defense and limiting the legal power of judges

Discussion in 'Political Science' started by kazenatsu, Apr 8, 2018.

  1. kazenatsu

    kazenatsu Well-Known Member Past Donor

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    Under the modern system of government judges are they day-to-day embodiment of government legal power. It wouldn't be unreasonable to describe their role as dictators with vested legal powers from the legislature. It is them who the law gives great leeway to decide what is legal and what is not. (This necessarily follows from practicality)

    Now in this discussion we will be discussing the lawful power of physical defense.

    First though, I may have to quickly delve into the differentiation of types of power. There are two kinds of power: physical and lawful. Physical is, of course, anyone who actually has the physical means to impose their will on someone through physical means. This could be the military or police forces, or even every (free) member of the populace to some extent. Lawful power is something else different entirely. The legislature is the body which, supposedly, holds ultimate legal powers. They dictate the laws, and then those laws are carried out both by protocol and coercive physical threats. Many political theorists make the mistake of confusing the two types of power. They make mistake of thinking that by writing "All lawful power is vested in the Legislature" into the Constitution that alone will guarantee it will be so. This is not so. A political body can have all the lawful power, but it will be meaningless if it has no physical power backing that up. This is how so often democracies can succumb to coups.

    Now, let us take a quick prelude looking at what the lawful power of offense is.
    Nearly anyone could attack, abduct, kidnap, harm, incapacitate, kill (and so on) anyone else. (This of course would fall under strictly physical power) But would it be legal?
    The quick instinctive retort, from many people, would be no, none of these things are legal.
    But in fact they are, under particular circumstances, or carried out by particular persons who are legally empowered to do so.
    Let's take a look at the Bible in Acts Chapter 9 (1-13), which will serve as an allegory here. Ananias is afraid of Saul because Saul had written letters giving him authority to arrest persons who adhered to that particular religion, of which Ananias was numbered. But why should Ananias have been particularly afraid of Saul? There were many others who would have liked to beat or stone those followers. The issue was that Saul was given legal authority. The others would not have dared transgress Roman law, for fear of potential severe punishment.

    The lawful power of defense is the lawfully sanctioned power to use physical force to repel a physical offense. An obvious example of this would be if a person inflicted harm on an attacker in self-defense. But now suppose that attacker carries legal sanction to arrest or detain. At least for the purposes of this political theory discussion, this type of situation is in most cases irrelevant. For, if we are only concerning ourselves with physical power, in most cases it is impossible or impractical for an individual to be able to defend themselves against a much larger group at all times. That is to say, in general, there is no particular reason why the law should make special consideration to the right of ordinary persons to be able to defend themselves from a group that reasonably appears to be acting on the behalf of the law. (An argument could be made, of course, but probably at substantial cost to practicality) But, the whole thesis of this discussion does not concern ordinary persons, or ordinary situations.

    When does, or when should, one group have the lawful right to use force to fend off another group who are, ostensibly, carrying out an arrest?
    A few examples will help make this point more clear.
    Should a group of a couple police officers be given access to a vault containing extremely high value contents at a large bank just because they demand to be let in? Could potentially be cover for a robbery.
    What about outside government officers attempting to carry out arrest of other government officers inside a secure area?
    Or one judge issuing arrest warrants for the entire legislature, and then a large armed group of officers going to carry that out?
    Two police officers encountering each other at the same time and seeing what appears to be an illegal act having been committed by the other, and both of them attempting to (presumably) lawfully arrest each other simultaneously.
    This last example illustrates the pure absurdity.

    What if the law says that obstruction of any duty by an officer of the government is a violation of the law (under any conditions)? In that case we would have to assume that the law was for pure practicality and not there as something that should be obeyed. That is, it would simply be lawful authorization for the courts to arrest and punish whichever side they believed should be punished if an altercation between two parties transpired. No law enforcement officer would be able to arrest any other law enforcement officer without technically breaking the law.

    I bring up all this absurdity to dispel a lot of preconceived misconceptions people commonly have about the nature of the law.

    Some of these obscure little details in the law can end up creating huge legal implications and affect the whole framework of political theory.

    I'd even go so far to say that, in most cases, there ends up being a huge disconnect between the Constitution and laws passed by most legislatures, going by the strictest literal sense. This is an emergent property, because the things spelled out in a Constitution are broad and vague, while the operative details to actually set a groundwork to run things have to passed by the legislature, in a very numerous body of laws.

    The point of all this is that we should be careful of what all the laws are, in all their details, and be aware of what sort of implications and problematic situations those laws could potentially lead to. There should be laws in place to account for the possibility of other laws being misused. And I particularly mean in a more immediate situation, things that cannot later be corrected by the courts. If the legislature is not careful in crafting its laws, it could be signing away democracy.

    I believe that also, in terms of political theory, the concept should be taken into account of rights. The right for certain individuals (or groups) in unique situations not to come under attack by government officials simply just because it happens to be more convenient for the government to operate that way. That is, if the situation call for it, and it is not too impractical, the government should be obliged to find another way to enforce its laws.
     
  2. kazenatsu

    kazenatsu Well-Known Member Past Donor

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