“The law, then, is not a neutral body of rules to help keep order and govern society; it is merely an opinion with a gun.”

The Myth of the Rule of Law by Robert Taylor

Any state, no matter how powerful, cannot not rule solely through the use of brute force. There are too few rulers and too many of us for coercion alone to be an effective means of control. The political class must rely on ideology to achieve popular compliance, masking the iron fist in a velvet glove. Violence is always behind every state action, but the most efficient form of expropriation occurs when the public believes it is in their interest to be extorted.

Mythology is necessary to blunt the violent nature of state power in order to maximize the plunder of property — and, most importantly, provide an aura of legitimacy. The perception of legitimacy “is the only thing distinguishing a tax collector from an extortionist, a police officer from a vigilante, and a soldier from a mercenary. Legitimacy is an illusion in the mind without which the government does not even exist.”1

State authority, and public obedience to it, is manufactured through smokescreens of ideology and deception. These myths sustain the state and offer an illusion of legitimacy, where orders, no matter how immoral or horrific, are followed because they are seen as emanating from a just authority. The state cannot implement violence against everyone everywhere and overwhelm the host, so the battle is waged against the hearts and minds of the public. Fear is exploited, language is distorted, and propaganda is spread, while narratives and history are tightly controlled. The gulag of state power, first and foremost, always exists in the mind.

If the mythology of state power is smashed, then the state is exposed for what it is: institutionalized violence, expropriator of the peaceful and productive, and entirely illegitimate.

The Myth of the Rule of Law

In order for a society to have peace and order, there needs to be a set of largely uniform and neutral laws in which the vast majority of the public agree are fair and just. Throughout the history of Western law, a decentralized process of trial-and-error, competing courts, and private arbitration achieved these rules. A monopoly power was not necessary, nor desirable. Before the rise of the modern bureaucratic, democratic nation-state, the monarch was the symbol of monopolistic order, and his power consisted mostly in enforcing the private common-law tradition that had already developed over centuries.2

Eventually, the nation-state model we see today grew and absorbed this decentralized tradition into a monolithic, top-down coercive regime imposed by legislatures, state police, and bureaucracies. The “rule of law” became the propaganda term used to justify this radical departure from the Western tradition of common-law and private arbitration. The law was now political in nature, subject to the usual array of corruption and disincentives inherent in any political order. With the monopoly state now in charge of law, the idea that a coercively imposed system of justice — in which everyone is governed by neutral rules that are objectively applied by judges — became a powerful myth for states to exert control over society.

As a myth, however, the concept of the rule of law is both powerful and dangerous. Its power derives from its great emotive appeal. The rule of law suggests an absence of arbitrariness, an absence of the worst abuses of tyranny. The image presented by the slogan “America is a government of laws and not people” is one of fair and impartial rule rather than subjugation to human whim. This is an image that can command both the allegiance and affection of the citizenry. After all, who wouldn’t be in favor of the rule of law if the only alternative were arbitrary rule? But this image is also the source of the myth’s danger. For if citizens really believe that they are being governed by fair and impartial rules and that the only alternative is subjection to personal rule, they will be much more likely to support the state as it progressively curtails their freedom.

The rule of law, imposed by the state, is simply a myth. There is no such thing as “a government of laws and not people.” Legislative edicts are always subject to the biases and agendas of those who interpret them, and will be imposed in this manner by whoever currently wields the power of the monopoly state over society.

For example, despite the US Constitution’s very clear language in most of its passages (there are some dangerously vague sections, of course), the most trained and brilliant legal minds can come to completely opposite conclusions over the exact same clause. Whether it is a particular amendment in the Bill of Rights or the particular language of executive or legislative power, a liberal and conservative judge could use sound reasoning and cite historical precedent to make their case — and they would both be right. “[B]ecause the law consists of contradictory rules and principles,” argues John Hasnas, “sound legal arguments will be available for all legal conclusions, and hence, the normative predispositions of the decision makers, rather than the law itself, determine the outcome of cases.”

The law, then, is not a neutral body of rules to help keep order and govern society; it is merely an opinion with a gun. Whenever the state is in charge of anything, the outcomes, process, and administration are always political in nature. There can never be a system of definite, consistent rules that produce determinate results because these laws, no matter how they are written, will always be subjected to the biases, prejudices, and discrimination of those who interpret and enforce them.

