In REVIEW

 We have started (our journey of the mind) along the path of trying to develop our skills. Skills that are related to law.  We have in short tried to become more able to think about; talk about; work with;   the LAW.  We have recognized that the written law can bring us places where unwritten law won’t bring us.  The written law (as opposed to some repeated customs developed during our time living in caves and trees) gives us a fundamental general blueprint of how we will go about solving social problems. And we gave this a name. The CONSTITUTION.  This particular written law can exist even if its not written actually. England does not have a written constitution. But it has an essential basic “way” that the law of england goes.  The most basic rule of its constitution being;  that the law is to be followed whether one (1) likes it or not and/or (2) understands it or not.

In short Law is very vague and uncertain.  At least to explain it well.  The explanations remain vague and uncertain.  The writing of what the law is, and especially the writing of a constitution giving what the law is a fundamental backbone (Kant calls this a priori..insight) would give a person to believe the law is less mysterious.  And more clear.  But round and round the law still goes.  


We have gotten to know each other. Our names and faces have become familiar to us.  We are beginning to form our own little community.  By the end of the class we will compose each of us proposing and then all of us agreeing on one common form;  A CONSTITUTION of this class.  And we have examined the impulses that arise in us from common problems.  (profound issues of life... and mundane issues of business.)  We have supposed what it would be like to hold a position of high honor in our community; and then what it would be like to get together with other equally distinguished people and discuss problems and issues.  We have looked at the roots of our particular form of government. Seen how “fiction” leads to a kind of social bonding; the connections arising therefrom created a modern STATE.  

Now let us look at one of the documents which gives rise to THE AMERICAN STATE.

Ladies and Gentlemen;  I give you THE DECLARATION OF INDEPENDENCE.

Lets take it up;  seriously read, analyze and critique it.






























































































































The Declaration of Independence: A Transcription

IN CONGRESS, July 4, 1776.

The unanimous Declaration of the thirteen united States of America,

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.--Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.
He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.
He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.
He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures.
He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.
He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.
He has endeavored to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.
He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.
He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.
He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their substance.
He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.
He has affected to render the Military independent of and superior to the Civil power.
He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:
For Quartering large bodies of armed troops among us:
For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:
For cutting off our Trade with all parts of the world:
For imposing Taxes on us without our Consent:
For depriving us in many cases, of the benefits of Trial by Jury:
For transporting us beyond Seas to be tried for pretended offenses
For abolishing the free System of English Laws in a neighboring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies:
For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments:
For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.
He has abdicated Government here, by declaring us out of his Protection and waging War against us.
He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people.
He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.
He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.
He has excited domestic insurrections amongst us, and has endeavored to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

Nor have We been wanting in attentions to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.




The 56 signatures on the Declaration appear in the positions indicated:

Column 1
Georgia:
   Button Gwinnett
   Lyman Hall
   George Walton

Column 2
North Carolina:
   William Hooper
   Joseph Hewes
   John Penn
South Carolina:
   Edward Rutledge
   Thomas Heyward, Jr.
   Thomas Lynch, Jr.
   Arthur Middleton

Column 3
Massachusetts:
John Hancock
Maryland:
Samuel Chase
William Paca
Thomas Stone
Charles Carroll of Carrollton
Virginia:
George Wythe
Richard Henry Lee
Thomas Jefferson
Benjamin Harrison
Thomas Nelson, Jr.
Francis Lightfoot Lee
Carter Braxton

Column 4
Pennsylvania:
   Robert Morris
   Benjamin Rush
   Benjamin Franklin
   John Morton
   George Clymer
   James Smith
   George Taylor
   James Wilson
   George Ross
Delaware:
   Caesar Rodney
   George Read
   Thomas McKean

Column 5
New York:
   William Floyd
   Philip Livingston
   Francis Lewis
   Lewis Morris
New Jersey:
   Richard Stockton
   John Witherspoon
   Francis Hopkinson
   John Hart
   Abraham Clark

Column 6
New Hampshire:
   Josiah Bartlett
   William Whipple
Massachusetts:
   Samuel Adams
   John Adams
   Robert Treat Paine
   Elbridge Gerry
Rhode Island:
   Stephen Hopkins
   William Ellery
Connecticut:
   Roger Sherman
   Samuel Huntington
   William Williams
   Oliver Wolcott
New Hampshire:
   Matthew Thornton
























































Introduction:

   I’ve been told finally the name of this class is Government and Law (with focus on the constitution.)   So its not Law and the Constitution.  




          In this regard “government” I will declare is “the system by which the STATE manages itself.”    Law is the general term which describes the phenomena by which government functions.  Law is the “medium.”  Government is the vehicle.  The question always remains what kind of vehicle is ours?  I think its right to say that basically our system is a Democratic, Liberalistic, Capitalistic Republic constituted (manifested by) a Written Constitution which can be amended.







       

Getting right into it:










WHAT IS THE PROBLEM?  (why in other words to we bother to study?)

         

               ANSWER    the problem is there are in life problems.   (people suffer;  in other words                                     things don’t feel good and a                                     lot of time we know things                                     are not right) 




      WHY DOES THIS PROBLEM EXIST?

         

          ANSWER      this is how the universe is   (unlike Gods, we die;  and even if we did                                  not, Even Gods have problems if you                                                                    read the myths and biblical renditions thereabout.)  







WHAT CAN WE GENERALLY DO ABOUT THAT?




                      ANSWER:     Reason our way to responses.  Understand “legal system.”  










WHAT SPECIFICALLY CAN BE DONE?




        ANSWER;   the options and alternatives are there.   Lets find them.  










How do we go about finding answer to problems?    WE communicate.  
















We communicate with;  (1) Words on paper   (2)  Words in the air (or across wires then into air to the ear)  (3)  unwritten unspoken perceptions that lead to conceptions and then action.







How can we come to communicate more effectively?   




          What is communication?  (realize that the problem is we assume we know things that in truth we don’t know.)   How can we know things better?    Listen more.   Listen before we speak.  Go slowly;   be more deliberate by first listening; then checking to see if we heard right.   Then thinking about whether what we suppose to say is clever.  

              Buddha is said to have taught;   Buddha was given a poison mushroom by a host.  Sick and almost dead, he saw his friends were all anxious to kill the host.  Stop, said he;   “be more concerned with what comes out of your mouth, than what went in.”







