Rule of Law and English Legal System (PART I: Abstract; Introduction; Rule of Law like Universal Principle)

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ABSTRACT

Although few changes and additions have been done, this writing reports studies made in 2005/2006.

Even though the writer believes that:

1)       a corpus of legal values should be written inside each Constitution;

2)       and Judges, Lawyers and People, have the duty to defend those values against the tendency of Power to go beyond them; …

… the study affirms that the principium of Rule of Law (and/or Supremacy of Law) does not include a corpus of legal principles (and/or values) inside itself, as somebody affirmed.

The principium of Supremacy of Law means “only”: the SUPREMACY of LAW ABOVE the POWER.

It was a Revolution, when Power believed to be above the Law. It happened, exempli gratia, in France during the Ancient Regime. Sovereigns, Nobles and whoever had some kind of Power, believed to be above the Law. They were used to act above Law. Viola P. (1994) gave an example of this. He reported an anecdote happened between the Duke of Orleans and the King of France. When the Duke of Orleans said to the King: “Majesty, but it is illegal!”, the king answered: “No, It is legal because I will”.

The principium of Supremacy of the Law had the aim to end these kinds of Legal Systems. It states that everyone is under the Law. Sovereigns, Nobles, Bureaucrats, Banks and Financial Powers, are all under the Law. In other words, they have to comply with the Law. If they do not, they are an Arbitrary Power. The latter is a Power that: either, it is not given by a Law; or, it is used without following the right procedures, which bind the exercise of that power. As Power tends to go beyond its limitations, there is Arbitrary Power also inside our modern Legal Systems. The principium of Supremacy of Law, hence, is still frequently violated. It is proved by some recent events happened inside the European Union and Institutions. For example, when the President of Euro-group decided to exclude Greece, Varoufakis told him to be illegal (as the Duke of Orleans told to the King of France during the Ancient Regime). So, Varoufakis asked for a legal advice. The lawyers and bureaucrats of the European Union answered him that the President of Euro-group could act as he/she wants. This is as the Euro-group does not exist for the Law!! Hence, they argued: the Euro-group is above the Law!!!!! In other words, the European Union answered like the King of France during the Ancient Regime. But, if the Euro-group does not exist, the Euro-group is not above the Law. Actually, all the Powers, Decisions and Acts, of the Euro-group are illegal, unlawful, illegitimate. This is told by the principium of Supremacy of Law. On the contrary, the European Union is a New Ancient Regime. Nothing more! Nothing less!

So, how is it possible that the principium of Supremacy of Law is still violated, nowadays?

This is as the principium of Supremacy of Law was reduced by Power to be a simulacre a là Bauderillard (1981).  Power makes people forget its true meaning. It was done with a very easy game. A new set of meanings were put inside Supremacy of Law. All of them were pleasant, agreeable and fashionable, principles. But, they were also void principles as much as they were pleasant. At the end, people have forgotten the real meaning of Supremacy of Law. Power started again to act above the Law a là Ancient Regime!!

Warning: the style is sometimes ironical, satirical, metaphorical. Nevertheless, contents and facts are real, rigorous, scientific and academic.

INTRODUCTION

Rule of Law’s True Meaning

The principle of Rule of Law is also called Supremacy of the Law. Rule of Law is a principle of Formal Validity. It states that Law is above the Power. In other words, it is the basic principle of any modern Legal System, after the French Ancient Regime!

The Supremacy of Law affirms that Kings (Presidents; Governments; Constitutional Bodies; Judges; Courts; Authorities; Committees; Groups; Bureaucrats; Financial Powers; Banks; etc…) are under the Law. Their actions and decisions are legitimate only, and only if: both, the Law gives them that kind of power; and, they use that power following the right procedures.

Otherwise, Power is unlawful, illicit and illegitimate.

Their commands should not be in force.

In this latter case, people are NOT bind by Power’s decisions. People have the RIGHT to resist and to fight against those illegalities, illegitimacies and unlawfulness. 

Unfortunately, Power does NOT like to be bound. As a result, the principium of Supremacy of Law was reduced to be a simulacre a là Bauderillard (1981).

First of all, Supremacy of Law was called with a “less evocative” name: Rule of Law.

Then, Rule of Law was defined with new pleasant and agreeable principles. At the question: “what is the Rule of Law?”, lawyers started to give any possible answer. So, the clear, basic and simple, principium of Supremacy of Law became a void and nebulous concept.

At the end, People and lawyers started to forget its real meaning.

Meanwhile, Power started again to act above the Law.

For instance, the writer will give some examples that happened at the University of Cambridge. They are very useful to understand what it is happening nowadays. What people learn in the Universities, people do in the World!! Although the writer decided to speak about it with a satirical and ironical style, the facts are true.

Rule of Law like Simulacre

As we told supra[1], the principle of Rule of Law is the principium of Supremacy of Law above the Power. This is its very Nature. This is its DEEP REALITY.

However, images, in the flow of the time, tend to lose their meanings. Step by step, they become void concepts that: either, mask their deep realities; or, lose any relation with them.

According to Bauderillard J. (1981), they become Simulacres. Once they are Simulacres, they are void concepts that can be filled with any arbitrary meaning, which Power[2] wants. In this way, Justice is reduced to be nothing more than “the interest of the most Powerful onea là Trasimacus.

They are a “mobile army of metaphors” ready to prostituting itself to any pro tempore Power. As History and Social Sciences teach, the Winners and the Establishment (Lyotard, 1983) decide what it is true and false. This is as Power and Knowledge are the “two faces of the same coin” (Foucault). Changes into Power’s relations become changes into Paradigm’s beliefs. Changes into Paradigm’s beliefs become changes into Power’s relations.

Thus, we should keep in mind this basic truth, when we study any Social Sciences’ constructs. Actually, it does not matter if they are about: Law; Psychology; Economy; Finance; etc… .

Law and Sensemaking

As the principium of Supremacy of Law was reduced to be a simulacre, Power can use it like a Horse of Troy to put in and put out from the Legal System whatever it wants.

This makes Law be applied in a very discriminative way. Law will have different meanings for different people.  For the majority of people, Law will be an instrument of “slavery” in Power’s hands. For a small elitist group, Law will be always a Declaration of Rights in defense of their own liberties and interests.

English Legal History, behind what propaganda says, it is not an exception. Whereas at Bentham’s time, the common law was used to defend the privilege of aristocracy above common people; nowadays, Law is used to defends the interests of financial powers above Peoples and Nations.

Thus, the writings of Bentham should be still considered a current issue.

According to the Bentham, English tradition is committed to “save the appearance” with a lot of rites and false beliefs. Lawyers’ writings, instead of reviling those trickeries, mask them[3].

Whereas English Lawyers / Judges claim to apply simply “neutral” Law (Universal Principles; Acts of the Parliament; etc…), they make always arbitrary (discretional and political) choices. They use their power to defend the privilege of the Establishment against common people.

The American Realism clarified that Judges do NOT apply neutrally the Law. Judges create and change the Law in each case. They do (always) political choices. Also Perelman demonstrated this. He gave some good historical examples of how, the same Law got very different interpretations and applications. The latters followed the pro tempore political ideas. This is possible for different reasons. But, an army of Troy’s Horses makes it far much easier.

The allegories of the Classical Literature are still very useful for understanding the present time. A Horse of Troy does not need to be necessary physical!! It could be everything, even a theoretical concept.

Thanks to them, the Establishment can use Law (as well as: Psychology; Economics; etc…) to lead people: both, to do; and, to believe; … what they want. Weick’s studies about sensemaking and enactment are very useful for understanding these dynamics. They should not be limited for approaching the working contexts inside the Companies.

All in all

There are two wrong views. The first one, nothing can be known (Post-modernism). The second one, everything is true. Both of them reduce Truth and Justice to be whatever Power wants. They allow Power to control people with sensemaking. But, sensemaking has nothing to do with Truth and/or Justice. Sensemaking is just Power’s manifestation.

This is what it is happening inside the Social Sciences (Legal System; Psychological constructs; Finance; etc…).

As Nietzsche wrote: “This world is the will to power — and nothing besides! And you yourselves are also this will to power — and nothing besides!” (Nietzsche, Will to Power).

RULE OF LAW

Rule of Law “is an ambiguous expression” that can have different meanings for different writers (Hood Phillips O. and Jackson P., 1987).

Hence, a clarification of the concept (advised by analytical jurisprudence and philosophy) is indispensable, at the present tense.

In absence, we could just enhance entropy. Everyone will speak about different things, using same words.

At the present time, there is no agreement among lawyers about the nature of Rule of Law. Lawyers, Judges and Academics, defined Rule of Law differently. Moreover, Rule of Law presents different conceptualizations: both, among the legal Traditions and Systems; and, inside the each legal Tradition and System (such as: English Common Law; Canadian Legal System[4]; etc…).

For instance, according to American constitutionalism: “the rule of law promises predictability in social life by placing constitutional limits on the kinds of power that governments may legitimately exercise, as well as on the extent of those governmental powers” (Shapiro I., 1994). Otherwise, this cannot be true for Countries such as: Australia. Australian Constitution simply regulates the exercise of the sovereignty. It does not state any legal principle and/or value able to lead and to bind the Power. Hence, Rule of Law is a mere principle of formal validity (like Hart’s rules of recognition) for those Nations with an “amoral constitution”. Everything is valid, if the Power acted under the Law.

American conceptualization of Rule of Law has its foundation in a written constitution. This is ontologically constituted by two corpora (parts). The first corpus gathers the regulations about the exercise of sovereignty (exempli gratia, the relation among the Constitutional Bodies). The second corpus gathers a set of political and legal principles that bind the actions of Sovereignty. This latter was the hard core of the Social Contract. So, if the Sovereignty acts against those values, each Judge can refuse to apply those Acts and/or commands.

Law rules Nations only, and only if, each person (it does not matter his/her social strata) can “win” the Sovereignty each time the Sovereignty acts above the Law. But, this must happen in a substantial way. It is not enough that it exists only theoretically speaking.

Rule of Law has also another aim: to prevent any kind of despotism, also that one of the pro tempore Majority above the Minorities. But, this could happen only, and only if, Nations are ruled by constitutional principles (Schwartz B. 1955).

Allan (1993) considered this point inside English Discourse. He recognized that “… the problem lies (in) the difficulty of articulating a coherent doctrine which resists a purely formal conception of legality – according to which even brutal decrees of a dictator, if formally “valid”, meet the requirements of the rule of law – without instead propounding a complete political and social philosophy”. Allan (1993) confirmed that Rule of Law, inside English constitutionalism, looked like a secondary rule of Hart, as: “rule of law is able to distinguish between commands of a legitimate government from those of anyone else”.

Allan (1993) stated that it is “very doubtful whether it is possible to formulate a theory of rule of law of universal validity”.

On the contrary, the present writer affirms that it is possible. It is enough to exit from the Babel Tower. It is enough to go back to the original and real meaning of Rule of Law: Supremacy of Law above the Power.

Nevertheless, Allan (1993) affirmed that Rule of Law is a living part of the English Constitution. It is able: both, to bear some legal moral values and principles; and, to bind the sovereignty of the parliament. But, Allan is hugely wrong. According to English Constitutionalism, Westminster Parliament has no limit (Barendt,1998). In other words, “there is no legal limit to what the “Queen – in – Parliament” can enact in a statute” (Wilson, 1979).

This is historically well proved.

Rule of Law like Universal Principle of any Legal System

The present writer disagrees with Allan. He believes that it is possible to formulate a theory of Rule of Law of Universal Validity. It is enough to remember its original and deep meaning. Rule of Law is the principium of Supremacy of Law. This principium states the SUPREMACY of LAW ABOVE the POWER.

It was a Revolution when Power believed to be above Law. It happened, exempli gratia, in France during the Ancient Regime. Sovereigns, Nobles and whoever had some kind of Power, believed to be above Law. They were used to act above Law. Viola P. (1994) gave an example of this. He reported an anecdote happened between the Duke of Orleans and the King of France. When the Duke of Orleans said to the King: “Majesty, but it is illegal!”, the king answered: “No, It is legal because I will”.

