Past and Present

"All law is a compromise between past and present, between tradition and convenience. Hence pure analysis, since it deals with the present only, can never fully explain any legal system."

-- James Bryce, Studies in History and Jurisprudence, vol. 2, at 616 (1901).

Comments

[DaivdBehar]

All law is feelings, biases, self interest. All law is ineffective rent seeking, taking our $trillion and returning nothing of value. This is the Mafia infiltrating and controlling an empire class government.

When a legal doctrine gets externally validated and proven, it cannot withstand the rent seeking. Mandatory sentencing guidelines drop crime 40% across the board, but cause lawyer unemployment. Hang 'em High Scalia goes on a jihad to take them down in all jurisdictions.

You scumbags must be stopped to save our nation. You are not stupid, you are evil, the font of all evil in this country, of all social pathologies, of all racial disparities through feminist caused bastardy.

[DaivdBehar]

The rent seeking theory explains all lawyer failure and stupidity.

[Sarcastr0]

Sick burn on originalism.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

I suppose we could call your obsession ODS.

[DaivdBehar]

Stop being a collaborator with the Mafia. I pray you do not get jacked by a Democrat client of the lawyer.

[Sarcastr0]

If originalism is all about the past, it cannot provide 'compromise between past and present, between tradition and convenience.'

[DaivdBehar]

Amend the constitution to update, as has been done so many times.

[Michael P]

And if the moon is made of green cheese, astronauts do not need to bring food when they go there.

[Sarcastr0]

So you claim originalism is not about the past, I guess?

[Michael P]

I claim it is not "all about the past", which is what you wrote the first time. Originalism necessarily addresses modern applications and interpretations of the original meaning of laws. Otherwise it wouldn't need to be invoked.

[Sarcastr0]

The entire inquiry of originalism is about the past - it's pure tradition reapplied, explicitly rejection any notion of convenience.

[Sarcastr0]

I wouldn't call it ODS - I just think discussions about the merits of methods of Constitutional interpretation are at the top of the heap in both interest and importance.

I like some stuff originalism brings to the table, but I also think a lot of the movement is bad in a lot of ways beyond just as a method of interpretation.

[Krayt]

The purpose of originalism is to stop the squirrely power hungry from arrogating new power not granted to them by The People.

Suave demagogues with the gift of gab have little trouble leaping that bar to a simple majority and normal lawmaking. And it doesn't work out well historically.

Tell me all about rotten Trump, and how he was doing exactly that, and why it's bad.

Then look in the mirror.

[Sarcastr0]

First, I don't think originalism does that, especially given how much of it is about dismantling rights that protect against the government.

Second, there are lots of other ways to do that other than speculating your way into a consensus among a bunch of fancy lads in the 1700s. (Spoiler: there never really was much consensus)

Third, suave judges with rationalizing skills can do just as much mischief as a demagogue, no? There is no real evidence originalism cabins that danger.

[The Margrave of Azilia]

Originalilsm might be less appealing if the alternatives were more appealing. Maybe going back to the classical legal tradition?

[Ruqt]

"All law" ? The Ten Commandments?

[DaivdBehar]

You don't see the self serving rent seeking in the Ten Commandments? Reread them.

[Dan Schiavetta]

Except for the Second Amendment. Then it's all about the past, no matter what the disastrous consequences are for the present.

[Armchair Lawyer]

"Those who cannot remember the past are condemned to repeat it."

[Sarcastr0]

Yeah, who can forget how every country with gun restrictions became Nazi Germany?

[Armchair Lawyer]

A brief history of gun control laws...

https://mises.org/wire/brief-history-repressive-regimes-and-their-gun-laws

[Sarcastr0]

A brief history that fails to include a lot of countries with strong gun control laws for some reason.

If you want to argue there is a risk, make that case. But this cherry picking causal narrative will convince no one.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

And you've never picked cherries?

[Sarcastr0]

Irrelevant.

[Krayt]

A lot of strong gun control countries do not fall into dictatorship because of strong partnership from other countries, with the US as the ultimate backstop for Europe.

With weak partnership, see Phillipines, Turkey, Brazil.

[Sarcastr0]

The US is what keeps Europe from becoming authoritarian, because of all their gun restrictions?

Do you have any support for that notion, or just trying to find justifications to curate your data set towards the outcome you want?

[Armchair Lawyer]

Providing repeated examples of gun control leading to tyranny actually does convince people.