CLASS AXIOM ONE:     BE CONCERNED WITH WHAT IS SAID>  

    When one plays music one struggles to hit the right notes; play the right time; and have a good     idea.







     After a while the brain plasticizes the skill;  but at the first conscious effort at it will be tedious; difficult.  We will fall asleep.  We will sweat.  We will say unintelligible things.  Our natural self is at odds with what we come to see is our social DUTY.







FREEDOM, says Emmanuel Kant, is the acceptance of what we come to see as “duty.”







It is our duty to obey gravity;   if you accept that gravity is there; you won’t spend the rest of your life jumping up to prove you can defy nature’s gravitational force.













______________________________

ok;    MISSION one for today;  lets become better communicators.   

       HOW?  Go slower;   be more deliberate.   think about the implications of what you say (or fail to say.)










_____________________________________







How do we go about becoming better at the skill of communication?







       We study real life cases.  Real life problems. Real life situations.  We explore different things about them.   Doing this leads to competence and momentum. 




       At all points momentum, we must realize can run away with itself;  so we write down things that we can refer to to keep us in line.    We write laws.  We write philosophies.  We write sciences. We right histories.  We write love letters.  We write contracts.   We write movie reviews.  







Assume for a minute that one legitimate purpose of government (of law... ) is to make the “STATE” (the polity)    peaceful and secure.     {remember how I told you one aspect of the legal system came into being to end “feud?”  To stop people from killing each other out of revenge  …which obviously is going to make people insecure and so afraid to do things that otherwise might be beneficial to the community” … the social authority created a system of courts. In court’s (or tribunals) magistrates would hear problems (conflicts... cases)  between people.  i.e.  someone while shooting arrows accidentally hit his neighbor’s kid.  in the past the parent of the victim would shoot the shooter’s kid.  this would then lead to violent response.  Before you know it people would be at war. Neighbor would be trying to destroy neighbor.  What would it be like if the Magistrate had the power to “settle” the problem by declaring what the remedy would be?







Now we come to secondary problems.  How does the Magistrate go about make a declaration that is itself going to be “good” “right” and otherwise of optimal quality?







(the constitution is supposed to help that come to be) 







Well;   anyhow; the point was;    a problem was obviously making life difficult.  A solution to it was to install a kind of device (an engine) which would bring about the desired state of affairs.







Settling feud (mini-war) was seen as a value. (obviously;  history shows this to be true.  If you want to see a high intellectual level book about it;  a man named Julius Goebels wrote a book called Felony and Misdemeanor.  



    here   is the paperback edition.  (the hardback costs $39.  The paperback costs .01 cents)













THE POINT IS:  S E T T L E M E N T  of conflict is a proper principle of government.  There are arguments about whether one or another moral principles are necessary and proper for government.  Some people say “the bible says forgiveness is absolute.”  But the law says under some conditions people can be put to death.  Putting people to death by definition rules out the idea of forgive and forget.  Some people say forgiveness is absolute.    But some will never forgive or forget certain things.   The idea of forgiveness is controversial and uncertain. The idea of SETTLEMENT seems less vague.   (the very term means... to bring it down; to let gravity pull it to where it goes.)  Settle it....    forget it; its settled....    



Last week we saw Sanja and James and then Evancha discuss a busted business arrangement.   The buyer was disappointed;  reacted in a way which the court felt was improper; and so the unhappy result was that the seller who had done wrong, was made whole while the buyer ended up punished for a mistaken response to an agitated situation.


We watched Sanja and Evancha....   fail to settle their problem. 



What kind of things can we write on a piece of paper which would assist them to personally settle their problem?
















?




Here by the way is a review of Julius Goebel’s book





This stuff is hard to understand (unless one is very smart and able; and since I am not I will have to slowly explain stuff about this.)










What is th E        problem here?   

     (the problem is its hard to understand.  One gets confused;  tends to fall asleep; etc.  Can’t remember what I read five seconds after I read it (assuming I understood it at all while I was reading it.)   













rEader guide notes )here is how I communicate to myself about what I am reading here.




First of all I read it;    then I notice;    Paragraph 1.  REmember how I mentioned to you that in about 1950 or so (some years after the end of WWII... a period of time in which the tone of American Law as a medium was changing from the Civil War era (a time of equal rights for all races;  freedom for all being important)  to an era where freedom for all was being limited because the strong (big business) when it exercised its freedom was oppressing anyone around it. (workers were not “slaves” but workers had nasty lives due to low pay and consumers had big risks due to careless products)  The nation was changing from a Republic whose government  had mostly an umpire role (did not get involved beyond saying who of two in conflict was right) to an affirmative actor (telling people what they would have to do;  in other words telling people what was right and good ;  whether they agreed or not. Law in other words was becoming more active.  Same way a legal system got involved by limiting people’s freedom to feud;   here the legal system limited people’s freedom to run their business any way they wanted. 




Returning to point;   remember I told you about how the Law Review introduced a Foreword?  And then a response to the Foreword (a general comment about law of the day) would explain its view of the Foreword?  And remember how the response of a famous legal “practitioner” (a judge or lawyer rather than a professor or law student) criticized that the Foreword was a little bit disconnected from the way-things-really-were out there in the real-world.  (I think it was professor H. Hart’s Foreword and lawyer/judge Thurman Arnold’s REsponse)  Well;   look at this article:   see where it says  “without undue submission to ....   theory.”     




Too much theory is thought to be a potential problem.    There was something “good” about this book.  And one way of saying what was good is that it was not trapped and caught up in a system of perspectives which...  if you had to live by you would not like unless you were a member of the “have” or “elites” of the polity.   (The Romans loved watching Christians be slaughtered by lions... it was sport and spectacle.)  It was Good for the Roman spectator.  It was nothing the Christians liked.  The culture allowed it.   But some were not happy.  The culture’s ethos; its status quo ways were “good” as far as the culture was concerned.   But there was some negative there.  




There is some good in the standard way of viewing something.   But there is also value in extending past traditional views;  for they confine and constrain in ways which some feel are unsettling.  When there is a weak link in a chain of life;    it can drag the entire organism down.  If one limb becomes gangrenous; the whole body will die.  If there are 10 million very poor people, homeless, diseased and so on in a polity;   will it not drag down all with it?   Can you build a wall effectively enough to stop misery from infecting all around?   That is the question.  Build a bigger army?  Or somehow transform the enemy into...  not an enemy?    







Declare war...    or settle?