The principium of Supremacy of the Law had the aim to end these kinds of Legal Systems. It states that everyone is under the Law. Sovereigns, Nobles, Judges, Courts, Bureaucrats, Officers, Banks and Financial Powers, are all under the Law. In other word, they have to comply with the Law. If they do not, they are an Arbitrary Power. The latter is a Power that: either, it is not given by a Law; or, it is used without following the right procedures, which bind the exercise of that power. As Power tends to go beyond its limitations, there is Arbitrary Power also inside our modern Legal Systems. The principium of Supremacy of Law, hence, is still frequently violated. It is proved by some recent events happened inside the European Union and Institutions. For example, when the President of Euro-group decided to exclude Greece, Varoufakis told him to be illegal (as the Duke of Orleans told to the King of France during the Ancient Regime). So, Varoufakis asked for a legal advice. The lawyers and bureaucrats of the European Union answered him that the President of Euro-group could act as he/she wants. This is as the Euro-group does not exist for the Law!! Hence, they argued the Euro-group is above the Law!!!!! In other words, the European Union answered like the King of France during the Ancient Regime. But, if the Euro-group does not exist, it does not mean that it is above the Law!! Actually, it means that all the Powers, Decisions and Acts, of the Euro-group are illegal, unlawful, illegitimate. This is told by the principium of Supremacy of Law. On the contrary, the European Union is a New Ancient Regime. Nothing more! Nothing less!

So, how is it possible that the principium of Supremacy of Law is still violated, nowadays?

This is as the principium of Supremacy of Law was reduced by Power to be a simulacre a là Bauderillard (1981).  Power makes people forget its true meaning. It was done with a very easy game. A new set of meanings were put inside Supremacy of Law. All of them were pleasant, agreeable and fashionable, principles. But, they were also void principles as much as they were pleasant. At the end, we have arrived to the present time. Lawyers are lost inside nebulous concepts. Power has started again to act a là Ancient Regime.

English constitutionalism is used like example for understanding how it has happened.

[1] Supra means above in Latin.

[2] Power is used a là Foucault.

[3] Exempli gratia, Bentham wrote this about Blackstone’s books (one of his “masters”).

[4] Exempli gratia, Rule of Law has received three different approaches in Canadian Constitutionalism: rule of law like impartial administration of rule; rule of law like procedural fairness; rule of law like substantive justice (Conklin W. E. 1989).

Rule of Law and English Legal System (PART II: Dicey; Adler)

RULE OF LAW AND ENGLISH LEGAL SYSTEM

According to: Dicey (1902); Heuston (1964); the Report of the Committee on Ministers’ Powers (1932); … the Principium of the Supremacy of Law born in the Middle Ages. Then, it was challenged and questioned only during the Stuart time. Some evidences, which are usually used, are:

  1. according to M. Allen et al. (1994), the Bracton principle: “quod Rex non debet esse sub homine sed sub Deo et Lege” quoted by the King in the Prohibitions del Roy (1607);
  2. the Petition of Right (1628);
  3. the abolition of the: Court of the Star Chamber; and Privy Council’s jurisdiction in England (1641);
  4. the Glorious Revolution (1688);
  5. the Dicey’s Doctrine on Rule of Law (1885);
  6. and, the Report of the Committee on Ministers’ Powers (1932).

The work of Dicey has strongly been influential. Indeed, Dicey represents the final highest peak of the conceptualization of Rule of Law.

On the contrary, the Report of the Committee on Ministers’ Powers (1932) is an “Official Recognition”. The Report states: “The supremacy or rule of law of the Land is a recognised principle of the English Constitution”. According to the Report, it has always been a living part of English Law since the Middle Age.

Although Rule of Law have been recognized a characteristic of English Politics and Legal System since the Norman Conquest (Dicey, 1902)[1], Role of Law has always been a nebulous concept, at the end.

On one hand, everybody agrees that Rule of Law has been a fundamental principle of English Legal System. On the other hand, nobody knows what Rule of Law means!! Actually, it should be a very useful principle!!

Hence, our first Quest is to answer at the question: “What does Rule of Law mean?”

For answering at the question, the Dicey’s work should be examined.

DICEY  

Dicey (1902) affirmed Role of Law to include three different principia:

  1. The Absolute Supremacy of the Regular Law as opposed to Arbitrary Power;
  2. The Equality of every man in front of the Law. This principle includes two aspects: a) everyone has to obey to the Law; b) everyone is subordinated at ordinary tribunals’ jurisdiction;
  3. The belief that: “the law of the constitution … are not the source but the consequence of the rights of individuals, as defined and enforced by courts”.

Whereas these three principia seem “reasonable” at a first consideration, they hide plenty of trickeries and practical problems. The latters make them be: void concepts. At the end, they drop to be political slogan, propaganda and marketing! Nothing more! Nothing less! Indeed, they have been used in very different manners as History proved.

First Principle

According to Dicey, the first principle affirms: “… no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary Courts of land. In this sense the rule of law is contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint”.

This principle seems to be affirmed by Courts in different times. For instance, in Black – Clawson LTD v. Papierwerke waldhof aschaffenburg AC (1975), Diplock stated: “The acceptance of rule of law as a constitutional principle requires that a citizen, before committing himself to any course of action, should be able to know in advance what are the legal consequences that will flow from it”[2].

Although this principle appears to be plain in the English constitutionalism, it is not as plain as it can appear. Indeed, it is not possible to define clear boundaries between an arbitrary use of power and “what” it is not!

Although Dicey (1902) stated this principle to be able to limit the arbitrary power, Heuston (1964) gave contrary evidences. Heuston (1964) wrote that it is “difficult to distinguish between regular law and arbitrary power”. For instance, Law can give arbitrary power to someone. In this case, the two dimensions overlap!! Heuston (1964) presented two historical leading cases. The first one happened in 1627. The Court of King’s Bench, in Darnel’s Case, granted the King of a common law legal power to imprison anyone on suspicion without cause shown!! The second one happened in 1941. The House of Lords, in Liversidge v. Anderson, recognized the legitimacy of statutory legal power (similar to the previous) granted by the Parliament to the Home Secretary!!

As a result, Heuston (1964) affirmed that the supremacy of law simply requires that everyone (in any position) “must be prepared to justify his acts by reference to some statutory or common law power which authorises him to act precisely in the way in which he claims he can act”. Therefore, Rule of Law does NOT limit any arbitrary power[3].  It means only that power should be given by Law. Nevertheless, even this is not so plain[4]!! As I told supra (above), a nebulous concept allows to be applied in very different manners from case to case. At the end, a “different” Legal System exists for everyone! But, this is nothing, really nothing, if You compare: Law; with Psychology. Whereas the former is still bound by facts, the latter is just pure fantasy of the Psychologists!! Nowadays, the huge abuses are done, indeed, with Psychology.

On the contrary, Dicey affirmed that supremacy of law “excludes the existence even of wide discretionary authority on the part of the government”. But, English Legal History proved this to be untrue!!

According to Jennings (1943), Dicey’s ideas derived from the doctrine of laissez – faire. In other words, Dicey described his political choices rather than empirical facts about English Constitution. Jennings (1943) observed that Dicey neglected completely: both, the existing wide Discretional Powers of the Public Authorities and Government; and, the Unlimited Power of the Parliament.

“Parliament … can pass what legislation it pleases. It is not limited by any written constitution. Its powers are not only wide, but unlimited.” (Jennings I., 1943).

 Sovereignty of the Parliament Versus Rule of Law

The principium of Sovereignty of the Parliament prevails onto Rule of Law as there are not any substantial principles and/or values able to limit the former. All the attempts, which were made[5], failed.

According to Heuston (1964), the principium of Sovereignty of the Parliament was developed “almost entirely by the work of Oxford men” such as: Hobbes; Blackstone; Dicey. This principium states that: “what the parliament doth, no power on earth can undo” (Dicey, 1902).

Although Wilson (1979) recognized that Rule of Law does not limit the Sovereignty of the Parliament, he attempted to justify some limitations to Executive’s powers. But, Wilson (1979) failed in his attempt. Exempli gratia, the arguments are; contradictory; nebulous; rhetorical games. For instance, Wilson (1979) argued that the “arbitrary power … (of) the Executive is in the hands of the Parliament … If it clearly grants the Executive wide arbitrary power then the Executive has wide arbitrary power. … the principle of rule of law …justifies the principles developed by the courts that powers should only be used for the purpose for which they have been granted”[6].

What does all this mean?

It means simply: Executive should comply with the principle of formal validity; and, Courts can verify if it happened. Nothing more! Nothing less!

This is as English Law lacks a corpus of legal values and moral principles able to bind the arbitrary use of Power.

English Legal System, indeed, is quite different from Italian Legal System. In the latter, the Parliament and the Government have not arbitrary Powers. Their Powers are limited by a corpus of moral values written in the Constitution. The Constitutional Court can annul, invalidate and cancel, all those legal norms that do not comply with those constitutional principles.

In U.S.A., on the contrary, each Judge can deny application to norms (Acts and Statutes) that are in contrast with Constitution[7].

Only in these latters Nations, Rule of Law can limit the arbitrary use of Power. Indeed, Power cannot go beyond some moral limitations written in the constitution. This is as: first, Rule of Law affirms the Supremacy of Law above the Power; second, a constitutional corpus of legal values and principles binds Power.

This is not possible inside English Legal System. Although Role of Law affirms the Supremacy of Law above Power, at the end, there is not any constitutional corpus of legal values and principles able to limit Power!!

Power can be limited only, and only if:

  1. a corpus of moral values is written inside the Constitution (in other words, in the Social Contract);
  2. Courts and Jurists (lawyers) are brave and able enough to defend those values against Power’s tendency to go beyond them;
  3. There is a real division of Powers. Powers should be able to balance and limit each other.

English Legal System lacks all of them, as it is shown infra (below).

Second Principle

According to Dicey (1902), Rule of Law affirms the equality of every man in front of the Law. “Every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals”. In other words, Dicey affirmed: a) the existence of identical rules for everyone; b) the absence of special privileges. Actually, this principle is quite controversial. Alder (1989) affirmed to be a “ridiculous proposition” as Dicey’s statement has always been untrue in every time. The existence of different conditions and special privileges among people has always been part of the Very Nature of Every Government.

Moreover, if we consider the difference between formal equality and substantial equality, Dicey’s idea will be far … far …far more untrue.  The formal equality is a pleasant and agreeable declaration. But, it is void and useless as much as it is agreeable!  The substantial equality is just a Utopia. It has never ever existed in the World[8]. Exempli gratia, the article 3 of Italian Constitution affirms the formal and substantial equality among Italian Citizens. The Republic had the duty to remove any obstacle to this. Well, it is clearly evident that substantial equality does NOT exist even in Italy. So … … .

Nonetheless, Alder (1989) believes even the formal equality difficult to be realized at full circle.

Third Principle

According to Dicey (1902), the third principle is the absence of general principles. It means “… the constitution is pervaded by the rule of law on the ground that the general principles of the constitution (as for example the right to personal liberty, or the right of public meeting) are with us the result of judicial decisions determinating the rights of private persons in particular cases brought before the Courts; whereas under many foreign constitutions the security (such as it is) given to the rights of individuals results, or appears to result, from the general principles of constitution”.

According to Dicey (1902), a corpus of fundamental moral principles does not exist inside English Legal System. They are only “the consequence of the rights of individuals, as defined and enforced by the courts”.

In other words: on one side, he created a vicious circle; on the other side, he did not say anything of useful.

On one hand, indeed, everything is enforced by the Courts is Law. As a result, Courts have to enforce those individual rights defined and enforced by them(selves)!!!! (Vicious circle).

On the other hand, Courts have to enforce any act of the Parliament. In this latter case, the rights of individuals are only “what” the pro tempore Majority of the Parliament chooses they are!! Indeed, “no Parliament can bind its successors or be bound by its predecessors” (A. Beale, 1994).

The Westminster Parliament has no limit (Barendt,1998). “There is no legal limit to what the “Queen – in – Parliament” can enact in a statute” (Wilson, 1979).

