Slave Codes

Haven't blogged yet but I've got to start somewhere...so here I go.  Just some random thoughts as I finish up case study 1.   North Carolina was one of the states with codes and restrictions that were less harsh than other states, although the codes still seemed to be quite restrictive.  All these questions we have been pondering about agency and could slaves be considered an agent,  looking at it from a cut and dry prospective, without involving philosophy, it could be said that there was no way slaves could be considered anything but a piece of property.  But since this course is about looking at things philosophically and looking past what is just there in writing and trying to figure out what it all means, I guess I should start thinking more like a philosopher and blog more.  

Natural Law, Holmes. By Tosin Onibiyo

As confusing as this chapter was for me, I was still able to grasp a few things Holmes was trying to verbalize here. Holmes' definition of the truth was "the system of my (intellectual) limitations, what gives it objectivity is the fact that I find my fellow man to a greater or less extent (never wholly) subject to the same Can't Helps." In addition, the truth to him "was the majority vote of a nation that could lick all others," "property, friendship, and truth have a common root in time." I believe here, Holmes is laying a foundation for natural law which is 'the truth.' Under his definition of "truth" as mentioned above; as that which is useful or helpful now and here, it is beyond any lawyer's ability; as it is actually beyond the ability of anyone to point to the constitutional truth of things.

 Holmes believes "It is true that beliefs and wishes have a transcendental basis in the sense that their foundation is arbitrary." He gave an arbitrary example of human wishing to live, and to be able to do so, humans are oblige to eat and drink to stay alive. Holmes understanding of legal realism and purposes shows his relationship to the natural law and natural traditions. The society and the law to Holmes are always in a flux. 

In conclusion, this chapter on Natural law displays nothing more than a dominant opinion. Here, Holmes lays the foundation for a judicial support and seeking out of such dominant opinion, and, simultaneously, judicial adversity towards the "weaker" opinions or entities that emerges not to support the strength and growth of the social organism.

Leviathan, by Thomas Hobbes. Chapter 16; Of Persons, Authors, and Things Personated. By Tosin Onibiyo.

 Chapter 16 of Leviathan; Hobbes started with the description of a person as "He whose words or actions are considered, either as his own, or as representing the words or actions of another man....by fiction." When a man's actions are of his, then he is a natural/original person, but when his actions or words are of another, then he is considered artificial according to Hobbes. Reading along, he focuses more on what impersonation of another is: "to personate is to act or represent himself or another; and he that acteth another is said to bear his person, or act in his name." He gave example of where Cicero was personating three persons; himself, his adversary and the judge's. In addition to Hobbes analysis here, the person personating another is the actor who acted by authority or license of whom owneth the act, and the owner of the actions or words is the author. Furthermore, he emphasized on the convenant an actor and the author are both bonded by, and the consequences connected to each. When "children, fools and madmen that have no use of reason" are personate by "guardians, or curators" he said, they "can be no authors during that time of any action done by them, longer than (when they shall recover the use of reason)." Which in other word means when fools, mad people or children are being represented by guardians or curators, they cannot be authors because children, fools or madmen have got no sense of thinking whatsoever. They only do as they want without any reasoning behind it. He also indicated that "The true God may be Personated." As Moses, Jesus and the Holy Spirit did being that they came representing God and not as of themselves. Finally, he analyzed multitude of men in the odd and even number aspect, their representations, opinions, interests and consequences. He concluded describing the two types of authors; first, person that owns the action of another 'simply' and the second, a person that owns an action or convenant of another 'conditionally.' Which brings me to the conclusion of Hobbes chapter 16 analysis of the persons, authors, actors and personations. 

The Theory of Legal Interpretation - Holmes. By Tosin Onibiyo

Reading into the theory of legal interpretation, I discovered that Holmes is trying to elaborate on how a theory of "any document purpoting to be serious and to have some legal effect has one meaning and no other, because the known object is to achieve some definite result." He further explains how it is also true every word definitely have different meanings to them and how you have to be able to use each meaning of a word in the right context of any given sentences to establish and portray the true meaning of what scenario it is being displayed. And since words in every case can be translated into different languages and meanings just by ordinary man as (Holmes have said; "Even the whole document is found to have a certain play in the joints when its words are translated into things by Parol evidence, as they have to be.") There should be a normal English speaker for such words in every case. "Thereupon we ask, not what this man meant, but what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used." Why? Because the normal speaker of English is a "special variety... A literary form... An external to the particular writer... And a reference to him as the criterion is simply another instance of the externality of the law." In other words, the Normal English speaker will interpret things just exactly in the circumstances they were displayed and not otherwise. 