Lets see what this commentator has to say about Goebel’s review of the feud-elimination device.

My first observation is that this is confusing stuff.   But then the reality is;  how on earth can anyone really describe with any satisfying accuracy or value the true things that happen in a polity?   The author says that Goebel’s explanation of things that happened in the criminal justice Western European system of the 800 - 900  (the Ninth Century) challenges some other theoretic views of it.  The author is less persuaded to believe in the things Professor Goebel’s (herein after PG) has to say about the 1000 to 1100 century.  




(the author is from Oxford University in England by the way)




The rest of page one and paragraph the first on page two;   therefrom you can suppose that this all is about “courts” in “the middle ages.”  Paragraph 3....   says....      He seems to say that PG’s study argues that the criminal law (which is to say stopping violent behavior and exploitive behavior by a court in england)  came not from listing out specific wrongs to be stopped by the magistrates;  and not from any hope to bring and secure the social peace:    ...  but instead to substitute in the place of the person who was victimized  (the person who was responded to in feud...  by greater or disproportionate response) the government (the king)...   




(in other words;     the magistrate comes in to     avoid    excessive exaggerated claim to exercise aggressive domination over...   someone.    (the criminal is a criminal not because of what he did...  as much as the the criminal system came to be  not to bring about peace and stop certain actions;  as much as  extend cover to someone who should not be the target of nasty behavior. (you may want to argue that these are two sides of one coin.)




Page 2:  Paragraph 3:     THe law here came to be  “not due to any one  idea (theory) but rather slowly great based upon each judge’s interpretation of the authority granted to them by... the king’s authority.  (king.. queen.. whoever created the power to SETTLE  problems out.)

Page 3:     I just would want to say that;   the important point here is to realize that Goebel’s is seen to be explaining “the legal system” as it really is;   but keeping in mind the point; which is not really to get the details exactly right as much as correctly create a sense of what law does;   keeping in mind that you can’t really know what it does anymore than you can know what an electron looks like in a certain place.   




I can .. I get some idea and some glimmer of understanding of what the man Jolliffe has said about Goebels here;   but I can’t really put it into words for you.   Its...  I think he is saying; Goebels is onto something; but there are other considerations and Goebels as not really captured it in a totally uncriticizable way.


LAST PARAGRAPH

He acknowledges how quite good the book is;   looks forward to the one which finishes off the explanation about development of legal criminal law in england since this one stopped looking at records after 1135 CE (common era.)

___


Now; if you bothered to read what I wrote and glance at the article;  this will put you ahead in understanding of Law and Government and Constitutions of those who did not.


You know something they don’t know;  and you will see; they will get louder and louder; and more obnoxious when in their gut they see that you know something and they therefore know they don’t know what they are talking about.



**************************************************************************************************************  LESSON FIVE; GOVERNMENT & the CONSTITUTION  

First:




(see above)
      Finish the Busted Melon Deal;    can these parties settle?




       What can the Law do to encourage people to act wisely (i.e. settle.)




               Learning to Negotiate:  Don’t make them do what you want;  make them say YES because they see it as a positive option;   both sides win.




These six integrative negotiation skills can help you on your journey of getting to yes:

1. Separate the people from the problem.

In negotiation, it’s easy to forget that our counterparts have feelings, opinions, values, and unique backgrounds that contribute to what they do and say during talks. When misunderstandings and conflict arise in negotiation, we need to deal with the “people problem” directly rather than trying to gloss over it with concessions, according to the authors of Getting to Yes. Strive to imagine the situation from their counterpart’s viewpoint. If someone is refusing to back down from a hardline position, ask her how she thinks things are going. Exploring each side’s perceptions openly and avoiding the tendency to blame are key negotiation skills.

2. Focus on interests, not positions.

We tend to begin our negotiation by stating our positions. A homeowner might say to a developer, for instance, “I won’t allow you to develop this property.” When we stake out firm positions, we set ourselves up for impasse. In our goal of getting to yes, we need to draw out the interests underlying our counterpart’s positions by asking questions, such as, “Why is this property important to you?” By identifying what interests are motivating the other party, and sharing your own interests, you can open up opportunities to explore tradeoffs across issues and increase your odds of getting to yes.

3. Learn to manage emotions.

Be sure that you and your counterpart have ample opportunities to express and discuss any strong emotions related to your negotiation. Allowing one another to speak your mind will benefit both sides. “Freed from the burden of unexpressed emotions,” write the authors in Getting to Yes, “people will become more likely to work on the problem.” They tell the story of a labor-management group that “adopted the rule that only one person could get angry at a time,” a tactic that prevented arguments from escalating. When you know that you will have your turn to express how you’re feeling, it will be easier for you to listen when your counterpart has his turn.

4. Express appreciation.

Throughout his career at the vanguard of integrative negotiation, Fisher stressed the importance of expressing appreciation as a means of breaking through impasse. “No one likes to feel unappreciated, and this is particularly true in a negotiation,” Fisher once told Program on Negotiation managing director Susan Hackley. In their book Beyond Reason (Penguin, 2005), Fisher and Dan Shapiro advised negotiators to express appreciation by working to understand the other’s perspective, seeking merit in that perspective, and communicating understanding through words and actions—all critical negotiation skills.

5. Put a positive spin on your message.

Communicating in a positive way is a much more effective means of getting to yes than blaming and criticizing. Instead of speaking on behalf of your group, speak only for yourself. For example, saying “Everyone on the team feels that you’re not pulling your weight” to an employee is likely to distract her from your message, as she will wonder who has been talking about her and what they’ve said. Instead, talk about what you personally have observed and express your concern: “Your recent work has fallen short of your high performance levels. Is there anything going on that is keeping you from doing your best?”

6. Escape the cycle of action and reaction.

In Getting to Yes, Fisher, Ury, and Patton caution us to avoid the common negotiation trap of action and reaction: “If the other side announces a firm position, you may be tempted to criticize and reject it. If they criticize your proposal, you may be tempted to defend it and dig yourself in . . . if they push you hard, you will tend to push back.” To head off this vicious cycle, Fisher, Ury, and Patton introduce a negotiation skill they call negotiation jujitsu, which involves avoiding escalation by refusing to react. Instead, they advise us to channel our resistance into more productive negotiation strategies, such as “exploring interests, inventing options for mutual gain, and searching for independent standards.”

         note -- The above six point guide  has been taken from the Harvard Law School, Program on Negotiation; Getting to Yes by Roger Fisher and William Ury.  




