Category Archives: The Law

The Spirit Of The Law

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In the Charles Dickens novel Oliver Twist, Mr. Bumble is told by the court that the law assumes his wife acts under his direction. Mr. Bumble responds with, “If the law supposes that, the law is a ass – a idiot”. The ass in this case is the donkey, an animal known for its obstinance. Over time the expression has been used to point out that the letter of the law can not only contradict the spirit of the law, but the law itself can contradict common sense and objective reality.

The more important point here though is that the law is an effort to formalize the commonly held moral code, a set of rules that determine what members of a society ought to do and ought not to do. It is not the moral code itself, but an effort to write it down on paper so it is clear to everyone. Fundamental to most ethical systems is the assertion that ignorance of the law is no excuse. You need to know the rules, which is why they are written down so that you can know them.

Despite the law seeming to be an ass, there is a logic to the law. That logic, like all systems, starts from some foundational items. These are the things that everyone in the law assumed to be true. For example, the Bill of Rights is supposed to be a list of starting points for understanding the limits of government. These are not supposed to be up for debate. As far as the law is supposed to be concerned, these are settled truths that cannot be challenged or violated.

This gets to an important point. Every system of oughts, the list of things you ought to do and the things you ought not do, begins with a set of eternal truths that rest on a recognized authority. Christians are free to eat pork because they do not recognize the moral authority of the Muslims and Jews. The prohibition against eating pork rests on the moral authority of those two religions. It is not an objective truth, but a subjective one that works only when you accept it.

The law is a system of oughts and therefore assumes an authority and that authority is supposed to be the Constitution but also tradition as expressed through precedent or the accumulation of court decisions. The Constitution is the starting point for what we all agree is the system of oughts. Precedent is the accumulated decisions over time on the things that were not expressly covered in the Constitution. Combined this makes up the system of oughts that define the morality of our society.

That last bit is what is often missed. Once something is formally put on the list of things you ought not do, it quickly becomes part of the informal list of taboos. The reason for this is that we naturally assume that in a democratic society the law reflects not only the general will but general morality. If the law says it is not allowed, it must mean that it is outside of that which is morally acceptable. In other words, once the court makes it against the law, it quickly becomes immoral.

An obvious example of this in action is homosexual marriage. Up until a few years ago people understood that marriage was about creating children. Since nature dictates how this is done, marriage must be one man and one woman. Then one day some people decided that the laws of nature are up for debate. Two men, it was argued, could be married, despite the biological impossibility of it. This group remained a ridiculous minority until they were able to get the courts to side with them.

In the blink of an eye, the issue of homosexual marriage went from absurd poke in the eye of Mother Nature to settled moral principle. Conservatives who opposed the idea then suddenly defended it. Even social conservatives have dropped their public opposition to homosexual marriage. You can see the change in moral attitudes in the polling on the issue. This absurd mockery of the laws of nature became part of the accepted moral code with the stroke of a judge’s pen.

Another example is the Brown decision. Central to the jihad against white people in this age are the novel moral principles invented by the court. In fact, the court not only created two new moral claims, but made those the controlling principles, superseding even those items written in the Constitution itself. As a result, the constitutional order went from a system of limits on government power to a system of demands on the white population of the country.

The same process is happening with the Bostock decision. In this case a majority of the justices agreed that discriminating against men pretending to be women so they can beat up girls on the soccer field is a form of sexual discrimination and therefore violates the Civil Rights Act of 1964. As Harvard professor Adrian Vermeule points out, this is a ridiculous claim on its face, but it also opens the door for adding yet another novel principle to the legal order.

As we have seen with other novelties from the court, it will not be long before this one sinks into the moral fabric of society. If you do not want your daughters pulverized by burly men in sundresses on the ball field, you will be shunned from polite society or maybe even suffer legal persecution. The fact that the Bostock decision was written by a so-called conservative judge, one anointed by the allegedly conservative Federalist Society and appointed by Trump is critical.

We used to worry about putting Catholics on the bench because it was assumed they would operate from Catholic morality, rather than the morality of high church Protestantism that informed the political order. It was assumed that judges were like all men, and they would operate from within a moral framework, formally expressed through organized religion until recent times. Catholics had Catholic morality, while Episcopalians had Anglican morality.

In other words, the text of the Constitution and the traditions and precedents that informed it were based on a moral framework that existed outside of it. The political system was founded by and for people who assumed a moral order based in high church Protestantism. It did not prohibit men dressed as women from beating up girls on the ball fields because no Christian people would ever conceive of such a thing, much less tolerate advocacy for it.

Once that morale framework was removed from the system, the Constitutional order was left without a moral foundation. It no longer had moral authority on which to rest the list of things members of society ought to do and ought not do. The political system was left to conjure one to replace it. The Brown decision and now Bostock rest on the moral authority of the new religion that has evolved since the middle of the last century, which promises salvation through universal liberation.

In the end, the law is a formalization of the moral code of a society. That moral code reflects the identity of the people who rule society. The foundation of which is either something outside of the human condition like the gods or the collective identity of the people who control society. Once the American ruling class abandoned Christianity as the moral foundation, it eventually settled on the collective identity of the ruling elite that emerged in the middle of the last century.

The trouble is, that ruling elite cannot settle on an exclusive identity as it is a hodgepodge of people from various tribes. Exclusivity therefore runs counter to their shared reality, so their new identity is the Open Society. It is a polite fiction but all ethical codes contain polite fictions. The new ruling elite is every bit as exclusive and discriminating as any ruling elite, it is just that they assume their calling is to usher in the Open Society, a world of free of discrimination and prejudice.

