The Greatest Liberty Of Subjects, Dependeth On The Silence Of The Law

Hobbes, of course. Occasioned by the death of Scalia; it wasn’t the bit I was seeking for, but it was too beautiful to overlook, and almost relevant. And who could resist The Fourth Law Of Nature, Gratitude. But I must stop, and come to my point.

Which was: Hobbes insists on undivided power – he explicitly rejects the separation of powers the USAnians are so keen on. And in case of Justice, he argues that the Sovereign must inevitably have The Right Of All Judicature; And Decision Of Controversies because without the decision of Controversies, there is no protection of one Subject, against the injuries of another; the Lawes concerning Meum and Tuum are in vaine; and to every man remaineth, from the naturall and necessary appetite of his own conservation, the right of protecting himselfe by his private strength, which is the condition of Warre; and contrary to the end for which every Common-wealth is instituted. However that bit doesn’t say what I wanted to find, which is where he says, and I paraphrase, “if the ‘sovereign’ doesn’t decide cases, then someone else does, and that other person or body is actually the sovereign”.

And when you look at, e.g., the US Supreme Court on a 5-4 vote issued a stay of the application of the Clean Power Plan to emitters, I hope you’ll understand my point without me belabouring it.

The rest of this is merely me trying to find the quote I wanted. I think its the first of bolds below.

The Interpretation Of The Law Dependeth On The Soveraign Power

The Legislator known; and the Lawes, either by writing, or by the light of Nature, sufficiently published; there wanteth yet another very materiall circumstance to make them obligatory. For it is not the Letter, but the Intendment, or Meaning; that is to say, the authentique Interpretation of the Law (which is the sense of the Legislator,) in which the nature of the Law consisteth; And therefore the Interpretation of all Lawes dependeth on the Authority Soveraign; and the Interpreters can be none but those, which the Soveraign, (to whom only the Subject oweth obedience) shall appoint. For else, by the craft of an Interpreter, the Law my be made to beare a sense, contrary to that of the Soveraign; by which means the Interpreter becomes the Legislator.

All Lawes Need Interpretation

All Laws, written, and unwritten, have need of Interpretation. The unwritten Law of Nature, though it be easy to such, as without partiality, and passion, make use of their naturall reason, and therefore leaves the violators thereof without excuse; yet considering there be very few, perhaps none, that in some cases are not blinded by self love, or some other passion, it is now become of all Laws the most obscure; and has consequently the greatest need of able Interpreters. The written Laws, if they be short, are easily mis-interpreted, from the divers significations of a word, or two; if long, they be more obscure by the diverse significations of many words: in so much as no written Law, delivered in few, or many words, can be well understood, without a perfect understanding of the finall causes, for which the Law was made; the knowledge of which finall causes is in the Legislator. To him therefore there can not be any knot in the Law, insoluble; either by finding out the ends, to undoe it by; or else by making what ends he will, (as Alexander did with his sword in the Gordian knot,) by the Legislative power; which no other Interpreter can doe.

Refs

* Justice Scalia Dead Following 30-Year Battle With Social Progress
* Law of the case – Brian at Eli’s.
* Burning Down the Constitution – CIP
* Who killed Justice Scalia? Anthony Watts sets some rules for crazy conspiracy theories at WUWT – Sou
* The Senate’s subversion of the Supreme Court – FT
* One of his clerks remembers Scalia
* JUSTICES SCALIA & GINSBURG INSPECT THE STRATOSPHERE
* Hayek vs Hobbes and the theory of law
* Judge tosses case, saying that court-ordered retractions are not part of scientific publication – an example of the law wisely choosing to stay silent.

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8 thoughts on “The Greatest Liberty Of Subjects, Dependeth On The Silence Of The Law”

  1. Interesting, the recent Clean Power Plan case in the Supreme Court ties into two other issues.

    One is the power of the courts. Until recently the courts have been deferring to the executive and particularly the legislative branch. Recently, conservatives had been arguing against this with their majority at the Supreme Court. They wanted the conservative judges with their activist bent to over rule things conservatives don’t like.