              Introduce UCC.   Sometimes settlement does not happen.  What is your best alternative to a negotiated settlement?   One aspect is that you suppose you can get a court to support your view because your view is “legitimate.” Its got validation from the court. Previous cases in court ended up with an outcome that is similar to the view you take of the case.  Courts function in light of LAW.   What is the Law of business deals?




Laws come from many sources.  Our mind notices that God and/or the universe (nature) gives us constraints we call law.  Gravity for example. A law of life is death. A law of sexual intercourse is children.  There are some truths we can’t help but hold as “law.”  A property or characteristic of a thing can be thought of as “its law.”  




Our nature is to be social.  Humans band with other humans.  We create ‘a state.’  In the distant past;  small groups of hunter and gatherers on the plains; in the caves; in the jungle;  everywhere that people stood.  In the less distant past (call it the classical period of western civilization) there were “city states.”  In the time of Greece Athens, Sparta, Ithica were ‘city states.”  Rome, Florence, Venice...   all “city states.”   In the modern time we have “Nation-states.  The U.S.A; Paraguay, Ethiopia, France, Australia and so on.    States have governments.  And the governments have legal systems.




Legal systems can be controlled by a leader or a small band of powerful people called the aristocracy. Kings and Aristocrats can be nice or they can be despotic and dictatorial.  Fair or oppressive.  As Montesquieu teaches in his famous book The Spirit of the Laws and as Alexander de Toqueville explains in his book Democracy in America another kind of government can be one where the people (the demos) are thought to rule themselves. In such ‘democracy’ people choose by election representatives who make laws.  In the United States, as given power under Article II of the United States Constitution, our House and Senate pass statutes (laws.) If the president signs them they become ‘the law of the land.‘   All the state (Florida, New York, Colorado...etc. governments also have legislatures which pass laws.  In the states the governor signs the laws that the house and senate pass.  




One such law is called a “commerical code.” (a code of the laws of commerce.)   




Often deeply thoughtful people, often members of University law schools, judges and legal institutes may write up what they think to be a good law; and many states will adopt their Uniform Commercial Code as ‘the law of the particular state.”




Does the Uniform Commercial Code contain any provisions which help Sanjay and Evanha work their way around their emotional outrage at what happened with their good deal gone sour?







Here are the chapters if the Uniform Commercial Code

U.C.C. - ARTICLE 1 - GENERAL PROVISIONS (2001)
U.C.C. - ARTICLE 2 - SALES (2002)
U.C.C. - ARTICLE 2A - LEASES (2002)
U.C.C. - ARTICLE 3 - NEGOTIABLE INSTRUMENTS (2002)
U.C.C. - ARTICLE 4 - BANK DEPOSITS AND COLLECTIONS (2002)
U.C.C. - ARTICLE 4A - FUNDS TRANSFER (2012)
U.C.C. - ARTICLE 5 - LETTERS OF CREDIT (1995)
REPEALER OF U.C.C. - ARTICLE 6 - BULK TRANSFERS and [REVISED] U.C.C. - ARTICLE 6 - BULK SALES (1989)
U.C.C. - ARTICLE 7 - DOCUMENTS OF TITLE (2003)
U.C.C. - ARTICLE 8 - INVESTMENT SECURITIES (1994)
U.C.C. - ARTICLE 9 - SECURED TRANSACTIONS (2010)
UCC - older versions




Do any of these possibly apply to Sanjay and Evancha’s problem?




I think Articles 1 2 and 6 might have relevant provisions.




SPOILER ALERT:  (I think section 6-102 m  might be relevant somehow)

(m) A sale is "in the ordinary course of the seller's business" if the sale comports with usual or customary practices in the kind of business in which the seller is engaged or with the seller's own usual or customary practices.




Law (legal actors; judges ..   tend to look and see what the customary way to do something is; and the “law” will often follow the custom.  Law is very rarely someone sitting atop a big chair with power who declares the law based on feelings. Law is more people who see what is going on and try to write out what seems to be what the law is.  This is not always so. But “nature can’t be fooled.” (see Feynman Minority Report from lesson 4)  Gravity is a law which can’t be broken.  Things which happen again and again are very difficult to influence.  So its easier to join in with the way things are than try to defeat and change the way things are.




Sometimes there is a revolution.  Buddha revolutionized Hinduism.  Jesus revolutionized Judiasm.  The United States and Haiti broke away from the control of England and France respectively.  It happens every once in a while. But these are extraordinary acts of legal doing.  By in large law is conservative and simply follows the trend; goes with the flow, more than introduces a new path.  




What generally happens when people find that the product they bought arrives and is nonconforming to the terms of the contract?   Would it make sense for Sanja to call a few of her friends in the business and ask them what they would do if they found themselves in her shoes?  




Would it make sense to locate some cases about the same thing. See what the court held; and figure that that is close to what the law would be and so to do what the law will impose anyhow?










In any case;  here is the UCC (parts of it.)  Knowing what it says might be useful.   







U.C.C. - ARTICLE 1 - GENERAL PROVISIONS (2001)

PART 1. GENERAL PROVISIONS

PART 2. GENERAL DEFINITIONS AND PRINCIPLES OF INTERPRETATION
PART 3. TERRITORIAL APPLICABILITY AND GENERAL RULES




PART 1. GENERAL PROVISIONS

§ 1-101. Short Titles.
§ 1-102. Scope of Article.
§ 1-103. Construction of [Uniform Commercial Code] to Promote its Purposes and Policies: Applicability of Supplemental Principles of Law.
§ 1-104. Construction Against Implied Repeal.
§ 1-105. Severability.
§ 1-106. Use of Singular and Plural; Gender.
§ 1-107. Section Captions.
§ 1-108. Relation to Electronic Signatures in Global and National Commerce Act.

PART 2. GENERAL DEFINITIONS AND PRINCIPLES OF INTERPRETATION

§ 1-201. General Definitions.
§ 1-202. Notice; Knowledge.
§ 1-203. Lease Distinguished from Security Interest.

§ 1-204. Value.

§ 1-205. Reasonable time; Seasonableness.
§ 1-206. Presumptions.

