Ivan Hoffman, B.A., J.D.

     In the ideal world, laws are made by legislators and legislators are elected by voters.  This of course is not always the case but for purposes of this article, let us assume that the proposition is true.  For a discussion of how dictatorships and similar autocratic regimes function, read “The Enabling Act.”   The resultant laws that the legislators’ enact are reflections of what the legislator believes or should believe the voters want.  This of course is not always the case but for purposes of this article, let us assume that the proposition is true.  In the real world, how legislation is enacted is often more about how much money the legislator received from one or more lobbying groups and thus how the legislator can get re-elected. 

Getting Elected

     Nothing succeeds in motivating a group more than parading out the twin evils of fear and uncertainty.  And fear and uncertainty lead to other feelings including hatred and anger toward anyone or anything that we believe is causing that fear and uncertainty.  Tap into these feelings and you are on the way to being a politician.  Or a dictator.

     There is no question but that certainty has an appeal.  Waking up everyday knowing what the day we imagine will bring creates a certain sense of safety.  For some, for many if you look at history, knowing what life is about, even if it is about misery, is better that not knowing at all.  I mean, after all, at least you know what you’re going to get.  Better that than living with the uncertainty of…well,  uncertainty.

     Of course, life is never certain.  We only imagine that there are times of certainty as well as times of uncertainty.  The pace of change seems much more rapid today than ever before.  I’m not sure that the actual pace has accelerated.  I believe that what has made it seem accelerated is that we are so much more aware of events that are part of the pace of change that “change” is simply in our face 24/7 and thus seems more accelerated.  Of course as well, none of this reality matters for it is our perceptions that guide us.  For those acting out of fear, it is no balm to say that those fears are not real.  To them, it is very real. 

     I’m not talking about personal fears and insecurities, although they may and are likely certainly at work here.  I’m talking about great ill-defined, macro-fears.  In many ways, these have remained the same throughout history even if there has been some tweaking of the details to fit the times.  Perhaps a short list of what has been the subject of these fears may be of some assistance.

The [fill in the nationality or ethnic or ideological group] are coming.  Some of these nationalities, ethnic or ideological groups have been the Irish, the Chinese, the Japanese, the Communists if you are a Capitalist, the Capitalists if you are a Communist, the Democrats if you are a Republican, the Republicans if you are a Democrat, and going back further into history, the Hittites, the Mongols, and…you get the point.  It’s as endless as history.

The [fill in the nationality or ethnic or ideological group] are coming and they are going to [fill in the parade of horribles].  Some of these horribles have been: take your jobs, rape your women, sponge off our welfare system, destroy your family values, take away your healthcare, destroy your way of life and…you get the point.  It’s as endless as history.   

The government is going to impose “socialism” on you, as though anyone actually knew what “socialism” was.   Never mind that our society in the United States and indeed in other countries is filled with “socialist” ideas such as public education and public parks, roads and bridges and municipal water supplies and other parts of the infrastructure, public police and fire departments, crop subsidies to farmers (most recently, soy bean farmers), Social Security and Medicare and Medicaid and the equivalents in government pensions for elected representatives and others (although only the Affordable Care Act, Social Security and Medicare and Medicaid are under attack), the new (and all prior) tax acts which take money from lower income, less politically well-connected persons and give it to the wealthy, well-connected in our society on the totally unproven theory that somehow those wealthy, well-connected parties will altruistically spend their money on those lower income, less politically well-connected among us, the huge amounts spent on defense contracting and other forms of “socialism.”  Our society has always been a mixed society in these regards but the parading out of the terms, whether it be “socialism” or “capitalism,” taps into our inherent fears, even though those fears are based primarily in ignorance. 

The reason we need a strategic bomber, indeed 3 strategic bombers (and proposing a fourth strategic bomber) is because [the Soviets are coming, the Chinese are coming, when there is probably no one coming that can be deterred by 4 kinds of strategic bombers].

      All of these and many other issues are about not knowing and the fear of not knowing. 

      Not only do we fear uncertainty, but we fear even talking about our fear of uncertainty.  So we talk about many other things that are merely symptoms of our fear of uncertainty but are not about our fear of uncertainty.  We talk about immigration and walls to prevent the same.  We talk about war and weapons to prevent the same.  We talk about “us vs. them” and how, if we can only defeat “them,” “us” will be safe.  We respond like so many Pavlovian dogs, to the tinkling of the bells.  We talk about anything but what we need to talk about.  When people in a marriage are having difficulties, they either have a baby or buy new bedroom furniture.

      I recall a joke from childhood about a man, walking down the street, seeing another man intently examining the ground under a lamp post.  When he asked the man what he was looking for, the reply was “I am looking for my watch that I dropped over there…in the street.”  When asked why, if he lost his watch over there in the street, he was looking over here underneath the lamp post, the man replied: “Because there’s more light here under the lamp post.” 

     Often looking for real answers is like looking in the dark without the benefit of the lamp post.  There are lots of uncertainties in looking for real answers.  Talking about real issues involves lots of “ifs” and uncertainties.  We’d rather come up with pretend answers that are “certain.”  The “fix” for this problem is “this” or “that.”  So we look under the lamp post precisely because we know we’re not going to find anything there.  Looking there is easier even if futile. 