The idea that the law is not neutral or determinant is not a revolutionary doctrine and should not be entirely shocking. Over a century ago, former Supreme Court Justice Oliver Wendell Holmes argued that certainty in law is an illusion; judicial decisions rely more on the language of logic than they do on objective enforcement. Since at least the 1970s, the Critical Legal Studies movement has recognized this, and even they are just reviving the legal realists who made these same insights decades before them. The idea of determinate law is actually an undesirable feature — even if we were to overcome the impossibility of making it so — as the strength of an effective legal system lies in its ability to have certain amounts of flexibility. This is why the decentralized, private law tradition was able to produce several codes of uniform laws — do not murder, steal, assault, or initiate aggression in general — while providing the room to adapt to social change and distinct cultures.

Keep reading . . .

Reprinted here with expressed written permission from the Mises Institute.

“There is no reason for the sheriffs to want to reform a racket that lines their pockets. “

trump-lying

First, Trump is lying.

If he’s not lying, he was given bad information.

And if he was given bad information, the fact that he failed to fact-check his information means that he’s loose with facts and is okay with lying, the same complaint that he’s leveled ad nauseam about the press’s lies reports on his history during his campaign. There is only so much milk you can get from that cow, Donald.

The homicide rate in the U.S. is the lowest it has been in 51 years, not the highest. Even Chicago’s murder rate, when you put their numbers in a historical context, is the lowest it has been in 51 years. Donald Trump is lying to the American people so as to allow sheriffs across the counties of the United States to pilfer the pockets of Americans. Is he a dictator?

One commentator noted that “The next president is worse than the last over and over again.”  That’s a tough call, since each one is bad in their own way.  Trump has already green-lighted the murder of people in Yemen.  Where is the conviction? Where is the due process?  Where is the trial?  Verdict?  Appeal?  From the U.S. government none.

The Constitution’s Fifth Amendment says property shall not be taken without just compensation, and the 14th Amendment says it shall not be taken without due process of law. President Trump, 18 days from having sworn to “preserve, protect and defend” the Constitution, sympathized with the sheriffs’ complaint that they are being pressured to reform civil forfeiture practices.             –George Will

Article by George Will

The technique has been called (by this columnist) “immunity through profusion.” By keeping the molten lava of falsehoods flowing, the volcano that is Donald Trump can inundate the public and overwhelm his auditors’ capacity to produce a comparable flow of corrections. This technique was on display the other day when the president met with some sheriffs.

He treated them to a whopper that is one of his hardy perennials, market-tested during the campaign: He said the U.S. murder rate is “the highest it’s been in 47 years.” (Not even close: The rate — killings per 100,000 residents — is far below the rates in the 1970s and 1980s.) This Trump Truth (Sen. Eugene McCarthy’s axiom: Anything said three times in Washington becomes a fact) distracted attention from his assertion to the sheriffs that there is “no reason” to reform law enforcement’s civil forfeiture practices.

There is no reason for the sheriffs to want to reform a racket that lines their pockets. For the rest of us, strengthening the rule of law and eliminating moral hazard are each sufficient reasons.

And here is why the sheriffs probably purred contentedly when Trump endorsed civil forfeiture law — if something so devoid of due process can be dignified as law: Predatory law enforcement agencies can pocket the proceeds from the sale of property they seize.

Keep reading . . . 

h/t to Robert Wenzel at Target Liberty

 

Minimum-Wage Laws: There Go the Jobs

This makes sense. What doesn’t make sense are those who know what’s best for others and imposes what amounts to a tax to force them to comply with progressive ideals so good they just need to be enforced at the end of a government gun.

 

“Even the police officers know not to talk to the police.”

rights-of-the-accused-the-5th-amendment-6-728

By Marc J. Victor

As a criminal defense attorney, I have been representing people charged with gun related criminal offenses for well over twenty years.  During that time, I have been lead counsel in several hundred gun related criminal offenses including 1st-degree murder, drive-by shootings, aggravated assault, disorderly conduct, unlawful discharge and many more serious felony level offenses.  I have represented people in countless misconduct with weapons and prohibited possessor criminal charges as well.  In short, I have represented more people than I could possibly count in serious gun related criminal cases in both state and federal courts.  There are few ways a person can get into big trouble more quickly than to misuse a firearm.

The decision to keep and bear arms is a serious one.  It is also a decision that necessarily comes with great responsibility.  All gun owners are required to know and follow the law.  As you have heard many times, ignorance of the law is no excuse.  Especially in cases involving firearms, you would be well served to study the law, and to think about its application before carrying, or even owning, a firearm.