All in all

Behind Dicey’s pleasant words, Rule of Law is nothing more than a principle of Formal Validity. English Legal History is clear. Dicey has attempted simply to use Rule of Law like a Horse of Troy to put inside the Legal System his political ideas.

The reason could be noble, but he chose the wrong way.  He made Rule of Law: a nebulous concept; a set of pleasant words that mask the reality. In this way, Role of Law started to be applied in different manners. It makes the Legal System to be applied differently from person to person!!

 

ALDER

John Alder (1989) criticized the Dicey’s doctrine of the Rule of Law. He wrote: “His rule of law could not therefore be regarded as a statement about what British law is necessary like. It could be either a political statement as to what the law should be like, or a statement about what the law happened to be like at the time”.

According to Adler (1989), Rule of Law is a political idea. “The majority of modern lawyers would regard the rule of law as essentially a political or moral idea, although none the less important for that, since it affects the way the law is developed and applied”.

So…, we should give a look at the political ideas of two influential English lawyers: Raz and Allan!

[1] The other English Legal System’s characteristic was: the principle of Supremacy of the “Central Government”.

Until the Glorious Revolution, the Central Government was represented by the Crown.

From the Glorious Revolution to now, the Central Government was represented the Parliament (Loveland I., 1996). This latter is composed by three organs: the Crown; the House of Lords; the House of Commons.

[2] Exempli gratia, you may see Black – Clawson LTD v. Papierwerke waldhof aschaffenburg AC (1975) in: Keir D. L. and Lawson F. H. (1979), Cases in Constitutional Law, Oxford: Oxford University Press.

[3] Exempli gratia, Entick versus Carrington (1765).

Entick sued two king’s messengers (armed with warrant of the Secretary of State for arresting him) for: having trespassed into his house and goods; and, illegitimacy of the warrant. The Secretary of the State was not able to justify the warrant’s legitimacy within any specific law. He argued that those warrants had always been issued and none complained for them!!!!!

Camden C. J. declared: “This power, so claimed by the Secretary of the State, is not supported by one single citation from any law book extant… If it is law, it will be found in our books. If it is not to be found there, it is not law” (Entick versus Carrington, 1765).

The act of the Secretary of State was “unlawful” as: it did not comply with the principle of Formal Validity.

[4] Exempli gratia, in Malone versus Metropolitan Police Commissioner (1979), Robert Megarry V-C states: “… England, it may be said, is not a country where everything is forbidden except what is expressly permitted: it is a country where everything is permitted except what it is expressly forbidden”. In this case, the tapping of telephone was lawful as “simply … there is nothing to make it unlawful”. In other words, the discretion of power was affirmed above Role of Law. This happened as: no corpora of moral values exist inside English Constitution. Thus, an arbitrary use of Power is not prevented.

The decision was appealed to the European Court of Human Right. The Court affirmed that: UK violated the article 8 of the ECHR (Malone versus United Kingdom, 1984).

[5] Exempli gratia: Dicey (1902); Raz (1977); Allan (1993).

[6] Some of these principles quoted by Wilson (1979) are: “The power should be used for the purpose for which they were given”; “The power should be exercised by the person or body by whom they were intended to be exercised”; “The authority must be free to make a genuine exercise of any discretion which has been given to it”; “The authority in exercising its power should observe any procedures which have been expressly laid down in the statute or which the courts will imply into it”.

[7] The difference is: Italian Constitutional Court eliminates the unconstitutional norm from the Legal System; American Judges (USA) can ONLY deny application to norms (Acts and Statutes) that are unconstitutional for a singular case. But, they continue to exist inside the Legal System.

[8] Nietzsche copes with the difference between substantial and formal equality (Epis L., 2015, Nietzsche on Rule of Law and Democracy).

Rule of Law and English Legal System (PART III: Raz; Allan; Law’s Mystification)

RAZ AND ALLAN (University of Oxford versus University of Cambridge)

Raz (1979) and Allan (1993) are two of the most influential Lawyers in England, at the present time. Hence, we should examine their political idea.

As Dicey did, they gave to Role of Law some different meanings. They attempted to “re-define” Rule of Law as a set of Moral and Legal Principles. But, their attempts have leaded to create a contradictory and nebulous concept, as I told supra (above).

It is not a case that: everyday legal practice has refuted what they affirmed.

Their different views are expression of the Historical Rivalry between the two Universities.

RAZ

Raz (1979) attempted to challenge the “skeptic” view.

According to Raz, “rule of law is a political ideal which a legal system may lack or may possess to a greater or lesser degree”. From this idea, some “substantial” principles can be derived by Intuition[1].

But, Raz’s theory is in contradiction with English Legal History and Legal Practice.

“All law should be prospective”. Are You sure? Do You remember “Gold Standard”? Have you heard about the University of Cambridge?

One of the principles, which Raz got by Intuition, was: “All law should be prospective …”. Whereas this principle appears to be true inside most of the Legal Traditions (exempli gratia, Italian one), it is false inside English Legal System!!

English Parliament, for example, violates this “principle” in 1931 with “gold standard”. The Government ordered to the Bank of England to not exchange Notes into Gold. Then, the Parliament: both, created an Act, which made “the paper currency inconvertible”; and, ratified all the illegal actions done by the Government and the Bank of England before the Act (Jennings I. 1959). In English Tradition, Banks and Financial Matters have always been above Law!!

Also at the University of Cambridge, this principle is not followed at all. An example is given in the Appendix[2].

“Law must be capable of guiding the behaviour of its subjects” & its Logic Inferences! 

Raz tried to infer some logical consequences from his basic Intuition: “law must be capable of guiding the behaviour of its subjects”. But, these deductions are: according to the Formal Logic, invalid; according to the Logic of Value, a rhetorical game, a sophism. Nothing more! Nothing less!

First, Raz confused the Principium of Supremacy of Law with a judgment about Law’s Nature and Aim.

Second, Raz put together some ideas that he gathered from different historical experiences. Then, he told them to be a logic consequence of his basic “Intuition”!!

Next, Raz pretended to have used Formal Logic for inferring them. But, he could not. Law is a normative language. Formal Logic can be used only within descriptive language. The Logic of Value, on the contrary, can be used with normative language. But, the latter is just Rhetoric, Sophists’ Art, for supporting some argumenta instead of some others. It does not allow inferring anything of true or valid!!

In other words, Raz forgot the Law of Hume. Yet, Hume was Scottish. So, it is normal that Oxford men do not like him!

Law of Hume; Formal Logic and Logic of Values

The Law of Hume is an important criterium of demarcation between empirical facts and not empirical facts. The Law of Hume defines the boundaries between the Realm of Formal Logic and the Realm of Logic of Values. Only in the former: both, the statements can be evaluated in terms of true and false; and, the reasonings in terms of valid and invalid. In the letter, none of them are possible.

This is as everything is just: a political choice; a game of rhetoric; a sophism; a decision made to defend some interests against others. The Logic of Value, or New Rhetoric a là Perelman, does NOT permit any control on: both, validity; and, truth; … about what it is said.

So, Raz cannot apply the formal logic within the normative language[3]!!

As a result, he put inside to Rule of Law his Political ideas.

All in all

Raz made several mistakes. They were so huge that: if students had made them, they would not have passed their exams!!

Soooo …,

… why has Raz’s theory been so influential?

It was only because he was a Lecture of the University of Oxford. Indeed, everybody, who supported his theory, was used to say: “ipse dixit”!; “ipse dixit”!; “ipse dixit”!.

INTERLUDE: OBITER DICTUM (Social Psychology; Rousseau; Hobbes)

Social Psychology is something of exhilarant. Social Psychology is one of the few disciplines that are worth to be studied in Psychology. Social Psychology shows how the Worst of Human Behaviours is not the outcome of individual dispositions and/or traits, but the results of psychosocial mechanisms such as: conformism; social pressure (Asch S. E., 1951, 1955 a, 1995 b, 1956); compliance to Authority (Milgram S., 1963, 1965, 1974; Hofling C. K. et al. 1966; Brief et al. 1991; Brief et al. 1995); groupthink (Esser J. K., 1998; Esser J. K. and Lindoerfer J. S., 1989; Moorhead G. et al. 1991); effect of mere exposition (Zajonc R., 1968); social norms (Sherif M., 1935, 1936, 1937); social identity (Zimbardo, P. G. 1972, Prison’s Experiment);  etc…; etc… .

Truly, each individual is a genius (a real GENIUS), and “endless” GOOD a là Rousseau (Emile), until he/she is NOT corrupted by society. Society “transmutes” its members in “stupid beasts” (a là Hobbes)!! If the group’s stupidity is increased, the person’s foolishness and brutality are also increased!! So …, both Rousseau and Hobbes are right. Human beings born “endless good” in their natural state as Rousseau stated. Then, society makes them become “stupid beasts” as Hobbes (and even Rousseau) argued. But, Hobbes was wrong when he suggested his Leviathan. A central power (which: decreases individual rights and liberties; and, enhances social control) creates and enhances only brutality. It will increase social conflict and violence as it produces a permanent captivity. The Global Panopticon makes this be even stronger. Indeed, Hobbes’ ideas[4] were developed in England under a Central Power. Hobbes had never known human beings in their Natural State, but he knew English people educate at the University of Oxford!! The brutal and violent human beings, who he knew, were the result of that kind of society and education. Hobbes wanted to ingratiate himself with the existing Central Power, when he wrote the Leviathan.

The groupthink, the conformism, the social pressure, the compliance to Authority, the social identity, leads people to act irrationally. Under those factors, people lose their natural and original ability to act like intelligent and moral beings.

Indeed, the Psychosocial Mechanisms tend to prevail onto Individual’s REASON and MORALITY[5]. Rarely are individuals an exception! The Academic World, indeed, is moved by those mechanisms. The same psychologists, who pretend to know them, are determined more than others by them[6]! Psychologists do not help individual freedom and determination, but social homologation. This is a fact. We should not be surprised that a recent experiment has found people to be more inclined to compliance to Authority than they were at Milgram’s time. But, this is very dangerous. As History taught and proved, all the Worst Things, which happened in the Human History, happened when the compliance to Authority prevailed onto individual reasoning and determination.

At the end, the psychosocial mechanisms have to be considered for studying any Social and Psychological Science and Construct, as they work: both, intra the experts’ group; and, infra the experts’ group. Psychosocial mechanisms are the deus ex machina.

An Example of Psychosocial Mechanisms in Legal Setting         

During a Civil hearing, a Judge invented a regulation that did not exist. He was not crazy. He wanted: both, to state his power; and, to taste the ability of lawyers to defend legality. He took the Code of Civil Procedure and he pretended to read a regulation. But, he invented one completely.

At the hearing, twenty lawyers (more or less) were present for different reasons. None of them recognized the mistake. Only one person (who was NOT a Lawyer, yet[7]) was able to recognize that the Judge was inventing the regulation! He took the Code and started to read the real one, meanwhile all the rest of the lawyers continued to believe at the inexistent regulation that the Judge invented[8]!! It was extremely amazing to see them!! After the mistake was clarified, some of the expert Lawyers continued to believe in the inexistence regulation!! Outside the Court’s room, they argued that maybe it was not on the Code, but in some other Act!?!?!?

Back to Raz

To sum up, the success of Raz’s theory cannot be explained by legal reasons. But, it can be elucidated by those psychosocial mechanisms, I told supra (above).

People believed in Raz’s theory as he was a Lecturer of the University of Oxford. It was enough for them. It was not a matter that his theory was nonsense inside the English Legal Tradition!!

PAINE VERSUS BURKE: GENERAL WILL AND HISTORICAL EXPERIENCES

English Legal System, indeed, is not based: either, on ontological principles (a là Natural Law); or, General Will (a là Paine). It is based on historical rights (a là Burke). The latters have been created by, and reflected the, pro tempore relations of Power among people and social strata / classes.

The General Will a là Paine, indeed, requests a Social Contract. In other words, the Social Contract is the Written Constitution of a Nation. Whereas most of the Modern Legal Systems are based on a Written Constitution, English Legal System is NOT.