But, what you really want is to provide a comparison of those countries that instituted strong gun control, and the % that ended up in tyranny, versus those that emphasized and kept strong gun rights for all of the people that ended up in tyranny.

For example, if 50% of those countries which put strong gun control laws into place ended up in tyranny or dictatorships of some sort, while 0% of those countries that emphasized strong gun rights for all the people (ie, Switzerland) ended up in tyranny or dictatorship....that would still be a pretty good argument against gun control.

So, what you would need to provide Sarcastro are examples of countries that had strong gun rights for all their citizens, but despite that ended up in a dictatorship or tyranny. Will you provide it?

(OK, that's a misleading question. I know Sarcastro won't provide any data or links to support any of his arguments....I know)

[Sarcastr0]

You may be able to show it's necessary for authoritarianism, but you have provided zero evidence that it's sufficient, though you seem to be arguing full causation (necessary and sufficient) at 11:38.

I see you're suddenly arguing tendencies (though hypothetical ones). That's fine, but what set me off was your broad if-then implication, so this is a backpedal.

I think there is a personal right to self defense. I do NOT think that broad gun ownership is all that's keeping every government from going authoritarian. That's just an insane level of paranoia that ignores the counterexamples of societies that are both disarmed and liberal throughout history and today.

[Armchair Lawyer]

"Seems" is doing an awful lot of strawman work for you there, Mr. no evidence Sarcastro.

Let's put it in terms you understand. Having strong gun rights and protecting them for everyone is like having a seatbelt on. It helps to protect you from catastrophic harm.

Going around with gun control is like taking off the seatbelt. And sure, on occasion, you can get into an accident and nothing bad happens. But a whole lot of other times, something really bad does happen.

[Sarcastr0]

My evidence about what you said is quoting your post, dude.

See, now that you've been called on it you're absolutely moving back from 'doomed to repeat it.'

I think your risk mix is way off if you look at the world today, but that's a different point than your originalist thesis.

[Stephen Lathrop]

Armchair, Swiss gun laws look like the gun control laws this nation would have if the 2A were interpreted as a right for a militia purpose, and the rest of the laws were written by pro-gun-control Democrats. EV and the NRA would oppose any attempt to institute Swiss-style weapons control in the U.S. You would object too. Check it out on Wikipedia. What I found there looked a lot like the gun control laws I would write myself.

Except for that, you are asking the wrong question. Tyranny is not the typical result of lax gun laws combined with high gun prevalence. Disorder, gang proliferation, warlordism, and a general breakdown in the capacity to run a free economy are what history suggests we should expect from that malign combination.

Also, historical examples are hard to find to show that pre-existing high-gun prevalence has done much to prevent devolution into tyranny, or provided useful force to overthrow upstart tyrants after they seize power. The usual pattern in such cases—where armed resistance becomes a beneficial resort of a beleaguered people—is that rebels steal arms from their oppressors, get arms from abroad, or win their freedom mostly via foreign alliances—just as the U.S. did at the time of the Revolution.

And of course, just as a formal matter, the Constitution provides zero support for a right of insurrection against the U.S. government. Any notion that high gun prevalence is a wise precaution against tyranny in the U.S. is nonsense.

[Currentsitguy]

OT, but Salman Rushdie has just been stabbed onstage in Chautauqua, NY.

[DaivdBehar]

Reward was up to $3.3 million. The Iranians have no problems with lawyers preventing addressing their enemies from the top.

[Ed Grinberg]

Based on FBI's statistics / pronouncements, I'm sure it was a Trump-supporting "white nationalist"! Everyone knows they're the only domestic terrorists we need to worry about!

[apedad]

Laws are simply contracts which are created whenever two (or more) people have some sort of relationship which spell out standards the "society" are supposed to meet.

Their creation can be mutually agreed upon (with mutual benefits), like in a democracy or perhaps the stronger party can force/enforce a law upon a weaker party like in a monarchy.

[Bob from Ohio]

"analysis, since it deals with the present only" is just nonsense

"analysis" of [for instance] the First Punic War "deals with the present only"?

[Alpheus W Drinkwater]

Actually, I was wondering about that too. I'm not sure what he meant by "pure analysis," as opposed to some other kind. What type of pure analysis of the law doesn't include the past, for instance reference to precedent?

[DaivdBehar]

Queenie. See you next Tuesday.

