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Monopoly of Law and its future in the Modern Day State

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posted on Sep, 6 2010 @ 09:33 AM
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Hello ATS-ers ! Being a Law student, it's normal that I find it interesting ( and I'm guessing a whole lot of you do too) to question how and why various rules are passed in modern day society. I'll give my thoughts, point of view and the views of others on the subject of this thread : The Monopoly of Law and its future in the Modern Day State.

This post will be split into two main parts :

I – Introduction


I.A) Definition(s) of Law


I.B) Justice : why it exists


I.C) Diversity of Legal Systems and their usage


I.D) Polycentric Law versus Monopolistic Statutory Law

→ Historical Example : France from 486 to 1789



II – The Future of Law : Mutation and Evolution


II.A) The Influence on Law by Sovereign states


II.B) Standardization of Law by International Organizations



I-Introduction

A) Definition(s) of Law


Here are a few terms and their definitions that I'll be using in this post :

LAW : Let's start off with defining the subject of this post ; Law is a system of rules, usually enforced through a set of institutions. It shapes politics, economics and society in numerous ways and serves as a primary social mediator of relations between people. In Law, one could rule with Equity : Equity is a body of rules that developed in England separately from the "common law". It supplements the strict rules of law where their application would operate harshly, and gives the judge a little leeway when judging a certain case. Among many other domains, the most known types of law are International Law, Constitutional Law and Administrative Law, Contract Law, Property Law, Criminal Law etc...

Statutory Law : Written law set down by a legislature ( ex : Parliament)

Common Law ( Case Law) : Law set down by judges through decisions made by various tribunals/courts.

Regulatory Law ( Administrative Law) : body of law that governs the activities of administrative agencies of government.

Polycentric Law : is a legal structure in which providers of legal systems compete or overlap in a given jurisdiction, as opposed to monopolistic statutory law according to which there is a sole provider of law for each jurisdiction.

Oral/Customary Law : established patterns of behaviour that can be objectively verified within a particular social setting allowing a claim to be carried out in defence of "what has always been done and accepted by law''.

B-Justice : why it exists

'' Justice concerns itself with the proper ordering of things and people within a society. As a concept it has been subject to philosophical, legal, and theological reflection and debate throughout history. A number of important questions surrounding justice have been fiercely debated over the course of western history: What is justice? What does it demand of individuals and societies? What is the proper distribution of wealth and resources in society: equal, meritocratic, according to status, or some other arrangement? There are myriad possible answers to these questions from divergent perspectives on the political and philosophical spectrum ''.

Justice could also be defined as a feeling, along with fear, happiness or anger. When does one feel that justice has been served ? When someone who deserves punishment gets what they rightfully deserve for committing a crime of some sort ? When someone who harms another, gets harmed ?
Following this thought, Justice could be perceived as a type of satisfaction, therefore gaining status as a human feeling. And as we all feel various sentiments that are all natural, justice being one of those would have to be quenched, meaning law would be essential in any societal structure for justice to be served.

→ The following points of view if from the website of the Santa Clara University (Source.


'' Justice means giving each person what he or she deserves or, in more traditional terms, giving each person his or her due. Justice and fairness are closely related terms that are often today used interchangeably. There have, however, also been more distinct understandings of the two terms. While justice usually has been used with reference to a standard of rightness, fairness often has been used with regard to an ability to judge without reference to one's feelings or interests; fairness has also been used to refer to the ability to make judgements that are not overly general but that are concrete and specific to a particular case. In any case, a notion of desert is crucial to both justice and fairness […]. When people differ over what they believe should be given, or when decisions have to be made about how benefits and burdens should be distributed among a group of people, questions of justice or fairness inevitably arise. In fact, most ethicists today hold the view that there would be no point of talking about justice or fairness if it were not for the conflicts of interest that are created when goods and services are scarce and people differ over who should get what. When such conflicts arise in our society, we need principles of justice that we can all accept as reasonable and fair standards for determining what people deserve […]
The most fundamental principle of justice—one that has been widely accepted since it was first defined by Aristotle more than two thousand years ago—is the principle that "equals should be treated equally and unequals unequally." In its contemporary form, this principle is sometimes expressed as follows: "Individuals should be treated the same, unless they differ in ways that are relevant to the situation in which they are involved […].
''

There are of course infinite views of what justice is, the preceding extracts is just a general idea of what the main concept could be considered to be.

