DEFINING LAW AND JUSTICE

It is interested to read books on legal philosophy and see how the highly educated and respected jurists have struggled with obtaining a definition of words like law and justice. Oliver Wendell Holmes and Roscoe Pound are two examples. It appears they had more difficulty than I, a lay person, in developing definitions.

It is not that definitions of these words came easy to me. I have devoted much thought to the proper definition. It is not that I am more intellectually gifted. They were, undoubtedly, geniuses. The difference is in their life experience in contrast to mine. Their entire career was in the field of law. They were in the position to make, shape, and apply the law in the pursuit of justice. The difference is that I have been a common citizen who was the subject of the application of the law in what was, ostensibly, the pursuit of justice. Their lives were spent, like most who have shaped our laws, in positions where they were immune to the application of what they preached. I am one of the masses who suffered under those in positions to choose to make the definition of law and justice reality. It is not with any malice towards them or any others, nor from a position of arrogant superiority, that I write about the conclusions I have come to. Sometimes the perspective of people outside a field of study can provide valuable insight that those within the field can find of great benefit. Sometimes from those less intellectually gifted.

The definition of words is, in the final analysis, a personal matter. Words are defined by words and all words are subject to the interpretation of our own perspective. No one word, or collection of words, means exactly the same thing to all people. We can only strive to come as close as possible to a mutual understanding of what we are trying to convey to each other. Therefore the words I use to define law will be different from theirs because my perspective is different. I believe my perspective can be as valuable a contribution to aiding in a proper definition of the words, that is; an understanding of the concept the words are intended to convey, as theirs. Admittedly; I lack the “credentials” they have but believe my experience provides a credential of equal, maybe even greater, consideration.

LAW AND POWER ARE INTERCHANGEABLE WORDS

Law is a tool created by man. Law is, in it’s essence, power. Law without power is like the tree that falls in the forest when no one is around. The question is whether it made a sound? Law without the ability to be heard and enforced, does not, for all practical purposes, exit. It is the fallen tree that no one hears. Therefore; law only exists if it is enforceable. It must have power behind it and from this it becomes a power, or takes on a power, of it’s own.

The question then becomes whose power and to what objective is the power to be used? Humans have always claimed the purpose of this tool, the law, is to establish what humans choose to call Justice. This is one of the means by which power secures acquiescence to power. By the use of words and concepts, such as “justice”, men will subject themselves to power that otherwise must be imposed with the difficulty and expense of the application of force.

Law is defined by those with power and is for the purpose of enforcing power. Those who defined the law use it to create a code of conduct, or rules, that others must obey. There are two kinds of law. There is the written law and there is the unwritten law. Law is most effective when it is written. It enables the sovereign power to pass on to those under the authority of the sovereign his law. In this way his power can be extended to large masses of people through others who are, through the written word, given the responsibility of imposing the power of the law of sovereign.

Who is the sovereign? The sovereign is the ultimate possessor of power. It can be a man who is alive and even a man who is dead. It can be the one who gives himself, or secures for himself, a title and assumes the position dictating to others the law. It can be a man who claims to be passing on the “word”, or law, of an unseen but all-powerful entity called God, Allah, or some other chosen name. The word became God and God became the word.

In the case of the United States of America the sovereign that was chosen in the founding of the nation was the Constitution. The idea was that, in this way, the people, both individually and collectively, would become the sovereign. The Constitution is the law with all other laws only to be made in pursuance of the Constitution and all, to whom it delegated powers, are bound by honor to enforce it.

If Americanism was a religion the Constitution would be, to the people, what the Ten Commandments of Moses was to the Israelites, with the torah the body of laws that followed, what the words of Jesus are to the Christians, with the New Testament the body of laws that followed, to Judeo-Christians, the Ten Commandments with the Bible as a body of laws that followed, to the Muslims it is the Quran, etc. It is the word of the Pharaoh who was believed to be a God-man and the word of the King who, it was believed, had the divine rights of Kings. Like all religions those who failed to respect the law would bring dishonor on themselves and, if not punished in this life, would be punished in the afterlife for their sins.

