The Myth of the Rule of Law Reading

The Myth of the Rule of Law The first amendment to the constitution of the United States provides in part "congress shall make no law, abridging the freedom of speech, or of the press • In George Orwell's novel 1984 created a nightmare vision of the future in which all-powerful Party exerts totalitarian control over society by forcing the citizens to master the technique of "doublethink" Doublethink requires someone to hold simultaneously two opinions which cancel out, knowing them to be contradictory and believing in both of them. ○ Some think it is impossible to believe in both halves of a contradiction It is possible, and it is something people do everyday. § ○ • People's beliefs about the legal system The law is in inherently political ○ Citizens understand the laws under which they live are a product of political forces rather than the embodiment of the ideal of justice ○ The ideology of the people who ser e as judges influences the way the law is interpreted. ○ • The belief that the law consists of a set of definite and consistent "neutral principles" which the judge is obligated to apply in an objective manner free from the influences of his or her personal political and moral beliefs. • The Myth: Suggests a society in which all are governed by neutral rules that are objectively applied by judges. • The concept of the rule of law is both powerful and dangerous. Power derives from emotive appeal ○ • "America is a government of laws no people" Command the allegiance and affection of the citizenry ○ • There are three points: There is no such thing as a government of law and not people ○ The belief that there is serves to maintain public support for society's power structure ○ The establishment of truly free society requires the abandonment of the myth of the rule of law ○ • Applying the Myth of the Law: Hurley v. Eddingfield: Establishes the rule that in the absence of an explicit contract, when there has been no actual meeting of the minds there can be no liability. ○ • The idea is to find a valid rule of law which clearly applies to the facts of the case • Cotnam v. Wisdom: Establishes the rule that in the absence of an explicit content, the law will imply a contractual relationship where such is necessary to avoid injustice. ○ • The legal world is not like the real world and there isa type of reasoning appropriate. In the real world people solve problems by forming hypotheses and then testing them against the facts as they know them. When the facts confirm the hypotheses they are accepted as true and all other hypotheses are incorrect. § ○ In the legal world political laws are not consistent The law is made up of incompatible contradictory rules and principles § Any conclusion can be derived from a set of contradictory premises. § A logically sound argument can be found for any legal conclusion. § ○ • Title VII of the Civil Rights Act of 1964 - 2000e-2(a)(1) Unlawful to fail or refuse to hire or to discharge any individual or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's race, color, religion, sex or national origin. ○ Permits an employer to voluntarily institute an affirmative action program giving preferential treatment to African-Americans. ○ Prohibits discrimination against any individual because of his race. Prohibits employers from voluntarily instituting affirmative action plans. ○ • The law is never neutral and objective. • Sound legal arguments will be available for all legal conclusions Sherwood v. Walker One farmer sold another farmer a cow which both farmers believed to be sterile. When the cow turned out to be fertile, the seller was granted rescission of the contract of sale on the ground of mutual mistake. § ○ Wood v. Boynton A woman sold a small stone she had found to a jeweler for one dollar. At the time of the sale, neither party knew what type of stone it was. It turned out the diamond was worth $700, the seller sued for rescission claiming mutual mistake. § The court upheld the contract finding that since both parties knew that they were bargaining over a stone of unknown value, there was no mistake. § ○ Davis & Co. v. Morgan A laborer employed for a year at $40 a month was offered $65 per month by another company. The employer than promised to pay the employee an additional $120 at the end of the year if he stayed within the firm. At the end of the year the employer failed to pay the $120 and when the employee sued the court held that because he was already obligated to work for $40 per month for the year there was no consideration for the employer's promise and it was unenforceable. § ○ Schwartzreich v. Bauman-Basch, Inc. A clothing designer who had contracted for a year's work at $90 week was offered $115 a week by another company. When the designer informed his employer of his intention to leave, the employer offered the designer $100 per week if he would stay and the designer agreed. § The designer sued for additional compensation, the court held that since the parties had rescinded the original contract by mutual consent and entered into a new one for the higher salary the promise to pay was enforceable. § ○ • It is impossible to reach an objective decision based solely on the law. The law is always open to interpretation and there is no such thing as a normatively neutral interpretation. ○ The way one interprets the rules of law is always determined by one's underlying moral and political beliefs. ○ • The Myth of the Rule of Law