C-Diversity of Legal systems and their usage

There are currently three major legal systems in the world being used : Common Law, Civil Law and Religious Law/Sharia Law ( with some states combining different systems, like civil and common law).


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posted on Sep, 6 2010 @ 09:35 AM
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Map of Legal Systems

Common Law : Common law and equity are systems of law whose sources are the decisions in cases by judges. Alongside, every system will have a legislature that passes new laws and statutes. Originating from England, most anglo-saxon countries have adopted the Common Law system ( ex : England, Australia, USA).

Civil Law : Civil law is the most widespread system of law around the world. It is also sometimes known as Continental European law. The central source of law that is recognized as authoritative are codifications in a constitution or statute passed by legislature, to amend a code. While the concept of codification dates back to the Code of Hammurabi in Babylon ca. 1790 BC, civil law systems mainly derive from the Roman Empire, and more particularly, the Corpus Juris Civilis issued by the Emperor Justinian ca. 529 AD. This was an extensive reform of the law in the Byzantine Empire, bringing it together into codified documents. Civil law today, in theory, is interpreted rather than developed or made by judges. Originating mainly from the Roman empire, civil law is used in a widespread area of the European continent, in countries like France, Spain, and Germany.

Religious Law : Religious law refers to the notion of a religious system or document being used as a legal source, though the methodology used varies. For example, the use of Jewish Halakha for public law has a static and unalterable quality, precluding amendment through legislative acts of government or development through judicial precedent; Christian Canon law is more similar to civil law in its use of civil codes; and Islamic Sharia law (and Fiqh jurisprudence) is based on legal precedent and reasoning by analogy (Qiyas), and is thus considered similar to common law.

There are also other systems that are mixed together, such as civil law/common law, civil law/religious law and common law/religious law ( systems known as being Bijuridical).

These legal systems are the result of history, and as we all know, history is forever being changed. What will happen in the future ? Will human migration, along with it's religious beliefs, change legal systems across the world ? Will the democratic regime, promoting the voice of the '' people '' through a majority prevail, and give the people what it wants, or give the upper hand to those who outnumber the rest ? Will Justice and human nature change law ?


D-Polycentric Law versus Monopolistic Statutory Law

As mentioned in the introduction, Polycentric Law is the overlapping/existence of different legal systems in a given territory ; Monopolistic Statutory Law is where only one legal system exists. We are familiar nowadays with a state using one defined set of rules/defined system ( therefore having a monopoly over law). Here's a quick historical look at France through the Middle Ages and the Ancien Régime ( 14th - 18th century).

Example used : France from 476 to 1789 : From Polycentric to Monopolistic.

From 476 to 987, the Merovingian and Carolingian dynasties ruled what we now call France, but which was called back then La Gaulle (Ancient Gaul). The fall of the Roman empire was largely caused by the growing influences of Christianity and Gaulle's neighbour, Germania ; In 476, the Merovingians took control. Towards the middle of the 8th century, the Pippinides, an influencial and very large aristocratic family that had already forged important relations with the Church seized power of Gaul, after the pope deposed the Merovingian Childéric III ; in november of 751, Pépin le Bref became King, marking the start of the Carolingian Rule, which lasted until 987.

Now before all of this, most of France used Roman Law, and traces of it can still be seen today in most central European countries. But with the ever increasing conflicts between the Franks and the Germanic Tribes, Germanic law ( based on traditions and customs, therefore being Customary Law) began to change and mutate the Roman legal system in regions where the germanics had settled. During the rule of the two dynasties from 476 to 987, La Loi Royale ( Royal Law) was used by the Merovingian and Carolingian rulers. During the latter's rule, most Germanic Laws were modified and changed to suit the Frankish people.