English Legal System is, in somehow, still based on Historical Rights a là Burke. This means people’s rights: both, do not come from any eternal ontological principle; and, do not come from any social contract. But, people’s rights come from the pro tempore relations of power that are negotiated, continuously, inside the social conflict and dynamics.

For these reasons, the Westminster Parliament: both, has no limit; and, cannot be bound by its previous decisions.

It can enact what it pleases, as whatever it pleases to the Parliament represents and reflects the pro tempore rights and relations of power that have been determined by the eternal social conflict.

An example of a Legal System a là Burke.

An example of a Legal System a là Burke is given by the International Law.

After the Second World War, the International Tribunal of Nuremberg (1945) and Tokyo (1946) were created. They were an act of creation made by the Winners. These Tribunals did not comply: either, with the ongoing International Law; or, with existing eternal international principles. It was a mere act of creation, which was able to transmute the International Law: from, a Law for States a la’ Grotius; to, a Legal System that includes individuals like possible titular of rights and duties a la’ Kelsen. It was simply as: the pro tempore “most powerful” a là Trasimacus wanted it. Nothing more! Nothing less!

Before the International Tribunal of Nuremberg (1945) and Tokyo (1956), this has never happened.

For instance, after the First World War, this kind of proposal was considered impossible. France and England proposed the creation of a Tribunal for processing the German Imperator “… for supreme offence against international morality and sanctity of treaties” (Greppi E., 2001). But, according to the International Law, it was unmanageable as International Law refers only to States’ responsibilities. International law could not be applied to individuals (Orlando V., 1940).

Although the English Prime Minister Lloyd and his French colleague Clemenceau argued the existence of two legal precedencies (the cases of Luis XVI, in France; and Charles I, in England), the wisest and sagest Italian Prime Minister Orlando (an outstanding jurist) observed that both of them were a legal precedence only inside the National Law, but not inside the International Law.

They simply stated that a sovereign can be judged according to the National Law.  But, they do not say that International Law can be applied directly onto individuals, even if they are organs of the State (such as: imperator).

ALLAN

Whereas Raz started from Intuition, Allan (1993) began from the “general living idea” (which English lawyers have about Rule of Law). According to Allan, English Lawyers understand Rule of Law as “… an amalgam of standards, expectations, and aspirations”. Rule of Law “encompasses traditional ideas about individual liberty and natural justice, and, more generally, idea about the requirements of justice and fairness in relations between government and governed”.

Allan’s method was better than Raz’s method. As I explained supra (above), English Legal Tradition is not based onto ontological principles, but historical rights. Hence, Allan (who has been a finer lawyer than Raz) wanted to start from the pro tempore idea, which Lawyers had at that time, about Rule of Law.

Unfortunately, Rule of Law lost its deep meaning. What he found was a simulacre, as I explained supra (above).

Rule of Law like: Substantial and Procedural Fairness; Natural Justice; Equality; Separation of Powers … Where and When!?!? Have you ever been at the University of Cambridge?!?!?

According to Allan, Rule of Law expresses the: concept of Justice (substantial and procedural fairness); notion of Equality; Universal Suffrage; Separation of Power.

Actually, Allan failed to formulate a descriptive theory of the Rule of Law. Allan presented: either, his own Legal and Political idea about Rule of Law; or, the pro tempore more fashionable Legal and Political idea, which English Lawyers had about Rule of Law at that time.

But, Rule of Law is not what Allan said! The facts give opposite evidences.

For instance, Rule of Law does not include at all, the separation of Power.

Separation of Power and English Legal System   

Rule of Law has nothing to do with Separation of Powers.

Separation of Power is a different “subject matter” (Conklin W. E., 1989). Moreover, it is NOT a principle of English constitutionalism.

Although one of the first philosophers, who formulated the doctrine of the Separation of Power, was John Locke in the 1690; the English Constitution has never ever recognized any real division of Powers, as it was done, exempli gratia, in France and/or in U.S.A. (Fenwick, 1993).

According to Fenwick (1993), the division of Powers inside the English Constitution does not exist. There is nothing of Montesquieu’s ideas.

The “judges can create law”.

“The ministers, who are member of executive, sit as members of the House of Commons which is a legislative body”.

“Lord Chancellor is a minister as well as head of the judiciary, and it is also a member of the House of Lords in its legislative capacity”.

“The executive can effectively determinate the legislative output of Parliament, theoretically a separate body”.

On the same advice, Schwartz B. (1955) stated “in Britain the doctrine of the separation of powers today means little more than an independent judiciary”.

English constitutionalism is based on the fusion of Powers rather than their separation (Barendt E., 1998). According to Bagehot W., “the efficient secret of English … constitution may be described as the close union, the nearly complete fusion, of the executive and legislative powers”.

This is confirmed by the Report of the Committee on the Ministers’ Power (1932): “In the English constitution there is not such thing as the absolute separation of legislative, executive, and juridical power; in practice it is inevitable that they should overlap”.

This is an evidence of how everything, REAL EVERYTHING, can be put inside a simulacrum!

Universal Suffrage

Universal Suffrage is not part of Rule of Law at all. It is a political choice, a legal principle and/or value, which is completely autonomous, independent, from Rule of Law. Otherwise, the same English Legal History has confuted Universal Suffrage to be an aspect of Rule of Law!!

Equality

I have already spoken about it, when I wrote about the second principle of Dicey.

Procedural and Substantial Fairness … Does Allan remember when a Graduate Student of the Faculty of Law invoked Rule of Law at the University of Cambridge? What has it happened to …Fairness?  

Rule of Law does not include any procedural and substantial fairness as it is proved by English Legal History and Practice. On the contrary, it requests only the formal respect of the Law.

Indeed, when Rule of Law is not applied like Supremacy of the Law above Power, Rule of Law expresses the principle of Formal Validity. Nothing more! Nothing less!

But, it is more fashionable to tell people that English Legal Tradition overflow of Fairness (procedural and substantial fairness)! However, this is just political propaganda. They are empty words, behind which there is a simple principle of Formal Validity. That is all, Folks!!

Unfortunately, even this principle of Formal Validity is not respected most of the time. So, Rule of Law, at the end, loses all its meanings. Under the sermons about fairness, there is nothing.

An example of this happened at the University of Cambridge, Faculty of Law. It happened where, the best Lawyers were. It is reported in the appendix.

It shows how Rule of Law is not applied: either, like formal validity; or, procedural and substantial fairness. But, it is applied as: both, Power can do whatever it pleases; and, Authority can and must use its powers to hide its own responsibilities.

Fairness is an “inexistent” reality. It exists as long as people are forced to be silent. It exists as long as all the abuses, unlawfulness and illegalities, are hidden.

RULE OF LAW LIKE PRINCIPLE OF FORMAL VALIDITY

To sum up, Rule of Law is the less evocative name of the principium of Supremacy of the Law above the Power.

It means two basic things.

First, it affirms that any Power to be legitimate have to be: both, given by Law; and, used complying with the procedures and porpoises that Law stated.

Second, for anyone in any position, it affirms a principle of formal validity. This principle requests people to obey and to apply Law.

In other words, Rule of Law is the basic command of a Legal System.

The principium of the Sovereignty of the Parliament, on the contrary, states that Parliament is the only subject that it is above Law. This is why Parliament: both, can create and change the Law; and, cannot be bound by previous Law.

These principles are not a tautology as Raz (1977) affirmed. They are the two basic constituents of any modern Legal System. Without them, the modern Legal Systems cannot exist. Without them, only Ancient Regime and despotism exists.

I have to make a clarification.

This principle makes a distinction between two situations. In the first one, a person has some kind of power onto other persons. In the second one, there is not the former condition. In the first case, it is allowed to do only what the Law allows to do. In the second case, it is allow doing everything, except what the Law denies.

Replying to the critics about this idea of Rule of Law

Rule of Law, as I postulated, has been accused to be unable to distinguish between a despotic government and a democratic one (Turpin C., 1995; Raz 1977). These critics are unjustified and unfounded for the reasons I have explained supra (above).

Actually, Rule of Law can distinguish between a despotic government and a democratic one, only, and only if, it means Supremacy of the Law above Power. Truly, the distinction between despotic governments and democratic governments cannot be done by a concept of Rule of Law, which is reduced to be a nebulous and vague concept as some authors have done.

As I explained, it makes Rule of Law become a simulacre of its real meaning. It has two consequences: first, the attention is moved from Supremacy of Law above Power to something else; second, Rule of Law becomes a vague concept, an instrument of Legal Mystification a là Bentham. In the latter case, Rule of Law can be applied in different manners from case to case. At the end, a Despotic Government will be possible behind the appearance of a Democratic one!!

There is only one way to distingue between despotic governments and democratic governments. The democratic governments need three elements:

  1. Rule of Law applied like Supremacy of Law above Power;
  2. a corpus of fundamental principles and values written inside a Constitution (Social Contract);
  3. Judges, Lawyers and people, who are brave enough to defend those values against the tendency of Power to go beyond them.

Without these three conditions, there is only a despotic government. It could be more evident (overt) or more veiled (covert), but it remains a despotic government.

Although English constitution is “one of the first” (Boutmy E., 1891), it has not evolved into lex scripta. English Lawyers, instead of attempting to create a corpus of legal values, have tried to put some of them inside Rule of Law. But, it was the wrong choice. It leads to create vague concepts as I have told.

On one hand, according to Jeffrey Jowell (2000), some authors attempted to transform Rule of Law in a principle of institutional morality, as it was the only instrument they had to: both, limit “the abuse of power”; and, force power to be fairly exercised.

On the other hand, English lawyers love ambiguous concepts, despite lex scripta[9]. This is as: “Whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the lawgiver, to all intents and purposes, and not the person who first spoke or wrote them” (Bishop Hoadly, 1717). Ambiguous concepts give Lawyers far more power to be free to interpret Law as they like. This allows Law to be applied in very different ways from case to case, as it was argued by Bentham. It is an instrument of Legal Mystification.

LAW’S MYSTIFICATION

Bentham described five instruments for mystifying Law. But, mystification is not only a legal issue. It is a common Social and Psychological Sciences affair[10].

Bentham’s five mystification instruments

The first instrument employs descriptive instead of normative statements. This allows full arbitrary power. Those statements become: for someone, compulsory commands; for someone else, not obligatory directives.

The second instrument uses wide and void concepts. They can be interpreted, from time to time, from person to person, as one likes.

The third instrument applies legal simulation. They make fiction become more important than facts.

The fourth instrument engages pseudo-descriptive statements. They are in their appearance descriptive, but they tend to lead people: conducts; and, beliefs.

The fifth instrument involves pseudo-technique language. It makes the discourse be incomprehensible for profane people.

Rule of Law and Legal Mystification

Rule of Law had its own clear meaning. It expressed the principium of the Supremacy of the Law above the Power.  Then, it was made a nebulous and void concept.

In this way, its original meaning has been weakened. So, it has become an instrument of mystification since it began to be a nebulous concept.

Exempli gratia.

From one hand, people believe to live in a Legal System based on: procedural and substantial fairness; equality; and plenty of other noble principles.

On the other hand, they do not simply “exist”! They are NOT for everyone! They are applied in very different manners from case to case.

_____________________________________________________________

[1] Intuition seems to be a characteristic of the University of Oxford’s actual Jurisprudence. Also Finnis, indeed, based all his work about Natural Law and Natural Rights on Intuition!

[2] See Appendix, Does “Rule of Law” mean that “All law should be prospective” a là Raz? NO, NO, NO, and still NO! Rarely have I seen a desperate case as You are! … But … wait a moment. Who is Raz? Here at Cambridge, we have never ever heard about Him. Here at Cambridge, we do not say that name!

[3] There is only one case where it is possible. The structure of the sentence is a syllogism. The main assumption is given by the Legal Norms.  The second assumption is given by the Facts. The conclusion is given by the logic consequence between these two assumptionsYet, this syllogism tells only: the formal structure of the sentence is logic. It does NOT tell anything (at all) about the content of the two assumptions. Both of them can be false and untrue. Thus, a logic conclusion can be made by false/invalid assumptions.

