Tagged: comparative law
Law 12: The Lunar Breeze Effect Flag
The Lunar Breeze Effect Flag
For full understanding of the following, read section The Latest on Wikipedia’s Moon Landing Hoax Debunking in Law 10.
“Neil, it’s cool you went on the Moon but… a good artistic picture is what matters.”
“One that ties the room together.”
So you take the French Wikipedia version for granted. Yet the English Wikipedia version is different: “The flag was rippled because it had been folded during storage – the ripples could be mistaken for movement in a still photo.” Here there is no word about an intention to tie the room together, the ripples are accidental, they are folds due to storage which turn out to make the flag look as if it were fluttering in the wind.
As if the authors of the English Wikipedia page dared not confess what my interlocutor endorses wholeheartedly. As if, namely, they doubted it was judicious to fake a flag fluttering in the wind in a picture shot on the moon. As if they dared not confess it because of the issue involved in taking people for idiots.
Crack Hills Have Eyes 2
See Law 11.
Politicians make laws (lawmaker=the legislative power) and they also enforce laws as executive power (from which police take their orders). What my post denounced about Crack Hill is that politicians qua executive power do not enforce the law politicians vote qua legislative power. That is, as taking crack is a criminal offence, politicians qua executive are taking a very light view of the law when they enforce it by distributing pipes and paying hotel rooms to criminals. If this is their idea of the issue, then they must take the initiative of a legislative debate to repeal the law and decriminalize crack consumption, and stop telling people they enforce the law by ignoring it. This is a huge problem, because when executive officials do not want to enforce the law, they don’t bother to have it repealed, they just instruct the services (police etc.) to ignore it, or to do as they please. A crackhead in France may live in a free hotel room with new pipes every Thursday or behind bars, it all depends on the police’s mood. This is not the rule of law.
Government protectionism of the black market.
Yes, government and police protectionism of the black market, since without police forces the government could do nothing, so the police are always responsible (if only by abiding) whereas one may imagine cases where only police are responsible while the executive authorities know nothing of what is going on.
Now, as my interlocutor compared enforcement of Eighteenth Amendment and the Volstead Act (Prohibition) with the contemporary war on drugs, let me add the following. The same politicians who in France are implementing the brilliant crack plan I have just been talking of, eschewing enforcement of national drug laws, are eager to point at the figures of prison inmates in the U.S. (highest rate of prison inmates per inhabitant in the world, so they say) as a reason why they ought not to follow the same path. In several other, perhaps most European countries, the same discourse can be heard.
But these fellows dare not repeal their own national drug laws, and the result of this slighting of the law is that these countries are not rule of law countries anymore. The prison population figure is the price the United States is paying for upholding the rule of law. God Bless America for that. In Europe they are leaving everything at the discretion of the bureaucracy. Whether one will be punished for consuming drugs depends not on the law (which still says they must be punished) but on how they were perceived at some point by some guy in the bureaucracy, some cop, who will have them prosecuted in spite of the unwritten rule of bureaucracy saying that those poor devils should be left alone.
The poor devil who did not please the cop will be prosecuted, a judge will hear him and, say we are in France, a country of written law, the judge, although he has heard of the bureaucratic rule, will open the legal code at the page where the article laying down the penalties for consuming drugs lies, and he will condemn the poor devil. (Compared to the functionarial nonentity that a French judge is, American judges are intellectuals.)
This is what European politicians are so proud of – the fact that no one knows what to expect. They revel in a world of arbitrariness.
Biden supports suppressing online “misinformation,” press secretary says.
Was it on his electoral platform or does he just add it now as an extra?
Justin Trudeau dismisses critics of internet censorship bill as “tin foil hats.”
The same guy explained that derogatory speech is the same as shouting fire in a crowded theater – the classic example in SCOTUS (Supreme Court of the United States) case law that would serve to send his bill to the garbage can.
“Free speech” lawyer argues “lying” should be an impeachable offense.