Towards the end of the 10th century, Ancient Gaul was faced with a dilemma that was all too familiar : the rise of rich and powerful aristocratic families who over the years and through their jobs gained more and more power ( for example, some important political jobs were made hereditary, allowing a father to pass on his job to his son and keep the power in the family).

From the 10th century to the 13th century, Gaul was divided into numerous '' mini-kingdoms'' if you will, ruled by various lords and lieges of power. This is where things get interesting : what was once a '' state '' ruled by a certain singular law, was now a puzzle consisting of jigsaw pieces of adjacent systems with different rules and regulations. This is indeed a fine example of polycentric law.

From the 13th century onwards, the state and the King affirmed their power over the people, and the various lands ruled by different leaders were reunited : Royal Law came back into existence, but the customs of each region that once were during the past few centuries didn't fade, as people were used to them. That means that a lot of different laws were all thrown together and mixed up, resulting in 4 major types of Law : Royal Law, Customary Law, Roman Law and Canonical Law ( it's also worth mentioning the influence of Jurisprudence during this time). What's even more interesting is that the main mission of the King during this period was to guard and protect the customs of each region ; moreover, the Church had a specific role, which was to deem which customs were morally acceptable, and those that weren't. As you can see, each system influenced another.


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posted on Sep, 6 2010 @ 09:37 AM
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During the 15th century, the King ordered that most customs be written and compiled into books : this cancels out the main characteristic of customary law, which is its capability to evolve and adapt. As a consequence, many regions had less customs after this period and Customary Law had been left completely modernised. In the 16th century, the King began to reform most of the existing customs in the country ; each region's customs were protected and enacted upon by the region's Parlement, which was an institution that had a legislative and a judicial role up until 1789 ; from 1555 to 1580, the King's reforms were based on the jurisprudence ( the court's rulings) of the Parlement de Paris, which covered an immense part of the country ( around one third). Amongst the different rulings of the Parlements, one type of decision was called an Arrêt de Règlement : whenever this type of decision was made, the outcome of any similar case in all over Parlements across the country had to be the same as the ruling by the original one. This decision was always temporary ( before the King passed a law to solve the problem) and was only used when none of the various legal sources provided a solution. Nevertheless, this proves that the Parlements possessed a legislative power ( create a temporary law) and a judicial one ( ensuring that the law is respected).

Another aspect of the Parlement's power was to refuse to publish a law in their region created by the King. After many attempts and procedures, the King managed to overthrow this power and enforce Royal Law, but not for long ; during the 18th century, nearly all of the fiscal and judicial reforms made by the King were opposed systematically by the Parlements, and the social and economical unrest at the time resulted in the creation of the Assemblée Nationale ( National Assembly) the 17th of june 1789, transferring all of the King's sovereign power to this Assembly, and the people.

Just like France, other countries legal systems have been influenced by multiple factors over time, leading to periods of polycentric law and monopolistic law. In today's democracy, we are the ones who possess sovereignty, and by electing officials to represent us we are giving them our power to enact our decision ( well, that's how the theory goes anyway). From this, these elected officials who make up our modern-day political machine preside over... well, everything. We, the people, are the ones who possess the power, yet we don't agree with some of the laws that are created in our name. [ Insert Philosophical and Angry mumbling here...].


II – The Future of Law : Mutation and Evolution

A-The Influence on Law by Sovereign states

What is Sovereignty ?