[Sarcastr0]

Economics is who gets what, not politics.

Do you think all of government is resource allocation?

[Sarcastr0]

Not what I said.

[Stephen Lathrop]

Simultaneously, every country with little to no gun control descends into a war of all against all, right?

mad_kalak — Problem with that one is that it might tend to be true, but when you reach high gun prevalence with little or no gun control, order may break down, and "country," can become a misnomer. It becomes more a regional- or sub-regional problem as previously peaceful regions crumble into violence and disorder.

Examples which come to mind include much of the south coast of the Mediterranean during the 18th century; parts of Pakistan, and before that the Northwest frontier of India; much of China during the latter half of the 19th century; Mexico around the turn of the 20th century; Afghanistan; Yemen; Somalia; El Salvador; Honduras; the Balkans at various times; much of post-colonial Africa; parts of sub-Saharan Africa today; parts of Columbia ruled by drug lords; probably parts of the Amazon rain forest today; the western plains of the U.S. for 20 years or so following the Civil War, while the Indian genocide was at its violent peak. Likewise the previous western frontier of the U.S., at times before, during, and following the French and Indian War. Also, much of the U.S. South following the end of reconstruction and during the height of Jim Crow.

Examples abound to show that high gun prevalence coupled with little or no gun control is a dangerous social condition which tends to deliver social disorder, a breakdown of effective governance for all, and to encourage instead arbitrary and violent warlord-style governance. You may view the latter as tending toward disarming the populace; I view it as a likely result of distributing arms indiscriminately to enough people to encourage illegitimate political ambitions among upstart competitors for power, who may then accomplish what you fear. I suggest the U.S. is on the verge of doing that now.

[Sarcastr0]

What point are you trying to make?

[Sarcastr0]

AL seems to be making an essentialist argument - 'doomed to repeat it' is pretty assuredly dire.

I provided counterexamples to that push. Nothing ad absurdum about it.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

No false idols? Isn't that a monopoly? Rent-seeking as blatant as can be?

[Currentsitguy]

Confusing information. On one hand they are saying he is not in serious condition, yet in the same article they are saying he was Medevacked by helicopter.

[Krayt]

Unrestricted law is plague. This is government by design -- from the first guys to pick up clubs and wander down to a dirt crossroads to demand two farmers pay their fair share, up through empire eternal, where the thug is the best at killing their political enemies, so they can be the grafter-in-chief.

I did meet an honest person, once. When pointing out the corruption, they said, "So what? If they are doing the right thing, who cares if they take some on the side?"

Almost all human history, and well over half the world, you go into government to be corrupt and make a better life for yourself.

It is in the interests of the corruptions to pretend they are the saviors of civilization, when they are the warped things from a Lovecraft novel, twisting rules designed to limit their historical and worldwide omnipresence and effect.

[apedad]

In a democracy, aren't taxes voluntary, i.e. consent of the governed?

[Sarcastr0]

Taxes are not voluntary is not responsive to the question if whether all that government does is resource allocation.

Is performing diplomacy about 'who gets what?'

[Bob from Ohio]

"Is performing diplomacy about 'who gets what?"

yes, of course

Nations negotiate over land and trade and resources. Its all rooted in economics.

[Artifex]

The clown word in this statement is the word "all".

No, resource distribution is not "all" the government does. It is however a significant part of what the government does. The Sarcastro style logic of painting it as "all" the government does so that you can attack it and side step the actual statement about allocation of resources is more of the usual dishonesty in the clown tent.

[DaivdBehar]

To review, from Adam Smith, rents, profits and wages.

I cut your hair, you give me $20, that is a profit. Both parties are ahead. Government builds a road a lot of people use, that is a what? A profit. The government provides an effective police. You can now do your business instead of spending all your time on physical security and survival. That is a what? A profit. Everyone is ahead.

In the Medieval rent, the Lord took a third of your crop and returned nothing of value, save he did not behead you. It is the Mafia. He did not protect you from the Vikings. He did not provide any infrastructure to take your crop to market. You just were not killed. He took the crop by force and returned nothing of value.

Rent seeking is the crime of armed robbery. The rent seekers should be arrested, tried, and executed. To deter.

[Sarcastr0]

Almost all human history, and well over half the world, you go into government to be corrupt and make a better life for yourself.

Your support for this appears to be your ass. Humans are not so venal a creature, by and large.
Even Kings of yore developed noblesse oblige when they didn't have to.