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The Star Chamber Phase

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The term “star chamber” has fallen out of use over the last few decades, but it was a common term used by the American Left in the 20th century. They would use it when arguing that the courts were acting arbitrarily. Other times they would use it in the context of public opinion when one of their guys was in trouble. The point was that the media was being unfair to their guy. Star chambers were bad so anything with those words associated with it must be bad too.

The Star Chamber was a real thing. It was an English court setup in the 15th century to oversee cases involving socially and political important people. This court was staffed with advisors to the king. This way the judges would not be intimidated by the status of the accused. No one knows for sure how it got the name “star chamber” but the most popular theory says it comes from the decorations. The ceiling was painted with gold stars on a blue background.

Of course, like all government power, it was soon abused by the people wielding it to first attack their enemies in court and then to suppress dissent. The main reason it was subverted into an instrument of oppression is it lacked due process. There was no appealing the decisions of the court and since it operated by its own rules, there could be no appeal to a fixed set of rules. This allowed the king to use the system to persecute his enemies and stamp out dissent.

It is why up until the last few decades, the American court system was based on a fixed set of rules that governed all courts. This was ensured by an appeals system that ended with the Supreme Court. Forgotten today, the primary purpose of the Supreme Court was to make sure the court system followed the rules, the primary source of which is the Constitution itself. The courts being open to the public was an additional check on abuse of the legal system by the powerful.

The reason “star chamber” has fallen out of fashion in America is the Left has seized control of the institutions, including the centers of cultural production. They no longer look at the abuse of power as a problem because they have all the power so by definition all uses of power are justified. Note that their objections to the secret courts created after 9/11 were ceremonial and halfhearted. In reality they welcomed this new tool they could use in pursuit of their agenda.

Note also that the only thing we know about these secret courts is they were used against Donald Trump in the 2016 election. To date no one has produced an example of how these courts prevented terrorism. The documented abuses of these secret courts by the FBI have gone unaddressed. Because the courts are secret, we have no idea what goes on inside them, so there is no way to know they are not being used against dissidents in the same way they were used against Trump.

Putting that aside, the court system we can see is also going through a transformation toward the Star Chamber model. Again, Trump provides some examples. In his Florida case the court has warned him about making public statements. There is the threat of a gag order hanging over him. In Washington, Jack Smith has asked the court for what amounts to a gag order on Trump. In Georgia, Trump cancelled a press conference about the case for fear of retribution from the court.

Since we get our information about court proceedings from the media and the media is now an agent of the state, it is not hard to see why proscribed people would want to have their say outside the courthouse. The only chance for fairness in the courtroom now is for the accused to make his appeals outside the courthouse. Naturally, the courts now wish to stifle such conduct. If they can gag the accused, he cannot shine a light on the abuses inside the court through appeals to the public.

This is not just a phenomenon in high profile political cases. Increasingly, local judges and prosecutors are doing the same thing. Here is a case of a famous college football player accused of heinous crimes. If you read between the lines, he was framed by the cops but was forced to remain quiet in order to get out of the case. He comes from money and his father is famous, but none of that matters in a court system that is increasingly the tool of arbitrary state power.

The difference between the rule of law and rule by men is that the former has a clear and precises set of rules open to the public, while the latter is based on the momentary whims of the people who wield power. The proliferation of laws along with a proliferation of ways to interpret the laws has made everything illegal. No one can now list all of the federal crimes on the books. As a result, most people are breaking the law every day of their life without knowing it.

The reason this matters is one of the predicates for social upheaval, like civil wars and revolutions, is the collapse of trust in the law. The Star Chamber system, for example, ended with the English Civil War. The American Revolution was, in part, a response to the collapse of legal authority. The American Civil War was due, in part, to a collapse in trust by both sides in the courts fairly dealing with the slavery issue. The legal system no longer provided a solution to disputes.

When no one trusts the law or the legal system, no one has a reason to obey the rules, much less respect the system that creates them. Put another way, when everyone is in violation of the law, then everyone is motivated to live outside the law. This is the fundamental definition of the outlaw. He is an outlaw because he rejects the system of laws and therefore exists outside the law. This is also the starting place for every revolutionary and revolutionary movement.

In the end, the test of a legal system is the test of a society. That is, how much protection does it provide to those with the least power. A society that provides only protection to the powerful is a tyranny. A legal system that provides no protection to those without power from those with power is also a tyranny. The Star Chamber became the symbol of tyrannical rule because it was the instrument of tyranny, just as our legal system is today.

If you like my work and wish to kick in a few bucks, you can buy me a beer. You can sign up for a SubscribeStar subscription and get some extra content. You can donate via PayPal. My crypto addresses are here for those who prefer that option. You can send gold bars to: Z Media LLC P.O. Box 432 Cockeysville, MD 21030-0432. Thank you for your support!

Promotions: We have a new addition to the list. The Pepper Cave produces exotic peppers, pepper seeds and plants, hot sauce and seasonings. Their spice infused salts are a great add to the chili head spice armory.

Above Time Coffee Roasters are a small, dissident friendly company that roasts its own coffee and ships all over the country. They actually roast the beans themselves based on their own secret coffee magic. If you like coffee, buy it from these folks as they are great people who deserve your support.

Havamal Soap Works is the maker of natural, handmade soap and bath products. If you are looking to reduce the volume of man-made chemicals in your life, all-natural personal products are a good start.

Minter & Richter Designs makes high-quality, hand-made by one guy in Boston, titanium wedding rings for men and women and they are now offering readers a fifteen percent discount on purchases if you use this link. If you are headed to Boston, they are also offering my readers 20% off their 5-star rated Airbnb.  Just email them directly to book at sales@minterandrichterdesigns.com.