law


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Any state, no matter how powerful, cannot not rule solely through the use of brute force. There are too few rulers and too many of us for coercion alone to be an effective means of control. The political class must rely on ideology to achieve popular compliance, masking the iron fist in a velvet glove. Violence is always behind every state action, but the most efficient form of expropriation occurs when the public believes it is in their interest to be extorted.

Mythology is necessary to blunt the violent nature of state power in order to maximize the plunder of property — and, most importantly, provide an aura of legitimacy. The perception of legitimacy “is the only thing distinguishing a tax collector from an extortionist, a police officer from a vigilante, and a soldier from a mercenary. Legitimacy is an illusion in the mind without which the government does not even exist.”1

State authority, and public obedience to it, is manufactured through smokescreens of ideology and deception. These myths sustain the state and offer an illusion of legitimacy, where orders, no matter how immoral or horrific, are followed because they are seen as emanating from a just authority. The state cannot implement violence against everyone everywhere and overwhelm the host, so the battle is waged against the hearts and minds of the public. Fear is exploited, language is distorted, and propaganda is spread, while narratives and history are tightly controlled. The gulag of state power, first and foremost, always exists in the mind.

If the mythology of state power is smashed, then the state is exposed for what it is: institutionalized violence, expropriator of the peaceful and productive, and entirely illegitimate.

The Myth of the Rule of Law

In order for a society to have peace and order, there needs to be a set of largely uniform and neutral laws in which the vast majority of the public agree are fair and just. Throughout the history of Western law, a decentralized process of trial-and-error, competing courts, and private arbitration achieved these rules. A monopoly power was not necessary, nor desirable. Before the rise of the modern bureaucratic, democratic nation-state, the monarch was the symbol of monopolistic order, and his power consisted mostly in enforcing the private common-law tradition that had already developed over centuries.2

Eventually, the nation-state model we see today grew and absorbed this decentralized tradition into a monolithic, top-down coercive regime imposed by legislatures, state police, and bureaucracies. The “rule of law” became the propaganda term used to justify this radical departure from the Western tradition of common-law and private arbitration. The law was now political in nature, subject to the usual array of corruption and disincentives inherent in any political order. With the monopoly state now in charge of law, the idea that a coercively imposed system of justice — in which everyone is governed by neutral rules that are objectively applied by judges — became a powerful myth for states to exert control over society.

As a myth, however, the concept of the rule of law is both powerful and dangerous. Its power derives from its great emotive appeal. The rule of law suggests an absence of arbitrariness, an absence of the worst abuses of tyranny. The image presented by the slogan “America is a government of laws and not people” is one of fair and impartial rule rather than subjugation to human whim. This is an image that can command both the allegiance and affection of the citizenry. After all, who wouldn’t be in favor of the rule of law if the only alternative were arbitrary rule? But this image is also the source of the myth’s danger. For if citizens really believe that they are being governed by fair and impartial rules and that the only alternative is subjection to personal rule, they will be much more likely to support the state as it progressively curtails their freedom.

The rule of law, imposed by the state, is simply a myth. There is no such thing as “a government of laws and not people.” Legislative edicts are always subject to the biases and agendas of those who interpret them, and will be imposed in this manner by whoever currently wields the power of the monopoly state over society.

For example, despite the US Constitution’s very clear language in most of its passages (there are some dangerously vague sections, of course), the most trained and brilliant legal minds can come to completely opposite conclusions over the exact same clause. Whether it is a particular amendment in the Bill of Rights or the particular language of executive or legislative power, a liberal and conservative judge could use sound reasoning and cite historical precedent to make their case — and they would both be right. “[B]ecause the law consists of contradictory rules and principles,” argues John Hasnas, “sound legal arguments will be available for all legal conclusions, and hence, the normative predispositions of the decision makers, rather than the law itself, determine the outcome of cases.”

The law, then, is not a neutral body of rules to help keep order and govern society; it is merely an opinion with a gun. Whenever the state is in charge of anything, the outcomes, process, and administration are always political in nature. There can never be a system of definite, consistent rules that produce determinate results because these laws, no matter how they are written, will always be subjected to the biases, prejudices, and discrimination of those who interpret and enforce them.

The idea that the law is not neutral or determinant is not a revolutionary doctrine and should not be entirely shocking. Over a century ago, former Supreme Court Justice Oliver Wendell Holmes argued that certainty in law is an illusion; judicial decisions rely more on the language of logic than they do on objective enforcement. Since at least the 1970s, the Critical Legal Studies movement has recognized this, and even they are just reviving the legal realists who made these same insights decades before them. The idea of determinate law is actually an undesirable feature — even if we were to overcome the impossibility of making it so — as the strength of an effective legal system lies in its ability to have certain amounts of flexibility. This is why the decentralized, private law tradition was able to produce several codes of uniform laws — do not murder, steal, assault, or initiate aggression in general — while providing the room to adapt to social change and distinct cultures.