Wikipedia : '' Sovereignty is the quality of having supreme, independent authority over a territory. It can be found in a power to rule and make law that rests on a political fact for which no purely legal explanation can be provided ''.
Oxford Dictionaries online : '' Supreme power or Authority ; the authority of a state to govern itself or another state ( National Sovereignty) ; a self-governing state ''
Collins Gem English Dictionary : '' Supreme power and right to exercise it ''

A Sovereign State is therefore a State ( comprised of a Government, a territory and its people) that can exercise power and authority over the people. It's therefore natural that the power to create laws that will govern and maintain peace in a society is exercised by a component of the political machine, the legislative branch.
One thing is sure : with law comes change. Other aspects of Law remain uncertain : for example, in the UK, laws passed by the Labour Party would be different to those enforced by the Conservatives or, let's be imaginative, the British National Party.
Here's an extract from an article entitled '' What is the Rule of Law ? '' on the Iowa University's website :
'' In his book The Morality of Law, American legal scholar Lon Fuller identified eight elements of law which have been recognized as necessary for a society aspiring to institute the rule of law. Fuller stated the following:
1. Laws must exist and those laws should be obeyed by all, including government officials.
2. Laws must be published.
3. Laws must be prospective in nature so that the effect of the law may only take place after the law has been passed. For example, the court cannot convict a person of a crime committed before a criminal statute prohibiting the conduct was passed.
4. Laws should be written with reasonable clarity to avoid unfair enforcement.
5. Law must avoid contradictions.
6. Law must not command the impossible.
7. Law must stay constant through time to allow the formalization of rules; however, law also must allow for timely revision when the underlying social and political circumstances have changed.
8.Official action should be consistent with the declared rule.

Standing alone, these eight elements may seem clear and understandable. But they are actually difficult to implement in the real world because governments are often compelled to prioritize one goal over another to resolve conflicts in a way that reflects society's political choices. For example, making too many laws that are too detailed and specific may make the legal system too rigid. Inflexibility could cause the courts of a country (judiciary) to neglect the human element of each particular case. Additionally, instead of only applying prospectively, some laws are meant to apply retroactively, or to past conduct, because they were passed with the specific intent of correcting the conduct in question. Fuller recognized these conflicts and suggested that societies should prepare to balance the different objectives listed above.
''


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posted on Sep, 6 2010 @ 09:38 AM
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The Government therefore has a mission to ensure that the law remains as stable as possible to enable social calm but at the same time allow a bit of leeway for politics to change and adopt new laws ( as politics is forever changing, the law needs to retain a bit of flexibility).
The Law being changed in the future is inevitable, as it changes every day, and we will never know what the future holds : an example of this would be the infamous 1933 election in Germany where Hitler became Chancellor and within 6 months of filling this post, social segregation had already swept the country, and then years later, persecution of different social groups were justified by law.

B) Standardization of Law by International Organizations ( Governmental)

An international [ governmental] organization is an organization made up of sovereign states, who transfer a bit of their sovereign power in order to reach a common goal These organizations are controlled and regulated by International Law. For this section, I'll be concentrating on one of the planet's major international organizations : the UN ( The European Union is another, but being restricted to just the European continent, the UN is more interesting).



Example : The United Nations Organization



Successor of the League of Nations, the creation of the UN was the result of a work in progress : from 1940 to 1945, numerous treaties and pacts were signed on both sides of the atlantic, and in 1945, the charter of the United Nations was signed in San Francisco with the attendance of representatives from 50 different Governments.
The UN is sort of a friendly beast if you will, breeding like a rabbit and spawning sub-organizations here there and everywhere. For example, in the financial field, there's the IMF ( International Monetary Fund) ; for world culture, there's the UNESCO ( United Nations Educational, Scientific and Cultural Organization) ; in communications, there the UPU ( Universal Postal Union), and in the domain of Energy, there's the IAEA ( International Atomic Energy Agency). These are just a few example of the many organizations that owe their existence to the collective think tank back at the United Nations HQ.
One of the general rules of international law in the UN is that it's decisions in whatever domain can override those of a non-member state, as nearly all the planet '' belong '' to the UN. By using international law, the UN can virtually regulate law in sovereign states once a member state has signed any contract that engages it ( it's important to add that the UN can't force a member state into anything, as their admission to the organization and to any treaty is purely voluntary).



