the ground’.

I’d just love to see the last Ofstead report on this school.  I wonder if it was a glowing, politically correct one?  I can’t wait to see Ofstead explain how rampant Islamic misogyny passed under their radar, accepting, like the judge did, that Rashid isn’t a lying little scrote.  I take it that these Islamic schools are inspected like other faith schools are.  If what Rashid said is true, how many more madrassas in the UK wipe their arses with the national curriculum while under Ofstead’s purview?

When Judge Stokes said Rashid ‘must have known it was illegal, unless he was going round with his eyes shut’, defence lawyer Laban Leake said reports suggested Rashid had a ‘degree of sexual naivety’.

Clearly, Rashid wasn’t the only one going round with his eyes shut…

The school he attended, it is not going too far to say, can be described as a closed community and on this occasion this was perpetuated by his home life.

No shit, Sherlock!  Are we going to see the same largesse handed out to a boy, formerly cloistered in a Catholic school, grooming thirteen year olds and having sex with them?

No?

Then why has Rashid been allowed to get away with it?

‘It is not too far to say that he may not have known that having sex with a 13-year-old girl was illegal.’ Judge Stokes sentenced Rashid to nine months youth custody, suspended for two years, along with a two-year probation supervision order.

But apparently it’s too far to say that Rashid had a mobile phone and a Facebook account which means he had access to the internet.  With all the news about Muslim child grooming gangs and teachers running off abroad with underage pupils being splashed around the media and internet how can he not have known?

Describing Rashid, the judge said: ‘He’s had an unusual education, certainly in terms of the sexual education provided. Comparing women to lollipops is a very curious way of teaching young men about sex.’

Bangs head on table.  It’s not “curious” shit-for-brains, it’s scammelling scandalous!  All those frigging gender equality laws the legal profession print money from vigorously support are being trodden into the mud and all Stokes can say is that it’s curious?  Is he high on crack cocaine or something?  Is he so blinded by political correctness that he can’t see where this will lead?

But he said that Rashid knew what he was doing was wrong.

Then why isn’t Rashid busy avoiding dropping the soap in a prison bathroom?  He groomed and had sex with an underage girl.  That is a prisonable offence.

‘It was made clear to you at the school you attended that having sexual relations with a woman before marriage was contrary to the precepts of Islam,’ he said.

So Rashid is being given this outrageously lenient sentenced for ignoring madrassa teaching?

Addressing Rashid, the judge said: ‘I accept this was a case where the girl was quite willing to have sexual activity with you. But the law is there to protect young girls, even though they are perfectly happy to engage in sexual activity.’

Unless some dhimmified Judge is willing to make an exception when it suits him?

The law my left buttock!  British law has become a travesty, a joke, a sham.  It is unfit for purpose.  Judge Stokes should hang up his wig and gown in shame. Letting a paedophile go because he went to the wrong school is an unacceptable defence. and the sentence handed down has no place in any civilised society.

Was the chief long term victim of the Hundred Years War limited government in France?

I have been rereading a couple of works that I have not looked at in many years – Sir John Fortescue’s “In Praise of the Laws of England” and “Of the difference between absolute and limited monarchy”.

Fortescue was writing in the late 1400s – at the time of the so called “Wars of the Roses” in England, but it is his picture of France that interests me here.

Some of what Fortescue writes is exaggerated, even bigoted. But there is, sadly, much truth in the picture he presents of France.

By the late 1400s France was a land where (as with Roman Empire) the professional army of the King could demand that people in towns and villages give them anything they needed (or claimed to need). And where the Estates General (the French Parliament) had given up the right to regularly approve (or decide NOT to approve) taxation – with th nobles of France having been bought off by imunity from most (although not all) taxation.

Also any ordinary person could be condemned to death in France by the King’s judges without anything that would be understood as a proper trial in England.

Roman law (in the sense of the Roman law of the Empire – with the Prince being above the law and able to change the law by his own WILL) had triumphed in France – with such “feudal” ideas as juries swept away. Louis XI (“Louis the Spider”) sat in his dark tower making up webs of “laws” on the basis of his whims, much like a Roman Emperor.

However, France had not always been like this. Once the nobles, townsmen and freemen of France had been strong in the defence of their liberties – and had forced such Kings as Charles the Bald to recognise them.

Indeed, for example, such things as even the King of France not having the right to take the land held by one family and give it to another had been accepted as an “old right” even as far back as the 877 Edict of Quierzy.

Juries (first, of course, as a form of gaining evidence rather than deciding a verdict) actually came to England from northern France – yet in France (by the time of Fortescue) they had been suppressed. After all one could not have a local group of freemen giving their formal view, either as evidence or as judgement, of the facts of the case – that might limit a judge in his desire to execute people, or to torture them (“putting the question” another feature of late Roman law) till they confessed.