PART 3. TERRITORIAL APPLICABILITY AND GENERAL RULES

§ 1-301. Territorial Applicability; Parties' Power to Choose Applicable Law.
§ 1-302. Variation by Agreement.
§ 1-303. Course of Performance, Course of Dealing, and Usage of Trade.
§ 1-304. Obligation of Good Faith.
§ 1-305. Remedies to be Liberally Administered.
§ 1-306. Waiver or Renunciation of Claim or Right After Breach.
§ 1-307. Prima Facie Evidence by Third-Party Documents.
§ 1-308. Performance or Acceptance Under Reservation of Rights.
§ 1-309. Option to Accelerate at Will.
§ 1-310. Subordinated Obligations.










Uniform Commercial Code

U.C.C. - ARTICLE 2 - SALES (2002)

PART 1. SHORT TITLE, GENERAL CONSTRUCTION AND SUBJECT MATTER

PART 2. FORM, FORMATION AND READJUSTMENT OF CONTRACT
PART 3. GENERAL OBLIGATION AND CONSTRUCTION OF CONTRACT
PART 4. TITLE, CREDITORS AND GOOD FAITH PURCHASERS
PART 5. PERFORMANCE
PART 6. BREACH, REPUDIATION AND EXCUSE
PART 7. REMEDIES







PART 1. SHORT TITLE, GENERAL CONSTRUCTION AND SUBJECT MATTER

§ 2-101. Short Title.
§ 2-102. Scope; Certain Security and Other Transactions Excluded From This Article.
§ 2-103. Definitions and Index of Definitions.
§ 2-104. Definitions: "Merchant"; "Between Merchants"; "Financing Agency".
§ 2-105. Definitions: Transferability; "Goods"; "Future" Goods; "Lot"; "Commercial Unit".
§ 2-106. Definitions: "Contract"; "Agreement"; "Contract for sale"; "Sale"; "Present sale"; "Conforming" to Contract; "Termination"; "Cancellation".
§ 2-107. Goods to Be Severed From Realty: Recording.

PART 2. FORM, FORMATION AND READJUSTMENT OF CONTRACT

§ 2-201. Formal Requirements; Statute of Frauds.
§ 2-202. Final Written Expression: Parol or Extrinsic Evidence.
§ 2-203. Seals Inoperative.
§ 2-204. Formation in General.
§ 2-205. Firm Offers.
§ 2-206. Offer and Acceptance in Formation of Contract.
§ 2-207. Additional Terms in Acceptance or Confirmation.
§ 2-208. Course of Performance or Practical Construction.
§ 2-209. Modification, Rescission and Waiver.
§ 2-210. Delegation of Performance; Assignment of Rights.

PART 3. GENERAL OBLIGATION AND CONSTRUCTION OF CONTRACT

§ 2-301. General Obligations of Parties.
§ 2-302. Unconscionable contract or Clause.
§ 2-303. Allocation or Division of Risks.
§ 2-304. Price Payable in Money, Goods, Realty, or Otherwise.
§ 2-305. Open Price Term.
§ 2-306. Output, Requirements and Exclusive Dealings.
§ 2-307. Delivery in Single Lot or Several Lots.
§ 2-308. Absence of Specified Place for Delivery.
§ 2-309. Absence of Specific Time Provisions; Notice of Termination.
§ 2-310. Open Time for Payment or Running of Credit; Authority to Ship Under Reservation.
§ 2-311. Options and Cooperation Respecting Performance.
§ 2-312. Warranty of Title and Against Infringement; Buyer's Obligation Against Infringement.
§ 2-313. Express Warranties by Affirmation, Promise, Description, Sample.
§ 2-314. Implied Warranty: Merchantability; Usage of Trade.
§ 2-315. Implied Warranty: Fitness for Particular Purpose.
§ 2-316. Exclusion or Modification of Warranties.
§ 2-317. Cumulation and Conflict of Warranties Express or Implied.
§ 2-318. Third Party Beneficiaries of Warranties Express or Implied.
§ 2-319. F.O.B. and F.A.S. Terms.
§ 2-320. C.I.F. and C. & F. Terms.
§ 2-321. C.I.F. or C. & F.: "Net Landed Weights"; "Payment on Arrival"; Warranty of Condition on Arrival.
§ 2-322. Delivery "Ex-Ship".
§ 2-323. Form of Bill of Lading Required in Overseas Shipment; "Overseas".
§ 2-324. "No Arrival, No sale" Term.
§ 2-325. "Letter of Credit" Term; "Confirmed Credit".
§ 2-326. Sale on Approval and Sale or Return; Consignment Sales and Rights of Creditors.
§ 2-327. Special Incidents of Sale on Approval and Sale or Return.
§ 2-328. Sale by Auction.

PART 4. TITLE, CREDITORS AND GOOD FAITH PURCHASERS

§ 2-401. Passing of Title; Reservation for Security; Limited Application of This Section.
§ 2-402. Rights of Seller's Creditors Against Sold Goods.
§ 2-403. Power to Transfer; Good Faith Purchase of Goods; "Entrusting".

PART 5. PERFORMANCE

§ 2-501. Insurable Interest in Goods; Manner of Identification of Goods.
§ 2-502. Buyer's Right to Goods on Seller's Insolvency.
§ 2-503. Manner of Seller's Tender of Delivery.
§ 2-504. Shipment by Seller.
§ 2-505. Seller's Shipment Under Reservation.
§ 2-506. Rights of Financing agency.
§ 2-507. Effect of Seller's Tender; Delivery on Condition.
§ 2-508. Cure by Seller of Improper Tender or Delivery; Replacement.
§ 2-509. Risk of Loss in the Absence of Breach.
§ 2-510. Effect of Breach on Risk of Loss.
§ 2-511. Tender of Payment by Buyer; Payment by Check.
§ 2-512. Payment by Buyer Before Inspection.
§ 2-513. Buyer's Right to Inspection of Goods.
§ 2-514. When Documents Deliverable on Acceptance; When on Payment.
§ 2-515. Preserving Evidence of Goods in Dispute.