    The other is states vs federal powers. Conservatives like states to have more power to advance their agendas, particularly on social and regulatory issues.

    Thinkprogress has an good article on this
    http://thinkprogress.org/justice/2016/02/12/3748062/inside-the-most-important-supreme-court-case-in-human-history/

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  2. Scott Lemieux writes in today’s (Feb. 14th) Guardian, Justice Scalia’s legacy: blistering zingers and a more partisan America

    …had Scalia’s dissents ultimately shaped America, women would not have reproductive rights, the federal government could not effectively regulate health care, LGBT people would not have the right engage in sexual intercourse without fear of arrest – let alone alone the right to marry – and states could single them out for legal disabilities. Women could be excluded from state educational institutions, public schools could teach creationism in science classes and prisoners could be assaulted by prison guards. And, in large part because of Scalia, in America today, the Voting Rights Act has been gutted, the rights of employees and consumers have been curtailed, Brown v Board is more likely to be used to stop integration than to promote it and moneyed interests increasingly dominate elections.”

    Yes, the interpreters of the law can end up subverting intent, but what is forgotten is that they only rarely (fortunately) succeed. If these powers were solely that of the sovereign, given that since 1980 we’ve had 20 years of GOP presidents coarsely aligned with Scalia’s thinking, things would have been much worse.

    And the constant reversals as the office changes hands would probably have destroyed the country.

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  3. H. Clinton has proposed an experiment that would be well worth trying:

    ” if we were to achieve everything about banks and money in politics, would that end racism? Would that make it automatically going to happen that people would be able to get the jobs they deserve, the housing they need, the education their children need to have?”

    Reasonable hypothesis, worth testing.

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  4. > If these powers were solely that of the sovereign
    We’d already have had our last election.

    http://journalistsresource.org/studies/politics/elections/voter-id-laws-empirical-evidence-government-accountability-office

    “Key legal background: See the 2013 majority opinion in the 5-4 Shelby County v. Holder case, written by Chief Justice John Roberts, who said that a provision of the Voting Rights Act should no longer be enforced, opening the door for ID laws in some states; and a widely reported 2014 opinion by Judge Richard Posner, an influential appeals court jurist and scholar, who criticized the empirical basis for voter ID laws.”

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  5. “To him therefore there can not be any knot in the Law, insoluble; ”

    One gets the impression that it was a simpler time, legislation-wise.

    [I think that’s a mistake. Firstly, to think that the law was significantly simpler then (I know no details but projecting back a semi-rosy past is always wrong) but secondly and more importantly that’s not what Hobbes is talking about. Hobbes is describing, characteristically briefly, a problem that probably arose in the courts of his day – and which has echoes in Scalia’s “originalism” – of “what does the law mean”? In Hobbes’s interpretation this problem simply doesn’t arise, because either the legislator knows their own mind, or in Hobbes’s charming words, “to make what ends he will” -W]

    OT: I feel compelled to ask if Stoats keep Cattes.

    [Just the One: https://www.facebook.com/phoebe.connolley -W]

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  6. I haven’t looked at any 18th century English laws, but was thinking of the U.S. Constitution, which despite being a century newer isn’t exactly a paragon of unambiguous grammar. Scalia’s originalism boiled down to an attempt to twist those ambiguities to his own political purposes, or else the first thing he would have had to do is admit that the Supreme Court has no power to review the laws of Congress (strange but true).

    As a good colonial I’m thin on the details of English hstory, but the post prompted me to look up a few related things. It seems notably ironic that Godden v. Hales, amounting to an attempt to actualize an absolutist monarchy consistent with the advice of Leviathan, should have been a key event if not the key event in ensuring England wouldn’t have one. James II’s short-lived successful attempt at court-rigging in that instance has some resonance with the Federalist Society’s attempt of the last several decades to do something similar in the U.S.

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  7. Kevin has sucessfully transitioned from from Save the Whales to Save The Leviathan.

    Just said hello to the last harpooner on Bequia, still going strong at about Scalia’s age

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