Legal Fictions vs Law

(I can’t sleep, so posting this hoping I can clear my head and rest)

Colbert may of nailed this one remarkably well here.

The current argument is, in the case of the Supra-Constitutional status of universal gay marriage being legal everywhere in the US, is clearly false. In the US Republic, in order for something to be referred to as legal, that was once illegal, there needs to be a existing law on the books somewhere, or a constitutional right declared. In a few states, this has occurred, and therefore in a few states, it exists as law, so it can be thus argued only in these jurisdictions, its legal. Other states, the majority in fact, were very firm in their stances no. They were obliged to recognize marriage licences from other states, but that’s it.

Colbert points to corporations as people. That was a legal fiction introduced by a medieval English court to get around the issue of suing corporations, that had limited liability clauses where individuals could not be sued, and the rules of the court that stated only people could bring cases against other people. They came up with a legal fiction, saying corporations were people, and could be sued. This was back in the era when the right to combat still existed (still technically exists in the US, as it was never used or outlawed here… we never had need to abolish it, the British only got rid of it after the revolutionary war, as some asshole declared his right to combat in court to the shock of everyone).

Homosexuality isn’t a listed protected group. Its a clear legal fiction… but its a legal fiction not based on a law, but constitutional amendment.

Last night, I looked into thus, and found the UK has created mechanisms for avoiding applying legal fictions to overcome actual laws:

Now, let’s play Devil’s Advocate, and in doing so accept the supreme court ruling that gays are a constitutional class of people deserving of special rights over and above others… protected groups can file charges they are discriminated against for characteristics X, Y, Z. Its very difficult, for example, for a white guy to sue for being discriminated against by white employers, even if technically he us due to Affirmative Action Laws, but a black person can in reverse… therefore, a black person, as a member of a group, has more rights, and therefore is more human before the law, as the law recognizes his unequal access to more protections. Gays magically have this ability now, which will undoubtly shift sooner or later (or attempts at least, hopefully it will fail, as most don’t gave any employment issues. I’ve already brought up how transexuals are discriminated by gays in Sad Francisco job markets) to inclusion under Affirmative Action.

If some of the people on this forum, many if whom strongly oppose the underlining idea that Corporations Are People, and push for clauses like the British rulings above, what happens to Colbert’s incredibly insightful observance? The law remains the law… still to this day, in West Virginian lawbooks, we have printed in our law books laws against witchcraft and communists. In pencil next to them, someone was nice enough to write in “don’t in force these laws anymore”. Still very much on the books. You strip people’s freedom of speech, freedom of assembly, and first amendment rights in a constitutional convention… which can legally be done (I by no means advocate it) these laws become fully valid once again. Why? Still on our books, still our code. People treat it like junk DNA.

Now, also still very much on the books… Gay Marriage is illegal most everywhere in the US. This is the actual state of the law. Corporations as people is very ancient… US more or less adopted it when the US agreed to continue the common law tradition, but occasionally these rules get tossed or are reexamined, and judges suddenly realize they don’t serve at the King’s leisure, but are judges in a Constitutional Republic, and perhaps judicial presidents in case law shouldn’t step all over the intent of laws, or supercede them.

Playing devil’s advocate, in support of Gay Marriage, given its a legal fiction… how would the US go about in the courts recognizing that Corporations as People is indeed a legal fiction, and recognize the intent of the law superceeds the rights of corporations, while likewise preserving the legal fiction that gays are a special class protected by the 14th amendment, even though it clearly does not.

Its a constitutional paradox, and limits our range of motion to fight against the idea that Corporations are People. I really can’t point to any laws passed since the revolution that specifically states they are. If they do exist, just how far do they state it (so we can determine their human hood) or is it just a reference to a assumption already inherited from antiquity? Its as much a force in our law here in the US as in England, but the English only examined this post revolution, and didn’t centralize it’s court system till much later under the Judicature Acts:

The underlining issue with Legal Fictions is just this, courts won’t officially recognize its a legal fiction, at least in the beginning, as its a hot button issue… its absolutely necessary to act like it was absolutely normal and right to act so. I’m sure back in the 13th century, people asked if a corporation had a right to challenge a prosecuter in combat, or his champion (unfair fight, a whole corporation against one knight, however skilled and armored), or a Catholic Friar questioning if corporations have souls, and if they should be baptised and pay the tithe to the church, or be regarded as Jews or Heathens under the law.

This does produce numerous paradoxes. How can one advocate for the legal fiction of Gay Marriage, under the 14th Admendment, while arguing in a court for the removal of an aspect of a legal fiction of corporations that has for whatever reason found itself superior to the laws of the state? Could the British observance work in preserving the former while suppressing the latter?