PART 6. BREACH, REPUDIATION AND EXCUSE

§ 2-601. Buyer's Rights on Improper Delivery.
§ 2-602. Manner and Effect of Rightful Rejection.
§ 2-603. Merchant Buyer's Duties as to Rightfully Rejected Goods.
§ 2-604. Buyer's Options as to Salvage of Rightfully Rejected Goods.
§ 2-605. Waiver of Buyer's Objections by Failure to Particularize.
§ 2-606. What Constitutes Acceptance of Goods.
§ 2-607. Effect of Acceptance; Notice of Breach; Burden of Establishing Breach After Acceptance; Notice of Claim or Litigation to Person Answerable Over.
§ 2-608. Revocation of Acceptance in Whole or in Part.
§ 2-609. Right to Adequate Assurance of Performance.
§ 2-610. Anticipatory Repudiation.
§ 2-611. Retraction of Anticipatory Repudiation.
§ 2-612. "Installment contract"; Breach.
§ 2-613. Casualty to Identified Goods.
§ 2-614. Substituted Performance.
§ 2-615. Excuse by Failure of Presupposed Conditions.
§ 2-616. Procedure on Notice Claiming Excuse.

PART 7. REMEDIES

§ 2-701. Remedies for Breach of Collateral contracts Not Impaired.
§ 2-702. Seller's Remedies on Discovery of Buyer's Insolvency.
§ 2-703. Seller's Remedies in General.
§ 2-704. Seller's Right to Identify Goods to the Contract Notwithstanding Breach or to Salvage Unfinished Goods.
§ 2-705. Seller's Stoppage of Delivery in Transit or Otherwise.
§ 2-706. Seller's Resale Including Contract for Resale.
§ 2-707. "Person in the Position of a Seller".
§ 2-708. Seller's Damages for Non-acceptance or Repudiation.
§ 2-709. Action for the Price.
§ 2-710. Seller's Incidental Damages.
§ 2-711. Buyer's Remedies in General; Buyer's Security Interest in Rejected Goods.
§ 2-712. "Cover"; Buyer's Procurement of Substitute Goods.
§ 2-713. Buyer's Damages for Non-delivery or Repudiation.
§ 2-714. Buyer's Damages for Breach in Regard to Accepted Goods.
§ 2-715. Buyer's Incidental and Consequential Damages.
§ 2-716. Buyer's Right to Specific Performance or Replevin.
§ 2-717. Deduction of Damages From the Price.
§ 2-718. Liquidation or Limitation of Damages; Deposits.
§ 2-719. Contractual Modification or Limitation of Remedy.
§ 2-720. Effect of "Cancellation" or "Rescission" on Claims for Antecedent Breach.
§ 2-721. Remedies for Fraud.
§ 2-722. Who Can Sue Third Parties for Injury to Goods.
§ 2-723. Proof of Market Price: Time and Place.
§ 2-724. Admissibility of Market Quotations.
§ 2-725. Statute of Limitations in Contracts for Sale.










REPEALER OF U.C.C. - ARTICLE 6 - BULK TRANSFERS and [REVISED] U.C.C. - ARTICLE 6 - BULK SALES (1989)




ALTERNATIVE A

§ 1. Repeal.
§ 2. Amendment.
§ 3. Amendment.
§ 4. Savings Clause. 

ALTERNATIVE B

PART 1. SUBJECT MATTER AND DEFINITIONS

§ 6-101. Short Title.

§ 6-102. Definitions and Index of Definitions.

§ 6-103. Applicability of Article..
§ 6-104. Obligations of Buyer.
§ 6-105. Notice to Claimants.
§ 6-106. Schedule of Distribution.
§ 6-107. Liability for Noncompliance.
§ 6-108. Bulk Sales by Auction; Bulk Sales Conducted by Liquidator.
§ 6-109. What Constitutes Filing; Duties of Filing Officer; Information From Filing Officer.
§ 6-110. Limitation of Actions.




§ 6-102. Definitions and Index of Definitions.




(1) In this Article, unless the context otherwise requires:

(a) "Assets" means the inventory that is the subject of a bulk sale and any tangible and intangible personal property used or held for use primarily in, or arising from, the seller's business and sold in connection with that inventory, but the term does not include:

(i) fixtures (Section 9-102(a)(41)) other than readily removable factory and office machines;

(ii) the lessee's interest in a lease of real property; or

(iii) property to the extent it is generally exempt from creditor process under nonbankruptcy law.

(b) "Auctioneer" means a person whom the seller engages to direct, conduct, control, or be responsible for a sale by auction.

(c) "Bulk sale" means:

(i) in the case of a sale by auction or a sale or series of sales conducted by a liquidator on the seller's behalf, a sale or series of sales not in the ordinary course of the seller's business of more than half of the seller's inventory, as measured by value on the date of the bulk-sale agreement, if on that date the auctioneer or liquidator has notice, or after reasonable inquiry would have had notice, that the seller will not continue to operate the same or a similar kind of business after the sale or series of sales; and

(ii) in all other cases, a sale not in the ordinary course of the seller's business of more than half the seller's inventory, as measured by value on the date of the bulk-sale agreement, if on that date the buyer has notice, or after reasonable inquiry would have had notice, that the seller will not continue to operate the same or a similar kind of business after the sale.

(d) "Claim" means a right to payment from the seller, whether or not the right is reduced to judgment, liquidated, fixed, matured, disputed, secured, legal, or equitable. The term includes costs of collection and attorney's fees only to the extent that the laws of this state permit the holder of the claim to recover them in an action against the obligor.

(e) "Claimant" means a person holding a claim incurred in the seller's business other than:

(i) an unsecured and unmatured claim for employment compensation and benefits, including commissions and vacation, severance, and sick-leave pay;

(ii) a claim for injury to an individual or to property, or for breach of warranty, unless:

(A) a right of action for the claim has accrued;

(B) the claim has been asserted against the seller; and

(C) the seller knows the identity of the person asserting the claim and the basis upon which the person has asserted it; and

(States To Select One Alternative)

ALTERNATIVE A

[(iii) a claim for taxes owing to a governmental unit.]

ALTERNATIVE B

[(iii) a claim for taxes owing to a governmental unit, if:

(A) a statute governing the enforcement of the claim permits or requires notice of the bulk sale to be given to the governmental unit in a manner other than by compliance with the requirements of this Article; and

(B) notice is given in accordance with the statute.]

(f) "Creditor" means a claimant or other person holding a claim.

(g) (i) "Date of the bulk sale" means:

(A) if the sale is by auction or is conducted by a liquidator on the seller's behalf, the date on which more than ten percent of the net proceeds is paid to or for the benefit of the seller; and

(B) in all other cases, the later of the date on which:

(I) more than ten percent of the net contract price is paid to or for the benefit of the seller; or

(II) more than ten percent of the assets, as measured by value, are transferred to the buyer.

