Law in Contemporary Society

How Laws Made by Private Groups Affect Us All: The Presidential Primaries For Starters

-- By JulianBaez - 12 Feb 2008

Private Law

Laws are not simply statutes created by a governmental body enforced on the public en masse. Private groups also come up with laws to govern themselves. Home owners associations make laws about what colors homes can be painted, who houses can be sold to and even where a satellite dish can be placed. Children make laws on how to play tag, how to select who goes first (“dibs”), and how to punish those who break these laws.

  • Within this definition, which is a perfectly reasonable if somewhat expansive definition of private law, you would have also to include every contract.

The Pashtun tribes of Afghanistan and Pakistan have a law requiring one to take anyone who asks for asylum into one’s home. This is true if the stranger is one’s mortal enemy, Osama bin Laden, or a US soldier. When a Pashtun tribe granted sanctuary to Al-Qaeda members in order to kill and rob them, surrounding tribes amassed an army in order to destroy the offending tribe and enforce their private law.

  • I'm not sure how you decided that between sovereign tribes in an area with no established overlordship or nation state government, this asylum principle is private law. It looks like a norm of interstate compact equivalent to what we call international humanitarian law.

The Presidential Primaries

Laws about playing tag affect no one outside the children playing while laws about sanctuary may determine where the most wanted man in the world is hiding.

  • I think this is a somewhat tendentious distinction, for all that it looks instead like an unnecessary truism. Laws about playing with the markets may affect no one outside the grown-up children playing, yet also affect the fate of the globe, while the law of asylum may affect only the side of Laredo on which a handyman is working. In other words, you've only said "facts matter," not anything about the rules you were comparing.

Currently the private law of the Democratic and Republican Party Presidential Primaries are shaping the future of the nation and maybe the globe. We must always remember these are private groups whose members also run for public office. Laws on who can vote in a primary or caucus, when the registration deadline for voting is, and how their delegates must be allocated, affect the entire nation’s choice for President.

All these private laws created by the country’s premier political parties affect our democracy in far-reaching ways. However, since Super Tuesday (2/5/2008), the public is slowly becoming aware of the implications of how delegates are allocated after a primary vote, a law decided by each part privately. For the most part, Republican primaries result in the winner receiving every delegate even if they don’t receive a majority of the votes. For example, John McCain wins all of Washington’s delegates with only 25% of the votes because all other candidates have less. Due to this choice of private law, McCain? will now be one of two realistic choices for President despite receiving less than a majority of the votes from his own private group. Had the Republicans used the Democratic Party system, other Republican contenders like Mitt Romney and Mike Huckabee could continue to run with a realistic chance of winning the nomination.

  • This seems to me to be playing the "false naive." Party rules have been determining the choice of presidential candidates since the beginning of the Republic. Rules changed during the convention by majority votes of the delegates (including, let's say, that of the Democratic Convention of 1844 to require nomination to be by vote of two thirds of the delegates, thus preventing the nomination of Martin van Buren), have determined some pretty important questions besides the trivial one of who would be President of the United States. You sound shocked, shocked to discover that American history is not over and seems in fact to be continuing.

The majority of Democratic primaries allocate delegates proportionally which results in primary losers receiving some delegates. This is the result of reforms proposed by the Democratic Party’s McGovern Commission in 1969. Its purpose included opening delegate selection and to provide more representation to minorities. Some Democratic state legislatures forced Republican primaries in those states to change as well.

This resulted in losers to “live to fight another day” and continue to run in later primaries with a reasonable chance of catching a previous winner. Currently, this system has assured neither Barack Obama nor Hillary Clinton can win decisively and gain a comfortable lead in delegates over the other. But does it really make a difference how the Presidential nominees are chosen? A direct result of the Republican Party law allocating delegates in a winner-take-all system is McCain’s early win. This affects who will be the next President of the United States, and all the power the position wields.

  • Sure, but no one on Earth now knows how. Until we know the circumstances by which the Democratic nomination is gained, let alone who the nominee will be, it is idle to discuss such a question as whether McCain gained or lost in this situation. And whether whatever he gained or lost meant anything in the eventual outcome cannot possibly be known until it is over. You are studying an ongoing and inherently unpredictable series of events. History, which uses the structure of retrospective narrative to analyze contingent events, cannot begin until events have run their course. The so-called "first draft" undertaken by the journalist, or any other contemporary observer, is to account for the components of the situation that seem significant, rather than to predict the outcome or its meaning.