To the communist it is the words of Marx made law in practice. To the American it is the words of our Founders made law in practice.

To the religious the purpose of the law is to please God. They hold we, both individually and collectively, must follow the law so that God will be pleased. When God is happy he will not punish us with his wrath and will reward us in the afterlife. To those who are not as firmly convinced in the existence of God, or believe they have been given authority by God to establish and implement the law, the purpose of the law is justice.

So now we come to the definition of Justice? To the Founders of both America and Texas the Law was to please the people as the sovereign. To the founders of our nation what pleased the people was defined as a government that would secure life, liberty and the pursuit of happiness. Both the declaration of independence and the Constitution make clear the understanding that this required a balance between the interest of the individual and the interest of the collective. The purpose of government was to give to all the people of the nation, both individually and collectively, “life, liberty, and the pursuit of happiness”. Pursuant to the desires of the Founders the purpose of the courts is to secure, through the application of the power of government, a balance between conflicting interests. That is the American definition of Justice.

Government, through the Courts, assumes the costs of Justice for the benefit of the collective. In criminal law it is to balance the interests, or rights of the individual, against the need for the collective to be secure. In civil law government assumes the costs to secure a balance between conflicting interests of two individuals to maintain peace for the collective of society. (Corporations and groups, in this instant, are treated as if an individuals in the civil action) This balance is what can be called justice. It’s objective is peace. Peace comes through unity. Unity comes from belief that justice is being served or a proper balance is being made and maintained by the government in balancing the conflicting interests between both individuals and the collective, in criminal law, and individual in conflict with other individuals, in civil law.

How well is the Fifth Circuit performing in the pursuit of justice? It depends on the perspective of the interests that are being served. To those individuals entrusted with the power of government, by title or position, and to those who possess a licensed to practice law, and to those who possess wealth, it may be considered to be doing a wonderful job. To the majority of people who are of the lower 90% in income and wealth, to those who cannot afford $300 per hour for legal services, to those who pay $150 an hour for legal services but get nothing for it, for the large numbers of people in prison or under punitive supervision of employees of government, the Fifth Circuit is failing miserably. To all not employed by government, who pay the higher taxes that result from the in-justice that the statistics would indicate are prevalent and extreme, it is failing miserably. To humanity as a whole, with the United States of America providing the best opportunity for world peace and prosperity, it is a depressing disappointment.

This is before placing any measure on the moral implications for the failing. In terms of “honor”, to the objectives of the founders of the nation and the State of Texas, I fear using the words that would apply. But the moral cost is not with the Justices of the Fifth Circuit alone. This is a cost we all bear collectively for allowing it.

Justice is does not have a universal definition. It is too personal. This is because it is a very emotional word. To those overcome by anger, grief, fear, hatred, or any other emotion, it is vengeance. The nature of the person, their ability to control or reason with their emotion, determines it’s limitation. To the family of some murder victim justice cannot be served even by the torture and death of the one who killed their loved one. Their grief remains. To those filled with fear and or hatred it can only be achieved by mass genocide. To those abused by society it is the crime of opportunity or convenience.

To me, as a person whose objective is a government of the people, by the people and for the people with the objective of life, liberty, and the pursuit of happiness, it is accountability. To me justice is a government that holds itself accountable to the people as the sovereign. To me it is a government that takes it’s honor seriously enough to limit it’s discretion, it’s power, to the authority granted to it by the Constitution.

In terms of revenge for what has been done to me or in terms of compensation for the injustice that has been imposed on me there can be no justice. The years of my life cannot be returned to me any more than a murder victim can be brought back to life. The scars of the emotional turmoil and mental anguish imposed, not only on my family and others, as well as myself can never be eradicated. But I will settle for accountability that will save others from the crimes inflicted by those who believe they are not accountable to any law.