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To Alter Or To AbolishChapter 26Elm Street© Copyright Darrell Anderson. “If you’re the police, where are your badges?” “Badges? We ain’t got no badges. We do not need no badges. I do not have to show you any stinkin’ badges!” Alfonso Bedoyo, The Treasure of the Sierra Madre, 1948 Fiat dictatorial law, unlike customary law, tends to increase ignorance, confusion, social disorder, and violence. These effects are easily seen in the nightmare of administrative law — commonly known as the “fourth branch of government.” The concept of customary law provides a foundation that human-made laws and adjudicative processes are limited in action, limited by natural boundaries and the boundaries of property titles. Positivists tend to reject such limitations. For positivists to have standing for their arguments, however, three criteria are necessary for positive human law to be effective:[1]
Identifying a compelled or prohibited action does not provide standing to create laws by fiat and thereby negate expected and knowable customary human behaviors. Identifying specific human actions is merely a process of codifying existing customary law. Identifying to whom a law applies does not mean that some individuals are exempt from those laws, but recognizes the appropriate situations to which the law is applicable. Designating a penalty means acknowledging appropriate procedures and remedies to resolve the original conflict and to restore the affected parties. Most importantly, however, is that those laws are invoked only by a bona fide complainant who has standing to claim trespass occurred. Laws cannot be enforced randomly or by fiat, otherwise the result is tyranny. All human-made laws must be easily and readily knowable. Problems arise when the elements of that process are not observed or contained within the boundaries of customary law. Such laws also must conform to the first principles of self, property, rights, contracts, and consent. For example, a statute prohibiting any human from laboring on Sunday satisfies the previous three criteria, but voids the concepts of first principles. Labor is a process of converting energy into work, and the simple act of existing — breathing, eating, walking, sleeping, etc., is labor. The fundamental principle that should guide human-made laws is the concept of justice — the desire to remedy trespass. Trespass can be defined only by the victim of trespass. Administrative law originates in the idea that humans can create perfect, efficient, and self-executing laws.[2] Administrative laws are designed to promote a one-size-fits-all happiness. People believe that by creating unique political administrative departments that so-called subject matter experts could be hired to adjudicate complex human interactions. The illusion driving this process is that knowledge and political power somehow can be absolute.[3] Many individuals are not subject to all the various administrative law schemes, yet individuals entrusted to enforce these schemes often act as though most people are subject, or at least can be easily made subject. Unknown to many people, administrative law is based upon the doctrine of presumptions. The most noticeable presumption is that everybody is subject to those particular statutes. Enforcers of administrative law schemes often are skilled at using the threat of violence to “convince” individuals they are subject to such laws. Through that threat, and the illusion that legislators can legislate just about anything, almost any act today can be made subject to the world of administrative regulation.[4] Hence, uncertainty and confusion arises on both sides. Furthermore, legislators also are creatures of limited knowledge and they delegate this responsibility. As administrative rule-making power grows, the subsequent rules become more vague and cloudier. Increasingly, innocent human actions are classified as crimes or “infractions,” and “victimless” crimes become one of the greater mysteries to individuals trying to live quiet and peaceable lives. The never-ending challenges of limited knowledge and distorted self-interest raises the ancient question of quis custodiet ipsos custodes — ”Who watches the watchers?”[5] The essential challenge with administrative law is straightforward. As with any human-made law, an individual first must be subject to a particular statutory or regulatory scheme before any associated “statutory duty” exists. The statute also must be clear as to whom and when the regulatory scheme applies. Because many administrative law schemes do not apply to all people, an individual must have “knowledge of the duty” before a liability can occur.[6] Humans are ignorant to one degree or another, and they must be fully informed and aware of their boundaries. One problem is that many individuals never receive notice from the respective administrative agency. The old adage that “ignorance of the law is no excuse” is used to avoid the issue, but that adage makes applicable sense only in a world of customary law — where social rules are straightforward and more easily known simply by participating in a daily routines. Customary law necessarily includes the component of not trespassing — a readily knowable boundary. With customary law reciprocity is high, and human-made law is stable and knowable through everyday action and interaction. In a world of fiat dictatorial law — especially with thousands of laws, rules, and regulations, nobody can be expected to keep pace. Ignorance is not only an excuse, but must be expected. Rewritten in another manner that old adage becomes “all people possess full knowledge of the law.” Indeed, for any law to have meaning, knowledge and understanding is necessary.