So what had changed? How had such things as eternal taxation (as opposed to taxation considered as a emergency matter – to be approved, each time, by the Estates General) come to be? How had the French King mutated into something close to a Roman Emperor?

My own view is that the so called “hundred years war” with England (mostly faught on the soil of France) was the main factor in the transformation of France from having a limited government – to something that, whilst not totally without limits, was close to be like the government of the Roman Empire (unlimited government).

French desperation to survive conquest, and the desperate desire for “order” (as armed men of many masters and none plundered and killed in most of the country) led to the French people placing vast power in the hands of the government.

Remember what were considered terrible and exceptional circumstances in England during the so called “War of the Roses” had been the NORM in France for around a century.

It may be this that so transformed France from a land of limited government – to what Richard Burke (the son of Edmund Burke) was later to call a land where “the state was all in all”.

Socialist Justice? … er…

Well if you will use Kangaroo Courts, you can expect to get jumped on can’t you?

Can you imagine what the world would look like if this shower ever got power? I’ll say no more, but I wonder how many jokes Jeremy Hardy could squeeze out of this on the News Quiz. What you say? It will never come up on the News Quiz. How utterly unsurprising.

Roman law, modern law and “Feudal” law – a hint as to what that wild madman Paul Marks is on about.

I am no legal expert (“we have noticed Paul”), but I do want to give an hint about what I am on about when I mention the words “Feudal law” or Roman law or modern law – it if be wrong….. well see later for my “get out of jail” card on that.

Before I say anything more I had better state that one can have serfdom without feudalism (for example the Emperor Diocletian established de facto serfdom by declaring that peasants could not leave the land – and many other legal systems had done this before him) and one can have feudalism without serfdom (places like Sark, feudal to only a couple of years ago, were not known for serfdom).

“Feudalism” is (if it is anything – other than just a word) a system where people swear loyality (they make an active choice) it is a MILITARY thing at base, and “feudal” law is about (fundementally) such blood contracts (after all one is swearing to defend someone to the death – one’s own death, and the other side of this contract, the obligations of one’s lord, has to be fundemental also) are based on tradition and custom – made into formal law. That is why (by the way) “Feudal” law can be different in different places – different old customs and traditions.

“Feudal” law can not, logically, be anything else (than old customs and traditions presented as formal law). as if this law can be changed by “the Prince” (either a Roman Emperor or a modern “legislature”) then they can not be part of a contract – as they are, effectively, “above the law” (because the can change it whenever they feel like doing so).

One swears to defend one’s lord to the death and he (or she – for a fedual overlord can be female) swears to unhold the law (as, for example, Henry the First of England did in his formal charter of 1100 – in order to get the people to rally to him against his older brothers) – if the “the law” is simply whatever they say it is (as with a Roman Emperor or a modern Parliament or other legislature) then this is not Feudalism – any more than the “my honour is loyality” of the SS was the warrior code of Northman (indeed, as Tolkien noted, to pretend that there is no difference between honour and loyality – and to hold that loyality is unconditional, i.e. that one will do dishonorable things if ordered to do so, is a direct and deliberate MOCKERY of the traditional honour code). One swears to to defend one’s lord to the death (one’s own death) in return not for “protection” (that is a Roman view of law – or a modern one – after all if one is promising to shed one’s life’s blood for someone else personal protection is not the main thing in play), but for JUSTICE for the upholding of tradition and custom. Seen as a manifestation in this world of divine and universal justice (different in details from place to place – but not in fundemenal PRINCIPLE and, for the same reason, not changing fundemenally over time). This is why the oath is a sacred thing – based on the creator of the universe and the natural law itself.

“All theory Paul – what does this mean in PRACTICE?”

Very well.

First for Roman law (i.e. late Roman law – the law of the Empire). For this I will turn to “Justinian’s Institutes” (Cornell University Press 1987). By the way this is only a tiny part of Roman law of the time – there were many volumes of the writings of previous law officers and the legislation of Emperors (actually the truth of the so called “Code of Justinian” is that most of it is not from Justinian and it is not a code, the “Twelve Tables” back in 450 B.C. may or may not have been a code, but the endless rules and regulations that Romans lived under more than a thousand years later certainly were not a code).

In this work it is stated (Book Two, section one “The Classification of Things”) that neither the seashore or rivers can be privately owned.

So no private beaches under Roman law – and no protected fishing (or protection of water supply from rivers) either.

Anyone may fish where they like – and no private person or association (what Romans would call a “collegia” – spelling alert) may restrict water supply by stating that it is private (they can do that with a well – but not with a river).

