Uncertainty and Law

By James Constant

Jurisprudence. Philosophy of Law. Uncertainty of Law and Constitutional Government. This book looks at Uncertainty and Law: Constitutional Uncertainty; Legal Uncertainty; Individual Rights; Effects of Uncertainty

• Language: English
• Publisher: James Constant
• Release date: Oct 7, 2013
• ISBN: 9781301931613

James Constant

writes on law, government, mathematics and science, as they are and as they should be

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Uncertainty and Law

By James Constant

Smashwords Edition

Copyright © 1993,2013 by James Constant

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Table of Contents

Constitutional Uncertainty

Legal Uncertainty

Individual Rights

Effects of Uncertainty

UNCERTAINTY AND LAW

Bismarck (1815-1898 A.D.) said that the less people know about how sausages and laws are made, the better they’ll sleep at night. The Constitution and laws are not documents whose terms permit only one interpretation, or even a narrow range of interpretations. This means that the meanings of the Constitution and laws are left to government and the wide discretion of judges. The fact is that, in a democracy, neither the government or its judges will rule against minority wealth unless forced by the public opinion.

Bentham (1748-1832 A.D.) equates justice with certainty in the law.[330] Whereas Hobbes (1588-1679 A.D.) had insisted that in order to make the right decision judges must have great latitude in interpreting the law, Bentham saw in such latitude the destruction of rule by law, which requires perfectly clear and fixed rules. Certainty in the law meant, according to Bentham, a law that could be pointed to and would yield unequivocal decision. Judicial opinion provides no such object. Bentham therefore suggested that certainty in the law could not be had without codification. Most judicial writers, the adherents of realism, say that uncertainty reduces law to will and thus right is might. Realism recognizes that not only the legislator but also the judge is above the law. The law is what the judge decides. The courts constantly make ex post facto law and, in reality the law does not exist. The true lawmaker is not the one who makes the law but whoever has the absolute authority to interpret the law. Law is legal fiction. The pretense is that the law is a system of known rules applied by a judge. Thus, realists assume that everything done in the name of the law should be ruled by real social needs. [331] These pronouncements should make people think twice before they go to a court of law. However, the real question is why is law uncertain? There is only one plausible answer, namely, the ruler cannot rule otherwise. In a democracy, the ruler must have uncertainty in law to preserve its wealth.

One judge has spoken out publicly saying that the way the courts now interpret statutes, lawyers and judges often engage in a kind of a scavenger hunt