     And so when someone comes along and tells us that all our problems will go away if only…., it’s like “where do I sign up?”  And this someone can be a political leader but he or she can also be any “too good to be true” salesperson or anyone else that our heart of hearts tells us is lying to us but who we choose to believe because, well, because there’s more light in the story they tell.

     And that’s the appeal of certainty, of autocracy.  It doesn’t matter whether the autocrat is nominally a communist, a fascist, something else.  Or a Nazi.  They all offer the illusion of certainty and relief from fear. 

     And because these “solutions” never actually solve anything, the problems persist, thus perpetuating in power those who fed us the non-solution in the first place.   

     Unlike democracy, which only offers uncertainty and change.  After all, if you have to listen and respect the views of others, you have uncertainty.  And uncertainty is thus equated with democracy and democracy, though nominally espoused, is unkempt and messy and unlikely to lead to certainty.  Democracy is a process, one that requires information, decisions, living with uncertainty.  Autocracy is finite solution. 

How do fear and uncertainty result in laws? 

     But since these articles are about the law, we need to examine how our personal and macro fears lead to the enactment of laws designed to remedy our personal and macro fears.  It is out of our fear and our need for certainty that we create our laws.  All societies, as they evolved, developed laws to define relationships in those societies.  They sought to codify, sometimes in writing, sometimes orally, how we should behave one to the other in given situations.  As such, law has the potential to create certainty but within the scope of any law there is often significant uncertainty.  No matter how many drafts a law goes through, no matter how artfully crafted the language of any agreement might be, there is always the possibility of other interpretations.  So even law has uncertainty within it.

     Despite that uncertainty, however, is the bedrock idea that we agree that we want law to govern ourselves so we enter into this implicit compact with each other that we agree to follow the law.

     We take our need for certainty into the ballot box (if we even have a ballot box, or a meaningful ballot box).  Our votes reflect who we are and what we want and we vote for those who cater, pander, to those wants.   And if we are among the many on this planet who are denied the right to vote, that, too, is reflected in the laws we create since those who are elected represent only the views of those who were enabled to vote.  And those who are enabled to vote because of the laws have expressed a desire to not allow others to vote.  And if we do not vote, if we default in our obligations as citizens, we enable those who do vote to obtain power even if by legitimate means.

      We vote for those who tell us that our fears, our uncertainties, our insecurities can be solved by simple fixes.  Exclude this group, build a wall, take away social security and Medicare, give money to the rich who will then “trickle down” their benefits to the rest of society are just a few simple fixes that have no evidence to support any of the claims.

      After the First World War (you remember--the war to end all wars), Germans were suffering from lack of capital and inflation as a result of the reparations imposed upon them after that war (the one to end all wars).  They had lost territory and population.  They felt humiliated.

     And along came a voice saying “If only we got rid of the Communists and the Jews, all our problems would be solved.” 

     And the Germans bought into these ideas because they had the appeal of certainty. 

     And many of you will recall how all that turned out.

     In short, we demand of our leaders that they offer concrete solutions that offer security and certainty.  That is what elections are about.  Elections are not about solving problems and certainly not about discussing issues.  They are about getting elected so that the winners can be re-elected.  Elections are the wrong time to discuss issues.

      And all this is reflected in the kind of laws we have our elected representatives enact.  Those same representatives then nominate and ultimately confirm judicial appointments who then become part of the “law” set of issues that we created when we voted or didn’t vote.  For when we elect those who reflect our fears and our angers, they then enact laws based upon the same fears and angers we demanded of them.  And when they have an opportunity to nominate or approve judges, their choices reflect those same fears and angers.

      And because the need to get elected and re-elected takes precedence over the needs of the country, those running for office only espouse those ideas that will get them re-elected.  And those ideas are about “elect me and I’ll solve all your problems.”

      And once the law is passed, it enshrines the conduct that we would likely never tolerate but for the law.  So if a candidate for office would run on a platform of taking money from the poor and giving it to the already very rich, no one would vote for that candidate.  But clothe the platform in lies and bury it in a zillion page piece of legislation and mostly give it a deceptive but appealing name, and then pass it, the law then becomes, well, the law.  So it is raising itself by its own bootstraps.

      Change is going to happen whether we like it or not.  There is nothing we can do about preventing things from changing. 

Copyright © 2018 Ivan Hoffman.  All Rights Reserved. 

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Ivan Hoffman has been practicing intellectual property law for over 45 years and has written extensively about that topic. ( 


This article is not legal advice and is not intended as legal advice.  This article is intended to provide only general, non-specific legal information.  This article is not intended to cover all the issues related to the topic discussed.  You should not rely on this article in any manner whatsoever and you should not draw any conclusions of any sort from this article.  The specific facts that apply to your matter may make the outcome different than would be anticipated by you.  This article is based on United States laws but the laws of other countries may be different.  You should consult with an attorney familiar with the issues and the laws of your country.  This article does not create any attorney client relationship and is not a solicitation.




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