When the law is under the dominion of a top-down, coercive state it is transformed from a system of governance to a body of expropriation. Whether through the use of logic or emotional appeals, whoever wields the state apparatus says what the law is and they will dispense their armed enforcers to make sure their law is fulfilled.

If an objective rule of law is impossible, then why does this myth persist? To ask the question is to answer it. “Like all myths,” notes Hasnas,

it is designed to serve an emotive, rather than cognitive, function. The purpose of a myth is not to persuade one’s reason, but to enlist one’s emotions in support of an idea. And this is precisely the case for the myth of the rule of law; its purpose is to enlist the emotions of the public in support of society’s political power structure.

If the public views the law as a neutral and objective arbiter, then they are more willing to support state power and its violent expropriation and parasitism. We are more willing to accept the comfortable delusion of objectivity and the need for predictable laws than deal with the frightening alternatives of supposedly unpredictable anarchy. “Once they believe that they are being commanded by an impersonal law rather than other human beings,” people “view their obedience to political authority as a public-spirited acceptance of the requirements of social life rather than mere acquiescence to superior power,” notes Hasnas. Tyrants of the past used to claim that their rule was inspired by Divine Right to mask the fact that their rule was an exercise of naked aggression over their subjects. When this doctrine became discredited, a new myth was needed, and the rule of law was born.

No matter how impossible the rule of law may be, the state has a heavy interest in promoting this myth.

Before the rise of legislative law, the private, decentralized, and polycentric common-law system was effective at promoting peace and public order because it lacked the monopoly power of a centralized state. Under both models, laws are never determinate or universally objective. But under a private law system, bad decisions that were not accepted by the public or viewed as overreaches could not be coercively imposed on society. This system of checks and balances allowed laws beneficial to the protection of private property to flourish while weeding out the bad laws.

Under a state system, however, it is much harder, if not impossible, to fix bad laws as there now exists a political incentive to keep the law on the books, while most judges serve lengthy or even life terms. If the judge, legislature, and police are all part of the state apparatus, they will tend to find expansive definitions for state power with limited definitions of individual freedoms.

“The myth of the rule of law does more than render the people submissive to state authority; it also turns them into the state’s accomplices in the exercise of its power,” concludes Hasnas. “For people who would ordinarily consider it a great evil to deprive individuals of their rights or oppress politically powerless minority groups will respond with patriotic fervor when these same actions are described as upholding the rule of law.” While the state does indeed provide some law and order under its jurisdiction, the “rule of law” has been used as a propaganda tool in order to help cement and legitimize state power.

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I am in court all week defending a decision that I won a year ago in the Employment Authority. The case is scheduled to last all week, possibly extending into next week. I think that we will probably manage to conclude it this week.

I’m currently working on my closing submissions. All last week I was at work, trying to earn back some of the money I had lost during the completion of the ‘Legal Professionals’ course, more on that another day.

So, of course I am behind schedule, which is why I was up at 0300hrs typing up submissions that I have been working on all w/e.

I work better in the mornings, I know after a day in court [today] I won’t be in any state to write coherent submissions, therefore, some early mornings for me this week until they are complete. Not too far off.

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Well, this comes as no surprise. With Republicans now controlling the Senate, House and White House, they have decided that they didn’t really mean what they said about states’ rights. And they didn’t really mean what they said about personal responsibility.

Out of the House of Representatives, courtesy of Rep. Steve King of Iowa, comes a bill (H.R. 1215) to grant immunity to doctors and hospitals if they negligently injury someone.

Given that 210,000 to 440,000 are estimated to die each year from medical malpractice  — a number that dwarfs the 30,000+ killed by guns — you should care about the subject.

Cynically named as a bill to “improve patient access to health care services” by “reducing the excessive burden the liability system,” the King bill slams an artificial cap on awards for pain and suffering at $250,000 in both federal and state cases, among many other things.

Did the hospital negligently operate on the good leg instead of the bad one? 250K.

Did you lose the good leg? The same 250K.

Did you also lose your previously bad leg because they operated on the wrong  one? The same 250K.

And it comes as no surprise to anyone that lawyers won’t actively jump at the chance to spend hundreds of hours and tens of thousands of dollars on a suit that is so artificially limited. Thus, de facto immunity for most pain and suffering causes of action from medical malpractice.