→ The Kyoto Protocol




From Wikipedia : '' The Kyoto Protocol is a protocol to the United Nations Framework Convention on Climate Change (UNFCCC or FCCC), aimed at fighting global warming. The UNFCCC is an international environmental treaty with the goal of achieving "stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system."
The Protocol was initially adopted on 11 December 1997 in Kyoto, Japan and entered into force on 16 February 2005. As of November 2009, 187 states have signed and ratified the protocol.

Under the Protocol, 39 industrialized countries and the European Union(called "Annex I countries") commit themselves to a reduction of four greenhouse gases (GHG) (carbon dioxide, methane, nitrous oxide, sulphur hexafluoride) and two groups of gases (hydrofluorocarbons and perfluorocarbons) produced by them, and all member countries give general commitments. Annex I countries agreed to reduce their collective greenhouse gas emissions by 5.2% from the 1990 level. Emission limits do not include emissions by international aviation and shipping, but are in addition to the industrial gases, chlorofluorocarbons, or CFCs, which are dealt with under the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer. […]

Financial Commitments : The Protocol also reaffirms the principle that developed countries have to pay billions of dollars, and supply technology to other countries for climate-related studies and projects. The principle was originally agreed in UNFCCC.

Enforcement : If the enforcement branch determines that an annex I country is not in compliance with its emissions limitation, then that country is required to make up the difference plus an additional 30%. In addition, that country will be suspended from making transfers under an emissions trading program.
''


This agreement, signed and ratified by a large number of member states ( and not by one of the UN's more important member states, the USA), steers those states who signed towards a common goal, which here would be the reduction of greenhouse gas emissions. By reducing emissions by passing new laws, this agreement and international law in general contributes to a standardization or '' harmonization '' of Law inside the member states. Applying the same contractual obligations of private law to public law seems like a good idea, but what next ?

Whatever the circomstances, could an international organization or international law in general manipulate and use its power to do what it wishes with its member states ? Given that only 5 countries have seats in the UN Security council, the action centre of the organization organizations, is it faire to swoop down on other countries with international law regulations decided by such a restricted-access council ?





Well, that's it folks ( phew ! ) ! Hope it informed you all !

Peace !



[edit on 6/9/2010 by Unium]

[edit on 6/9/2010 by Unium]



posted on Sep, 6 2010 @ 10:47 AM
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IMOO ..I am not a lawyer and I find myself hard pressed to see the justification of selling all the statutes and acts into the term of law . Why can a society [ Law Society ] impose on another society[peoples] their laws? I remember reading about a Native saying something to the effect ...You paddle your canoe and we will paddle ours ..In the Royal proclamation of 1763 ."The Royal Proclamation of 1763 was issued October 7, 1763, by King George III following Great Britain's acquisition of French territory in North America after the end of the French and Indian War/Seven Years' War. The purpose of the proclamation was to organize Great Britain's new North American empire and to stabilize relations with Native North Americans through regulation of trade, settlement, and land purchases on the western frontier. The Royal Proclamation continues to be of legal importance to First Nations in Canada." Source en.wikipedia.org...

The Wiki quote suggest some things that are not quite accurate. First of all it [North America] was never French territory anymore than it was Dutch . All of the conditions of that proclamation were on the peoples from another Country .


Admiralty law (also referred to as maritime law) is a distinct body of law which governs maritime questions and offenses. It is a body of both domestic law governing maritime activities, and private international law governing the relationships between private entities which operate vessels on the oceans. It deals with matters including marine commerce, marine navigation, shipping, sailors, and the transportation of passengers and goods by sea. Admiralty law also covers many commercial activities, although land based or occurring wholly on land, that are maritime in character.

Admiralty law is distinguished from the Law of the Sea, which is a body of public international law dealing with navigational rights, mineral rights, jurisdiction over coastal waters and international law governing relationships between nations.

Although each legal jurisdiction usually has its own enacted legislation governing maritime matters, admiralty law is characterized by a significant amount of international law developed in recent decades, including numerous multilateral treaties source en.wikipedia.org...