(ii) For purposes of this subsection:

(A) Delivery of a negotiable instrument (Section 3-104(1) [sic]) to or for the benefit of the seller in exchange for assets constitutes payment of the contract price pro tanto;

(B) To the extent that the contract price is deposited in an escrow, the contract price is paid to or for the benefit of the seller when the seller acquires the unconditional right to receive the deposit or when the deposit is delivered to the seller or for the benefit of the seller, whichever is earlier; and

(C) An asset is transferred when a person holding an unsecured claim can no longer obtain through judicial proceedings rights to the asset that are superior to those of the buyer arising as a result of the bulk sale. A person holding an unsecured claim can obtain those superior rights to a tangible asset at least until the buyer has an unconditional right, under the bulk-sale agreement, to possess the asset, and a person holding an unsecured claim can obtain those superior rights to an intangible asset at least until the buyer has an unconditional right, under the bulk-sale agreement, to use the asset.

(h) "Date of the bulk-sale agreement" means:

(i) in the case of a sale by auction or conducted by a liquidator (subsection (c)(i)), the date on which the seller engages the auctioneer or liquidator; and

(ii) in all other cases, the date on which a bulk-sale agreement becomes enforceable between the buyer and the seller.

(i) "Debt" means liability on a claim.

(j) "Liquidator" means a person who is regularly engaged in the business of disposing of assets for businesses contemplating liquidation or dissolution.

(k) "Net contract price" means the new consideration the buyer is obligated to pay for the assets less:

(i) the amount of any proceeds of the sale of an asset, to the extent the proceeds are applied in partial or total satisfaction of a debt secured by the asset; and

(ii) the amount of any debt to the extent it is secured by a security interest or lien that is enforceable against the asset before and after it has been sold to a buyer. If a debt is secured by an asset and other property of the seller, the amount of the debt secured by a security interest or lien that is enforceable against the asset is determined by multiplying the debt by a fraction, the numerator of which is the value of the new consideration for the asset on the date of the bulk sale and the denominator of which is the value of all property securing the debt on the date of the bulk sale.

(l) "Net proceeds" means the new consideration received for assets sold at a sale by auction or a sale conducted by a liquidator on the seller's behalf less:

(i) commissions and reasonable expenses of the sale;

(ii) the amount of any proceeds of the sale of an asset, to the extent the proceeds are applied in partial or total satisfaction of a debt secured by the asset; and

(iii) the amount of any debt to the extent it is secured by a security interest or lien that is enforceable against the asset before and after it has been sold to a buyer. If a debt is secured by an asset and other property of the seller, the amount of the debt secured by a security interest or lien that is enforceable against the asset is determined by multiplying the debt by a fraction, the numerator of which is the value of the new consideration for the asset on the date of the bulk sale and the denominator of which is the value of all property securing the debt on the date of the bulk sale.

(m) A sale is "in the ordinary course of the seller's business" if the sale comports with usual or customary practices in the kind of business in which the seller is engaged or with the seller's own usual or customary practices.

(n) "United States" includes its territories and possessions and the Commonwealth of Puerto Rico.

(o) "Value" means fair market value.

(p) "Verified" means signed and sworn to or affirmed.

(2) The following definitions in other Articles apply to this Article:

(a) "Buyer." Section 2-103(1)(a).

(b) "Equipment." Section 9-102(a)(33).

(c) "Inventory." Section 9-102(a)(48).

(d) "Sale." Section 2-106(1).

(e) "Seller." Section 2-103(1)(d).

(3) In addition, Article 1 contains general definitions and principles of construction and interpretation applicable throughout this Article.



















































Second:
Gandi and the Law of Human Biology;  Health.   Nature can’t be fooled.







Third:
Negotiate for Grades:




  What kind of contract should we make between the teacher and students?

   Can’t this be part of “the class constitution?” 




PART:  BEFORE CLASS   CLASS DAY LECTURE NOTES

THere is another aspect of “human law” which I need to note for purposes of understanding it.







Law; and the study of law; and this includes constitutions and so on (i.e. Statutes, judicial opinions, executive orders, treaties, corporate by-laws, private contracts, tribal customs) is out there.  We all know it.  You see it.  you see gravity make stuff fall. You see water drop downhill. You see babies are born. People (and cats) die. You see what happens. And you realized things are constrained to certain ways of being.







What you have to remember is when we study law in the abstract;  law in the doing;  law as experienced when doing law (lawsuits, making laws, trying to return things at a store) is subject to the fact that the law of humans is administered by a class or segment of humanity.  Lawyers for example are a certain “group.”   To some extent the group controls “the law.”  Our law is supposed to be written so that even if members of the group dislike you; the law itself will constrain them and prevent them from not giving you due respect; even though they would treat you improperly if left to their animal selves.  




This then is called “the rule of law” (as opposed to the rule of man... tyranny is a kind of rule of man if its a despotic king or prince.)   The Rule of law is difficult to understand in theory.  And to make it all happen fairly in actual concrete practice is extremely challenging.







This however is what our legal system is.




Its very difficult to have it work so that it does “fairness.”  Most of the time it will feel like “the powerful get ahead;  the timid and weak get stepped on.”   This is just an aspect of nature.  We all will die long before human society becomes good and right from the point of view of individuals.  




Good (the example of kill five or one due to the out of control bus) and Right (we have not discussed rights too much; but you all have a feeling about whether something is correct or in error) in the end are weak guides for understanding human Rule-of-law.  You can read versions of how our constitution was formed in a book called THE FEDERALIST written by James Madison and maybe it was John Adams and... Thomas Jefferson maybe? I don’t know. 




What I know is in the modern era; the effort to explain “law” (human law) in terms of utility (good) and social contract (right) has given way to the idea that both are flawed platforms; and instead law is explained as what it is in “the liberal state.”  (the process in other words is explained.  The substance of law plays out each day.  Impossible to write about in specific detail.  What you can explain however is how the system is supposed to proceed.  




In this way we get way past ‘natural’ reaction things.  Natural reaction evolves and solidifies into theological systems.  (Ten Commandments for example)   







But religion really does not explain how a secular (state) legal system functions.   And morals really don’t either.







But “liberal theory” sort of does start to get at “how things get done in legal systems.”  People tend to focus on “what should happen.”   But profound legal thinking does not focus on “what” as much as “how it can happen.”










____







IN any case:  today’s class is as follows (I say to avoid the criticism or observation that I speak in circles.