This article is no substitute for studying the law regarding firearms and self-defense.  Reading this article will not teach you everything you need to know about carrying or using a firearm; far from it.  I recommend that all gun owners take an initial comprehensive gun safety class as well as a refresher class on a regular basis from a qualified instructor.  Carrying a firearm is a huge responsibility.  There is no room for error.  I have seen many lives changed forever based on an erroneous split second decision or an honest mistake.

This article is written to offer you some information based on my many years of personal experience representing people charged with gun related crimes.  You are not likely to get this information in most firearms classes.  If after reading it you become extremely conservative about pulling out your firearm, I have accomplished my purpose.  As I often say at the countless legal seminars, I have presented at, “Don’t be an idiot with a gun.”   I urge you to be a responsible gun owner and think carefully before you act.  Your very freedom could well depend on it.

Continue reading . . .

Difference Between Assault and Battery

assault

The non-legalize difference is as follows:

1) An assault means you were not actually hurt, but scared. If you pull a gun someone, but do not shoot it is an assault. The person is not physically harmed, but they are certainly scared of being hurt.

2) Battery is a harmful or offensive touching. If the person shoots and the bullet hits you, then it is battery among other things; but since there was contact, it is battery.

Very short explanation is assault means there is nothing touches you or hurts you, battery means something touches or hurts you.

Here is a brief article explaining the difference. http://www.legalmatch.com/law-li…

From another reader:

Assault is the willful and unlawful attempt, coupled with the present ability, to do harm upon the person of another.   Battery is the willful and unlawful use of force upon the person of another.

If I threaten to punch you, I have committed an assault.  If I punch you, I have committed battery.

Arrest-Proof Yourself

Decent interview of Attorney Dale Carson. I don’t like Mike Adams. His intentions are good, but his command of language to deliver his message kind of exhausts me. You will learn a lot, however, from Carson in this interview.

This too is worth your time. Carson explains that the sole purpose of police officers is to put you in jail. They are not there to protect and serve.

Carson cites Arizona v. Gant, the Supreme Court ruling that “. . . requires law enforcement officers to demonstrate an actual and continuing threat to their safety posed by an arrestee, or a need to preserve evidence related to the crime of arrest from tampering by the arrestee, in order to justify a warrantless vehicular search incident to arrestconducted after the vehicle’s recent occupants have been arrested and secured.”  In other words, the police cannot use “probable cause” as a justification to search your vehicle.  So do not consent.  Ever.  Remember what Carson says, the sole purpose of law enforcement is to put you in jail.  So don’t give them opportunities to hurt your or rob you.  Carson’s website is here.

The Process of Criminal Justice

Better call Saul!

But what if we don’t have a Saul in retainer?  You still need to call someone.

We are deluged with video after video of cops behaving badly.  If we rely on these examples of public officer for guidance as we navigate through the courts and enforcement arm of the legal system, we may find ourselves a bit petrified at the prospect of getting a fair deal.  Will the officer do his job?  Will he communicate his role to us so that we know what to expect?  Will he do it without bias?  Will he somehow use a police report against us?  Given the public reputation, the system that we rely on for justice and restitution appears more and more treacherous to the average working citizen or non-citizen.  And how many times have we been told that there are two legal systems, one for the rich and one for the poor.  And unless you’re rich, you may not be getting the defense or prosecution you need to seek justice or reparations for your injuries.  Do you have another $40,000 for a retrial or an appeal?

If you don’t have a Saul, then at least you have the web.  It may not be a bad way to start.  Least it won’t cost you $300 per hour.  I thought that this list of steps might be useful for people new to pursuing a lawsuit.  I understand the theory of practice versus field practice.  I get that dichotomy.  So to fully understand the legal system, one must be engaged in it and with it somehow.

criminalLaw

from Cliff Notes . . .

Criminal justice is a process, involving a series of steps beginning with a criminal investigation and ending with the release of a convicted offender from correctional supervision. Rules and decision making are at the center of this process.

RULES
Sources of rules in criminal justice include the U.S. Constitution and Bill of Rights, state constitutions, the U.S. Code, state codes, court decisions, federal rules of criminal procedure, state rules of criminal procedure, and department and agency rules and regulations. The Federal Rules of Criminal Procedure, for example, govern the procedure in all criminal proceedings in courts of the United States.