Furthermore, what prevents this legal fiction… gays qualifying as a distinct group, from being applied to other made up groups? An example being, can people with tattoes become a protected group? Can nudists? Are we violating Nudists rights for free association? Pedophiles? Can people with remains of Siamese Twins (such as a tumor with a few teeth and hair that squeals when you poke it and shares kidneys and blood with you, but nothing else) get out of death sentences pointing out their attached twin suddenly is a person being unfairly sentenced?

We can make shit up left and right. Induce new categories of personhood to infinity. I’ll declare myself a woman, take a single hormone injection that does next to nothing in and of itself the first time around, and will sue for being discriminated against, cause women don’t get promited in company X. Its a bullshit recognition, and sure the hell wasn’t the intentions of anyone originally to do this post-civil war or during women’s emancipation.

At the same time, we can’t be setting precedent, punishing people for not warping their status through loopholes in declaration. We will reach a point where everyone will be a legal fiction, we will all become Pacific Islander Transexuals who also are Amish (to avoid the Obamacare Tax) and all live in our primary residence mist of the year… A van, also known as a Class B motor Home, registered in the state of Florida, to avoid paying state income tax in Illinois, New York, and California, and only “occasionally” use houses and apartments in those states for entertaining guests. There will just be one White Guy living in Des Moines who didn’t catch on, and us getting reamed by the courts left and right and being taken care of by everyone, while all the other “White Guys”, AKA the female pacific islanders, will curse him out for historical injustices inflicted upon their people!

That’s when Marty and the Professor visits in their Time Machine, looks around, and says “WTF”.

We are well into that WTF point.

Honestly… try hard here, reach down deep inside… find a argument you can present to a judge, such as reinstating Senator McCain’s Campaign Finance Reforms, in a way that supposes law superceeds rights granted by courts via Legal Fictions in this case, but doesn’t come to negate the Legal Fiction around gay marriage, that they are a independent group in their own right, and furthermore, how this will stop a group, such as Tee-Shirt and Short Wearers, to sue banks for not hiring them, or Nudist being arrested, denying their constitutional rights to free association. These are likewise groups of people who differ from the rest of the population save for a volitional matter in choice, had they been otherwise in their choices (compliance with the law) they would of been like everyone else.

In the case of Blacks, being black wasn’t their choice. They couldn’t choose to stop being black. Same for women. So for Asians. Foreign immigrants are born foreign, but can choose to become naturalized, then citizens… and gain additional rights. People from poor neighborhoods, like me, can choose not to commit crimes (I’m one of only two guts not to be sent to prison in my age group of males here growing up. They tried, but failed… didn’t do anything wrong, represented myself in court).

I honestly don’t see how we can do it. If you support gay marriage, but abhor Corporations being people, nothing short of a constitutional amendment at this point is possible, and that’s no guarantee the courts won’t just build another legal fiction to bring it right back out of defiance.

For all extents and purposes, as far as your outlook goes, its over. We know a law can’t superceed legal fictions in the US, but in the UK it can. Any argument is DEAD ON ARRIVAL as far as your concerned. That’s the paradox inherent now in our legal system.

I’m gonna go now and baptise Walmart. See you all later. (hopefully I can sleep)

Hey Turd,

An impressive essay. Hope you got some well deserved rest after writing it. You’ve given me some food for thought.

i intend to read it again when i have more time and, at least for once, try to come up with something intelligent to say in response to you.

But before i do, as a point of clarification, are you saying that my embrace of the legal fiction(s) used to determine the right to gay marriage also obligates me in some way to embrace the legal fiction of corporate personhood?

All laws are legal fictions built around social and cultural ideals that have nothing to do with reality as a whole.

Sorry for the late reply, I got a massive side project chewing away at my attention.

No… I don’t expect ANYONE to be moved in their personal morality, in regards to the law. Take Joker, law says one thing, and culture another, and it may even largely line up, but joker says another, and the end result is either lame (a happy ending contrary to his expectations, which will be a inconclusive anti-climax of increasing physical ease till he dies a happy old man surrounded by family) or tragically.

But none the less, even the supreme court and courts in general are highly conservative in their revolutions, and I suspect the principle of semblence will stick when this sticking point comes up (admittedly they have overturned their decisions before).

Why do I presume this? The reasoning will be through Semblence/ Stare decisis

Its basically where a court, even if the judge previously outright admits the ruling of a higher court is wrong, sticks to the wrong ruling in his new case, in order to give stability and predictability to the law. So if a court rules bankruptcy laws actually deal with agricultural regulations on farms, however absurd that is to a lower court judge, many lower court judges will give in and in force it as that, exasperated. This isn’t actually law, persay, just a principle courts use, and every judge playing from the angle of Pro-Gay marriage will swear up and down it makes absolute sense, nothing wrong, clearly in the 14th… not because it is, they know full well its legitimacy now more or less rests on stare decisis, but because they need others to believe it too. Dissenting judges will most likely all back it too, for the same if thus and constitutional stability. They see a bigger picture, and know just how bad things can get… look at the political factions that popped up with the federal circuit courts under Obama, a lot of illegal stuff was pushed through, party factions decided it on the Supreme Court level, the judges more or less are viewing it as any more resistance will lead to anarchy/collapse of the judiciary. I do too. Its hardly averted, its coming.