[4] Exempli gratia : Homo Homini Lupus est; Bellum omnium contra omnes ; etc… .

[5] The present writer studied plenty of these phenomena mainly among: Psychologists; Legal and Academic Contexts; Neighbour’s relations; Group’s dynamics.

[6] Actually, psychologists are the worst of all. They are so obsessed to appear normal, that they tend always to:

  • comply with Authority’s Requests (it does not matter how much they are illegitimate, illegal and/or amoral);
  • Homologate them(selves) to the groupthink;
  • Etc… .

They consider mentally ill, whoever acts outside the Normal Distribution. Thus, they enslave themselves inside the Normal Distribution they created. Then, they attempt to enslave all the rest of people inside their Normal Distribution!! At the end, they are both prisoners and gaoler of a New Tyranny: the theocracy of the idol Homologation. Like Procuste, they cut out everything they believe to be outside the standards they give!

[7] And, then who chose to not become like them!

[8] This shows how much strong social mechanisms and Authority obedience are.

People tend to follow uncriticallyAuthority; and Majority!!!!!

But, … remember the lemmings! Remember the lemmings! Remember the lemmings before following the Majority!!!!!

[9] Latin for: written Law.

[10] In particular, it is very common in Psychology. The present writer has studied plenty of cases of Mystification, which were done by Psychologists. Moreover, whereas Law is bound by facts, Psychology is not. Most of the things, psychologists say, are only their own fantasy! Psychology is only a game of interpretation. So, it is very easy for them to abuse of their power and position. See: Epis L. (2011/2015), De Nova SuperstitioneAlcune Questioni sullo Status Epistemologico della Psicologia, Psicopatologia e Psicanalisi. Published in: www.lukae.it. See page “Psychology & Epistemology – Psicologia & Epistemologia”.

Rule of Law and English Legal System (APPENDIX: A Student’s Complaint. How the University of Cambridge deals with Students’ Complaints. An Ordinary Case)

APPENDIX

If someone wants to take a real sample, of how a Legal System works; one has to go in a place, where the MOST CLEVEREST Lawyers and Criminologists are.

I went to the University of Cambridge. There, I took my sample.

At that time, the University of Cambridge was second in the World Rank. The Institute of Criminology (which is part of the Faculty of Law) was at the first place in the World Rank like Discipline.

Hence, it was a very good sample of Lawyers and Psychologists.

The FACTS are REAL, even if: they are written with satirical and ironical style; and, names are avoided.

Although the Lawyers were unable to defend and to guarantee Legality (Fairness and Individual Rights), the worst things have been done by Criminologists.

University of Cambridge and Law’s Mystification   

We are Girton, Super Girton, No one likes us but we do not care

Girton College’s song.

PROLOGUE

Up on the time …

… there was a wonderful, gorgeous and nice, Graduate Student, who went to the University of Cambridge for studying Criminology.

He wanted to learn to defend Liberty and Freedom against wicked felons. He believed, strongly and firmly, to meet the Most Honest, Brave and Upright, Peoples there, but … a capricious and unpredictable Fate wanted to show Him something else!

At that time, Fate was walking in Elysium. While Luis Velez de Guevara and Alain-Renè Lesage were arguing about a book, He met them. Fate thought to be unusual, inside that Place of Peace and Harmony, so Much Ado for Nothing! Therefore, he moved forward them. After they explained Him, the most important reasons of their right disagreement, Fate decided to read: both, the Luis Velez de Guevara’s book (El Diablo Cojuelo)[1]; and, Alain-Renè Lesage’s book (Le Diable Boiteaux)[2].

Fate found both of them so enjoyable that, after having learnt about hypocrisy, falseness and insincerity, of Spanish and French peoples, … he asked to the writers: “why don’t we give a look at English elite’s hypocrisy?”.

Both the writers, … for some forgotten historical reasons …, were so pleased and delighted at the idea, who prayed and implored Fate to make this happen!

Hence, they chose like sample, the best English Elitist University, the University of Cambridge. But, they had a disagreement about the protagonist. Luis wanted a Spanish one; Alain-Renè a French one.  Therefore, Fate decided to call another writer, William Shakespeare, for making the choice. Shakespeare said: “No English person can write like Italians do. Actually, Italians do everything better than others. I was indeed (surely not English but) Italian. My real name is Michelagnolo Florio. Hence, I choose that gorgeous, witty and ironical, Italian Student”. Michelagnolo indicated an Italian One, who was arriving at Wolfson Court (Girton College’s Graduate Accommodations) right at that moment.

Fate said: “so, we decided; so, it is; so, events will be”.

*** *** ***

METAPHORICALLY SPEAKING … AFTER “STAR WARS” A NEW SAGA: “CAMBRIDGE WARS”!!!!!

Whereas people believe University of Cambridge to be a “paradise” (which is inhabited by gentle, pure and honest, bright people), it should be also described (metaphorically speaking a là Star Wars) like a Sith’s Academy (where the Chancellor and his Senate passed to the Dark Side of the Force!!).

If I want to describe you everything, I will need the time to run a new Star Wars’ Saga.  Hence, I will be very brief. I will describe you, few of the events that become object of a legal proceeding, which is strongly connected with the principium of Supremacy of Law.

But, thanks the metaphorical language, you can understand why … one Cambridge’s Student decided to: become a Rebel; and, refuse his title and his sit at the Senate offered by the Chancellor!!

Like Master Yoda, he preferred the exile from the Empire!!!!!

This is the History of how an enjoyable Girtonian Student (who has never ever been a dissident) became Rebel against Power!!

*** *** ***

THE REAL MEANING OF “RULE OF LAW” FOR CAMBRIDGE OFFICERS AND LAWYERS

Although the Cambridge Academics and Lawyers (such as: Allan) stated “in the Public Squares and Streets” that Rule of Law encompasses ideas about: Individual Liberty; Natural Justice; Substantial and Procedural Fairness; Equality; etc…; etc…; … their real idea is another one.

They believe themselves above the Law. They believe Power above the Law. They do not apply Rule of Law: either, like a principle of Formal Validity; or, like a principle of Substantial and Procedural Fairness, etc… .

Does “Rule of Law” mean Supremacy of Law above Power? NO, of course! Are You Fool for believing this? Remember my son, … People, who disagrees with Power, are Deviant and Mentally Insane.

At the University of Cambridge, Rule of Law is NOT applied like Supremacy of Law above Power.

Some examples are here infra (below).

Example number 1: Degree Committee of Law

The Statutes and Ordinances of the University of Cambridge give to the Degree Committees some powers. The Degree Committees can exercise them, but they must respect the Law. According to the principium of Supremacy of Law, Degree Committees’ decisions are valid only, and only if, Degree Committees respect the procedures, which discipline their activity.

Well, the University of Cambridge’s Degree Committees were used to make decisions without respecting the procedures. Exempli gratia, they were used to decide without having the quorum, the legal members’ number that must be present for having a lawful deliberation!! Moreover, members were used to sit and to vote when they were in conflict of interest!! Furthermore, members were unable to see that some of the Reports, which they had to consider for their decision, were missing!! In addition, other information, which were reported, were false!!

Even the Board of Graduate Studies, which has the duty to verify the regularity of the procedures, made all its decisions: on one hand, without having most of the Reports (!!); on the other hand, using false information (!!). Some members of the Board were also in conflict of Interest. The Board was used to act above the Law.

So, we should not be surprised if even the Board, which declared to have deeply verified the regularity (!!), did NOT recognize HUGE ILLEGALITIES, which were self-evident by the same documentation they: either, received; or not received (for the missing reports!!). Actually, the Board itself created and added most of those irregularities and illegalities to hide the previous unlawfulness!!

But, they are simply very few of the irregularities and unlawfulness, which were made by the Degree Committee of Law and Board of Graduate Studies. Actually, they did not comply at all with any of the rules they had to follow and to obey!!

In other words, the Degree Committee of Law (which is composed by the most outstanding lawyers and criminologists) and the Board of Graduate Studies believed themselves to be above Law. Hence, they did not have any problem to make unlawful decisions.

Example number 2: Board of Graduate Studies

The Board of Graduate Studies of the University of Cambridge had the duty to pass the complaint, which the Graduate Student sent to the Review Committee, to the Review Committee.

The Board of Graduate Studies did NOT have any discretional power. Well, the Board of Graduate Studies refused to pass the complaint, which the Graduate Student sent to the Review Committee, to the Review Committee!!

The Board of Graduate Studies acted completely against Law. The Board of Graduate Studies believed to be above the Law.

Example number 3: Secretary of the Review Committee

The Secretary of the Review Committee of the University of Cambridge must pass to the Members of the Review Committee all the documents, complaints and grievances, which Graduate Students submit to the Review Committee. She has not any discretional power. She must simply pass the papers. Actually, It is a quite easy job.

When the Graduate Student discovered that the Board of Graduate Studies refused to pass to the Review Committee the complaint, which the Graduate Student submitted, he sent that complaint also to the Review Committee. He wanted to inform the Committee about it. Well, the Secretary of the Review Committee refused to pass to the Committee’ s members the complaint and the documents that were sent by the Graduate Student.

The Secretary of the Review Committee believed herself to be above Law. She exercised a power that she did not have. Hence, she violated the principium of the Supremacy of the Law.

 Example number 4: Administrative Secretary

The Administrative Secretary of the University of Cambridge is the Head of the Secretariat of the University of Cambridge. The Legal Office of the University is a part of the Secretariat.

When a Student submits a Formal Complaint, the Administrative Secretary must nominate the Reviewer without delaying.

Well, the Administrative Secretary was used to NOT nominate the Reviewer at all. It was a method to force students to give up with their Formal Complaints!!

The Administrative Secretary acted, more than once, against Law. He believed (and learned at Cambridge) to be above Law.

Therefore, the principium of the Supremacy of the Law was violated also in this case.      

*** *** ***

Only once, the Administrative Secretary nominated the Reviewer. This happened ONLY as the Administrative Secretary was forced to nominate the Reviewer.

First of all, The Graduate Student had to submit a Formal Complaint versus the Administrative Secretary’s abuses. Then, the Graduate Student had to submit three formal requests for opening a Disciplinary Enquiry versus the Administrative Secretary. They were sent to: the Vice-Chancellor; the Registrary; and Proctors; … of the University of Cambridge.

These requests were indispensable as the Administrative Secretary stopped the complaint versus Himself, acting: against Law; and, in conflict of interest.

Only at that point, it was decided that: the Administrative Secretary would not be charged, if he nominated the Reviewer within **/**/****.

As a result, the Administrative Secretary nominated the Reviewer in the last useful day!

But, this has been a rare exception.

Indeed, the Administrative Secretary did not nominate the Reviewers for the others complaints. He did not pass also to the Council of the University the request, which was made by the student, for receiving financial help for paying legal advices. Indeed, at that time, the University of Cambridge wanted appearing a fair place. So, it was decided that: if students had had to complain versus the University, the Council would have considered helping them to pay for the legal advice. Of course, it had never happened. The Administrative Secretary did not pass even those requests to the Council. It was just part of … VOID PROPAGANDA. Actually, after our student submitted that request, the University abolished that regulation few months later!!

This shows how Cambridge People dislike strongly and deeply the principium of Supremacy of Law!! This indicates also that: most of nice values, they tell to people, are just VOID PROPAGANDA.

Remember my son, … People, who disagrees with Power, are Deviant and Mentally Insane.

How does Power act above Law? How does Power deny people’s rights? How does Power prevent and stop people’s protests, complaints and remonstration?

At the University of Cambridge, some of the most outstanding criminologists have created and taught a very simple and easy to handle method to allow Power to eliminate whoever protests and complains against its abuses, violations and illegalities. Power can act above Law as people, who protests against it, are accused to be: both, deviant; and, mentally insane. This is as … whoever complains against Authority should be: either, “deviant”; or, “in an abnormal mental state”. Authority is always right for them!! Moreover, they believe that: deviant is whoever does not comply with Authority!! It does not matter if Authority acts illegally!! It is a pretty easy game!!