Even those who believe the Democratic nominee is assured a victory in November admit those choosing between Obama and Clinton will take McCain into account. He appeals to Independent voters and will make national security the forefront of his campaign in a way no other candidate can. His nomination means a debate moderator won’t ask if either candidate supports the torture of terrorists since he agrees with both Clinton and Obama on the issue.

  • Already you are experiencing the difficulty of the flow of events: how large a role will foreign affairs play in the election if the economy is in bad shape? That question seemed very much less important, back long ago when McCain locked up a nomination that may come to seem premature. I said the economy was going to hell and that you should care about it, of course, but I wasn't talking about the presidential campaign, which I know I can't predict.

This is the result of Republicans and Democrats making a choice about what how to allocate delegates, a matter of private law. Yet this choice of what law to impose on parties internally has drastic affects on the country and its policies

Stop, Look, Listen, Change

We must be aware of how the laws privately decided and enforced by those around us are affecting us. These can be as simple as the distance of the nearest McDonald’s to your home, which franchise agreements between the company and the franchisor determine. They can also be as complex as private laws fixing prices on food or airfare, which are illegal according to public law but private groups create nonetheless.

  • Often we cannot see the private law you are now talking about, because it is private in another sense. And indeed there are good privacy reasons for keeping private law private, wouldn't you say, speaking in your private capacity?

Only by seeing, understanding and affecting these bodies of private law which surround and affect us can we begin to change them to better serve our own interests. This is true of all bodies of private law which affect our options and make lasting impressions on those outside of the private group. The McGovern Commission responded to riots at the 1968 Democratic Convention when party bosses chose Hubert Humphrey over the more popular Eugene McCarthy.

  • I'm not sure what this is supposed to show. I don't think you think that the riot that happened in Chicago happened because people were mad that Humphrey was nominated. You certainly couldn't lead me to think that, because I know better. Nor would it be correct to say that party bosses chose Humphrey over McCarthy, despite McCarthy's having more votes. You may recall that engaged in close competition with Humphrey for the nomination was Robert F. Kennedy, who had just been murdered. That was the Democratic Party's primary problem. The riot by Mayor Daley's policemen--have you forgotten who rioted?--had other causes.

Using public law is another way to change private law. In Shelley v. Kramer, NAACP lawyers planned a test case challenging contracts disallowing white homeowners from subsequently selling to blacks which went to the Supreme Court. It found the contracts could exist but couldn’t be enforced by the government. This negated the effectiveness of private law disallowing sale to blacks.

  • This would be more effective if it weren't for the Seinfeld-induced misspelling of the name "Kraemer." Don't you think it would be good to check?

Smith v. Allright shows public law can be used to change private law in Presidential Primaries. Here, the Supreme Court struck down Texas’s all white primary law. Similar action could change the current primary process.

  • Similarly, you wanted at least to discover that "Allwright" is all right but "Allright" is all wrong. Just because I did your research for you was no reason to believe you were absolved from doing your own proofreading. Seriously, do you understand that this is evidence of unacceptable conduct? When people cite cases to you, you have to check them.

We probably can leave children’s games of tag alone. But the Presidential Primaries are an entirely different matter. Expect an even greater ruckus August 25th if/when superdelegates (party bosses and elected officials) cast their vote for the Democratic nominee, likely pushing one candidate over 50%, another private law.

  • I think the various editorial issues noted above have a common root, which was an unasked series of questions that would have led to a tightening of the "private law" hypothesis. When is it our responsibility to police the public consequences of private contracts? Among political parties does it matter to us only what Democrats and Republicans do? Is government interference with political party behavior tolerable, and if so why? Naturally the questions have answers, and also answers fully compatible with your purposes, and your essay doesn't have to be devoted to giving those answers. But you needed to know exactly what you thought in order to make the essay fully successful.


Webs Webs

r9 - 12 Jan 2009 - 22:59:30 - IanSullivan
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