Protecting the self-image of the court from a third person perspective matters, in the same way a compulsive liar has to protect their self image from everyone. But once it is done, and attention has been drawn elsewhere, it falls into your basic legal mechanism category… every time a issue popping up around gay marriage appears (and I promise you, it will for decades, from family courts to our international treatises dealing with child custody), in order to enforce this decision… that isn’t actually on our books (unless the judge is lucky and its from a state that did approve gay marriage) the judge will have to remember that it IS a legal fiction and expand on it. It will hit obvious contradictions, as Gays aren’t a involuntary group, such as (males or females), or a race (White or Black) or nationality. You can argue its genetic or hormonal, but the opposition lawyers will blast that out of the water guaranteed enough times, short of a major scientific breakthrough, that fake, synthetic barriers on what constitutes discrimination against type.

A example: A hate crime against gays… Obviously illegal, and the hate finds the homosexuality as disgusting. They targeted it. You can get it wrong, chain a heterosexual metrosexual to a truck and drag him around, and it still qualifies as a hate crime. Does it make gays a absolutely distinct group as say, black people? No.

A Black person goes to get a house, is rejected because he is blatantly black… not just the skin, but the hair, clothing, slang, jewelry.

Gay person goes to get a house, but is rejected (minus skin here, as gay isn’t race or sex or ethnicity) because of the slang, hair, clothing, jewelry.

Gay gay goes to sue, discovers landlord is gay too, he just hates the slang, hairstyle, clothing, and jewelry and doesn’t want a troublesome Tennant who picks such aweful clothing.

There is no involuntary category on the part of the gay guy suing. So what does this mean under equal protection? Means the judgment will have to be dished out in a way that abides by precedent, by adding new requirements to determine what gay “is”. You don’t have to do this for Races, Or Sexes (usually, Trixie might provide a hurdle) or ethnicities, or nationalities. You look at them, its obvious, if need be, documentation.

So where is the national gay registry? We don’t have one, anymore than the Prussians had a National Jew registry to tell who was and wasn’t Jews (most so deeply integrated into Germany bloodlines its impossible to tell by looking), they had to resort to pinning yellow stars to them. Obviously, not the direction to take for us.

So something will increasingly be used (undoubtedly in use already in parts), until the entire legal understanding of what gay is comes to rest. It will come to rest on logic of some sort, that can be demonstrated in court. If they don’t, every category is exploitable, and the courts will quickly discover like, 90% of the country can claim to be gay in workplace disputes, they were pulled over for being gay, housing authority mistreated them cause they were gay, etc. Every good defense lawyer will make a beeline for this defence, if it works to their favor, as it can be literally anyone.

Similar issues with other legal fictions, but they have the advantage of being at times 500+ years old, and have most of their idiosyncratic issues hammered out, but they pop up from time to time.

An example being, The Corporations as People. Chimps are potentially people (are in some countries). Terrain in some countries have status. The Question of AI. Clones. Nationality of corporations that are all over the place. Polygamy.

Polygamy ISNT currently a legal fiction, its plain as day, just illegal… but there are groups in several countries pushing hard for its adoption under religious freedoms for Mormon, Unitarian, Hindu, and Islamic purposes. Its likely to be legalised soon here, given the speed of the gay marriage. But say Machines with high AI levels… blantanly self aware and intelligent, get status too? They want to marry. Few of us would say no at that point, super smart computer wants a vote, pay taxes, marry, own property, start a business, etc… fine, whatever.

Is a machine a sole proprietor, or a LLC, because its individual parts make it a machine, or many machines? If its networked to another machine in marriage, if that a sole propriotership? I dunno… let’s say machine one is the computer core of Apple, and machine two is the computer core of Microsoft, do they have a constitutional right to marry without breaking our Anti-Monopoly laws?

All kinds of crazy shit can happen in our very lifetimes with all these various ad hoc manufactured levels of personhood. If we outlaw AIs and computers from legal human status, what happens to people who keep needing cybernetic implants due to organ failure, including parts of their brain and nervous system? Are they informed one day they had one surgery too many according to criteria by the 3rd district court laid down in regards to cybernetic implants given to dogs 30 years earliest, which tried to make sense of a case 15 years earlier involving a clash of legal fictions, and more clashes? All over a string of fake laws going back to the middle ages no one voted on, just some judge made up? Other judges expanded on?