How does King go all federal on this, going deep into what is most often a state cause of action? By stating that it will apply to anyone that receives health care through a “federal program, subsidy, or tax benefit.” [Copy Of Bill] That means anyone who uses Medicaid, Medicare, veterans health plans or Obamacare.

And by “tax benefit,” it may mean anyone who has a deduction for healthcare of any kind.  Essentially, the idea is to make sure that no one, anywhere in the country, can ever bring a meaningful action for medical malpractice.

The losers in this, of course, are the patients and their families who have already been injured once. And the taxpayers, who are now forced to pick up the tab for the rest of the loss.

King’s bill is based on a faulty premise, that doctors and hospitals order unnecessary tests to protect against malpractice claims. This is the “defensive medicine” theory of why medical costs go up.

But that theory was tested in Texas, and found to fail. As I noted in 2011, the $250,000 Texas cap didn’t stop medical increases. In fact, costs went up faster in Texas than in states that didn’t have a cap.

While doctors may have saved money with fewer suits, and insurance companies may have made buckets more money, it didn’t stop health care costs from rising.

The Texas Experiment also was also supposed to bring more doctors to Texas and more to rural counties. It didn’t work.  Even noted tort reformer Ted Frank wrote, in 2012, that the data from Texas “substantially undermines the empirical case for the conventional wisdom that Texas’s 2003 reforms against medical malpractice lawsuits attracted more doctors to Texas.” Ouch.

Frank went on to conclude:

I, for one, am going to stop claiming that Texas tort reform increased doctor supply without better data demonstrating that.

The real kicker to the artificial caps, of course, is that the taxpayers then get saddled with the costs of the injured person instead of the ones that negligently caused the injury. That’s right, saddling the taxpayers with the costs is a form of socialism. And it is being promoted by alleged conservatives.

The myth that tort “reform” reduces costs was debunked awhile ago. As Steven Cohen noted in Forbes two years ago regarding additional studies, there was no reduction in the expensive tests from states with caps:

That myth was dispatched by the recent publication of a major study in the New England Journal of Medicine. A team of five doctors and public health experts found that tort reform measures passed in three states – specifically designed to insulate emergency room doctors from lawsuits — did nothing to reduce the number of expensive tests and procedures those ER doctors prescribed.

Cohen went on to summarize that none of the “expected” reductions in health care costs came to fruition:

This latest study follows numerous others that deflated other tort reform myths: that making it harder for victims to file medical malpractice lawsuits would reduce the number of “frivolous” suits that “clog the courts;” that imposing caps on the damages victims could receive would reign in “out of control” juries that were awarding lottery-size sums to plaintiffs; and that malpractice insurance premiums would fall, thereby reversing a doctor shortage caused by specialists “fleeing the profession.”

Trump is now on the bandwagon also, or at least whoever wrote this portion of his speech last night:

“Fourthly, we should implement legal reforms that protect patients and doctors from unnecessary costs that drive up the price of insurance — and work to bring down the artificially high price of drugs, and bring them down immediately.”

This oblique reference — Trump never deals in details — was presumably put there by his staff, as I know of no other Trump comment on the subject of medical malpractice.

But wait, there’s more! Tort “reform,” you see, has never saved a life. But has it ever killed anyone? Answer, yes!

I addressed that subject a few year back by pointing to plunging payouts at Columbia Presbyterian Hosptial / Cornell Weill Medical Center. A study found that “instituting a comprehensive obstetric patient safety program decreased compensation payments and sentinel events resulting in immediate and significant savings.”

How much did they save by instituting new safety procedures — in pure dollars and cents leaving aside the human misery of injury? “The 2009 compensation payment total constituted a 99.1% drop from the average 2003-2006 payments (from $27,591,610 to $ 250,000).”

You read that right: 99.1% drop. Based on a safety program, not tort “reform.”

Now if Congress wants to take away the incentive for safety, and just give immunity, you can expect continued deaths. The results should have been screamed from the rooftops:

Safety improvements = fewer malpractice payments and healthier patients.

Tort reform = more patient deaths.

Now let’s return to politics, shall we? I just want to close by asking conservatives a few questions, and do so with the knowledge that medical protectionism has already been a proven failure in reducing health care costs:

1. Do you believe in limited government?

2.  Is giving immunity your idea of limited government?

3.  Do you believe in states rights? Would federal tort “reform” legislation that limits the state-run civil justice systems run contrary to that concept?

4.  Do you believe in personal responsibility?

5.  Do you want to limit the responsibility of negligent parties and shift the burden to taxpayers?

6.  If you believe in having the taxpayers pay for injuries inflicted by others, how much extra in taxes are you willing to authorize to cover those costs?