This was the only thing they “taught” to Me. Exempli gratia, when I spoke with one of them about the irregularities and a possible complaint, it was told Me: “I do not advise You to complaint against Authority. You can, but the complaint will not be considered. Listen to Me carefully. Remember, … People, who disagrees with Power, are Deviant and Mentally Insane. Only people, who are stressed, disagree with Authority”.

At the end, you shall not be surprised about what it is happening in the World, nowadays. If people receive this education, exempli gratia, at Cambridge, we will surprise to find a better World!!

Hence, what it is happening, nowadays, between European Union and Greece is about this. Power (e.g. financial power; European bureaucratic power, etc…) wants to prove that it is above Law. Power wants to prove that its interests are more valuable than human rights, people’s liberties, democracy, … . Power wants to see if it can act above Law without responding for this. European Union is acting unlawfully several times. Actually, we should exit as soon as it is possible from this kind of Union.

Does “Rule of Law” mean Substantial and Procedural Fairness as Allan teaches? NO “idiot”, of Course not! Do you really believe in Fables and Fairy-Tales that we tell to people?!?! Do you still believe in Christmas Father as someone told You that?!?!?!?

Rarely is the principium of Supremacy of Law applied at the University of Cambridge. Far more rarely is it applied like Substantial and Procedural Fairness a là Allan!!

Exempli gratia,

  1. it is NOT procedural and substantial fairness to pass to the Degree Committee of Law false information!! It was done to manipulate the decisions and actions of the Degree Committee.
  2. It is not procedural and substantial fairness to pass to the Degree Committee false letters/emails to libel (slander) students!! It was done to destroy student’s reputation among the members of the Degree Committee!! Years later, the same Degree Committee recognized that the emails were: false; and, NOT written by the student, but other person (the identity of the latter was also proved)!! It is not procedural and substantial fairness to libel and to slander students!! This was done by a Criminologist!! She, then, accused other Officers of the University to have done this!!. But, the latters did NOT. It was proved without any doubt that, who slandered and libeled, was that criminologist!! Actually, she did most of the illicitness and abuses.
  3. It is not procedural and substantial fairness to hide those false letters/emails to students!! It was done to prevent that students could prove that those emails/letters: either, were false; or, were written by others!!
  4. It is not procedural and substantial fairness to give erroneous applications to the Degree Committee for guiding its decision. Exempli gratia, it was changed the Research Proposal!! In other words, the Research Proposal, which the Student sent to the Degree Committee, was not given to the Degree Committee!!. The Degree Committee received another one, which did not have any connection with the subject !?!?!?
  5. It is not procedural and substantial fairness to omit to give some documents, which had to be given!!
  6. It is not procedural and substantial fairness to take letters and documents that are sent to other persons!!
  7. It is NOT procedural and substantial fairness to give students false information about the complaint procedures!!
  8. It is NOT procedural and substantial fairness to force students to NOT submit complaints about illegalities done by the University!!!!
  9. It is NOT procedural and substantial fairness that University Officers ask to everyone in the University to make the student give up with his complaint, instead of considering it within the right procedures!!
  10. It is NOT procedural and substantial fairness that the Secretary of the Board of Graduate Studies (who has to guarantee the respect of the regulations) asks to the Student’s Tutor to open another procedure (without informing the student) that would have stopped the complaint submitted by the student!!
  11. It is NOT procedural and substantial fairness to deny students any access to documents for: forcing them to give up with their complaints!!; preventing them any possibility to verify the regularities and/or IRREGULARITIES made by the University Officers!!
  12. It is not procedural and substantial fairness to persist in those behaviours for years!! Actually, this proves (without any doubt) the bad faith and intentionality of those people!!

Truly, the list is very long!! These are very few examples, but they are enough to prove that the principle of Rule of Law is NOT applied like a principle of procedural and substantial fairness a là Allan!!

Does “Rule of Law” mean that “All law should be prospective” a là Raz? NO, NO, NO, and still NO! Rarely have I seen a desperate case as You are! … But … wait a moment. Who is Raz? Here at Cambridge, we have never ever heard about Him. Here at Cambridge, we do not say that name!

You can wonder if the Lawyers and Officers of the University of Cambridge preferred to apply Rule of Law as Raz (a lectures of the University of Oxford) teaches!!

It seems a crazy idea, but we can verify.

According to Raz, one of the meanings of Rule of Law is: all law should be prospective.

Unfortunately, the University of Cambridge disagrees even about this!!

The Formal Complain Procedure was changed after the Formal Complaint was submitted. New regulations were applied to deal with the complaint. In other words, the University changed the “rules of game” during the “game”!!

This does not comply with Role of Law a là Raz!!

MY CHANCHELLOR! WHAT DOES “RULE OF LAW” MEAN FOR THE UNIVERSITY OF CAMBRIDGE? ANSWER: IT MEANS “POWER IS ABOVE THE LAW AND IT CAN DO WHATEVER IT WANTS”. COME WITH ME TO THE DARK SIDE OF THE FORCE, LUKE.

All in all, Lawyers, Academics and Officers, of the University of Cambridge (behind the appearance of what they tell to people) believe that Power is above Law. Power can do whatever it wants. This is what they teach with their actions.

Metaphorically speaking, it seems a Sith’s Academy, doesn’t it?

NO, MY CHANCELLOR! I REFUSE WHAT YOU ARE OFFERING ME. I DO NOT WANT YOUR TITLE , I DO NOT WANT TO BE A LIVE-MEMBER OF YOUR SENATE. THIS IS … ANOTHER SAGA!?!?

As a result, we had a Power that affirmed to be above Law.

The principium of Supremacy of Law was substantially abolished.

In this situation, One has only two choices. The first choice (the easier) is to accept the Power’s abuses. This choice reinforces and legitimates the Power to act above the Law. The second choice (the harder) is to defend the principium of Supremacy of Law against Power.

Our Graduate Student made this second choice. He chose to denunciate those illegalities. He did not study Criminology for becoming a Criminal!!

Unfortunately, during these years, he discovered that people are passive and weak. They prefer accept any power’s abuse instead of fighting for their Rights and Liberties. This allows Power to go beyond its limitations. But, peoples have the duty to defend the principium of Supremacy of Law as well as their Rights and Liberties. If they do not, they choose to live under an Arbitrary Power. If they do so, they deserve it.

But, if you choose to live under an Arbitrary Power, I will not follow You. My Loyalty is for the Supremacy of Law. My Loyalty is for the Rights and Liberties of everyone. Hence, I will choose the Exile!! I will prefer to be Alone!!

We are Girton, Super Girton, No One likes us but we do not care”.

 

[1] The book was published in 1641 at Madrid. It was written between 1636 and 1640.

The story speaks about a student, don Cleofas Leandro Perez Zambullo, who liberates a devil, who was imprisoned by an Astrologer. The Limping Devil wanted to thank you the student. Hence, he decided to show him the Truth, behind the falseness of appearances of Spanish society.

[2] This book was published in 1707 at Paris. There was a new edition with some corrections and additions in 1726.

The story is similar to Guevara’s book. There are few changes. The young Cleofas liberated a limping devil, who was imprisoned by a Magician. His name was Asmodeo. The devil wanted to thank you the young student. So, he decided to show him the Truth behind the falseness of French Society. Lasage wanted to give an account of the brutality, meanness and dishonesty, of the people, who lived in Paris at that time.  He veiled it, behind a Spanish context.

Something about Lie-Detectors

ABSTRACT

Whereas some of the English speaking Countries use Lie-Detectors, other Nations (such as the Wisest and Sagest Italy) do not! This article, very briefly, shows why Lie-Detectors should not be trusted. Exempli gratia, they could be perilous and dangerous instruments during police enquires and/or any other investigation of Truth.

In other word, Lie Detectors could not be more trustable then Medieval “Trial of Ordeal” and/or Judicium Dei!! Why? Read the article and get the answer by Yourself!

 “And after all, what is a lie? Tis but

The truth in masquerade; and I defy

Historians, heroes, lawyers, priests to put

A fact without some leaven of a lie.

The very shadow of true truth would shut

Up annals, revelations, poesy,

And prophecy …

Praised be all liars and all lies!”

Lord Byron, Don Juan

Introduction: lies and human ability to recognise them.

It is believed that abilities to recognize lies have been developed from the earliest human history. They were supposed necessary skills for human survivor (Swanson C. R., Chamelin N. C. and Territo L., 1996). Nevertheless, the homo sapiens sapiens does not seem to have succeed in this “adaptation”! Their abilities to identify lies are not higher then chance (Ekman and O’ Sullivan, 1991). Indeed, even though most people believe to be able to recognize deceiving, very few of them (independently by their professions and experiences) are able to perform better then chance (Bartol C. R. and Bartol A. M., 2004; Kraut and Poe, 1980; De Paulo and Pfeifer, 1986). In some empirical cases, data showed performances lower then chance (Porter S., Woodworth M. and Birt A. R., 2000).

Only the U. S. secret agents of Central Intelligence Agency (C.I.A.) have performed better then chance. They had a score of 64% in deceptions’ identification (Ekman P. and O’Sullivan M., 1991). In other words, they are wrong one third of the cases!! Good job (!), considering the consequences of their actions!

The ability of human beings to read the verbal and not verbal communication of the others was the first kind of lie detector. It was believed (from the Ancient Time) that: when a person lies, he/she is nervous for his/her sense of guilty. Hence, liars manifest physiological arousal and behaviours such as: looking down; avoid gazing at the eyes of accusers; moving their “big toe in circle”; getting dry their mouths (Swanson C. R., Chamelin N. C. and Territo L., 1996; Segrave K., 2004). According to Segrave (2004), Vedas have described some of these clues since Antiquity. More recent studies (from: psychology; ethology; physiology) seem to have confirmed the tendency of the human beings to express their deceiving with some verbal and not verbal signs.

Ekman, O’Sullivan, Friesen and Scherer (1991) suggest that the combination of the verbal and facial clues allowed performances of 86% in lie detector. But, this study has not been confirmed by others literature!

The failing to detect lies (using the verbal and not verbal clues) is originated, according to Vrij A. (2000), from observers’ will, as they “do not want to detect lies”. I do not believe this is the reason. I consider reason: the unreliable nature of these signs. They could be, simply, neutral expressions of emotional states that can: be originated by different sources; indicate opposite feelings. Thus, any associations between these signs and lies …: could be arbitrary; and follow observers’ expectances. Furthermore, human beings react differently each other’s. So, it is not possible to individuate behavioural patterns able to indicate lying. Evidences are given by the study of: Akehurst et. al. (1996);  Kapardis (2005). According to the latter, people are more accurate in recognition their own lying patters of behaviours rather than others.  This implies the existence of different patters of behaviour from person to person.

There are a lot of evidences about the unreliable nature of these indicators. For instance: the eye blinking, considered a deception – indicator (Kapardis, 2005; Bartol C. R. and Bartol A. M., 2004), has not been confirmed by other studies (Mehrabian, 1971). Then, the avoidance of looking at the other peolple’s eyes does not mean necessary: lying. It can also indicate politeness (e.g. staring is considered aggressive behaviour). Next, it could indicate simply: shyness; etc… .

Further, some authors (Swanson C. R., Chamelin N. C. and Territo L., 1996) consider “opening wider the eyes” like a clue of deceiving. But, this sign can, on the other hand, simply indicate: a state of surprise; and/or the wish to “see clearer” (Eibel-Eibelfeldt, 1993).

More, the higher pitch of voice, considered a good indicator for lying (Kapardis, 2005), correlates also with intimate relation (Eibl-Eibelsfeldt, 1993).

Although Vrij (2000) thinks that “some behaviour are more likely to occur when people are lying”, I believe they caused by different factors (of opposite nature) that do not allow any trustable use.

One of these opposite factors can be: both the fear of the deceiver and the fear of the innocent to be involved in an unpleasant situation (Swanson C. R. Chamelin N. C. and Territo L., 1996). This is as the emotional and physiological arousal is “the same” for every feeling.

Thus, I agree with Kapardis (2005) that human beings are not good lie detectors.