Yeah… bunch of crazy cases, but that illustrates my point… we are in that era of breakthrough clashes and unintended consequences in our logic derived from case precedent. Aspects of that will enter our system piecemeal, in odd order, over time, much in our lifetime.

My sticking issue is, if semblence overrides law in the US now, whereas in the UK its the other way around, how does the court decide which semblence overrides which one, when they inevitably contradict?

Some sort of formal hierarchy will be formed I assume, on a system of social ethical priorities I can’t predict, no clue. What is progressive politics today isn’t going to be progressive politics tomorrow, and some of the theories underlining these rules are going to be made by political theorists in grade school right now.

Before this era hits, our current stage, I think were gonna hit deadlocks. Democracy is out the window, democracy has apparently no say in legal fictions.We tried, some states even went so far as to outlaw gay marriage AFTER the courts started legalizing it, the legal fiction overruled the law. So for bow, I presume there will be parity between legal fictions. Corporations are people, with increasing rights. People are people, but some have hereditary rights greater under the, such as minorities (unless your minirity is white, like in Hawaii, in which case your still wrong) or sexes, or nationality. Now its volitional group associations, such as gays. Courts have been leery on bringing in the apes, its been tried a few times, but you know eventually they will get accepted too. That is where we are in the present. Oh yeah, non-national refugees, big issue in international law, and the US does like its treatises. We even have legal right categories for people here illegally.

If you press against a legal fiction in one area of personhood, it sets a precedent that will cause a flood in the other directions. Schizophrenics afraid of hospitalization have rights… massive homelessness, deranged people everywhere, instead if hospitalized people with partial rights. Why? Good reasons, but bad… but best of luck going after the bad reasons, other categories of people have those categories too.

If you go after corporate personhood, its going to occur to people in the gay rights community they can quickly loose everything if the wrong kind of logic is used. There will be a irrational, unnatural alliance that will come off as rather comedic. Supreme Court will eventually take it, solve it… but it won’t be solved, as new kinds of people will keep popping up, as well as abuses of logic.

I really don’t know how this gets solved. How do you judge the worth of a legal fiction to another? Its a game if shadows, one that shouldn’t exist in a democratic republic for the people, and by the people, a republic ruled by laws, and not men. Right now, its 9 men making sweeping judgments they aren’t in a position to comprehend the not so long term repercussions of.

I can’t wait till a Naval Carrier with a advanced AI requests citizenship and rank, they immigrates to China. Or I find out I’m being sued by a intelligently augmented Dog for wrongful death because I hit his unaugmented stupid offspring he had with some stray with my car.

Sorry for my own much-later-than-yours reply. Lately, circumstances are conspiring to soak my time.

So just regarding the basic thrust of your OP, which i generally appreciate and agree with (i’ll try to respond to some of your specific statements as time permits), i should say that i nonetheless lean in Joker’s direction on this one, at least in terms of my initial intuitions. Laws are basically all made up, thus “legal fiction” is redundant. Even if the definition of a legal fiction intrinsically involves there being no specific precedent, there is also no escaping the fact that if you go back far enough, there are no precedents for any law or legal concept that aren’t similarly made up. This relates in a significant way to “rights” as well, which are essentially legal fictions par excellance (as the frogs would say). No government means no rights, or at least no rights in any practical or reliable sense.

So our constitutional rights are just some stuff some white males revolutionaries thought up 2 centuries ago. Sure, there were all kinds of precedents and precursors for many of the specific rights, but they still just decided on the ones they most liked and wrote them down. Thus, given my belief that the constitution is necessarily a living document, there is no reason to my mind why it can’t be read in such a way that gays can marry one another but corporations cannot contribute unlimited amounts of money to political candidates. i don’t think the people who wrote the constitution were much concerned with either topic, so any constitutional conclusions we come to regarding them are necessarily re-interpretations made in the face of changing social circumstances, but i also think i understand the principles on which the constitution was founded pretty well, and i see nothing rationally contradictory or blatantly unconstitutional about a nation where, as i said, gays are allowed to marry one another but corporations are NOT allowed to donate unlimited amounts of money to political candidates.

Not to my mind. But it will obviously depend on who you ask. i think a lot of conservatives are presently looking around and going “WTF” because . . . let’s say . . . they are having a lot of their assumptions about society challenged. That is, given the overall direction of politics the last 7 or 8 years. These things are totally cyclical though. Maybe Scott Walker will be our next president, Obamacare will be repealed and the five justices who voted in favor of the gay marriage ruling will be recalled. It could happen. Then it will be the Democrats’ turn to look around and ask WTF. But i’m pretty confident most of the WTFing happening as a result of the gay marriage ruling will be gone in a couple years as West Virginians and South Carolinians and the rest realize that not much actually changes as a result. IOW, the WTFs right now are hysterics and will be proven to be as much as time wears on.