The Myth of the Rule of Law The first amendment to the constitution of the United States provides in part "congress shall make no law, abridging the freedom of speech, or of the press • In George Orwell's novel 1984 created a nightmare vision of the future in which all-powerful Party exerts totalitarian control over society by forcing the citizens to master the technique of "doublethink" Doublethink requires someone to hold simultaneously two opinions which cancel out, knowing them to be contradictory and believing in both of them. ○ Some think it is impossible to believe in both halves of a contradiction It is possible, and it is something people do everyday. § ○ • People's beliefs about the legal system The law is in inherently political ○ Citizens understand the laws under which they live are a product of political forces rather than the embodiment of the ideal of justice ○ The ideology of the people who ser e as judges influences the way the law is interpreted. ○ • The belief that the law consists of a set of definite and consistent "neutral principles" which the judge is obligated to apply in an objective manner free from the influences of his or her personal political and moral beliefs. • The Myth: Suggests a society in which all are governed by neutral rules that are objectively applied by judges. • The concept of the rule of law is both powerful and dangerous. Power derives from emotive appeal ○ • "America is a government of laws no people" Command the allegiance and affection of the citizenry ○ • There are three points: There is no such thing as a government of law and not people ○ The belief that there is serves to maintain public support for society's power structure ○ The establishment of truly free society requires the abandonment of the myth of the rule of law ○ • Applying the Myth of the Law: Hurley v. Eddingfield: Establishes the rule that in the absence of an explicit contract, when there has been no actual meeting of the minds there can be no liability. ○ • The idea is to find a valid rule of law which clearly applies to the facts of the case • Cotnam v. Wisdom: Establishes the rule that in the absence of an explicit content, the law will imply a contractual relationship where such is necessary to avoid injustice. ○ • The legal world is not like the real world and there isa type of reasoning appropriate. In the real world people solve problems by forming hypotheses and then testing them against the facts as they know them. When the facts confirm the hypotheses they are accepted as true and all other hypotheses are incorrect. § ○ In the legal world political laws are not consistent The law is made up of incompatible contradictory rules and principles § Any conclusion can be derived from a set of contradictory premises. § A logically sound argument can be found for any legal conclusion. § ○ • Title VII of the Civil Rights Act of 1964 - 2000e-2(a)(1) Unlawful to fail or refuse to hire or to discharge any individual or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's race, color, religion, sex or national origin. ○ Permits an employer to voluntarily institute an affirmative action program giving preferential treatment to African-Americans. ○ Prohibits discrimination against any individual because of his race. Prohibits employers from voluntarily instituting affirmative action plans. ○ • The law is never neutral and objective. • Sound legal arguments will be available for all legal conclusions Sherwood v. Walker One farmer sold another farmer a cow which both farmers believed to be sterile. When the cow turned out to be fertile, the seller was granted rescission of the contract of sale on the ground of mutual mistake. § ○ Wood v. Boynton A woman sold a small stone she had found to a jeweler for one dollar. At the time of the sale, neither party knew what type of stone it was. It turned out the diamond was worth $700, the seller sued for rescission claiming mutual mistake. § The court upheld the contract finding that since both parties knew that they were bargaining over a stone of unknown value, there was no mistake. § ○ Davis & Co. v. Morgan A laborer employed for a year at $40 a month was offered $65 per month by another company. The employer than promised to pay the employee an additional $120 at the end of the year if he stayed within the firm. At the end of the year the employer failed to pay the $120 and when the employee sued the court held that because he was already obligated to work for $40 per month for the year there was no consideration for the employer's promise and it was unenforceable. § ○ Schwartzreich v. Bauman-Basch, Inc. A clothing designer who had contracted for a year's work at $90 week was offered $115 a week by another company. When the designer informed his employer of his intention to leave, the employer offered the designer $100 per week if he would stay and the designer agreed. § The designer sued for additional compensation, the court held that since the parties had rescinded the original contract by mutual consent and entered into a new one for the higher salary the promise to pay was enforceable. § ○ • It is impossible to reach an objective decision based solely on the law. The law is always open to interpretation and there is no such thing as a normatively neutral interpretation. ○ The way one interprets the rules of law is always determined by one's underlying moral and political beliefs. ○ • The Myth of the Rule of Law