Furthermore, he uses the theory of our language (which he believes to mean one thing and no other, be it a person's name or thing) to express "contract". Saying "there is no contract when the proper name used by one party means one ship, and that used by the other means another. The mere difference of intent as such is immaterial." And in cases of contracts, according to Holmes, the wishes of two adversaries are expressed and not one. And if by any chance, the two meant two separate things and not expressing on one mind, "the latter course not only would greatly enhance the difficulty of enforcing contracts against losing parties, but would run against a plain principle of justice." He also uses the cases of statute and will to secure his argument about contract and how contracts should have definite meaning and not to have two or more meaning during legal interpretation process. 

In conclusion, Holmes theory here for example reminds me of the United State Constitution and what the framers actually intended when they all came together. Since the establishment of constitution, it has definitely struck up so much conflicts in the pasts and now and that is why our only choice is to get them interpreted by the Justices of the Court (Judicial branch of the Country) so as to reduce conflicts in our society. And more surprisingly, even Justices have different meanings to the Constitution and have decided multiple cases differently based on the same Amendments, Articles or sessions of the Constitution due to multiple meanings to each word. As a matter of fact, I believe the United States Justices have deviated so much from the actual intent of the framers due this same issue. So Holmes argument is supported by me; it would be much easier if one word in the legal world can actually have a definite meaning and interpretation to it instead of  two or more. 

Holmes: The Theory of Legal Interpretation (By Martin Marquez Jr.)

In the Theory of Legal Interpretations, Holmes spends his time addressing what he calls the "theory of construction." Externality of the Law appears to be the largest issue with interpretation. Holmes makes reference to the "normal speaker of english"and claims that the law is interpreted accordingly. The idea may appear to be of some validity but then Holmes disects and addresses the obvious issues of what class or peoples can be deemed the "normal speaker(s) of english"? or what if the contract or law is written by higher level intellectuals, such as most laws and contracts are, how then do we interpret or choose whose interpretation of the writings will be deemed as correct? With that, Holmes states "But the normal speaker of English is merely a special variety... he is external to the particular writer...a reference to him ...is simply another instance of the externality of the law."It would appear that Holmes is stating that it is in a way, the majority or common interpretation at the time that will take precedence, rather than Constitutional dictation. The main focus of contracts should be to exemplify the intended agreement between persons. Holmes believes that rather then striving to discover the initial and actual intension of a contract, Judges, like most people tend to take the contract through their own interpretations, and in turn create a whole separate contract through misinterpretation.  

Moving further into Holmes's writing, he brings up the dubious tendencies of actual language and the clairvoyance of theoretical language. Actual language leaves multiple interpretations to words, phrases and whole sentences. Theoretical language functions much more within contextual interpretation and even though two things may be written or said exactly the same, the situation or even way they are said can cause difference in their intention. Essentially, it appears that Holmes holds language and its opaque   nature responsible for a large part of legal interpretation issues.

According to Holmes, the way people address contracts and statutes should be done so in a separate manor. Holmes states "In the case of a statute... it would be possible to say that we are dealing with the commands of the sovereign the only thing to do is to find out what the sovereign wants." It would appear that Holmes believes the only way to write and interpret a statute is by understanding exactly what the intention of it is because it will effect all of those, even those who are not directly involved in its creation. People have a common misconception and take statutes at their face value and do not attempt to find out what exactly it was created for and what its actual intended purpose is, which is what we do not do. To simplify, we act as a literal society, taking things for their literal meanings, rather than for their intended purpose(s).

Path of Law (Holmes) by Tosin Onibiyo

From the first few pages into studying the path of law (Going to be breaking the pages down most likely like this to get full and better summary of what I am summarizing), Holmes talked about the reason why Law is a profession in the society today; which he explained as "in societies like ours the command of the public force is intrusted to the judges in certain cases, and the whole power of the state will be put forth, if necessary, to carry out their judgments and decrees." 

He further explains how law has become a business because the society will do Anything to figure out what they battling against. All in all, Holmes concluded saying prediction is where it all lies. 

Furthermore, he discusses the oracle of law processes: "from a lawyer's statement of a case, eliminating as it does all the dramatic elements with which his client's story has clothed it, and retaining only the facts of legal import, up to the final analyses and abstract universals of theoretic jurisprudence" (Page 991). Here, he explained how the lawyer deals with his client after making a contract with each other, and how the lawyer "hid" his client from the public force so as to not let the public into the private situation and jeopardize the whole case. 

Reading more from this chapter, Holmes tend to describe between morality and law. He said "if you want to know law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience" (P 993). In addition, he explains how law talks about duties, rights, intents of things. And when explaining about morality, he demonstrated it as the law being full of "phraseology drawn from morals, and by the mere force of language continually invites us to pass from one domain to the other without perceiving it, as we are sure to do unless we have the boundary constantly before our minds" .... (To be continued)