From Democracy In America, here’s Alexis de Tocqueville on the complexity of American law:
The French codes are often difficult of comprehension, but they can be read by every one; nothing, on the other hand, can be more impenetrable to the uninitiated than a legislation founded upon precedents. The indispensable want of legal assistance which is felt in England and in the United States, and the high opinion which is generally entertained of the ability of the legal profession, tend to separate it more and more from the people, and to place it in a distinct class. The French lawyer is simply a man extensively acquainted with the statutes of his country; but the English or American lawyer resembles the hierophants of Egypt, for, like them, he is the sole interpreter of an occult science.
This was, of course, long before the scale and opacity of federal legislation had even begun to approach the dark vastness of, say, the Patient Protection and Affordable Care Act. What, I wonder, would Tocqueville have made of this?
There is something very wrong about our nation’s laws being of such bulk and complexity that even the legislators who enact them cannot fully understand them (if they bother to read them at all). How can anyone know if he is in compliance with a body of law that is too labyrinthine, too immense, for any human mind to encompass it? How anyone actually be in compliance with such a body of law? It’s like something out of Borges.
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You assume the desire to have laws understandable. But suppose lawmakers deliberately make law obscure. After all, almost all lawmakers were formerly lawyers. Nothing is a greater guarantee of employment than a monopoly on some activity–in this case the interpretation of law. Furthermore, Congressmen and Congresswomen win brownie points with constituents for finding ways to get around bureaucracy. The worse the bureaucracy they navigate for their constituents, the more secure their re-election. Finally, if the law is so obscure and complex that it is impossible not to be in violation of some aspect of the law, then people become afraid and very insecure from not knowing what could strike from what direction. All activity is potentially illegal.
The law is the way it is because it promotes the power and security of the lawmakers and enforcers.
This is the most important point of all. It means that the weight of “law” can be brought to bear against any citizen at the whim of the sovereign. It effectively negates the idea of a free people living under the rule of law; rights become privileges. (“Privilege”, of course, simply means “private law”.)
The same applies to civil society as well, as we see in this timely post at Mangan’s.
Dennis wrote:
Of equal importance is that for a preponderance of such laws, they were legislated with precisely such intentions, as Bill already pointed out.
Even Mother Theresa or Bob Woodward could be indicted and convicted of something, if Eric Holder found it useful to do so. And only billionaires have enough discretionary funds (i.e., a large enough stable of lawyers) to defend themselves against such whimsical charges.
If I were a rich man (yubby dibby dibby dibby dibby dibby dibby dum), the very first thing I would do to improve my life style would be to hire on retainer the best legal assistance I could afford.
It’s cheaper my Friend to “pay” attention to your associate’s [notice I do not say ‘friends’] children’s, grand’s predilections then, if merited, take ’em fishing, remember their birthdays, give of your time – better your precious time – then, it’s been my experience, things just work out.
Of course I’ve only experimented with this in five countries so I shant say it’s universally good advice. But it’s worked generally, “so far, so good.”
There are such things (as in the US) the UCMJ’s Article 134 and the civilian “Disorderly Conduct.”
Good advice, JK. I do remember birthdays (with a little help from my computer’s calendar). Fortunately for me, “so far, so good”. But I give much credit to having a low financial profile, thereby blending into the woodwork, as it were.
But if I were a rich man (yubby dibby dibby, etc.), with a concomitant elevated financial profile, I would hire all the professional help I could afford to protect me from marauding attorneys and other scumbags.
I believe you’re a good man Henry.
And it’s better friend Henry, for our friend Malcolm. He’s my friend, Your’s Horace’s and Peter’s, my chidren’s [this or that extent and whatever my grandkid’s) but as I direct – Malcolm, Peter, and yes you Henry – even if it means I gets off my rear end and … well you know what I mean.
(Yadda, yidda, so & so ifa whad-ever – I don’t give a fuckera)
Henry? Me & You ain’t rich. I’m figurin’ Nick & Chloe are hitting up Malcolm an Nina right smart –
So I’m figuring Henry – and ooooh I’ll enjoy it so, you just get me in a Californiaq Prison,
As I understand it, Peter’s a “Legal-Eagle” and all we have to do is go move in with him. Shouldn’t be too bad as I understand, Peter’s kids’ll get culturated by staphloccos aureous. Maybe skim milk.
JK, you need to get more sleep.
I would simply point out that Harvey Silverglate’s Three Felonies a Day makes Malcolm’s point far more explicitly, going into great detail about how America has descended into anarchotyranny.
Thanx, Eric. I just bought the Kindle edition. I wonder if that’s a felony …