The Myth of the Rule of Law The first amendment to the constitution of the United States provides in part "congress shall make no law, abridging the freedom of speech, or of the press • In George Orwell's novel 1984 created a nightmare vision of the future in which all-powerful Party exerts totalitarian control over society by forcing the citizens to master the technique of "doublethink" Doublethink requires someone to hold simultaneously two opinions which cancel out, knowing them to be contradictory and believing in both of them. ○ Some think it is impossible to believe in both halves of a contradiction It is possible, and it is something people do everyday. § ○ • People's beliefs about the legal system The law is in inherently political ○ Citizens understand the laws under which they live are a product of political forces rather than the embodiment of the ideal of justice ○ The ideology of the people who ser e as judges influences the way the law is interpreted. ○ • The belief that the law consists of a set of definite and consistent "neutral principles" which the judge is obligated to apply in an objective manner free from the influences of his or her personal political and moral beliefs. • The Myth: Suggests a society in which all are governed by neutral rules that are objectively applied by judges. • The concept of the rule of law is both powerful and dangerous. Power derives from emotive appeal ○ • "America is a government of laws no people" Command the allegiance and affection of the citizenry ○ • There are three points: There is no such thing as a government of law and not people ○ The belief that there is serves to maintain public support for society's power structure ○ The establishment of truly free society requires the abandonment of the myth of the rule of law ○ • Applying the Myth of the Law: Hurley v. Eddingfield: Establishes the rule that in the absence of an explicit contract, when there has been no actual meeting of the minds there can be no liability. ○ • The idea is to find a valid rule of law which clearly applies to the facts of the case • Cotnam v. Wisdom: Establishes the rule that in the absence of an explicit content, the law will imply a contractual relationship where such is necessary to avoid injustice. ○ • The legal world is not like the real world and there isa type of reasoning appropriate. In the real world people solve problems by forming hypotheses and then testing them against the facts as they know them. When the facts confirm the hypotheses they are accepted as true and all other hypotheses are incorrect. § ○ In the legal world political laws are not consistent The law is made up of incompatible contradictory rules and principles § Any conclusion can be derived from a set of contradictory premises. § A logically sound argument can be found for any legal conclusion. § ○ • Title VII of the Civil Rights Act of 1964 - 2000e-2(a)(1) Unlawful to fail or refuse to hire or to discharge any individual or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's race, color, religion, sex or national origin. ○ Permits an employer to voluntarily institute an affirmative action program giving preferential treatment to African-Americans. ○ Prohibits discrimination against any individual because of his race. Prohibits employers from voluntarily instituting affirmative action plans. ○ • The law is never neutral and objective. • Sound legal arguments will be available for all legal conclusions Sherwood v. Walker One farmer sold another farmer a cow which both farmers believed to be sterile. When the cow turned out to be fertile, the seller was granted rescission of the contract of sale on the ground of mutual mistake. § ○ Wood v. Boynton A woman sold a small stone she had found to a jeweler for one dollar. At the time of the sale, neither party knew what type of stone it was. It turned out the diamond was worth $700, the seller sued for rescission claiming mutual mistake. § The court upheld the contract finding that since both parties knew that they were bargaining over a stone of unknown value, there was no mistake. § ○ Davis & Co. v. Morgan A laborer employed for a year at $40 a month was offered $65 per month by another company. The employer than promised to pay the employee an additional $120 at the end of the year if he stayed within the firm. At the end of the year the employer failed to pay the $120 and when the employee sued the court held that because he was already obligated to work for $40 per month for the year there was no consideration for the employer's promise and it was unenforceable. § ○ Schwartzreich v. Bauman-Basch, Inc. A clothing designer who had contracted for a year's work at $90 week was offered $115 a week by another company. When the designer informed his employer of his intention to leave, the employer offered the designer $100 per week if he would stay and the designer agreed. § The designer sued for additional compensation, the court held that since the parties had rescinded the original contract by mutual consent and entered into a new one for the higher salary the promise to pay was enforceable. § ○ • It is impossible to reach an objective decision based solely on the law. The law is always open to interpretation and there is no such thing as a normatively neutral interpretation. ○ The way one interprets the rules of law is always determined by one's underlying moral and political beliefs. ○ • The Myth of the Rule of Law