PURPOSE:  - the point here is to get everyone to realize what law is beyond what you learn from watching TV




     To do that we supposed “law” and then we supposed “human law...  for example ‘the constitution.”     To understand the nature of “human law”   we thought about things that happen.   I.e. killing... the state’s response to killing, what you can eat to survive if you are very hungry,  and what you must do in a contractual situation where things don’t happen as people supposed they would.




                   We know that when you look at law you realize social law developed to help settle fights people engaged in.   (anti feud measures...  the court emerged to calm down feud.) 




   But HOW DOES IT ALL HAPPEN?   You won’t know by reading the things written in books.  What is the feeling and what is the experience that led to those words on paper?




        To see;   we will put to people under our light.   Last week Sanja and James and then Evancha showed you.  They did not settle the case of the delivery of the nonconforming fruit.  Its clear that society is helped if problems people have get worked out.   Its obviously a problem if people start to kill each other.   Its also bad if everyone with a problem runs to court to get someone (a judge) to approve of their theory of a problematic event.  Its best if people see the problem and work it out themselves.




            If we were a legislature writing laws;   could we write some laws on a piece of paper which would help people settle cases?     We watch Sanja and Evancha... fail to resolve the problem.    What can we write on the paper to encourage the settlement of this case and other cases like it?





If we can write this then we are a legislature; making laws;    This is in fact what legislatures do. They study problems and then they write laws.  The constitution was written this way;  all laws are.







I think you will see that it is not easy to put things on the paper which will lead to the result we want.   













One man who was a lawyer;  who helped to bring about a certain result many people wanted was Mohandes K Ghandi.  Here is a photo of him.  He protested against denial of rights.   He was a civil rights lawyer.  What are rights?    




Rights are very much like the idea of “good.”  Rights are the urges inside of us.  The idea is; if we can get to gether and figure out what rights are important;  we can create laws which protect those rights.  Our natural right, John Locke says;  




is “liberty







in a state of nature we are in a state of liberty.  The problem of course is so is everyone else.  And in a state of nature you have absolute right to do what you want.  This includes killing people.




So here is what happens.  We find ourselves banding together;  making “agreements” about what curtailments; limits (constraints) can be put on the liberty of our nature.  




This is called “social contract.”




This is what a constitution is.







The constitution specifies certain “rights.”   People tend to think in popular settings that “rights” means...  limitless freedom with regard to  the thing. The right being described.  Actually its more like a limit on what people otherwise naturally will do.




Rights tend to be zones of action people can engage in without being interfered with by the government.




These are rights.   The rights are there because the people who made the laws chose to put them there.







(there are other ways to think about this.  Social contract theories are not the only way.   Utility theory (The idea five will die rather than one)  is about good. What is the greatest good is what is good for the greatest number of people.  The problem here is that if a great number of people think something is good... its not always true.  For example;  if there are 10,000,000 jewish people and 1000,0000000   german people;   even if the german people decide to kill all the jews;  this is not a good idea (at least from the point of view of a jewish person.)




(sometimes what people say is “good”  is not acceptable.)




Consequently; to see Law in terms of “goodness” became objectionable. (the criteria is too vague.)    John Stewart Mill was one philosopher who tried to save “Utilitarianism” from this criticism.  He argued that of all the “goods” the only real good that is worth thinking about for purposes of law is the good of liberty.   In this sense “goodness as the measure” theory argues that the highest or best “good” is always “liberty.”  And then it becomes a matter of adjusting which actions people take are going to be treated this way or that.   This like all philosophy is hopeless useless for doing practical law doing;  except that to realize that this is what is going on with law doing if you look at it from a distance.   People really are obsessed with “goodness” and they really are obsessed with “rightness.”  But to say just what happens in difficult circumstances by appeal to “good” or “right” really is impossible.   So we end up having those things there; but not used to guide what happens.













So;  what do we do to guide what happens?   (we don’t think so deeply is what.)  We don’t think; we just do;  people who think and talk to much about it all (Socrates) are put to death.)







And now here we are again;    at the point of “how to do we write a constitution?”   And we looked at Evancha and James and Sanja and what we found out is they really don’t see how to settle up the problems of commerce.







So now we looked at our blank piece of paper.  What to write on it?




we don’t know; (so I’ve given you on the blog Lesson Five copies of THE UNIFORM COMMERCIAL CODE...  words on paper that are applied to situations of commerce.










Lets see if we can start to write a constitution ourselves.  A law for just us.










Lets talk about Grades;    lets discuss them;  And write down stuff about them.

















































As a result of today;  along with the previous four weeks;  you all should (unless you object and argue persuasively why my idea is stupid)  be able to discuss seriously (explain in a way that holds someone’s interest)  




LAW




OUR CONSTITUTION 







the role of indivdual judgment about goodness in moral views of problems.







the role of rightness, distinct from goodness, in people’s view of legal response to human life (and its problems.)










The exam would look something like this:










1.   LAW IS

      a.   an entertaining TV show about California

      b.   a stimulating TV show about the FBI behavioral analysis unit

      c.  constraint that limits the course of happenings

      d.  the same in all human cultures just the way water always slides down hill







2.   our CONSTITUTION is

     a.   captured on digital reprint for all to see

     b.   an absusrd example of absuive government power especially in terms of human freedom

     c.   the legal outline for the federal government of the United States

     d.   written by men and women in the late 1700s after the revolutionary war and later            amended.




3.   When deciding what laws to make and how to administer them to different situations an appeal to what is “good for most people is an example of:

       a.  utility theory

       b.  social contract theory

      c.   liberal justice in the state theory

      d.   the basis of representative government




4.     The presidential debate shows an example of “social contract” rightness in our liberal     democratic capitolistic republic in that

    a.   we have agreed that our law will be carried out by elected people who we trust to include  in their actions what we the people want;  because if we voted them in, it means they do what we want.

    b.   the elections are created by reason of our constitution; which itself manifests the agreement of members of the “constitutional convention” as to what our law, to be right, must include.

    c.   it is not;  the people running are confused or ignorant about what our constitutional system is; and we can only hope our constitution was so strongly written that their egotistical claims about it won’t destroy us all.

    d.   because we impliedly agree that we will be bound by law; and the laws we hold to be binding are underscored by our constitution; and the people running are given the opportunity to do so because the constitution creates the opportunity;  what they do is necessarily good and proper.







5.     to be continued.