Corruption is an issue. But all of government *exists* to further corruption? That's like college libertarian late-night smoke session shit.

[DaivdBehar]

Krayt. Please see my comment about the dose response curve. You are referring to government in the toxic range. It is really hard work to find the sweet spot, and no is doing it.

[DaivdBehar]

The rule of law is an essential utility service, that makes civilization possible. Government is the enterprise we use when a task is so big, it must be funded and achieved by the entire population of the jurisdiction. Government must have some immunities and privileges. It must collect taxes by force. It must people in a cage, and not let them leave. It must homicide some people for safety purposes.

These utility services are profits and a tremendous bargain.

When they fail, especially on purpose, to unjustly enrich scumbags, that is called the rent. Rent seekers are the Mafia. Defending against them by killing is a moral imperative.

[Voize of Reazon]

Artifex, the statement that launched this latest round of schoolyard bickering was

Politics, the definition of which is "who get's what"

That seems to me a pretty clear claim that politics is only resource distribution.

[DaivdBehar]

All remedies have a dose-response curve. Too little does not work. Too much is toxic. It is hard work to delineate this curve and to find the sweet spot. It is even more complicated that measuring the remedy. There are host factors, too little and too much differ between populations. These host factors change over time. The sole answer is continual measurement of outcomes, and adjusting the doses, like yearly. 5% of government budget should go to measuring outcomes with reliable and valid instruments.

The dumbass scumbag lawyer has never applied these measures worked out 100 years ago. Why? Because they have men with guns, they are the Mafia, and they are getting their $trillion. Why do that work?

There have been natural experiment. Mandatory sentencing dropped crime 40%. It caused lawyer unemployment. It was ended. The murder of diverses surged even with the tiniest amount of decarceration. We have no cash bail. Cities are unlivable again. Shingles doesn't care. The lawyer doesn't care. It has full employment again.

[DaivdBehar]

Let's say, Eugene is the lawyer who was born with the highest IQ in the profession. He had a STEM education. Then he passed 1L. Now he has no idea to what I am referring. He has a 40 IQ points advantage over me. All my points are from high school education. No idea. He is a denier on behalf of the rent. He is on the list, along with all endowed professors. and the ALI.

[DaivdBehar]

Ten Commandments list & meaning
You shall have no other gods before Me.
You shall make no idols.
You shall not take the name of the Lord your God in vain.
Keep the Sabbath day holy.
Honor your father and your mother.
You shall not murder.
You shall not commit adultery.
You shall not steal.
You shall not bear false witness against your neighbor.
You shall not covet.

Are you free to disobey these prohibitions? What happens if you do? Will force be used?

The last 6 are of great value and are profits. I will admit that easily. The first four impose a scam by force.

The Christian religion added the best scam ever. Pay us now, get rewarded after your death. Even Medieval people got sick of that.

[DaivdBehar]

Gentlemen. Please read my comment about the dose response curve of all remedies. Unfortunately, it involves doing work.

[Sarcastr0]

How did I beg the question? I didn't provide a single country, but I didn't think I needed to considering the many examples that there are.

[DaivdBehar]

The rent of an apartment is a what? A profit. A shelter I could never build is provided, and I give the owner money for a profit. Both are ahead. The rent in the Rent Seeking Theory is the Medieval word not the rent of an apartment.

[Artifex]

I suppose for sufficiently clownish versions of "resource distributions" that may be true.

Do you then consider getting a common defense or the respect of ones civil rights enforced via government a resource ? "Who get's what" is damn accurate even when it is "who gets protection under the law" or "whom the law is applied to". Are those things resources as well ? They are fundamentally politics.

[Voize of Reazon]

Artifex, you will have to look to mad_kalak to defend his statement, not me. He already admitted that when he wrote "what" he meant resources:

S0: Do you think all of government is resource allocation?
mk: I don't think, I know. That's the definition of politics.

[Bob from Ohio]

"In a democracy, aren't taxes voluntary"

“Democracy is two wolves and a lamb voting on what to have for lunch." attributed to Ben Franklin

I've voted against dozens of tax levies, my taxes still increased. If I don't pay, the state will sell my house. That's not "voluntary".

[Sarcastr0]

Obviously not. Is it some anti-Muslim thing?

[Ed Grinberg]

Why would anyone express any anti-Muslim sentiments in connection with Mr. Rushdie? How would that even make sense?!