DISCRETION
Decision making in criminal justice involves more than the learning of rules and the application of them to specific cases. Decisions are based on discretion, that is, the individual exercise of judgment to make choices about alternative courses of action. Discretion, or making decisions without formal rules, is common in criminal justice. Discretion comes into play whenever police make choices about whether to arrest, investigate, search, question, or use force. Similarly, prosecutors exercise individual judgment in deciding whether to charge a person with a crime and whether to plea‐bargain. Judges also use discretion when setting bail, accepting or rejecting plea bargains, ruling on pretrial motions, and sentencing. Parole board members exercise discretion when deciding whether and when to release inmates from prison.

STEPS IN THE CRIMINAL JUSTICE PROCESS
The major steps in processing a criminal case are as follows:

  1. Investigation of a crime by the police. The purpose of a criminal investigation is to gather evidence to identify a suspect and support an arrest. An investigation may require a search, an exploratory inspection of a person or property. Probable cause is the standard of proof required for a search. Probable cause means there are facts or apparent facts indicating that evidence of criminality can be found in a specific place.
  2. Arrest of a suspect by the police. An arrest involves taking a person into custody for the purpose of holding the suspect until court. Probable cause is the legal requirement for an arrest. It means that there is a reasonable link between a specific person and a particular crime.
  3. Prosecution of a criminal defendant by a district attorney. When deciding whether to charge a person with a crime, prosecutors weigh many factors, including the seriousness of the offense and the strength of the evidence.
  4. Indictment by a grand jury or the filing of an information by a prosecutor. Under the Federal Rules of Criminal Procedure, an indictment is required when prosecuting a capital offense. A prosecutor has the option of an indictment or an information in cases involving crimes punishable by imprisonment. In about half the states and the federal system, a grand jury decides whether to bring charges against a person in a closed hearing in which only the prosecutor presents evidence. The defendant has no right to be present at grand jury proceedings and no right to have a defense attorney represent him or her before the grand jury. The standard for indicting a person for a crime is probable cause. In the remaining states, a prosecutor files a charging document called an information. A preliminary (probable cause) hearing is held to determine if there is enough evidence to warrant a trial. The defendant and his or her attorney can be present at this hearing to dispute the charges.
  5. Arraignment by a judge. Before the trial, the defendant appears in court and enters a plea. The most common pleas are guilty and not guilty.
  6. Pretrial detention and/or bail. Detention refers to a period of temporary custody prior to trial. Bail is an amount of money paid by a defendant to ensure he or she will show up for a trial.
  7. Plea bargaining between the defense attorney and the prosecutor. Usually, in plea bargaining, the defendant agrees to plead guilty in exchange for a charge reduction or sentence reduction.
  8. Trial/adjudication of guilt by a judge or jury, with a prosecutor and a defense attorney participating. A trial is held before a judge or jury. The standard of evidence for a criminal conviction is guilt beyond a reasonable doubt—less than 100 percent certainty but more than high probability. If there is doubt based on reason, the accused is entitled to be acquitted.
  9. Sentencing by a judge. If the accused is found guilty, a judge metes out a sentence. Possible sentences include a fine, probation, a period of incarceration in a correctional institution, such as a jail or prison, or some combination of supervision in the community and incarceration.
  10. Appeals filed by attorneys in appellate courts and then ruled on by appellate judges. If an appellate court reverses a case, the case returns to trial court for retrial. With a reversal, the original trial becomes moot(that is, it is as though it never happened). Following a reversal, a prosecutor decides whether to refile or drop the charges. Even if a prosecutor drops the charges, the defendant can still be prosecuted later as long as the statute of limitations for the crime the defendant is accused of committing hasn’t run out. Such a statute imposes time limits on the government to try a case.
  11. Punishment and/or rehabilitation administered by local, state, or federal correctional authorities. Most inmates do not serve the complete term and are released before the expiration of their maximum sentences. Release may be obtained by serving the maximum sentence mandated by a court or through an early release mechanism, such as parole or pardon.

The criminal justice process is like a funnel, wide at the top and narrow at the bottom. Early in the criminal justice process, there are many cases, but the number of cases dwindles as decision makers remove cases from the process. Some cases are dismissed, while others are referred for treatment or counseling. Another way of expressing the funnel effect is to say that there are many more suspects and defendants than inmates. As criminal justice scholar Joel Samaha notes, the U.S. Constitution requires the government to support every deprivation of privacy, life, liberty, or property with facts. The greater the deprivation, the more facts that government agents are required to produce. A stop on the street requires fewer facts than an arrest; an arrest requires fewer facts than an indictment; an indictment requires fewer facts than a criminal conviction.