The levels of nincompoopery in academia (“law professor at George Washington University”) are staggering. To think that these fellows are comfortable talking about truth and lies as they do… They really have got no clue. Let me take an example. Husband and wife want to divorce because it turns out they don’t see things the same way. One issue to settle is who will keep the kids. Why is it an issue? Because husband and wife both want to raise the kids according to his or her own views and ideas, according to how he or she sees things. Will you ask a law professor at George Washington University to tell the judge whose ideas are truths and whose are untruths, calling the latter lies, before taking a decision? Nonsense. If an amicus curiae talked like that (within an acceptable margin in the frame of the society – as expressing some ideas, like belief in witchcraft or alien abductions, would probably be detrimental in the case to the party expressing these ideas) he would be dismissed at once, as trying to impose his or her own set of preconceived ideas.
What I wrote may sound confusing, at least for two kinds of people in America. Some will remember that experts in American courts are experts of the parties, who try to sustain their party’s position, whereas I seem to be talking of experts of the courts, which exist in civil law (as opposed to common law) countries, experts who had rather remain as neutral as possible in order not to fall into disrepute.
Others will remember that in America jury trial is the rule in civil trials and I seem to omit the fact completely. In fact, divorce trials by jury are rare even in the U.S.: « Only a few states allow for any type of jury trial in a divorce case. Even then, those states limit the issues that can go before a jury. For example, Texas, which has the most liberal rules concerning jury trials in divorce cases, is the only state that allows juries to decide which parent gets custody of the children and where the children will live. » (rightlawyers.com) Unless most divorces occur in Texas, the majority of divorced American parents must abide by a decision on who is to keep the children which was not taken by a jury.
Still, if an expert smugly told the judge, like some professor of George Washington University, that the kids cannot be in custody of the father, for instance, because the father voted for Trump and Trump is a liar so you cannot rely on such a one to take care of kids, she would be laughed at or I do not know my judge. Yet she writes books like that, which tells you what a tyrant she must be in her classroom, even if people shrug shoulders at her in most other circumstances.
Now, judges are probably more of an official’s profile than the majority of people, so the fact that divorce trials are not decided by juries is also more likely to be detrimental to parents who hold certain ideas, even not so fringe as belief in alien abductions. I should think a parent known to be a Gab user, for instance, is likely to lose his kids in a divorce court when a divorce is filed. Prove me wrong.
UK government accused of promoting a “nanny state” with proposed online ban on high calorie food ads.
Is commercial speech speech or rather the polluting of speech? Commercial speech wasn’t protected in the US before the 1970s (Virginia State Pharmacy Board v. Virginia Citizens Consumer Council, 1976). This is the kind of view that makes authoritarian regimes comfortable with their speech suppression systems, as they can say to their people: See, we’re protecting you and your free thinking from the relentless, nauseating pushing by unthinking business whose sole aim is profit.
In any case, while the US Supreme Court has found that commercial speech is speech, it does not grant it the same level of protection as non-commercial speech, so the UK policy here described could be implemented in the states too within the law.
Bonkers About Lèse-Majesté
Prince Harry complains about online “misinformation” calls First Amendment “bonkers.”
Prince Harry: “I’ve got so much I want to say about the First Amendment; I still don’t understand it, but it is bonkers.” No surprise: “In 2013, the Ministry of Justice admitted that the Treason Felony Act 1848 had accidentally been ditched. The 165-year-old law threatens anyone calling for the abolition of the monarchy with life imprisonment.” (The Sun, Oct 20, 2016)
Information about lese-majeste legislation in UK is deceptive: As the headline from The Sun shows, they make all sorts of claims, so much so that nobody can know what the legal situation is. (Call that the rule of law?)
On Wikipedia page Lèse-majesté, for UK they write: “The Treason Felony Act of 1848 makes it an offence to advocate for the abolition of the monarchy. Such advocation is punishable by up to life imprisonment under the Act. Though still in the statute book, the law is no longer enforced.” Yet the source for that is a Dec 2013 paper by The Guardian, “Calling for abolition of monarchy is still illegal, UK justice ministry admits,” with subtitle “Department wrongly announced that section of law threatening people with life imprisonment had been repealed.”