Jordan Maxwell video www.youtube.com...

"4. Laws should be written with reasonable clarity to avoid unfair enforcement.
5. Law must avoid contradictions" Blacks law dictionary ..Human.see monster . seems unclear.

Thanks for the post .You put quite a bit of work in it. The main law I try and follow is ,do no harm .



posted on Sep, 6 2010 @ 11:20 AM
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reply to post by the2ofusr1
 


I just wanted to add a thought about Law . Sprite of the law should be the base that we both consider and acknowledge.

far to often the law is used in a arbitrary conflicting way.If I am guilty of common law there has to be a victim .If I am guilty under civil law there has to be a contract ,written or verbal . If I do not belong to the law society then how can I be found guilty of any violations of their laws ? unless I sign a contract or put myself under them ? Do you understand is their hook word .When you do stand under them with the verbal contract initiated by your verbal response,then they can proceed too ,usually, prosecuting . Its a big game and they are looking for dupes to play with .$$$ . peace

[edit on 6-9-2010 by the2ofusr1]



posted on Sep, 6 2010 @ 11:28 AM
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reply to post by the2ofusr1
 


Yeah, there are a lot of problems with justice and the legal system. If you don't have the money to get a good defense, you're doomed ( despite the fact that justice is supposed to be free and that everyone has the right to it.... yeah right ! )

Another problem would be the actual judge : I mean, they're only human right ? Being 100% impartial is quite frankly a tad impossible =/ !

Peace !




posted on Sep, 6 2010 @ 11:39 AM
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Earlier I postulated an argument on the Constitutionality of prohibition.

I guess this would fall into your Mutation and Evolution component.

Being in the states, the Constitution is supposed to be the basis that all law is derived from and is supposed to be the foundation of all our laws and legislation.

My question was this-If it took a Constitutional Amendment to both prohibit alcohol and then a Constitutional Amendment to repeal it, then how can any substance be banned without a Constitutional change.

Since you bring up Common law as the basis for precedent, tell me how precedent was not set with that component?

IMO, there is no law, there is the appearance of law. What we have now in the states is more likened to the law of the king, where decisions are based upon one's standing in the government. If you are a serf, you get no justice and if you are part of the government or hierarchy, you have to follow no law.

If precedent was actually adhered to, we would not have 100's of thousands of statutes that exist today.

Another example is the licenses and regulations involving firearms. There is absolutely no Constitutional authorization for the feds to infringe on the right to bear arms.

Another example is the licensing or permitting of other rights such as speech and religion. Shall make no law is pretty obvious. If downright crystal clear in it's reading. Yet we have legislation that restricts those very rights and makes them privileges instead of rights.

Tell me, have you had to argue the government side of the debate that government does not have any legal obligation to protect it's citizens?

That one right there, is the proof all one needs to know about the legal profession in the US of tyranny.

If the government is not at all responsible for the protection of the citizenry, what THAN is their purpose?

It is hard to be a lawyer in modern day law practice, you have to fill your head with legal cognitive dissonance.

Being an officer of the court, you have to follow court procedure laid down by the very system, that is attempting to find the guilt of the defendant, you are attempting to defend.

Also, as an officer of the court, you are not allowed to inform the jury of their legal ability to nullify law. This is specifically laid out in courts as high as the Supreme Court and the Presidency of the United States.

To prove my point on the FACT that courts are no longer courts of law or justice, explain the ability of a judge to place someone in jail, in perpetuity, without being afforded a trial. Seems to me, that places the judges as a tyrant the likening of monarchies of the past.

I dare you to bring up any of these discussions in your classes if you are in the states. You will be drummed out of the religious classes that take on the appearance of law classes.

The school of law is more like the school of the order of the black robe religious society, than any actual school of justice.

End rant.



posted on Sep, 6 2010 @ 11:55 AM
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video .. vimeo.com... from this thread www.abovetopsecret.com...

The only way to understand the law is to know it has nothing to do with justice and to remember it is a game being played in a court.as opposed to on a court



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