7.  Is shifting the cost of injuries away from those responsible, and on to the general public, a form of socialism?

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We finish the ‘Bar’ exam in 3 weeks. We’ve been at it since 22 November 2016, which was 1 week after finishing all the final year law school exams. In retrospect, it would have been less stressful to have a bit of a break before starting.

Pretty tired at the moment.

Once I finish this, straight into an appeal trial at the Employment Court for the case I won last March. I’ve been writing the witness statement(s) in-between all the Bar exam assessments etc.

Interesting thing is, when I received the plaintiffs’ witness statements, there have been many factual changes made from the original case.

After the case, I’ll have a bit of a rest, then I’ll undertake the ‘duty lawyer’ training. That is only 2 weeks.

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Employment security is a concept that generates legal and economic controversy. This is due to the conflict between the rights of capital to run a business to its maximum profitability and the argument that employees have a right to employment security.

For people living and working in an advanced economy, viz. an economy where there is specilisation within the process of production in goods or services, then employment security ought to depend on access to a market that demands their goods or services.

The law however adds some further stipulations: that employment security can also be taken to include all factors that affect a person’s employment opportunities. These would include factors such as additional protection for limited periods if they choose to leave paid employment to raise children.

The need for employment security was summarised by Judge Perkins, who, was the Judge in my recent case.

“A heavy onus rests upon an employer before a dismissal can be validly effected. The reasons for this are obvious. The right to be in employment and earn the means to support oneself and one’s dependants is a substantial right requiring protection. There is a strong societal imperative behind this, supported by economic need for full employment as founding a strong overall economy. A position of employment is a valuable asset. Employees are the most valuable asset of any business hoping to thrive. If the employment is to be terminated it is essential that it be justifiably fair.”

Clearly the Judge is not an economist.

Employment in production, when analysed as an economic proposition, can be analysed as a series of property rights, which, lends itself to a concurrent legal analysis.

The first right enumerated is ‘the right to be in employment’. This is another way of saying that as an entrepreneur, who supplies the capital, must provide employment.

Clearly this is incorrect. I have a legal right to my property, in this case capital. There is no requirement that I subjugate that right to another who has no legal claim to my property. There can be no ‘right to employment.’

Employees are a valuable asset, but they are no more valuable than other economic inputs, such as raw materials etc. The most valuable asset is capital, without which, there is no business and no employment. Capital pays the wages of the employee.

This is clearly true, as, production takes place over time. Employees are paid before the production results in consumer goods and the capitalist can earn the market return on those consumer goods.

What the law is actually talking about is the right of the employer to discard under-performing employees. Employees who earn less than their ‘discounted marginal value product’. These employees can create losses to capital and quite rationally, the employer wants to discard this underperforming factor of production.

The law does allow this, but requires that the employer evidence this and thereby justify their dismissal. This prevents the employer dismissing employees, not because they are underperforming, but because there is a personality clash and the employer wants to dismiss on this basis.

 

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Well we had our LLB results. We both passed. As we are already underway with the Bar exam, we carry on now knowing that we can complete the whole process.

The whole thing is a bit of an anti-climax. It will take a little bit of time for it to sink in. It doesn’t help that we are already very busy and under 2 exams-a-week pressure with the Bar.

 

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We finished the last exam yesterday at about 1500hrs and submitted. That brings to a conclusion, assuming we pass the exams, 4 years of law school and the LLB qualification. Throughout the entire 4 year period I was extremely lucky to find and study with an extremely motivated, diligent and humorous chap, without which, the entire experience would have been far more difficult and I mean really difficult. You can study alone, but for this type of subject, I would never want to try it.

In the 4 years we met and studied with some interesting characters: the Irishman, the Russian, Fat boy, Mr Employment are just a few of the population encountered at law school, Ms Bahrain was a lecturer I could have done without and many others.

I would recommend an LLB to anyone. It allows you to see how the sausages are made. Once you see, you will probably never eat another sausage, and you will never take politicians and lawmakers seriously ever again.

I’ve had a few experiences with Judges now and the application of the law. To date, most of them have been a disappointment. I had much higher expectations. For every great Judge, there are quite a number of plodders, much the same as any profession/trade.

That does not however derogate from studying an LLB. It is empowering. Other degrees provide you with knowledge, possibly a career pathway. The law [degree] confers on you power over your circumstances, even if a legal career is not your cup-of-tea.

In 1 week, we start our ‘professionals’, or Bar Exams. Not much rest, but, actually I am quite looking forward to it.

I’ve got a number of cases to work on this week. I have 2 Court of Appeal cases to initiate and get moving on and another Employment Authority case. So any holiday, will be measured in hours rather than days or weeks.

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