Consequently, we are going to focus on the “technological” lie detectors: voice lair detectors (psychological stress evaluator); and polygraph.

 

Technology employed in the recognition of deceiver: voice lair detectors; polygraph.

Psychological Stress Evaluator (PSE)

According with Kapardis (2005) and Bartol C. R. and Bartol A. M. (2004), Psychological Stress Evaluator (PSE) is based on some assumptions. One of these is that: physiological stress produces changes in the voice of liars. Hence, the Psychological Stress Evaluator attempts to identify low frequency changes in the voice to recognize the presence of a higher stress. The “micro-tremor in the vocal muscles” is used like indicator. Although the PSE could be employed in a wide range of application (Kapardis, 2005; Segrave K., 2004), different studies report it does not perform better then chance (Kapardis, 2005; Bartol C. R. and Bartol A. M., 2004).

The changes in the voice, indeed, are not characteristic features of lying. They follow a wide range of emotions (Lykken D. T., 1988; Eibl-Eibesfeldt I., 1993). For instance, they can be produced by: the uncomfortable feeling caused by a “particular question”; and/or by the person who makes the question; and/or by the situation itself.

In these cases, one can result “liar” even telling the truth.

Polygrap

A better instrument, with less application then PSE, is the polygraph.

The polygraph attempts to recognize those physiological changes linked with offenders’ fear to be identified like liar (Howitt D., 2002).

Many items are measured (poly = many; graph = measures). They are: respiration; heart rates; blood pressure; electro-derma response.

According to Bartol C. R. and Bartol A. M. (2004), Kapardis A. (2005), Raskin D. C. (1989) and Vrij A. (2000), there are different techniques: the relevant – irrelevant technique (R-I); the control question test (CQT); the guilty knowledge test or Information Test (GKT)[1].

Relevant – irrelevant technique (R-I)

The R-I method assumes that: the fear to be identified like liar produces more physiological responses to relevant questions then the irrelevant ones (Bartol C. R. and Bartol A. M., 2004).  This assumption does not always work. A strong emotional response (to the relevant questions) can be given by: both liars; and truthful people (Bartol C. R. and Bartol A. M., 2004; Gale A., 1988). Is can fallow “the simple fact that innocent” people are “anxious about the outcome”. So, they produce positive responses to the relevant questions (Kapardis A., 2000). Moreover, the literature indicates that R-I has not met an acceptable internal and external validity (Ruskin D. C., 1989).

Control question test (CQT)

The CQT method applies three types of questions: neutral questions; relevant questions; control questions (Bartol C. R. and Bartol A. M., 2004; Ruskin D. C., 1989; Vrij, 2000). The control questions are the key feature of this test. The physiological reactions, exhibited during the control questions[2], are confronted with subjects’ reactions exhibited during relevant questions (Ruskin D. C., 1989; Vrij A., 2000).

This method has several problems. The difficulty to construct control questions “that will elicit stronger physiological responses in the innocent than relevant question about the crime” (Bartol C. R. and Bartol A. M., 2004; Ruskin D. C., 1989; Vrij, 2000). The increase of emotional arousal in innocent subjects that can be caused by different reasons, not related to the sense of guilty (Vrij A., 2000).  The weakness of its theoretical foundation and logical rationale (Ben-Shakher G., 2002). The inadequate standardization (Ben-Shakher G., 2002). The lack of physiological responses’ objective quantification (Ben-Shakher G., 2002). The problem of contamination from not – physiological responses (Ben-Shakher G., 2002). The examinees’ belief about the infallibility of the test (Vrij A., 2000). In absence of this latter, the physiological reactions can be inappropriate to the outcome of a reliable test.

Guilty knowledge test or Information Test (GKT)

The GKT is considered one of the best methods for detecting lying (Bartol C. R. and Bartol A. M., 2004; Ben-Shakher G. and Elaad E., 2002), even though little work has been done for its implementation (Ben-Shakher G. and Elaad E., 2002). According to Ruskin D. C. (1989), Vrij A. (2000), Kapardis A. (2005), the questions[3] are constructed using unknown material about the scene of crime. This material can be known only by: examiners; people present at the criminal scene. The test has the form of a multiple-choice test. It is aim is not to discover deception, but presence of “guilty knowledge”. The guilty knowledge is detected observing strong physiological reactions with alternatives related to the crime scene.

One of the best discriminator, between the presence of guilty knowledge and its absence, appears to be the electro dermal responses (Kapardis A. 2005; Raskin D. C., 1989).

According to Ben-Shakher G. and Elaad E. (2002), this method can resolve different problems that rose with the formers’.

First of all, it applies standard procedure. Thus, all the examinees go through some experiences. Second of all, the risk of results’ bias with not-physiological information is decreased. Next, its “accuracy can be estimated from laboratory studies”. Finally, the risk of false positive is reduced.

Although these positive elements support the GKT, this method has also several limitations: the availability of enough items (unknown about the crime) to use in the questions (Bartol C. R. and Bartol A. M., 2004); the fact that details used by examiners was not perceived by guilty subjects (Vrij A., 2000). The examinees could also forget details (Vrij A., 2000). Then, there are few trained polygraphers, as this method is not included in most of the training programs (Bartol C. R. and Bartol A. M., 2004). Further, the limit number of real crimes in which can be used (Kapardis A., 2005; Vrij A., 2000). Moreover, the main limit of this method is its feature of recognising only guilty knowledge. Hence, offenders can always say they were present to criminal scenes like witness but they were not the offender (Vrij A., 2000). Also, innocent eyes-witness (who denied their presence to avoid to be involved) could be considered offenders (Vrij A., 2000).

As a consequence, I firmly disagree with Kapardis (2005) and Ben-Shakher G. and Elaad E. (2002) when they affirm the CKT able to protect “innocent suspects from being falsely classified as guilty”!?!?!?

Bias factors operating with every method

Independently by methods, a wide range of factors can also bias polygraph results. They are: the experience of examiners (Kapardis A., 2005); the talent of examinees in lying (Kapardis A. 2005); the use of countermeasures by examinees (Vrij A., 2000; Gudjonsson G. H., 1988; Ben-Shakher G. and Elaad E., 2002; Honts C. R. and Amato S. L., 2002)[4]; the confirmation bias, e.g. when examiners know examinees to be suspects (Howitt D., 2002).

In addition, the theoretical foundations and assumptions, on which the polygraph tests are based, have received strong radical critics (Ney T., 1988; Lykken D. T., 1988). Ney T. (1988), after having identified polygraph testing’s four assumptions[5], concludes these are false. The reasons are: people may control their physiological reactions; “specific emotional stimuli cannot predict emotion” as we cannot know how the individual cognition evaluates an “emotional stimulus”; “relationship between the different parameters of emotion is … weak”; “individual may vary between themselves across a number of parameters of emotion”.

Lykken D. T. (1988) argues that the human beings are not “equipped with a distinctive physiological responses that” they emit when they lie. A thesis confirmed by Bull R. M. (1988), who states that does not exist such thing as special physiological responses produced by people when they lie.

Another problem (few considered by the literature) is the inability of the polygraph to distinguish between lies and false memory. In this case, people can result truthful even if they tell something that is not true. The lies-detector “measures” what people “feel” to be true, not what is objective true.

The large amounts of mistakes made by polygraph tests (false positive; false negative) confirm the reasons (supra illustrated) of the critics’ good foundation. According to Carroll D. (1988), false positives are more than false negatives.

The reliability of the laboratory studies emphasized by some writers (such as: Ben-Shakher G. and Elaad E., 2002) was criticized by Howitt (2002). The latter argues laboratory studies not a good instrument to verify the accuracy of polygraph. The examinees are set in different emotional contexts respect those of real criminal investigations. Failing the set – up laboratory polygraph test does not imply anything. Failing a polygraph examination during a police investigation can have serious consequences even if one is innocent.

People, without a strong alibi, prefer confessing false crime rather then to defend their innocence. If they confess a false crime, they have more soft criminal consequences then defending their innocence. Moreover, a good legal defence needs economic resources than not everyone can have.

I disagree with psychologists that believe false confessions (made after a positive polygraph) to be consequences of doubts about memories (Vrij A., 2000). They could be, more likely, a rational choice caused by a Legal System that gives too importance to Psychology! It is better for an innocent (without a good alibi) confessing false crimes rather than challenging polygraph results in the Court. The latter choice will lead to stronger criminal consequences!!

Brainwaves analysis of guilty knowledge & functional magnetic imaging (fMRI)

A possible solution, at these lacks of accuracy, can be seen in the brainwaves analysis of guilty knowledge. According to Kapardis (2005), this method is characterised by detecting P3 or P300 brainwaves. They are supposed to be event-related waves evocated by uncommon stimuli with special significance for people. These waves are assumed to detect guilty knowledge with a better accuracy then CKT.

Using functional magnetic imaging (fMRI), it is possible to individuate areas of the brain that are used when people pay attention and try to control errors (anterior cingulated gyrus and prefrontal cortex).

This system is believed to guarantee a higher accuracy, and at least to exclude countermeasures bias (Kapardis A., 2005).

Personally, I think that these beliefs (like always happened) follow newer methods’ enthusiasm! First of all, it is too early to express any kind of appreciation on these methodologies. They are not been used a lot. Only after some real applications in legal settings, we could “appreciate” both the weaknesses and strengths of these methods. Second of all, the neurosciences are a perilous field! Indeed, the images and brain area activations could be determined always by different processes and functions (e.g. Benso F., 2013). In other word, it is always the REALITY (the material facts) to give meaning to the images of neurosciences, not vice versa!! Third, the data in neurosciences are mediated by computer’ software. They cannot be trusted so much. They are not always able to reflect REALITY.

Anyways, at the end, remember: “everything has its abuse as well as it is use” (Bernard Show).

Conclusion

Although the mankind have been attempting to find a system able to discriminate between true and lie since Antiquity (Segrave K., 2005), human beings have not succeeded in this research. The results are contradictory. The degree of errors is still elevated. The literature is divided into two “parties”. One is for a sceptic idea about lie detectors (Nye T., 1988; Carrol D., 1988; Lykken D. T. 1988; etc…); the other one supports them, despite of their weakness (Barland G. H., 1988; OTA, 1993; etc…).

Whereas polygraphs had a wide use in USA, some European States do not allow lie detectors: both in criminal setting during the investigation and in front of Courts. Polygraphs are not also allowed in labour personnel selection. These decisions have been made: due the high degree of inaccuracy; and, due ethics issues.

All in all, “a lie detector does work as long as the subject believes it works. A good examiner scares the crap out of you. It’s theatre” (Leonard Saxe)[6].

But, Truth and Justice should not be the outcome of theatrical representations!!

[1] Other methods exist, even if they are less used, such as: relevant – relevant procedure (Bartol C. R. and Bartol A. M., 2004); the directed lie control test (Ruskin D. C., 1989). The former was an attempt to resolve some weakness of the R-I method; the second one has been the attempt to resolve some problems of the CQT.

[2] Such as: denying a behaviour that likely every people do.

[3] Used in this method.

[4] Even if some authors does not believe in the effectiveness of the countermeasures used to bias the polygraph (tongue biting; foot tensing; counting sheep or backwards); others studies show that people trained in using countermeasures can be able to beat the polygraph test (Vrij A. 2000). Honts C. R. and Amato S. L. (2002) reports, for instance, how the different countermeasures work with the different methods (R-I, CQT and GKT).

[5] The four assumptions are: the human beings cannot control their physiological reactions and behaviours; “specific emotions can be predicted by specific stimuli”; “there are specific relationships between parameters of behaviour”; there are no differences in the response of people (Ney T. 1988).

[6] This quotation has been reported by Segrave K. (2005).

Alcune criticità inerenti l’azione di rettifica (D.P.R. n. 131 del 26/4/1986, artt. 51 e 52) ed il “valore venale” del bene.

Con questo scritto sostengo che l’azione di rettifica prevista dal D.P.R. n. 131 del 26/4/1986 (artt. 51 e 52) non si limita ad accertare il valore venale del bene. Di contro, produce almeno altri due effetti. Da una parte, influenza le dinamiche del mercato del bene. Dall’altra parte, finisce col co-determinare il valore stesso del bene (oggetto d’accertamento) con un meccanismo dialogico ricorsivo.

