The Life of the Law Takes a New Path : Power and the Nature and Development of Human Laws and Institutions

Dear Readers,

As of this posting, our blawg, the newly formed The Life of the Law at WordPress.com, will take a different path than its predecessor, LawPundit, which we are continuing as a regularly updated blog on law focused primarily on current legal developments and issues.

The Life of the Law, on the other hand, will focus on the broader historical and philosophical aspects of law in an interdisciplinary context. As a blog The Life of the Law takes its name from a famous paragraph at the outset of a book on the common law by Oliver Wendell Holmes, Jr. which reads as follows:

The object of this book is to present a general view of the Common Law. To accomplish the task, other tools are needed besides logic. It is something to show that the consistency of a system requires a particular result, but it is not all. The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become. We must alternately consult history and existing theories of legislation. But the most difficult labor will be to understand the combination of the two into new products at every stage. The substance of the law at any given time pretty nearly corresponds, so far as it goes, with what is then understood to be convenient; but its form and machinery, and the degree to which it is able to work out desired results, depend very much upon its past.” – THE COMMON LAW, Oliver Wendell Holmes, Jr., p. 1 (1881) [emphasis added]

The name of this blog at its origin had nothing to do with a book by Laura Nader titled The life of the law: anthropological projects which we found later online, and which is given the following overview at Google Books:

“Laura Nader, an instrumental figure in the development of the field of legal anthropology, investigates an issue of vital importance for our time: the role of the law in the struggle for social and economic justice. In this book she gives an overview of the history of legal anthropology and at the same time urges anthropologists, lawyers, and activists to recognize the centrality of law in social change. Nader traces the evolution of the plaintiff’s role in the United States in the second half of the twentieth century and passionately argues that the atrophy of the plaintiff’s power during this period represents a profound challenge to justice and democracy.”

We have sympathy for Nader’s interdisciplinary approach, but we have problems with her view of what she calls the anthropology of law.

We look to the historical nature and development of human laws and institutions, which — by their very nature — have always favored those in power and always will. The laws of nature favor the strong over the weak and the laws of man do no less, if only because laws themselves are made by those in power, regardless of their political or otherwise affiliation and regardless of the proclaimed objectives. Those in power always exert their power to actively promulgate THEIR views and THEIR desires, whatever they may be. Such actions can of course benefit third parties and  be of a benevolent nature – but their motivation is always self-interest on the part of the holder of power.

We see this particularly in the realm of religion, where preservation and furtherance of the ruling dogma always has a higher priority than the achievement of any concrete human benefit.

A case in point is the accountability of the Roman Catholic clergy to temporal laws of the State for serious crimes. Scandals involving criminal activities by the clergy fill current news, and this reflects an ancient — even today not fully resolved — battle between the powers of the Church and the State.

More than 800 years ago, there was a monumental battle between King Henry II of England and Thomas Beckett, Archbishop of Canterbury, on just this point, as Henry II insisted that clergymen guilty of serious crimes be tried by State courts and receive just punishments, whereas Beckett insisted that ecclesiastical servants remain under ecclesiastical jurisdiction, where penalties were often minimal – as they still are today, if the Church is allowed “to try their own”. These battles take place over “power” and are not battles over “justice”, even if the churches claim that their organizations serve “benevolent” human interests. So too does government serve the interests of the public, from its point of view. There is in fact no such thing as “benevolent power”. Rather, as in the American system of political and governmental checks and balances among the legislative, judicial and executive branches, the only reality is that “power  corrupts” and “absolute power corrupts absolutely”, so that effective checks and balances are ESSENTIAL to any modern nation-state or its political equivalent.

The worst case here is represented by the religions that merge Religion with the State. This merging of Church and State always marks the end of the rule of law in its civilized sense and invariably presages barbaric inhuman rule by religious bodies — unchecked by modern concepts of legal rights, where the primary legal justification is that the “religious end” — whatever its objective — allegedly excuses — indeed, justifies — any means employed to reach that objective, regardless of the terrible inhuman harms inflicted.

That kind of alleged religion is actually the “absence” of religion in the sense of a belief which is beneficial to humanity. That objective is perverted by the idol of the dogma: It is simple idolatry of an invisible, purportedly existing idol, an idol whose existence can not be proven.

This idolatry – when collectivized – manifests human power in society in its worst form, leading to the total dehumanization of social and family systems, and leading to a society where members of such a society are viewed as no more than fungible tools of the ruling elite and the ruling dogma.

Religion is not the only such worship of  idols. This idolatry is also visible in such atheistic systems as North Korea, where not the Religion merges into the State, but where the State merges into and supplants Religion, making the State theory the system of belief.

