Jon Roland

The growing tension between the people and the judicial system arises in large part from the different ways the two acquire legal knowledge and make legal decisions.

The people might know the constitutions and some of the statutes that are supposed to apply to a situation, but they don't have the time to learn the precedents that the judicial system uses to decide cases. It is largely impossible to know all the applicable statutes, much less the case law.

Within the judicial system, however, and among lawyers, case law is everything. For the most part, lawyers are not taught to reason from constitutions and statutes, and their legislative histories, to the situations to which they might apply. Many of them don't consider a statute real until a case involving it has been decided by a court.

The situation is further aggravated by the fact that what gets published is not the original legislative acts but codifications of them, or regulations ostensibly based on them, which sometimes depart from the original acts, which are the only documents that can be considered authoritative.

The connection between original legislation and its application to cases can become very tenuous. Persons are being prosecuted every day for "crimes" based on the claimed authority of statutes that bare little relation to the statute or the original intent of the lawgivers. Yet a single win under such a charge can ever after be used as a precedent to prosecute further charges.

By this logic, persons could be charged with capital "hate crimes", prosecuted, and executed, on the basis of a statue prohibiting jaywalking, if the line of precedents led there.

If cases cannot be decided by reference to the original legislation and the understanding of it by the lawgivers, then legislation becomes meaningless, and one has judicial rule, largely unaccountable to the people or their demands for logical consistency and coherence.

A remarkable statement was made by Federal Judge Walter Smith, following his reversal of his own previous ruling in the Davidian case. The original ruling was that, the defendants having been acquitted of the basic charges, but not of the enhancements to those charges, the convictions on the enhancement were invalid, as they logically depended on a conviction on the main charges. He reversed that ruling, and sentenced the defendants to long terms in prison, based only on the enhancements, and said, "The law doesn't have to be logical."

Now anyone with even the most elementary knowledge of logic knows that any system of propositions which allows even a single contradiction allows all contradictions. In other words, in such a system every statement and its contradiction are both "true", and there are no "false" statements. This is another way of saying that no decisions can be made on the basis of such a system of propositions.

Now any system that the people are willing to call "law" has to support decisions. Therefore, it must allow for two-valued, or Boolean logic, also sometimes called Aristotelian or Euclidean logic. That means it cannot allow even a single contradiction, anywhere in the system.

The classic novel by George Orwell, _1984_, was largely a debate between Winston Smith, representing Aristotelian logic, and O'Brien, representing what we might call "Orwellian" logic, which is really the logic of power, based on weighing conflicting pressures from individuals or factions, with the outcomes depending on who is ascendant rather than on any principles that endure beyond the lives or whims of individuals.

The logic of the present judicial system in America is Orwellian, not Aristotelian, and that puts it into conflict with the people, who demand the opposite.

The classic device for trying to counter the tendency for the judicial system to devolve into Orwellian logic is the jury, representing the people and their devotion to Aristotelian logic.

I have listened to a number of frustrated jurors who complained, after a criminal case, "The accused didn't know anything about the case law that might affect the situation he was in. All he knew about were the statutes, and that is the basis on which he had to make decisions on how to obey (or help enforce) the law. And that is the basis on which we should judge him, because that is the only basis on which we can decide whether he is guilty. But the judge and the prosecutor won't tell us what the original statute states, or what the legislative history of it was, and the defense counsel isn't allowed to do so."

Of course, what the juror should do in such a case is refuse to convict. Jurors should get the law, not as instructions from the judge, but as original source documents, and any arguments involving case law should be made in the presence of the jury. That is the way the jury and the judicial system were originally intended to work. That they no longer work that way is a testament to the subversion of constitutional protections by the judicial system, even while pretending it is pursuing such protections.

We too often forget that the justification for a jury system is that judges, prosecutors, and investigators cannot be trusted. Recent scandals in such jurisdictions as Los Angeles should make that clear.

If the people can only obey the law based on legislation and legislative history, and the judicial system only enforces the law based on case precedents, which may bear little or no relation to the legislation or its history, then we have two different and conflicting legal systems, one for obedience and the other for enforcement.

The answer is clear. The judicial system must conform to the demands of the people, and begin making decisions on the basis of legislation and legislative history, and relegate case precedents to the background. Unless this is done, the tension between the people and the judicial system may grow to the point that the people turn to violence.

Anyone who thinks the situation is not that bad needs to wake up. A major part of what passes for "crime" is really revolutionary resistance against what is increasingly perceived as an oppressive system. "Crime" is becoming a low-intensity civil conflict, and the outcome is in doubt.

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