The Perversion of Our Laws

[Rurudyne]

A version of this text first appeared in response to the question of who did more harm or good: Lawyers or Oil Men. It was one of those random post that got written because of something which someone else posted which, frankly, I thought to be just plain dumb.

At the time, I really wasn’t even out to address the question of if Oil Men as a class did more good than harm (as should soon be evident) and my arrows were only aimed at the legal profession in America.

[nothingnew]

You might post a source for this before it's yanked.

FMCDH(BITS)

[bmwcyle]

Activism/Chapters not!

[Edgerunner]

Going to read this...

[Rurudyne]

Sorry, it's been a while since I've posted here so maybe I made a mistake. Since I'm agitating against the perverse and unlawful standards of practice of our so-called legal profession (forced on us post Civil War) I reflexively checked "activism" from the list.

[frithguild]

marked for later reading

[MamaTexan]

Good post!

Unfortunately, 90% of FReepers will show up to tell you how crazy you are.

The majority of Americans no longer understand the different types of law that we have in our country.

Probably because government has spent the last several generations trying to meld it all into one big lump o' law.

[Rurudyne]

Yes, for all the recent specials run about the American Revolution on the History Channel, you'd never imagine that one of the things the Founding Fathers were most worked up about wasn't taxation without representation BUT the effort by the Crown and Parliament to prevent the residents of newly organized colonies (i.e. Canada ... won with Colonial sacrifice BTW) from living under English Common Law.

The Founders were rightly concerned, just as they indicate in the DoI, that this was a prelude to doing the same within the older colonies.

[MamaTexan]

The Founders were rightly concerned, just as they indicate in the DoI, that this was a prelude to doing the same within the older colonies.

They were articulate and brilliant men. The birthright they gave Americans is woefully underappreciated, IMHO

-----

Speaking of jurisdiction of the judicial branch of the federal government, here's a little gem from Madison:

However true, therefore, it may be, that the judicial department is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government; not in relation to the rights of the parties to the constitutional compact, from which the judicial, as well as the other departments, hold their delegated trusts. On any other hypothesis, the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with the others in usurped powers, might subvert forever, and beyond the possible reach of any rightful remedy, the very Constitution which all were instituted to preserve.
James Madison, Report on the Virginia Resolutions

The original intent was to allow the federal judiciary to decide cases that concerned the federal government, NOT the States.

[Loyolas Mattman]

I agree with you in parts, but your take on legal language simply does not ring true.

I don't blame my plumber or my electrician because I don't understand how the pipes or wires in my house work. I hire a professional to do that for me.

I have no idea what you are talking about on the administrative law business. There can be civil and criminal reprocussions for a single act (i.e. drunk driving) and you may be confusing the two.

Good lawyering is an art and skill, and is no different than any number of professions that have grown more complicated over the years. (i.e. auto repair)

[Rurudyne]

Bingo!

Only if a State were explicitly exercising one of the few forbidden powers or (later, as I indicate) they were actively denying the substance of the first 8 Amendments to their citizens OR disparaging specific civil rights which Congress had both defined and legally respected (whew! that's a run-on sentence!) could sCOTUS lawfully get involved.

For example, in a Roe-like case the only "lawful" similar decision that sCOTUS might have made (assuming Congress had first acted) would be to find that their created "fundamental right" would henceforth prevent Congress from respecting a Civil Right to life for the unborn.

Even then, sCOTUS could not prevent any of the several States from doing the same. Nor should they be able to now.

[tumblindice]

". . . our legal system . . . no longer happens in a language that is actually English."

Sure saying you're not what I'm.

[EdReform]

real later

[bmwcyle]

Get your local Freeper chapter together and get out and kick some butt.

[Rurudyne]

The language of English Common Law is English ... even if somewhat stilted in usage. Thus under our rightful common law, our courts would operate in a language which more people functionally knew and could comprehend.

Legalese is not truly English, but rather a convention or dialect or jargon whose factual effect––issues of intentions aside––is to render ordinary speakers of the English language in the dark once the lawyers start doing their thing.

You say that lawyering is an art and a skill and you are right; however, the art is largely in applying a language that seems like English but isn't really English. Elsewhere, I've written that "Precision at the expense of clarity is tyranny." when considering the effects of this use, or abuse, of the language.

It is not the same as with a plumber or an electrician since, speaking clearly and "disgronificator" issues aside, you don't need another plumber to talk to plumbers for you.

A comparable example in my own experience can be found by a study of optics I took up some time ago just for funsies.