A similar development can be seen in the rule of Cuba, where “time” – in the sense of social progress – virtually stopped with the Cuban Revolution and became the servant of the Communist dogma of the ruling oligarchy, who adopted Marxism-Leninism more as a protest against capitalist imperialism than as an embracement of Marxist-Leninist ideals.

Communistic Marxism-Leninism has ultimately collapsed nearly everywhere — and its days are also counted in countries like North Korea or Cuba. This false idol failed and is now rightly gone in Russia and Eastern Europe. Indeed, the fate of this idol is sealed because the preservation and furtherance of the prevailing dogma — i.e. the anthropological idol – becomes the leading motivation of political existence, and as such, disregards economic realities and runs contrary to human benefit, technological progress and social improvement.

Even in capitalism, we see the same phenomenon in action in opposing the introduction of national health reform in the United States, which has been opposed by its opponents primarily on dogmatic, pseudo-libertarian and capitalistic grounds, rather than on the question of what is best for the health of all American citizens in the long run.

As regards existing power systems in politics in general, it is foolish to expect such power structures to admit wrongs and to see the error of their ways. Rather, a principle also applicable to science raises its head, as written by Max Planck, Wissenschaftliche Selbstbiographie, 5. Auflage bei Johann Ambrosius Barth, Leipzig 1970, (1.Auflage 1948), l.c.p.16,1:

“Eine neue wissenschaftliche Wahrheit pflegt sich nicht in der Weise durchzusetzen, daß ihre Gegner überzeugt werden und sich als belehrt erklären, sondern vielmehr dadurch, daß die Gegner allmählich aussterben und daß die heranwachsende Generation von vornherein mit der Wahrheit vertraut gemacht ist. ” (A new scientific truth does not triumph by convincing its opponents and making them see the light, but rather because its opponents eventually die, and a new generation grows up that is familiar with it.) – The English translation is from The Structure of Scientific Revolutions, Thomas Kuhn (1962), p. 151)

Law too is affected in much the same manner as above in resisting sensible change at every crossroads. In law — which is by nature conservative — this is done by applying the principle of stare decisis and in following previous precedents. What has been done before is usually determinative for what is done now and what is to be done in the future. This makes any kind of substantial legal reform very difficult because existing laws or precedential court decisions do not simply die out. Rather, for real legal progress to occur, laws must be actively changed and precedents must be overturned, which occurs very seldom, and then often at great cost.

At any time in this process, the established opponents are always present in great numbers and resist change at every opportunity. That is why the process of change and resistance to change mark every step of human development on this planet.

Please change your records for LawPundit. The LawPundit blog is now running at blogspot.com at the following address http://lawpundit.blogspot.com/ and has the following RSS feed http://feeds.feedburner.com/blogspot/kUbm

Please change your records for LawPundit.
The LawPundit blog is now running at blogspot.com at the following address
http://lawpundit.blogspot.com/
and has the following RSS feed
http://feeds.feedburner.com/blogspot/kUbm

Since we do not trust Google’s “Blogger team”, who already deleted our lawpunditblog.blogspot.com mirror of LawPundit, we are keeping our pre–transfer archive of LawPundit at “The Life of the Law” at WordPress, but that blog will develop a life of its own in coming postings. That archive covers only postings made prior to the forced migration of the LawPundit blog due to Google Blogger’s abandonment of FTP blog publishing. We can at this time make no guarantee that LawPundit will continue at lawpundit.blogspot.com.

Please note: Upon transfer of LawPundit to the now deleted lawpunditblog.blogspot.com (deleted by Blogger), the Google Blogger team erroneously put up 30-second time-delayed redirects on each archive page at lawpundit.com, so that after viewing a lawpundit.com archive posting, there is an automatic redirect to a now non-existent lawpunditblog.blogspot.com. We can no nothing about this immediately since we have no quick FTP way of changing the HTML code of each of more than 1500 individual postings.

Law Translators and Professional Language Translation : A Call to Resist Discount Rates

Legal or other language translation is by nature a competitively rough business where competent translators are very poorly paid to begin with, so that the following posting is of value to professional translators in the field:

Are you a professional translator? If so, do NOT lower your translation rates! « Marcela Jenney’s Blog

“Clients are asking for discounts, and translators are honoring their requests more and more every day. When you provide a discount on your services, you are giving permission to others to think your services are not worth much. And, unfortunately, this trend is adversely affecting the entire translation and localization industry.”

Read the full story here.

Today is the Birthday of Former U.S. Supreme Court Justice Oliver Wendell Holmes, Jr., Born on March 8, 1841 in Boston

Via the Britannica Facebook feed for today March, 8, 2010, we are informed that the great judge Oliver Wendell Holmes, Jr., also known as “The Great Dissenter” was:

“born March 8, 1841, Boston died March 6, 1935, Washington, D.C.

