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.