Skip to comments.Foreign Law Is Not Law
Posted on 06/28/2005 9:29:06 PM PDT by quidnunc
One of the ironies of our time is that economists have been discovering the importance of law, as such as distinguished from the specific merits of particular laws while judges seem increasingly to be losing sight of the rule of law.
"I can hardly imagine any laws so bad, to which I would not rather be subject than to the caprice of a man," John Stuart Mill said more than a century and a half ago.
Modern economists usually have in mind the economic advantages to a society of having a framework of known, enduring, and dependable rules the rule of law within which economic activities can be planned and long-term commitments and investments can be made. But Mill saw the benefits of living under known rules to extend far beyond economic benefits.
Mill spoke of the danger of having to lead "a life of anxiety lest by some of my acts I should unwittingly infringe against a will which had never been made known to me." Some of today's vague and ambiguous anti-trust, anti-discrimination, and environmental laws strike like lightning out of the blue to hit people who had no idea that they were doing something wrong.
The Constitution of the United States expressly forbad retroactive laws "ex post facto" laws, it called them but judicial decisions creating new rights, duties, and nuances out of thin air are for all practical purposes ex post facto law.
"Evolving standards" are also ex post facto law, for who can know in advance how someone else's standards are going to evolve, much less which evolving standards will get a majority of the votes in the Supreme Court?
The recent practice of using foreign laws as bases for judicial decisions about American laws likewise turns law into the caprices that John Stuart Mill feared more than he feared bad laws.
There is no such thing as generic foreign law. There are the specific laws of France and the very different specific laws of Saudi Arabia and of hundreds of other countries around the world. It is a matter of individual prejudice or caprice which of these laws any given judge chooses to cite.
The Sherman Anti-Trust Act sort of quashed that idea. Learned Hand helped overthrow the concept when he held that such laws were ok.
"It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?"
--James Madison, Federalist Paper 62
If I punch you in the nose and you go down to the police station to complain about it, you have to swear under oath or penalty of perjury that I did in fact, punch you in the nose. Thats where the phrase "swear out a complaint" comes from. Actually what youre swearing on is an application for a criminal complaint to issue out of a court. Now, you would think that your right of due process demands that the police officer swear out an application for a complaint against you - with a sworn and signed complaint issued from the appropriate court to follow. But when you look at the citations, you see that where the police officer signs his name, there are a bunch of check boxes and hes checked off a couple of them. The first one he checked is "Criminal Application." That means that this citation is the application for a criminal complaint to issue out of a court against you. The second box he checked is right above his name and it says "Officer Certifies." That sounds official doesnt it? Unfortunately, a certification made by a public officer is "made a fact by operation of law but is not necessarily sworn to." See Blacks Law dictionary. In other words, the officer said "Well, I guess he did it, sort of...maybe...unless somebody else says otherwise..." If the officer had sworn under penalty of perjury that he knew for a fact that you were really subject to those administrative laws and that you broke them, hed be committing felony perjury. Now we cant have that can we?
As if that wasnt bad enough, what did they actually charge you with violating? Your right of due process demands that you be informed of the charges specifically stating the duly enacted laws you supposedly violated. (Remember, this isnt a common law crime were talking about.) What is a "duly enacted law?"
Constitution for Massachusetts, Part the Second, Chapter VI, Article VIII says:
"The enacting style, in making and passing all acts, statutes and laws, shall be Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same.
This isnt some hazy subject that constitutional scholars argue over, its fact. Every duly enacted law must start with the enacting clause or it isnt law - at least it isnt a public law that you have to worry about.
Prior to 1920, all of the duly enacted laws were listed by the year, the chapter, and the section they were given as they were passed by the legislature. These were usually called the "Acts and Resolves" or the "Statutes At Large." So in 1903, the first drivers license law was an act of the legislature of 1903, contained in Chapter 473 - and thats what you would have been charged with violating; St. 1903 Ch. 473 s.10.
In 1920 however, the legislature decided that it was too inconvenient to keep track of all of those laws by date, chapter, and section, along with the tables showing amendments so they hired a bunch of private attorneys to generate what amounts to a "cheat sheet" (or an index) indicating that somewhere theres a traffic law that may or may not say such and such and were going to organize this "cheat sheet" with nice, neat, new chapter and section headings that dont list the date and stay consistently organized from year to year. Unfortunately for you, they also dont include THE ENACTING CLAUSE like the good old law books did. The generation of this "cheat sheet" wasnt an official act of the legislature, it was a "private" act of the legislature for their convenience.
Chapter 281. The General Laws and Their Effect
C. 281 Sec. 1. General Laws, How Cited, When to Take Effect.
This act shall not in any citation or enumeration of the statutes be reckoned as one of the acts of nineteen hundred and twenty, but may be designated as the General Laws, adding the number of the chapter and section when necessary, and shall take effect from and after December thirty-first, nineteen hundred and twenty.
C. 281 Sec. 2. General Laws to Be a Continuation of Former Acts.
The provisions of the General Laws, so far as they are the same as those of existing statutes, shall be construed as a continuation thereof and not as new enactments, and a reference in a statute which has not been repealed to provisions of law which are revised and re-enacted herein shall be construed as applying to such provisions as so incorporated in the General Laws.
Its debatable whether the "new and improved" "Massachusetts General Laws" even constitute proper evidence of the law. They most certainly arent the DULY ENACTED LAW that your right of due process demands you be charged with breaking. In other states they call them "...Revised Codes," "...Revised Statutes," or some other snow-job title, but like a Federal Reserve Note, they arent "Federal" and theres no "Reserve."
This shenanigan is actually old hat because they've pulled this a few times before:
So what were you actually charged with violating when the citation and subsequent complaint specified M.G.L. Ch. 90, s.10? At best you were charged with violating mere evidence of law, and at worst you were violating the legislatures private "cheat sheet." You certainly werent informed of the duly enacted law that you allegedly violated that your right of due process demands!
When you compare the original law signed, and what makes it into the "General Laws" or "Revised Statutes" or whatever scam they're calling it where you live, you find words missing, changed, etc. Hmmmmmm.
The really bad joke is that all of the amendments they enact refer to their cheat-sheet, not the duly enacted law. So what they've been doing to any law prior to 1920 (in MA, but other places as well) is amend their cheat sheet.
One out of hundreds of judges knows how this racket works and they don't like it when you point it out to them.
No, it's not a conspiracy, at least not on a major scale, because most lawyers and judges are too stupid to be involved in any conspiracy and couldn't be trusted anyway. If your post was intended as insider humor, I'm sure you'll agree. If it was intended as an insult, then it's a demonstration of exactly the type of willing mental disability responsible for the situation we're in. Being a charitable type, and sans further discussion (which I don't have time for), I'll presume the former - unless you want to prove otherwise.
I think it goes even further back. I recall from somewhere that a SCOTUS decision from 1798 or 1799 basically ruled that the ex-post-facto provision of the Constitution only pertained to criminal law, not civil law.
"There's no way to rule innocent men. The only power government has is the power to crack down on criminals. When there aren't enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws."
- Ayn Rand
Nice description of the path we are on - towards complete totalitarianism.