The government spreads misinformation on the issue. That the law be no longer enforced does not mean it will not be enforced in case someone violates it; only, without proof to the contrat, that nobody dares speak freely on the issue! Except, probably, ‘accredited’ cartoonists trained in the art of sycophancy under the guise of joking, i.e., court jesters.
As Harry has in his native country a history of blundering (google “Harry the Nazi”), it is relevant to stress that his calling American First Amendment “bonkers” is not one more blunder according to British royalty’s etiquette but on the contrary full compliance with it. The extraordinary sequence of the British government claiming lese-majeste laws void and then retracting, claiming to have repealed them and then denying, is the (one may say comical) confirmation that, deep within, these people see no wrong in punishing speech with life imprisonment. The appalling statute, worse than the classic example of Thai monarchy (where offensive speech about the King is punishable with a maximum of 15 years’ imprisonment, compared to 3 years for the Sultan of Brunei) and whose status is at best uncertain, that is, of which nobody can say it is no longer part of British law because British lawmakers won’t make such a declaration without denying it at once, is among other things what shapes Prince Harry’s animus.
Now, that “Department wrongly announced” the repeal of the lese-majeste law is big lese-majeste, if you ask me, and should be punished with hanging. Because if they have not hanged people there for a while it must be due to some misunderstanding.
None of Your Business
The US will join the “Christchurch Call” to eliminate extremist content online. (May 2021)
“New Zealand man jailed for 21 months for sharing Christchurch shooting video” (BBC News, June 2019). Making it a crime to share this video amounts to claiming that the government must be the only source of truth. The only source of truth will be at the same time the agency that restricts access to evidence.
Under a constitutional regime the government can make no claim to be an exclusive authority as to what the truth is. Hence, by restricting access to evidence it overrides its constitutional function and mocks constitutional liberties.
Here is how the government proceeds. You learn what happened in Christchurch and then the government tells you that, given what happened in Christchurch, they are going to carry out a set of policies that will curtail your fundamental liberties for the sake of peace and order. Then, when a citizen says, “Let’s see what happened in Christchurch” and makes the video of the shooting available online, he’s punished with 21 months imprisonment for inciting violence (or whatever fallacy they used). Thus, what happened in Christchurch is none of your business even though based on this event you are going to lose big in terms of freedom, or more simply you are going to lose your freedom. – What happened in Christchurch is the government’s business and you have no right to ask for evidence. “The only source of truth will be at the same time the agency that restricts access to evidence.”
“Independent judges versus employees of the king. In the common law tradition, judges are fully independent. In the civil law tradition, judges are no more than employees of the king. They are strictly monitored by higher courts, which are in turn monitored in a remarkable extent by the central government.” (Gerrit De Geest, American Law: A Comparative Primer, 2020)
It should be stressed that this describes, as far as the civil law tradition is concerned, police states, because the state is entirely absorbed in the government. The axiom is therefore that civil law countries are police states.
“the French, with their centuries-long tradition of presenting case law as pure interpretations of codified law.” (De Geest, 2020, p. 64)
Granting it is true of the judicial judge, it is not so with the administrative judge, which has originated much of the administrative law in France, whole parts of which are judge-made (« droit d’origine jurisprudentielle »). – The political cartel is fond of leaving to the judge all lawmaking that crushes individuals under the boot of the police state.
De Geest is excusable, however, from a common law viewpoint, for overlooking that the administrative judge is a judge at all: “Believe it or not, the Conseil d’État, that is, the French supreme court for administrative law, belongs to the executive branch, not the judicial branch!” p. 86)
It’s not about believing and joking but about what common law countries do to bring police states to reason.
“A plea bargain in a criminal case is the equivalent of a settlement in a civil case.” (Gerrit De Geest, American Law: A Comparative Primer, 2020, p. 70)
No. Plea bargaining is a modality of prosecution, not its eschewing. It has nothing to do with the debate on compulsory prosecution vs. principle of opportunity, and by the way De Geest wrongly associates compulsory prosecution with the civil law tradition; in major civil law countries such as France, Germany, the Netherlands, Sweden, the principle of opportunity obtains.