In the modern age such thing as Spanish law (that holds that no river is private) and even supposedly Common Law New Zealand (where the last Labour party government nationalized the sea shore) follow the idea that neither rivers or the sea shore (the beaches) can be private property.

It is very different under Feudal law – the notion of “private property” may not be formally stated (that depends on the exact type of “Feudal” law we are talking about – for example it was stated under the law of Norway) the King (as lord of lords) may (or may not) formally “own” everthing – but he certainly can not BEHAVE as if he does (more on that later).

And rivers and beaches can be de facto owned under Feudal law.

For example under Scots law (inherited from their local version of feudal law) right up to 1845, if you wanted to sell something you gave a public display of what it was – remember most people could not read.

And if you wanted to sell private fishing rights (something that can not exist under Roman law) you, as well making a speech before witnesses (plus anyone who wanted to turn up to the river to watch the former owner of the fishing rights sell them to someone else) you handed over a fish.

For land it was some earth (on the site you were selling – again before witnesses), for the hunting rights of birds it was a bird (again….) and so on.

Also under Roman law the owner of a transport service (say someone who makes their living with a couch or carts) or the owner of an inn (or other establishment of business) could not turn away a customer – could not “discriminate” against them (to use modern language) as the owner of a transport service was a “common carrier” and the owner of an inn provided “public accomidations”.

Feudal law does not even know what “common carriers” and “public accomidations” are.

If you owned a cart (or some such) you could transport people or goods. And if you owned a building you could put people up (in return for payment).

But you did not have to do so – if you did not want to.

Owning a cart did not make you part of a special caste that served the state (indeed the term “state” does not really fit into feudal thinking – it is a Roman term or a modern term).

Ditto if you owned a building and put people (if you had a mind to) in return for money, that did not mean you were a special sort of animal called a “public accomidations” person serving the needs of the state (whatever “the state” is supposed to be).

But all the above misses the point anyway……..

As the point is – if Justinian (or some other Emperor) had decided (on a whim) to change the above “legal principles” they could (they were above the law – and could make the law whatever their WILL wished it to be).

If a feudal overlord said one day “I have decided to change the law – after all the law is whatever I say it is”. People would have thought they had gone mad – they might even have called a priest to fight against the demon or devil that had taken over the mind of their lord.

Of course one would fight to the death to save the life of one’s lord – but the lord had no rightful power to “change the law”. After all that would mean a power to overthrow custom and tradition – the manifestation in the land (the spirit of the land) of the law of God, the natural law of the universe. This might manifest itself differently in different lands (depending on the customs and traditions of that land and people), but the fundemental principles of the law were divine and universal.

Of course Roman legal thinkers (like Greek Stoics and Aristotelians before them) also accepted the existance of natural law – but they held that state law trumped it.

“Feudal” thinking (when understood the concept of “the state” at all – which it did not really) held the exact opposite.

The King might give orders in battle and war (and so on) – but if his orders went against the law, they were void (at least to a man of honour). That is why “the spirit of Nurenberg” (“I was only obeying orders”) might be fine from a Roman point of view – but does not make any sense from a “feudal” one.

The lord may call upon you to fight to the death – indeed he should not have to call (you should do that without him asking). But he may not order you to rob or murder someone else – to commit an injustice.

Of course terrible injustices (mass murder, rape and so on) might still occur. But if someone said “what I did was lawful because the Prince (or council or….) told me to it” then they simply showed (even to a person with no learning at all) that they simply did not understand what the words “right” and “law” meant – and were, at best, insane.

Canon Law (church law – and it is impossible to understand “feudal” law without understanding the influence of religion upon it – whether Christian or PAGAN) held the same view – see Brian Tierney’s “The Idea of Natual Rights” (Emery University 1997).

Like Roman Law, Canon Law held that there was positive law (the commands of the Prince – of council in a Republic like Venice) and natural law.

But (like “feudal” thinking) it turned the Roman law thinking on its head.

Far from “positive” law trumping natural law – natural law trumped the “will of the ruler”.

Hence more than a thousand years of Church-State disputes (or disputes between Canon Lawyers and Roman Lawyers – in spite of them, in many ways, shareing the same tradition) they looked at things in reverse ways.

“That was just because the Church wanted to declare what natural law was – as a power grab”

Partly YES – but the Church always made a distinction between Christian practices (the rules of the Church) and the universal laws of God – that applied to nonChristians as much as to Christians (indeed even to nonChristians AGAINST Christians).

Of course some Popes and so on were corrupt scumbags guilty of every crime known to man – but some were not, and even the worst of them held that there were things they should not do (even if they did them) the idea that their WILL was law, would have been denounced as the vomit of the Devil (even by the worst Popes.