Questi due effetti (sebbene siano sempre presenti) sono meno visibili durante i periodi di crescita economica. Di contro, diventano palesi nei periodi di crisi (stallo; e/o recessione). In questi ultimi, possono determinare situazioni paradossali nelle quali il venditore, non solo perde tutto il percepito con la vendita, ma arriva a rimetterci maggiori cifre. Questo avviene in quanto, una volta rettificato il valore per ricomputare le imposte indirette, lo stesso è in seguito usato per rettificare il reddito personale del venditore. Quest’ultimo accertamento, basandosi su un atto divenuto definitivo, non può più essere impugnato. Il venditore cosi si trova costretto a pagare le maggiori imposte dirette, con tutte le relative sanzioni (il raddoppio dell’imposta), sul un reddito mai percepito.

Nulla rende il concetto più chiaro d’alcuni esempi.

Esempio: la vendita d’Azienda.

Un imprenditore nel 2010 acquistò un Forno in difficoltà.

Il valore d’avviamento del Forno fu di 180.000,00 euro[1]. Un valore ritenuto assai generoso. L’Agenzia delle Entrate inviò nel 2013 un Avviso di rettifica e di liquidazione nel quale contestò tale valorizzazione. Secondo l’Agenzia, il valore d’avviamento del Forno era di 385.000,00 euro. Senza approfondire le questioni inerenti al computo del valore d’avviamento, ciò che rileva è cosa conseguì.

Sebbene il compratore abbia realmente pagato 180.000,00 euro, ed il venditore incassato quella cifra (costituendo quest’ultima l’intera capacità economica di entrambi i soggetti), una volta rettificate le imposte indirette, le imposte dirette sono ricomputate automaticamente sul queste. Questo comporta per il venditore, dopo aver pagato nel 2011 il 45% d’imposta sul percepito, dover pagare nel 2013 un altro 45% d’imposta sul maggior valore stimato (mai percepito) più tutte le relative sanzioni (il raddoppio dell’imposta).

L’effetto pratico di tutto ciò è che il venditore nel 2010 incassa 180.000,00 euro ed alla fine nel 2013 si ritrova costretto a versare allo Stato 173.250,00 euro d’imposte dirette più 92.250,00 euro di sanzioni. In altre parole, il venditore è costretto a dare allo Stato più di quando abbia percepito dalla vendita!!        

Gli effetti sul compratore sono ridotti. Quest’ultimo ha da pagare solo la rideterminazione delle imposte indirette che prevedono aliquote più basse. Inoltre, per lui, la rettifica diventa solo una presunzione semplice per un accertamento sulle imposte dirette verso la quale può dare prova contraria.

Esempio: vendita di due posti auto.

Prendiamo un piccolo costruttore che nel 2007/2008 (… in piena crisi …) decise di realizzare alcuni posti auto all’aperto in una zona periferica di basso pregio. Piuttosto di rimanere inerte, … mandando a casa i tutti i suoi operari…, in modo sprovveduto agì al motto: “meglio poco che niente”. Egli non sapeva che in economia e nel diritto tributario è: “meglio il “niente” che il “poco””. Il niente, infatti, non è tassato, mentre il poco, una volta rettificato, arriva a toglierti anche quello che non hai mai avuto[2].

Ecco cosa accadde.

Durante la costruzione dei parcheggi, il valore reale di quei posti auto all’aperto, s’aggirava tra i 14.000,00 e 18.000,00 euro l’uno. Per coprire i costi di produzione, il costruttore fu costretto a vendere alcuni posti auto nel 2008. Supponiamo che: i posti venduti furono due (uno di 12 mq a 14.000,00 euro; ed uno di 20 mq a 16.000,00, per un toltale di 30.000,00 euro); e che l’acquirente fu uno (Tizio).

L’Agenzia delle Entrate nel 2009 rettificò entrambi i valori portandoli da 30.000,00 euro a 81.440,00 euro! L’acquirente, a causa della rettifica sulle imposte indirette, si ritrovò un “debito improvviso” di 10.545,50 euro. Una cifra notevole che comportò una maggiorazione dei costi preventivati per l’acquisto più d’un terzo.

Per il venditore, di contro, comportò la rettifica dell’IRPEF del 2007, con le relative sanzioni, per non aver dichiarato un maggior guadagno di 51.440,00 euro!

Anche in questo caso, le tasse reclamarono più di quanto guadagnato dal contribuente. Ecco alcuni esempi di come in Economia, Scienze delle Finanze e Diritto Tributario, il Niente sia meglio del Poco.

Un Sistema Fiscale che nemmeno lo Sceriffo di Nottingham riuscì ad architettare (!).

Torniamo agli effetti citati supra.

Da questi esempi risulta chiaro il primo effetto. L’azione di rettifica influenza in modo innegabile il mercato oggetto del suo controllo. In alcuni casi può paralizzarlo; in altri può determinare la sopravvivenza d’alcune imprese piuttosto che d’altre. Non solo, le stesse contrattazioni non avvengono più come risultanza d’un libero mercato (ovvero dell’incontro tra lettera e denaro). Esse sono influenzate dalle aspettative che le parti (il venditore e l’acquirente) hanno sull’agire d’un terzo soggetto (l’Agenzia delle Entrate). Nessuna persona razionale, a meno che non sia completamente sprovveduta e/o autolesionista, venderebbe un bene per un prezzo minore rispetto, non quello determinato dal mercato ma, quello utilizzato dall’Agenzia per la rettifica. Farlo, condurrebbe agli effetti visti supra.

Il secondo effetto concerne il valore di rettifica applicato e come questo, non sia la mera costatazione di cosa avviene nel mercato ma, sia influenzato dalla stessa azione d’accertamento.

Essendo economicamente dannoso vendere per cifre minori rispetto quelle applicate dall’Agenzia delle Entrate nelle sue rettifiche, il mercato tenderà ad omologarsi a quest’ultime. Ciò comporta che l’azione di rettifica dell’Agenzia co-partecipa alla creazione dei valori venali applicati. Non solo, una volta rettificati alcuni beni (divenuti definitivi gli accertamenti) quest’ultimi sono usati come giustificazione e motivazione per fondare altre rettifiche su beni simili. In questo modo, è persa ogni connessione colla realtà controfattuale del mercato. Le rettifiche finiscono per fondarsi su un’iperrealtà virtuale originata dagli stessi accertamenti. Poco importa che questi diventano definitivi, non poiché accertino alcun valore reale ma, poiché almeno una parte (di solito il compratore) ha trovato “più economico” pagare la maggiore imposta indiretta piuttosto che sostenere un contenzioso legale. Una scelta che preclude al venditore ogni possibile azione d’impugnazione autonoma dell’atto, sebbene ne abbia di motivi.

Mentre lo Sceriffo di Nottingham di tanto in tanto perdeva con Robin Hood, oggi vince sempre.

Che cosa intendo dicendo ciò?

Qualcuno di Voi, letti gli esempi supra, potrebbe aver pensando che, ricorrendo alla Giustizia Tributaria, ogni possibile danno sarebbe stato nullificato.

Tralasciando che ogni procedimento legale ha in se una fortissima alea, nel sostenere ciò non mi riferisco all’esito del Ricorso ma a qualcosa d’altro.

Essendo “prassi” compensare le spese di giudizio, l’annullamento dell’atto impositivo non nullifica i danno causati da esso. Al contribuente restano da pagare: le parcelle dell’avvocato; l’IVA; i contributi unificati; … dei diversi gradi di giudizio.

E’ inutile ricordare come una buona percentuale di questi costi, finiscono nelle “tasche” del Fisco. Paradossalmente allo Stato conviene produrre accertamenti infondati. Nella peggiore ipotesi ci guadagna tutti quei tributi che sono generati come conseguenza del contenzioso legale.

Non a caso, la stragrande maggioranza degli accertamenti è di modico valore (al di sotto dei 20.000,00 euro). Infatti, sono questi i casi dove il Fisco vince sempre. Da una parte, molti contribuenti preferiscono pagare quanto “accertato, non per aver evaso ma, perché questo gli costa meno del sostenere un contenzioso legale! Dall’altra parte, qualora gli atti siano impugnati, il Fisco comunque ci guadagna i tributi derivanti da ciò! In questo modo (soprattutto nel caso in cui sia decisa la compensazione delle spese), il Fisco ci guadagna in ogni caso.

[1] Era un piccolo Forno in difficoltà con un reddito annuo decrescente sui 35.000,00 euro. Un reddito esistente grazie al lavoro non retribuito: dell’imprenditore e di sua moglie.

[2] Infatti, un basso profitto fa scattare: il redditometro; gli studi di settore; il valore venale del bene; una serie di presunzioni e di meccanismi legali; … . Questi alla fine tolgono al cittadino non solo quel poco che ha guadagnato (… sul quale ha pagato regolarmente le imposte…) ma anche quello che non ha mai avuto. In questi casi, exempli gratia, i soli costi per potersi difendere (attraverso un contenzioso legale nei suoi diversi gradi di giudizio) supera la sua capacità economica.

Un caso d’I.V.A. non dovuta

L’articolo 91 del Codice di Procedura Civile stabilisce che la parte soccombente sia condannata dal giudice al pagamento delle spese processuali a favore di controparte. Nel liquidarle in sentenza, il giudice utilizza una formula generale nella quale include sempre l’I.V.A. ed ogni onere accessorio. Questo, però, non significa che l’I.V.A. sia sempre dovuta nella concretezza d’ogni caso. L’I.V.A. è dovuta solo quando non è (… per la parte a favore della quale è stata liquidata…) un costo deducibile. Negli altri casi non è dovuta, costituendo un indebito arricchimento. Infatti, qualora richiesta dalla controparte, questa la incasserebbe due volte (una volta dallo Stato; una volta dalla parte soccombente). Ricordo come il quantum non sia “roba da poco”. Sebbene vari in base all’effettivo ammontare della parcella liquidata, spesso e volentieri supera i 1.000,00 euro.

Contrariamente da quanto sostenuto da molti avvocati (!), il fatto che l’I.V.A. sia liquidata in sentenza non significa che il giudice abbia riconosciuto la sua doverosità nello specifico caso. La Cassazione ha affermato che tale liquidazione include sempre la condizione: solo “se dovuta”.

In questo modo, per economia processuale, la sentenza (nella parte in cui liquida l’I.V.A.) non diventa: né oggetto di giudicato; né autonomo vizio d’impugnazione. Semplicemente, qualora il pagamento dell’I.V.A. sia richiesto, la parte soccombente ha il diritto d’eccepirlo in fase esecutiva, contestando il titolo esecutivo attraverso un’opposizione al precetto e/o all’esecuzione.

Questa interpretazione è, inoltre, l’unica conforme allo Spirito della Legge. La condanna alle spese legali, infatti, è una forma di risarcimento extra-contrattuale che consegue al principio generale del neminem laedere (Corpus Juris Civilis). Ha lo scopo di “risarcire” un soggetto, chiamato “ingiustamente” in giudizio, dei costi effettivamente sostenuti per potersi difendere. Ciò ribadisce a fortiori come l’I.V.A. sia dovuta solo, e solo se, è stata un costo per quel soggetto. Non ha rilevanza, di contro, la questione se il giudice abbia liquidato come spese legali un quantum minore rispetto alla parcella effettivamente pagata da controparte. Questo poichè il giudice, nel liquidare le spese, decide un quantum “equo” rispetto alle tabelle di riferimento ed all’attività svolta. Gli onorari dei vari professionisti, infatti, sono fortemente eterogenei. Sarebbe ingiusto condannare una parte, a risarcire una controparte che, per sua scelta, abbia optato per un professionista particolarmente costoso.

Con questo post si è tentato d’informare chiunque sul thema in modo che, nell’eventualità, sappia: cosa fare; e come valutare i pareri degli avvocati. Un post scritto dopo aver verificato per anni che nella pratica l’I.V.A. era solitamente fatta pagare quando non dovuta.