The Myth of the Rule of Law The first amendment to the constitution of the United States provides in part "congress shall make no law, abridging the freedom of speech, or of the press • In George Orwell's novel 1984 created a nightmare vision of the future in which all-powerful Party exerts totalitarian control over society by forcing the citizens to master the technique of "doublethink" Doublethink requires someone to hold simultaneously two opinions which cancel out, knowing them to be contradictory and believing in both of them. ○ Some think it is impossible to believe in both halves of a contradiction It is possible, and it is something people do everyday. § ○ • People's beliefs about the legal system The law is in inherently political ○ Citizens understand the laws under which they live are a product of political forces rather than the embodiment of the ideal of justice ○ The ideology of the people who ser e as judges influences the way the law is interpreted. ○ • The belief that the law consists of a set of definite and consistent "neutral principles" which the judge is obligated to apply in an objective manner free from the influences of his or her personal political and moral beliefs. • The Myth: Suggests a society in which all are governed by neutral rules that are objectively applied by judges. • The concept of the rule of law is both powerful and dangerous. Power derives from emotive appeal ○ • "America is a government of laws no people" Command the allegiance and affection of the citizenry ○ • There are three points: There is no such thing as a government of law and not people ○ The belief that there is serves to maintain public support for society's power structure ○ The establishment of truly free society requires the abandonment of the myth of the rule of law ○ • Applying the Myth of the Law: Hurley v. Eddingfield: Establishes the rule that in the absence of an explicit contract, when there has been no actual meeting of the minds there can be no liability. ○ • The idea is to find a valid rule of law which clearly applies to the facts of the case • Cotnam v. Wisdom: Establishes the rule that in the absence of an explicit content, the law will imply a contractual relationship where such is necessary to avoid injustice. ○ • The legal world is not like the real world and there isa type of reasoning appropriate. In the real world people solve problems by forming hypotheses and then testing them against the facts as they know them. When the facts confirm the hypotheses they are accepted as true and all other hypotheses are incorrect. § ○ In the legal world political laws are not consistent The law is made up of incompatible contradictory rules and principles § Any conclusion can be derived from a set of contradictory premises. § A logically sound argument can be found for any legal conclusion. § ○ • Title VII of the Civil Rights Act of 1964 - 2000e-2(a)(1) Unlawful to fail or refuse to hire or to discharge any individual or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's race, color, religion, sex or national origin. ○ Permits an employer to voluntarily institute an affirmative action program giving preferential treatment to African-Americans. ○ Prohibits discrimination against any individual because of his race. Prohibits employers from voluntarily instituting affirmative action plans. ○ • The law is never neutral and objective. • Sound legal arguments will be available for all legal conclusions Sherwood v. Walker One farmer sold another farmer a cow which both farmers believed to be sterile. When the cow turned out to be fertile, the seller was granted rescission of the contract of sale on the ground of mutual mistake. § ○ Wood v. Boynton A woman sold a small stone she had found to a jeweler for one dollar. At the time of the sale, neither party knew what type of stone it was. It turned out the diamond was worth $700, the seller sued for rescission claiming mutual mistake. § The court upheld the contract finding that since both parties knew that they were bargaining over a stone of unknown value, there was no mistake. § ○ Davis & Co. v. Morgan A laborer employed for a year at $40 a month was offered $65 per month by another company. The employer than promised to pay the employee an additional $120 at the end of the year if he stayed within the firm. At the end of the year the employer failed to pay the $120 and when the employee sued the court held that because he was already obligated to work for $40 per month for the year there was no consideration for the employer's promise and it was unenforceable. § ○ Schwartzreich v. Bauman-Basch, Inc. A clothing designer who had contracted for a year's work at $90 week was offered $115 a week by another company. When the designer informed his employer of his intention to leave, the employer offered the designer $100 per week if he would stay and the designer agreed. § The designer sued for additional compensation, the court held that since the parties had rescinded the original contract by mutual consent and entered into a new one for the higher salary the promise to pay was enforceable. § ○ • It is impossible to reach an objective decision based solely on the law. The law is always open to interpretation and there is no such thing as a normatively neutral interpretation. ○ The way one interprets the rules of law is always determined by one's underlying moral and political beliefs. ○ • The Myth of the Rule of Law