Canon lawyers (like “Feudal” ones) would have regarded the pretensions of modern Parliaments (and “human rights” courts) to change fundemental law as they see fit – as, at best, insanity and (more likely) as clear evidence that these “legislatures” and “judges” were agents of the Evil One.

And one must not think that such people were stupid or filled with silly fancies. Many of the Popes and theologians of the past were profound legal thinkers and philosophers – not every Pope spent their time chasing girls and murdering rivals (and even the oness that did often did good work also).

Still back to “Feudal” law – and a single example to come to the end of this post……

I draw from “A Summery view of the feudal law, with the differences of the Scots law from it; together with a dictionary of the select terms of the Scots and English law, by way of appendix” (John Dundas 1710).

As a general rule of thumb – the older an account of “feudal” law the better. As old accounts are more concerned with just laying the thing out – not (like Maitland and his, Blackstone influenced [no wonder the Founding Fathers of the United States despised Blackstone - with his doctrine that whatever Parliament declared was law], crew “explaining” what law “must” be i.e. whatever the state, Parliament, says it is).

Difference number 80.

“By the Feudal law no Man is forced to part with or sell his Few [fief of land] or any part of it.

By our law [i.e. law made by Parliament and so on] a vassel may be forced to give some part of it for High-ways and if his Neighbour be building a Park, or Inclosure, he may be forced to sell an adjacent corner of his Grounds to him, to perfect it”.

This is much like the so called “Edict of Quierzy” (877) which repeated the “old right” that not even a King of France could take the land of one person and give it to another (or himself).

To a Roman lawyer this makes no sense.

To a modern lawyer (such as that scumbag Maitland – and I am right to call him a “scumbag” after all he claims that no Act of Parliament “has ever been passed” that was irational or evil, so there is no need for any judge or jury to oppose an Act of Parliament as being against natural justice, a concept he scorns anyway – I could name a hundred Acts of Parliament passed before Maitland wrote that Devil-vomit lie, that were utterly evil and against basic natural justice) it makes no sense also.

As Maitland says, mocking the upholders of the “speculative dogma” of natural justice “We can  (its upholders seem to say) concieve that a statute might be so irational,  so wicked, that we would not want to enforce it; but as a matter of fact, we have never known such a statute made.”

Pages 107-108  “A Sketch of English Legal History” G.P. Putnam and Sons, New York and London (1915) chapter five (written by Maitland rather than his coarthor Francis Montague) on “Statute and Common Law”.

Oh you dog Maitland,  you pig  – may you be burning, even as I type these words,  for your lies. What of the Statute of Labourers that tried to reduce all peasants (including those who had always been free – such as the people of Kent) to serfs? Much in the manner of the Emperor Diocletian. Or the Stature of Artificers under the first Elizabeth that tried to turn all people (bar the rich) into de facto slaves – forbidden to practice any other trade than that of their father, and forbidden to leave the parish of their birth?  What of the “Black Act” (passed as late as the 1700s) that punished some two hundred crimes (some quite minor) with death?

What of so many other Acts of Parliament – both so irational and so wicked that no one (other than a monster) would uphold them?

However,  I hope the idea of law as trying (in the circumstances of  time and place) to give effect to the principles of jusice (NOT the WILL of the ruler or rulers – in the mannor of the late Roman Empire or of Thomas Hobbes and his “Legal Positivists” with their Hell vomit doctrine that whatever the “legistlature” declares is law)  makes a some sense to libertarians.

As for my errors – no doubt many and terrible……

I offer the words of John Dundas.

“If this Treatise should happen to be less correct, the Reader would be pleased to give himself the trouble to mend the Errors, and excuse what is amiss, this Book being given to be printed by a certain person when the Author was our of Town, and knew nothing of the publishing of it, not having designed so soon to send it abroad into the world.”

The State and the Law

Paul Marks has a neat defence of feudal law here, pointing out that under a feudal dispensation the state is bound by and may not change the traditional law.

In some ways concurring with Pauls argument, but coming at it from a different angle, DownsizeDC asks is the state anarchistic?

    • Can The State be ruled or does it merely rule others?
    • Is The State regulated by laws or does it exempt itself from regulation?
    • Can The State be governed or is it impervious to government?

Not sure about the conclusion he comes to. One of my personal aphorisms, invented by me (I think) is – The order that arises from anarchy, as opposed to the chaos that arises from planning. A nice example of the distinction between anarchy and chaos, terms which some people use interchangeably.

Anyway, I think what he describes is chaos, not anarchy.

Tell me what you think.

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