Chapter 6
Law and Popular Will
Intro: Does law grow out of custom?
How is popular will expressed?
Who are the people?
6.1 The
Case 1
Guy goes out on hunting on his own, for himself. This is an affront to the community values of the tribe. Tribe decided to kick him out, but later let him back in.
Case 2
Guy kills chief in a brawl. He also was kicked out of tribe. Should he be allowed back in if he apologizes?
Case 3
Guy sneaks off with another man’s wife. He takes her on a hunting/raiding party, which violates rules. Can wife be released from unhappy marriage?
Note how community values affect decisions? What are the values? What is the approach to settling conflicts?
Would this work in a modern society?
6.2 Law and Authority, Kropotkin
Anarchism: Society should have no government.
Marxism differs from anarchism. Anarchists do not believe in indoctrinating people, like Marxists. Marxists are more dogmatic.
Anarchists do not believe in a “blueprint for the future.”
Marxists believe that a proletariat run state is necessary, anarchists do not.
Kropotkin sees state as instrument of oppression, crushing human freedom.
Brainwashed from childhood into believing that obedience to authority is the highest good.
People should revolt against the laws.
What should take its place? Custom and manners.
Law and Money
How does mindset affect people’s attitudes toward power?
Example of the Appalachian coal miners, p. 155.
Why do the
powerless not revolt?
6.3 The Watchman
K runs past the Watchman, who does nothing. K comes back, and says I ran past while you were not looking. W says nothing. K asks whether silence is permission?
What’s going on with K here?
6.4 First National Bank of
Facts:
Issue: Does a state violate a corporation’s free speech rights when it forbids spending corporate money on politics?
Holding: A state may not prohibit a corporation from spending money opposing a ballot initiative.
Reasoning: Court found that corporations have free speech rights. Court applied a strict scrutiny standard, because this involved political speech. The court rejected the argument that corporations should not have free speech rights, as well as the argument that because states define what powers a corporation does or does not have, it can forbid political speech.
Note: Subsequent cases upheld limits on donations to political candidates, citing the danger for bribery and abuse.