[7] Thus, the “due process” requirement compels individuals within administrative agencies to provide proper notice. Unfortunately, judges routinely wink at obscure open postings as “proper” notice — as though every individual has time to read thousands of lines of legal code. Worse, most administrative law is not readily or easily knowable, or understandable. Judges also never inform accused people of any of the presumptions guiding the judicial process. To confuse the issue further, without knowledge of these presumptions, “offenders” of administrative law often are unable to determine exactly what duty they violated and their subsequent liability. The concept of duty implies reciprocating obligations to create potential liabilities. The liability cannot be in the nature of a broken contract because there never was any agreement to exchange property titles. Nor was there any trespass to an individual or property. Therein lies the major contention with administrative law. Rarely are rights or property of another individual violated, encroached, or infringed. The alleged violations are merely statutory — pure fiat and the result is a “victimless” crime. Malum prohibitum is Latin for a “prohibited wrong.” Such acts are declared prohibited by mere fiat only. In contrast is malum in se, which is a “wrong in itself.” Malum in se necessarily involves trespass, malum prohibitum does not require trespass but only breach of a statute. Acts of malum prohibitum are “wrong” only by fiat declaration, acts of malum in se are wrong because trespass occurs. The concept of a “victimless” crime is repugnant to customary law and repugnant to common sense. A crime is simply intentional trespass. With administrative law there are no bona fide complainants and no trespass, only statutory requirements whimsically enforced by administrative agents. This arbitrary enforcement leads to selective prosecution.[8] Another presumption in this game is that by mere declaration and accusation, people are presumed guilty and must prove their innocence. How does an individual determine whether an alleged administrative duty is a true lawful duty or merely fiat? Eliminate the statute and regulations and examine whether the duty remains. If the duty still exists then the duty is derived from customary law, not fiat dictatorial law. If no duty exists, then the requirement was merely fiat. Sadly, many individuals do not understand that in today’s legal system the concepts of customary law and the rule of law have been displaced by a fiat totalitarian administrative ad hoc system that is used to regulate behavior and encourage social engineering. In practice, judges today are not concerned with providing justice, but only with reviewing administrative procedural processes. In many civil actions where “the state” or “the people” is a party, court judges find themselves only providing administrative process reviews, not determining whether the spirit of the law is sound.[9] Judges routinely rubber stamp those processes. Challengers today do not understand that without the basis of customary law and the rule of law, judges have little option but to limit their reviews to the process and not the logic behind those processes. Judges often do not investigate justice, but only that the “will of the state” was obeyed.[10] Perhaps worst of all, most often people do not realize that they often voluntarily enjoined themselves into these administrative schemes. By exercising their right to contract they unknowingly and unwittingly relinquish numerous rights.[11] For example, signing a bank account contract subjects one to numerous federal and state administrative statutes. Such an act seems to be merely a contract between a banker and a customer, but few individuals stop to read the fine print of the contract, nor do they stop to remember that the banker operates by a regulated political permit. Through that transparent veil people traverse themselves from the natural world of trade and exchange into the politically controlled realm of commerce.[12] By exercising their right to contract, they necessarily waive other rights, such as their right to privacy of personal information. People often fail to negotiate or fine-tune such contracts, blindly accepting numerous presumptions.[13] People fail to realize that through such actions they exercise perhaps the most powerful right of all — the right to forsake a right.[14] Judges routinely take “judicial notice” of such actions but rarely inform people of the rules of this game. Thus, many individuals run into court (or are dragged kicking and screaming) seeking justice and raising issues of rights, and fail to understand the process. Furthermore, through legislation, court judges do not have jurisdiction to entertain such questions. More than likely, the action is purely administrative and judges can only inspect whether or not the administrative process and procedures were properly applied. After all, people voluntarily enter these contracts. Defendants seldom challenge any underlying presumptions, thereby perfecting any defects of the accusation process. Because all legal actions have been merged procedurally into one action known as a civil action, rarely do defendants know or understand the true nature or cause of the action. Through the threat of violence, such as incarceration through “contempt of court,” often defenders are prevented from even raising those questions. People are fined or go to jail and cannot understand how they were bushwhacked. Because the concept of trespass is instinctively embedded within each human — that is, the idea that boundaries must be protected and justice served — challengers of any administrative process are greatly confused when they ask judges to invalidate that process. That the entire administrative process might be flawed is not an issue judges will address — despite the fact that this is the very intent of the Ninth Amendment of the federal constitution and similar state constitutions. Not because they physically cannot, but because through decades of other flawed court opinions and legislative acts, the issue has been placed aside and no judge wants to “poke holes in the ship of state.” Judges merely presume the administrative process itself is reliable. Judges presume legislators know what they are doing when they enact laws. Theoretically, because judges are “impartial, disinterested, third parties” to any action, they cannot inform parties of this presumptive process. Theoretically a truly impartial, disinterested, third party adjudicator is the individual through which people solve the challenge of “who watches the night watchman.” However, despite this theoretical impartiality, judges actually are not at all impartial but protectors of the system. They too are individuals trying to sustain their energy flows. Thus, no true barriers of protection exist. Some individuals might argue that the jury system is the final line of defense, but that process fails when people are ignorant of their ability to judge both law and fact. To worsen the situation, attorneys depend upon this clouded atmosphere to provide their own livelihood and sustain their energy flows. Individuals within