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The basis of a civilized society is law. The law allows for
standardized treatment of men, the law allows people to plan their futures,
the law gives people assurance that wills, contracts, and trusts will be
enforced, that certain behavior will be allowed while other behavior (crimes
and torts) will be punished, etc.
Five important characteristics of "the law" in a civilized
society follow: 1) The law must be of manageable size so the average man
can learn the law without a lifetime of study. 2) The law must be simple
enough for the average man to grasp and understand. 3) The law must be
stable so men can, once they learn the law, live their lives with great
assurance that they know the law and are not violating the law. 4) The
law must be internally consistent so a man who follows one law does not
find himself violating some other law. And last, but not least, 5) "man
made" law must harmonize with the unchanging law of God.
Each of these principles needs to studied in light of America's
current legal structure:
Manageable size: The typical public or academic law library
contains over 100 million pages (in excess of 100,000 volumes) of statutes,
regulations, reported legal decisions, commentaries, cross indexes, law
dictionaries, legal encyclopedias, law review articles, etc. However,
most law libraries have found all these pages inadequate. In the last ten
years they have added "on line" access to great legal web sites run by
Lexis
and West Legal Publishing. These web sites allow law students and
lawyers to do quick searches of all published material related to a given
topic. These web sites are expensive but if the right legal key words are
entered the results are very useful. Twenty to one hundred pages of information
is displayed on the screen. In an hour or two any journeyman lawyer
will know all that is worth knowing about some narrow area of the law.
Of course, total or complete knowledge is beyond human reach. No one not
even the most dedicated legal scholar can claim to know "all the law".
In fact America's situation recalls ancient Rome, just before its
fall, when the laws began to multiply. A sage of the late Roman Empire
remarked "A corrupt society has many laws".
Simplicity: As the preceding description makes clear, mastery
of legal jargon is needed to figure out which key words will yield
the right information during the search. Additionally, mastery of legal
jargon is needed to understand the information that is ultimately displayed.
Average people have first to learn a mass of legal jargon if they want
to understand the laws they live under. Appellant Court judges will readily
admit that they write their opinions for practicing lawyers not average
people. They do this to show where prior precedents are being upheld and
where prior precedents are being changed or clarified. Their opinions only
make sense if the reader is already familiar with the earlier opinions
by other judges baring on this area of the law. This all sounds well and
good until one realizes that these opinions are at least as powerful as
legislated law in determining what average people can and can not do. The
real effect of these obtuse, carefully crafted opinions written for the
practicing lawyer, is to make the law unknowable to the average citizen
unless he is prepared to pay a lawyer to study the "law" (court opinions)
and then explain it in layman's terms.
Stable & Rarely Changed: Cicero and Aristotle felt that
laws should be few in number and seldom changed. Saint Thomas Aquinas went
farther saying that change in the law was in and of itself undesirable
and that any change to the law requires strong justification. Despite this
wonderful advice from these great sages of Western Civilization, in America
change is the order of every day: (a) the 44,000 page tax law changes
every year as does the 100,000 page rule book governing Medicare, (b) the
suspense calendar in Congress is always full of special legislation designed
to favor certain preferred groups, (c) general laws at both the State and
Federal levels are regularly passed which give regulators the right to
issue (and change) "implementing regulations" without any review by elected
legislators, and (d) the courts (Federal and state) regularly change, overturn,
or interpret legislation, regulations, and earlier court opinions. The
volume of change is staggering.
Internally Consistent: As the mass of law, court decisions,
and regulation increases, changes and grows in complexity, it is logical
to expect that various inconsistencies will occur. Of course, inconsistencies
crop up all the time, in fact this happens so often that Law Schools now
offer whole courses on the CONFLICT OF LAWS. If lawyers are confused
think of the poor average citizen who has to somehow function. An example
might illustrate the problem: One compliance manager at small stock brokerage
firm had a question about what stock research could be offered for sale
over the internet. After talking to four lawyers, he had four distinct
"opinions" on the issue. After spending a thousand dollars for legal advise
and many hours listening to the advice, the compliance manager didn't know
what to do. The first lawyer suggested that the safest path seemed
to involve registering his firm in every state as a Registered Investment
Advisor (State RIA) and spending $15,000 per year and hundreds of hours
filling out forms. Of course, the laws of all fifty states would have to
be followed even if they conflicted with each other. The second lawyer
suggested seeking a Federal investment advisory registration and filing
notices of Federal registration in the fifty states with the same $15,000
of fees. This registration is available if more than five customers show
up to buy the research in each of at least 35 state in 120 days. If the
5 customers in 35 states don't materialize then the Federal registration
must be withdrawn an individual state RIA registrations obtained. The third
lawyer suggested that the firm register as an advisor in the state where
the firm was domiciled and then get registered in other states if those
states formally complained, of course, these complaints might be accompanied
by demands that fines be paid. The last lawyer said that no RIA registration
was needed (State or Federal) saying the firm should depend on a federal
exemption which allows broker dealers (securities firms) to sell research
as an incidental part of their other activities. When a helpful friend
suggested that a fifth opinion be obtained, the compliance manager stared
in disbelief, totally at a loss for words.
In harmony with God's Law: God is more intimently
acquainted with man's nature than any human. God did not create the biblical
commandments to be difficult or overly restrictive; He created them because
he give men free wills, and He knew which evil tendencies were likely to
appeal to men. When lawmakers, judges, and lawyers decided to place "manmade"
law in opposition to God's law they naturally put men in the difficult
position of having to follow God or their temporal rulers. Lawmakers and
judges also create an unending string of "what about this "questions that
lead to greater and greater departures from God's Law. The examples abound:
homosexual rights, abortion, no fault divorce, excess government social
programs, driving prayer out of the classroom, etc. Each of these
has in turn leads to other question such as: Do homosexuals now have
a right to marry? Do mothers have a right to kill their unborn children
even as the child is sliding down the birth cannel ready to be born? Does
no fault divorce carry with it the right to force the innocent, injured
spouse out of the home while simultaneously forcing that innocent, injured
spouse to pay child support for decades? Does the massive growth of gov't
social spending necessarily mean that private and church charities will
be striped of the tithe money their donors might otherwise have given?
Does forcing prayer out of the classroom indicate to our youth that God
is only a "sometimes" factor in their lives and that He is unrelated to
the central activity of their daily routine? It is obvious that each such
step is simply another step on a slippery slope away from God.
So why do lawmakers, lawyers, and judges
violate these five obvious rules. The only answer that makes any sense
is self interest. Lawmakers want to be re-elected so they pass laws which
pander to man's baser instincts and give special advantage to large contributors.
Judges at the appellate level (and bureaucrats in the executive branch
of government) are lured by the evil urge to become "little gods". They
put God's Laws aside and set off on their own to re-define right and wrong.
Judges at the trial court level become friendly with the lawyers that appear
before them so they act in ways which increase the power and/or wealth
of these lawyers. Lawyers themselves are in need of income to support their
families in an aristocratic fashion, so they encourage judges and lawmakers
to increase the complexity of courtroom procedures and/or law in general
so more "lawyer's work" is created. Simple laws and simple court room procedures
are not the stuff upon which grand legal fees are built.
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