At that time I discovered that optical engineering and theory text written before the late 1930s to be genuinely useful and relatively easy to read. The few text from the war era were harder to read because of a developing jargon which presumed that you knew it (the jargon) before you tried to read it. Post war text (even those written by the very same persons) were useless––being constructs of the jargon. Even placing the comparable older text besides the newer was little help. I would like to point out that neither the substance of the engineering nor the theory had changed in the least ... the math was no different except for a few issues with refraction at asymmetrical surfaces and the like (where the math had been improved marginally). The only functional differences between 1920 and 1950 were new materials, better manufacturing methods and the like ... none of which should have caused later text to become unreadable.

Similarly, the Constitution and all our founding documents are products of English Common Law and are therefore readable and understandable by ordinary persons; however, the use of legalese has made the law very difficult to understand so that only a fool now appears in court without a lawyer to speak to the other lawyers on any matter that isn't explicitly clear cut under the laws as they now exist.

[PGalt]

Outstanding, thought-provoking post. Thanks.

[dljordan]

That was great!

[Loyolas Mattman]

What do you mean "legalese?"

Most of my work is very much in plain English, albeit through the use of (sometimes) carefully parsed words.

I'd dare say that your problem is more with legal reasoning and problem solving than with the language used.

Have you ever seen a pro se litigant in action? In my experience, they have extreme difficulty because they lack the ability to adequately analyze their issue from a legal perspective. In short, they don't think like lawyers. No knock against them - I don't think like a mechanic or an electrician.

It's not that they don't understand the jargon, it's that they don't know how to separate themselves from their problem on a personal level and how to look for and prove the elements necessary to advance their case. Just like I don't know how to "talk to" my pipes and find out why they are leaking...

Legal language has evolved out of necessity in response to the skill of lawyers to frame issues, apply language, and make distinctions.

[MamaTexan]

(whew! that's a run-on sentence!)

LOL! I've been known to create those my self. Some of these concepts can get quite lengthy. :)

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Only if a State were explicitly exercising one of the few forbidden powers or (later, as I indicate) they were actively denying the substance of the first 8 Amendments to their citizens

Yes. The first 8 Amendments, being mutually agreed upon by all the States, was binding on all the States.

-------

disparaging specific civil rights which Congress had both defined and legally respected

As I understand it, no.

Congress' civil jurisdiction is defined by Article 1, Section 8, Clause 17:

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of Particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;--

"To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square)"

Ten miles square is the extent of the area the federal government is allowed to legislate for. This area is theirs and theirs only. They have no more right to legislate for the States in civil law the the State would telling Washington D.C. how IT was going to do things.

Out side of that area, it becomes a purely administrative authority.

To do it any other way negates the rights of the States to legislate for themselves.

Congress is supposed to decide how it's going to fulfill its obligations, not become the country's dictating authority.

-----

For example, in a Roe-like case the only "lawful" similar decision that sCOTUS might have made (assuming Congress had first acted) would be to find that their created "fundamental right" would henceforth prevent Congress from respecting a Civil Right to life for the unborn.

The SC should have declined the case since they had no jurisdiction to even hear it, IMHO.

Roe 'legalized' abortion, but it existed long before that. It's even mentioned in Blackstone's Commentaries

COMMENTARIES on the LAWS OF ENGLAND
Sir William Blackstone
1765
BOOK THE FIRST - OF THE RIGHTS OF PERSONS
CHAPTER THE FIRST - OF THE ABSOLUTE RIGHTS OF INDIVIDUALS

Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother’s womb. For if a woman is quick with child, and by a potion, or otherwise killeth it in her womb; or if any one beat her, whereby the child dieth in her body, and she is delivered of a dead child; this, though not murder, was by the ancient law homicide or manslaughter. But at present it is not looked upon in quite so atrocious a light, though it remains a very heinous misdemeanor.
(snip)
An infant in ventre fa mere, or in the mother’s womb, is supposed in law to be born for many purposes. It is capable of having a legacy, or a surrender of a copyhold estate made to it. It may have a guardian assigned to it; and it is enabled to have an estate limited to it’s use, and to take afterwards by such limitation, as if it were then actually born. And in this point the civil law agrees with ours.

-----

I have to admit I'll have to reread your original post. We seem to agree on the basics at least!

Its been rough going trying to explain to FReepers that the 'law' isn't whatever the government say it is while being flamed the entire time. :-)

[joebuck]

"Speaking of jurisdiction of the judicial branch of the federal government, here's a little gem from Madison..."

If you really want to get depressed go back an read Federalist Paper #11. This is the chapter from the Federalist Papers on the dangers of factionalism in a democratic government. In my day, most High School students were required to read this somewhere along the line. In it Madison acknowledges the dangers of faction in a pure democracy and explains all the safeguards contained in the Constitution to avoid these dangers. Thus, the reasoning behind our Democratic Republic. If you go back and read this you will see that every saftguard noted by Madison is now gone. (Seperation of power between States and Federal government, limited government, independent, non political judiciary, etc, etc.)