The Danger of Subjective Jurisprudence

The American left's assault on legal constancy and certainty threatens to bring the entire system of jurisprudence to its knees.

This morning, I noted:

• Everytown and the City of Chicago are suing Glock because in their opinion, Glock handguns are "too easy" to modify.

• Chicago sued Hyundai because some models of their cars were "too easy" to steal.

• Trump's conviction in the alleged fraud case is similar. Tish James and Arthur Engoron decided what he did, they didn't like - that's the way the law reads.

• You hear all the time from Democrats that rich people aren't paying "their fair share" of taxes, but they can't tell you what is "fair" (often when they do offer up a number, it is lower than what is already being paid).

• In New York, Tish James is suing the oil companies for global warming using the same law she used to sue President Trump.

To me, this represents a trend of change from legal certainty based on objective standards to one of legal subjectivity based on human motivations and agendas.

This is the destruction of the American legal system, the hallmark of which has been its basis in consistency, logic, rationality, and fairness.

It reminded of something I wrote in 2015:

The law was once a far less intrusive and a far more benign part of American life.

Lawsuits and appearances before the court were events to be avoided at all costs. Contracts and agreements were so simple, there was no need to involve the law because it was abundantly clear who was at variance with them. This held true for America’s first century of existence – at least until the forces of progressivism changed the thinking of what the legal system could do. In the second century, progressives ended the passive and impartial role of American law and began the transformation into an active tool for meeting their goal of implementation of social change.

This is when the corruption of the legal system began. It resulted in a system so arbitrary and capricious and so simultaneously ubiquitous and powerful as to render it virtually indistinguishable from lawlessness. In his book “By the People – Rebuilding Liberty Without Permission”, Charles Murray notes five major factors that indicate our current system is the functional equivalent of lawlessness. These are certainly not all-inclusive, but they do provide a framework for objective assessment of the reality of our contemporary legal environment.

They also provide a bit of an “Ahh, Ha!” moment as well.

Murray argues that a legal system is functionally indistinguishable from lawlessness when it consists of:

• Criminal law sufficiently removed from mens rea (guilty intent or an awareness of guilt).

• Law that is sufficiently complex.

• Law that is sufficiently subjective.

• Law that is sufficiently discretionary.

• Law that permits the state to take private property without compensation or has the ability to force the transfer of private property to other private individuals.

All the above make a great deal of sense in explaining the frustration many feel with the lack of ability to understand the outcomes of public legal events or the madness of seeking explanation for where certain entities derive their power to effect substantial social change.

One of the strengths of a system based on the rule of law is its consistency. That is to say that it is based on such common, solid, and irrefutable principles and concepts as to be almost entirely predictable. Even though it is said that ignorance of the law is no excuse, in a system described by the five characteristics above, ignorance of the law is a common feature. The concept of the law as a tool for social change has almost rendered legislation meaningless as the resolution of every situation now rests on interpretation of a judge or some other agent of the deep state. We are locked into a never-ending episode of the Twilight Zone where the Clintonesque mantra of “it depends on what the meaning of ‘is’ is” rules the day.

Can it be unwound? I doubt it can. Stare decisis (respect for precedence) rules and this has allowed bad law to be built on a foundation of bad law. Law is no longer law, it has metastasized into political policy enacted at the whim of the ruling class – often used to create, cement and protect each other and their power. Meaningful change in this arena requires drastic judicial review and the overturning of a century of social engineering jurisprudence to begin the healing of the legal system.

In today’s environment, it is hard to see that happening.

I’m coming around to the viewpoint of my FB friend Donald Sensing – we may be too far gone.

And that where I was in 2015, before the lawfare and abuse of justice began in earnest.

We may have to let it burn and rebuild from the ashes.