Oliver Wendell Holmes, Jr. [Credit: Encyclopædia Britannica, Inc.] Justice of the United States Supreme Court, U.S. legal historian and philosopher who advocated judicial restraint. He stated the concept of “clear and present danger” as the only basis for limiting free speech.”

Read the rest at the Britannica Online
.

__________

The Wikipedia has some paragraphs which contain some of the better known of Holmes’ famous quotes:

“According to Holmes, ‘men make their own laws; that these laws do not flow from some mysterious omnipresence in the sky, and that judges are not independent mouthpieces of the infinite….’

As a justice of US Supreme Court, Holmes introduced a new method of constitutional interpretation. He challenged the traditional concept of constitution. Holmes also protested against the method of abstract logical deduction from general rules in the judicial process.

According to Holmes, lawyers and judges are not logicians and mathematicians. The books of the laws are not books of logic and mathematics.

He writes: “The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, and even the prejudices which judges share with their fellow-men, have had a good deal more to do than syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics….”

Holmes, also insisted on the separation of ‘ought’ and ‘is’ which are obstacles in understanding the realities of the law. As an ethical sceptic, Holmes tells us that if you want to know the real law, and nothing else, you must consider it from the point of view of ‘bad man’ who cares only from material consequences of the courts’ decisions, and not from the point of view of good man, who find his reasons for conduct “in the vaguer sanctions of his conscience”….

EDGE: "Europe, Where the Idea of Competition in the Internet Space Appears to Focus on Litigation, Legislation, Regulation, and Criminalization"

Does Europe especially need to reconsider their approach to the Internet? EDGE would say yes:

Edge: TIME TO START TAKING THE INTERNET SERIOUSLY By David Gelernter: “Introduction: Our Algorithmic Culture” by John Brockman:

“Edge was in Munich in January for DLD 2010 and an Edge/DLD event entitled ‘Informavore’ — a discussion featuring Frank Schirrmacher, Editor of the Feuilleton and Co-Publisher of Frankfurter Allgemeine Zeitung, Andrian Kreye, Feuilleton Editor of Sueddeutsche Zeitung, Munich; and Yale computer science visionary David Gelernter, who, in his 1991 book Mirror Worlds presented what’s now called ‘cloud computing.’

The intent of the panel was to discuss — for the benefit of a German audience — the import of the recent Frank Schirrmacher interview on Edge entitled ‘The Age of the Informavore.’ David Gelernter, who predicted the Web, and who first presented the idea of ‘the cloud’, was the scientist on the panel along with Schirrmacher and Kreye, Feuilleton editors of the two leading German national newspapers, both distinguished intellectuals….

Take a look at the photos from the recent Edge annual dinner and you will find the people who are re-writing global culture, and also changing your business, and, your head. What do Evan Williams (Twitter), Larry Page (Google), Tim Berners-Lee (World Wide Web Consortium), Sergey Brin (Google), Bill Joy (Sun), Salar Kamangar (Google), Keith Coleman (Google Gmail), Marissa Mayer (Google), Lori Park (Google), W. Daniel Hillis (Applied Minds), Nathan Myhrvold (Intellectual Ventures), Dave Morin (formerly Facebook), Michael Tchao (Apple iPad), Tony Fadell (Apple/iPod), Jeff Skoll (formerly eBay), Chad Hurley (YouTube), Bill Gates (Microsoft), Jeff Bezos (Amazon) have in common? All are software engineers or scientists.

So what’s the point? It’s a culture. Call it the algorithmic culture. To get it, you need to be part of it, you need to come out of it. Otherwise, you spend the rest of your life dancing to the tune of other people’s code. Just look at Europe where the idea of competition in the Internet space appears to focus on litigation, legislation, regulation, and criminalization. [emphasis added]

Read the whole thing here.

Hat tip to the Encyclopaedia Britannica at Facebook.

Mobile Patent Lawsuits Increasing Dramatically

Nick Bilton at the New York Times Bits Blog discusses the Explosion of Mobile Patent Lawsuits in the last year, writing inter alia:

“On Tuesday when I spoke with Eric Von Hippel, a professor of technological innovation at M.I.T.’s Sloan School of Management. He pointed out that patent lawsuits had turned particularly unpleasant lately as a result of companies that only buy and sell patents.”

Read the whole thing here.

Hat tip to TechDirt.

This was all foreseeable years ago and we wrote about it. Now, you have a gigantic – then avoidable – problem at your doorstep which is no longer avoidable.

