Dentism
So many jurists before me have attempted to quantify and define the law. I hope to do better yet.
Kelsen and Austen both subscribed to the notion that the law was as stalwart juggernaut incapable of change and as eternal and unflinching as stone itself. They seem to think that law stems from some irrefutable source which can brook no criticism and I have to disagree.
Imagine the Rorscharch Ink Blot tests. We have black ink on a white surface, and such tests are used to determine personality traits of the subjects. Each person, influenced by their own views, biases and prejudices will each create their own unique meaning for the object in front of them and will more likely than not attempt to rationalise and justify such feelings.
This is what the law is. There is no sovereign or grundnorm, the law is corrupted and twisted in so many different ways. Judges will interpret the law and impose and enforce sentences lighter or more heavily upon their own views, the public are more or less tolerant towards certain crimes than others as well as the police. Law means different things to different people, and, like the ink blots whilst people think of the law as black and white simplistic terms, this is not the case.
Certainly, there maybe some consensus as to certain crimes but not always and not for all crimes. With the ink blots, there are gaps that fall in between those blots, whilst Fuller talks of the interstices of law whereby rights are by extension either directly or indirectly created as a result of the wording of the law, to me, these gaps represent the flaws and weaknesses within the legal system, rather than being arbitrary the law is indeed random and chaotic.
There is no grundnorm. That is plain to see within all walks of life. There is no grundnorm or soverign for religion or morality, what with so many people who do not follow the doctrines specified by the faith. Law is no set ideal, as criminals choose to live outside the law. Orgainsations such as the Mafia thrive on the corruption of the law, and indeed develop their own set of laws. Like the jagged pieces of a broken vase, there maybe some similarity between the different fragments (of society) but that is where the likeness ends, no two pieces will fit each other exactly.
A knight murders his lord. A trial is called and his peers are in attendance and given the severity of the crime there can never be any mercy for it, no appeal can be made, for the lord is touched by God.
Giving rise to his emotions the first judge orders that he executed. Swearing his undying love for his violated master the second judge orders that the man should be tortured to death.
This is what I refer to as the legalistic fallacy….
Any sentence passed by the law, will subsequently result in a differing punishment (as is the current situation) if applied or decided upon by a different court judge or jury. In my example, the knight is sentenced to death, the second time tortured to death. The order of the severity of a punishment does not matter, what does matter is the irrevocable truth that the punishments will differ. Some will be more merciful, others less so.
What does this mean therefore of the law? It means that the law cannot be said to true and infallible or indeed equally and uniformly applied, the same man with the same crime will punished in a different manner based upon not the cruelty of his actions, but simply, the stomach of the judge. Is this a true, just or indeed logical legal system? No. I must concur with Fuller and his 8 points for the inner morality of the law but only to a certain extent….no matter how pure and refined the law is, the differentiation of punishment is enough to corrupt it.
Therefore, the Grundnorm and Soverign to me is the opinion of the people and whatever trite “meaning” they attach to it, nothing more. It is therefore, what is the most popular and this is what “democracy” is.
I cannot agree to a system that accords the opinion of the village idiot the same value and esteem as it would the opinion of Aristotle.
The law it seems to revolve around the notion of mercy. What is mercy? Mercy was what God bestowed to the world when he killed his only son, so that we may live. Another fallacy is that we as humans should mercy and my reasoning as is follows:
“God shows mercy….to show mercy is to be God.”
This statement hopefully is as obvious as it is ludicrous what man can dare to even call himself God? Therefore, Mercy is only the Will of God and only He can show it. Otherwise if we as mortals show “mercy” or our limited conception of what mercy is, we claim ourselves to be gods each and every one of us.
But if God created us in his image, and wishes to live by his will, what does this mean in relation to the law? Like the ink blot tests, we must be resolute and determined in the application of the law, and it must be uniformly applied. Crime and the definition of them should be consolidated together…and hopefully as follows:
Crimes of Ego
These Crimes are any crime where there is a dominance of a superior over an inferior with the intention of causing lasting harm. Rape, Extortion, Assault Murder in all forms, sexual offences….all of these are crimes of ego as they rely upon the dominance of will of one against another. As these are based upon Pride, these are the most despicable and therefore most severely punished.
Crimes of guile
These are crimes which rely upon the deceit and trickery and abuse of the trust of people, be it for a view to profit or some other despicable practise. These will include:
-Fraud, Theft, Money-Laundering, Conspiracy and all other such associated crimes will be punishable under this category.
Crimes of necessity
These are crimes whereby their very nature requires their execution. Culpable homicide and any crime which maybe proven beyond reasonable doubt as to be essential for the very survival and essence of the perpetrator shall fall within this category.
These are crimes which whilst punishable will only apply to the trickster, for the perpetrator has became unjustly influenced and coerced by the true villain. Thus, there will be only one party guilty of such crimes; the trickster will be punishable according to a sum of punishment equal to the total of both the crimes of ego and guile.
For culpable homicide, the person killed will have engaged in conduct which resulted in the perpetrator in using force against them. Be this due to the threat of violence, provocation or whatever, the mere fact that the person killed knowingly engaged in such conduct is enough to place the focus of guilt purely on them and to remove the heavy burden from the perpretatrator.
I realise that my arguments whilst slating the ambiguity of the current legal system, may at first sight seem to replicate the very flaws that I myself am condemning. Not so. To refer back to my previous analogy of the ink blots, there are the colours black and white. Never gray, as there are splashes of white that show themselves through the blackness. My categories of crime are three; the punishment for crimes contained within such categories will be the same for each crime. It is not just the act we are punishing but the intention behind it. The legalistic fallacy does not apply, as the penalty is “either” “or”, never conditional, never qualified. Therefore, a person found guilty of a crime will be punished.
What of those who would argue that this draconian system maybe too much to handle? Well, it seems that a great deal of the world’s problems are caused by such ambiguity. The quickest route to any given destination is in a straight line, in mathematical terms this is 180 degrees, not 190 degrees, 200 degrees or 360 degrees. Why then is this not applied in law? Why should there not be a single answer or single crime for which punishment arises?
The one unifying principle in the world, that permeates and controls all around it is not money, or love but OBEDIENCE. Crime can be said to committed when a person breaks their vow or duty of obedience to another. Obedience to the State. Obedience to God. Obediecne to self.
This vow of obedience does not only relate to others, drug abuse and other such addictions are simply a failure to follow the duty not to cause harm to oneself.
Reflexive duty and the vow of obedience
Obedience does not mean that every man is compelled to do what his neighbour commands of him, for men are not beasts to be broken and cursed at a whim! Much as money is nothing more than paper used to measure the true value of any given item, so too is the vow of Obedience, except we know of the value of obedience and to the law.
The law is created for the protection and the validation of rights and is used to safeguard such things. Therefore, any man who breaks the law forfeits the protections of the law, he strips himself of the dignity afforded to a law-abiding man and thus is beneath contempt.
Every man owes a duty of obedience to himself not to break the law for he will suffer in both mind and body and since the duty of obedience requires that a man owes a duty to himself not to cause himself harm, the duty will mean that a man will not break the law to preserve his own safety. That is why the crime of necessity creates liability for the coercer and not the perpretator.