the political system have monopolized the legal profession, thereby creating artificial scarcity. Attorneys must receive permits to pursue their trade and vocation. Through that privileged monopoly, attorneys are considered “officers of the court.” Thus, every attorney faces an inherent conflict of interest — just like judges who are paid employees of the political system. Thus, do not expect individuals within the legal system to correct the problem. The administrative legal and adjudicative systems are merely avenues of attempting to create virtual perpetual motion through the captured labor of others. Such is the price people pay for vaguely protecting “health, safety, and welfare” instead of property and rights. Such is the price people pay when trying to coerce subjective moral boundaries across property boundaries. With an emphasis on the former people are routinely accused and convicted for what they might have done. Trespass need not occur — only the potential for trespass is necessary. Yet, such an approach contradicts and violates the fundamental principle of cause and effect. That principle declares that no action or effect exists without a cause. To condemn individuals for what might have happened is to put the cart before the horse. Such an approach increases ignorance and disorder. As might be guessed, administrative agents face a huge conflict of interest. Charged with enforcing a specific domain of laws, agents soon realize their own sustenance depends upon the agency continuing to exist.[15] These agents are no different than any other human and in a world of scarce resources they tend to look out for Number One. Therefore, agents in an administrative agency begin to look for ways to encourage their agency to grow, thus further validating their existence. Administrative law is based upon a theory that administrators possess “special rights” and privileges against the general populace — discretionary executive, legislative, and judicial power. Corruption becomes common.[16] In the physical world scientists call similar events “thermal runaway.” As the boundaries distinguishing protection of property and rights are blurred, and administrative agents manipulate and shape social order, lost in the shuffle and confusion is any concept of what once were legitimate legal duties. Suddenly, by mere declaration, anything can become a legal duty as laws are “invented.” With no roots in the purpose of law, law is consigned to the subjective whims of those possessing political power. There can be no other course. People are slyly tricked into converting rights into privileges, and natural behaviors are converted into “illegal” behavior.[17] Consider the consequences of applying for a marriage permit (“license”) and thereby converting into a privilege the natural right to contract the terms of a unique relationship. Consider what happens when a parent applies for a social security account number for children, thereby seeking benefits from the “benevolent state” to provide and protect those children, and thereby converting into a privilege the natural process of raising children. As creatures of limited knowledge, humans cannot cope with such an overload of restraints. Social disorder and violence increases. Municipal law is a close relative to administrative law. As with so many modern laws the foundations for specific ordinances have been forgotten, such as nuisance laws. The purpose of nuisance laws is as straightforward as any other law: to protect boundaries. However, who determines when boundaries have been violated, encroached or infringed? Only another property titleholder can determine that. When somebody files a nuisance complaint, the petitioner must show how that individual has been deprived of lawfully using or enjoying property. Consider two well-known examples: “idle” automobiles sitting on driveways and “noxious” weeds. Both are considered nuisances. However, how often does any neighbor prove trespass or harm to an individual or property because of the idle automobile or somebody’s tall, uncut (and arguably unsightly) grass? Under a property-based, tort-centered, customary law system, such ordinances only provide prima facie evidence of what might become a nuisance. Such ordinances sometimes do indeed promote social order, but only can provide open notice of what might become a trespass. Actual trespass must nonetheless still be proved. Nuisance ordinances supposedly are enacted to allow people the quiet and peaceful use of their property. Such ordinances only can be used as a guideline, not as a coercive regulatory tool. Only a bona fide complainant can decide when actual trespass occurs. Such ordinances increase social disorder when randomly enforced without a trespassed petitioner. Each individual subjectively determines his or her level of happiness. What is a nuisance to one individual is not to another. Local ordinances cannot be enforced randomly but must depend upon the complaint of an individual who alleges being deprived of rights or property. To do otherwise is to declare an act against “the people” and such thinking is futile. The challenge with such legal systems is that penalties are enacted simply for “being in the neighborhood” and assuming implied consent rather than soliciting contractual consent. Such penalties are forced transfers of property, and outside of restitution for trespass, there are no grounds for forcibly transferring property titles. These actions are an attempt to enslave other people, and are a form of adversarial raw acquisition. Finis. Next: Chapter 27 — Currency Inflation Endnotes [1] Barnard, Draining the Swamp, p. 85. [2] Howard, The Death of Common Sense, p. 26. [3] Bronowski, The Ascent of Man, p. 374. [4] Berman, Law and Revolution, pp. 34–35. [5] Hardin, “The Tragedy of the Commons,” www.garretthardinsociety.org. [6] Lambert v. California, 355 U.S. 225 (1957). [7] Hayek, The Constitution of Liberty, p. 157. [8] Benson, The Enterprise of Law, p. 286. [9] Hayek, The Constitution of Liberty, p. 188. [10] Hayek, The Constitution of Liberty, p. 201. [11] Barnard, Draining the Swamp, p. 85. [12] Barnard, Draining the Swamp, pp. 91–92. [13] Barnard, Draining the Swamp, p. 90. [14] Barnard, Draining the Swamp, p. 93. [15] W. C. Mullendore, “There Ought To Be A Law!” Clichés of Politics, pp. 49–50. [16] Benson, The Enterprise of Law, pp. 159–173. [17] Barnard, Draining the Swamp, pp. 94–95. |
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