Paranoid on Privacy: Legitimate Law Enforcement Data Retention in the European Union Dealt an Extreme Blow by Germany’s Constitutional Court

EU DATA RETENTION for LAW ENFORCEMENT PURPOSES

The European Union EU Data Retention Directive, Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC requires telecommunications data storage by EU Member States for law enforcement and anti-terrorism purposes. Each EU Member State is required by the Directive to enact legislation in accordance with the Directive. Article 4 on Access to Data provides in addition that privacy safeguards are to be adopted:

“Member States shall adopt measures to ensure that data retained in accordance with this Directive are provided only to the competent national authorities in specific cases and in accordance with national law. The procedures to be followed and the conditions to be fulfilled in order to gain access to retained data in accordance with necessity and proportionality requirements shall be defined by each Member State in its national law, subject to the relevant provisions of European Union law or public international law, and in particular the ECHR as interpreted by the European Court of Human Rights.”

Germany implemented that Directive in the “Gesetz zur Neuregelung der Telekommunikationsüberwachung und anderer verdeckter Ermittlungsmaßnahmen sowie zur Umsetzung der Richtlinie 2006/24/EG“, effective January 1, 2008.

On March 2, 2010, the Federal Constitutional Court of Germany ruled that German law unconstitutional, essentially on the grounds of “vagueness” and ordered the destruction of all data thus far retained – an extreme decision without seeming practical necessity.

A nice summary of the court decision is found at the Privacy and Information Security Law Blog by Hunton and Williams LLP.

The Spiegel Online International in Defending Privacy: German High Court Limits Phone and E-Mail Data Storage writes (March 3, 2010):

Germany’s highest court has rejected a controversial law requiring data on telephone calls and e-mail traffic to be stored for six months for possible use by law enforcement. Data stored so far must be deleted immediately, and strict controls must be put in place before the law can come into force again.”

Lance Whitney at CNET’s Politics and Law in German court rules against data retention policy writes:

“The German court found that the law, as implemented, went beyond the intent of the original directive and has ordered all customer data to be removed immediately. The new ruling suspends the directive but doesn’t knock it down permanently. The German court indicated that tighter controls would be needed to ensure the security of the data as well as a clear intention and control over what the data would be used for.”

The German Federal Constitutional Court decision follows a similar line of provincial thinking found in the article German Minister Warns Against the Power of Internet Giants, as written by Spiegel Online International:

“German Consumer Protection Minister Ilse Aigner has launched an attack on the Internet economy, warning that the likes of Google, Microsoft and Apple store vast amounts of personal information on Web users that can be used for financial gain, and can hurt people’s chances of getting jobs or bank loans.”

In a comparably paranoid vein, there is also pressure in Germany and in the EU on Google’s Street View. As reported in CNET’s Does Google Street View see a future in Europe:

“Faced with European Union demands that Google reduce the time it stores its Street View images from 12 months to 6 months, Google Chief Technology Advocate Michael Jones said this week that the company may choose not to map any new photos in Europe unless an agreement on data retention can be reached. Jones, who is also Google’s former chief technologist of Google Maps, Google Earth, and Local Search, made his comments in an interview with Bloomberg News at the Cebit Technology Fair in Germany.”

People’s aversion to Google’s Street View must be one of the most puzzling developments ever, as we find Street View to be one of the greatest features in geographic mapping ever devised, adding a new cartographic dimension to our planet of incalculable value.

The conception that data storage of valid cartographic material GENERALLY violates rights of privacy is simply absurd in all but the most exceptional cases (we leave room open for such a possibility since exceptions always – validly – surface.)

Someone will ALWAYS have this data stored somewhere, but if the data controllers limit it, YOU and I won’t have it, be sure of that, and only someone ELSE will have it. I am not sure how putting cartographic data into the power of unknown data controllers increases my privacy, whereas I do know for sure that limits on Street View greatly limit my world.

Maybe I want to be able to see and show to others – online – the street where I grew up without having to fly there half-way around the world. Or maybe I want to be able to examine thoroughly a future vacation locale or a possible real estate purchase, like a home, without finding that a hotel is next to an oil refinery, or that the home is directly on a highway. Or maybe I want to check out local amenities and circumstances, like schools, shopping, dining, sports, recreation, etc., for a future change of residence or for a visit. There are many, many legitimate uses to Google Street View. I am at a loss to understand how the privacy of anyone is wrongfully infringed by showing the world as that world actually is – in its entirety – presuming of course that what is shown can be seen from public property and shows nothing that a normal passer-by could not see. That is why people who want greater privacy than is normal build hedges around their houses. Well, let them. But do not deny Street View to those of us who want to have it and who find it a welcome addition to the “real world”.