Most of my articles are conjectural. My lines of conjecture are often curious, sometimes confusing, occasionally fantastic and, at times, even mind-numbing. I try not to publish those articles that are mind-numbing. The following article is an exception. I hate to publish it because it seems “half-baked”. The article contains an insight below that I deem valuable but incomplete. Nevertheless, the insight (while a little “mind-numbing”) seems too intriguing to abandon until I can grab a little more clarity.
As always, my conjecture may be mistaken. Even so, conjecture is justified and even necessary to unravel the mystery of how our legal system really functions. I.e., when solving his own mysteries, Sherlock Holmes reportedly said, “When you eliminate every impossible explanation, whatever remains—no matter how improbable—must be the answer.” That principle necessarily means that Holmes had to expend a huge amount of time and energy considering a large number of impossibilities and even absurdities before he could deduce the truth. As legal reformers we must also chase down a bunch of rabbit trails before we actually see (let alone catch) a rabbit.
So. Be vewy, vewy quiet. We’re hunting wabbit:
A friend of mine (Tom) read an article by Kristen Cardozo on the subject of naming babies entitled “The Power of a Name”. In that article, Ms. Cardozo wrote in part:
“The power of a name is as ancient as naming. All throughout mythology, examples can be found of secret names, names that had the power to destroy, and names that had the power to bring great rewards. . . .
“In our own culture, the Puritans named their children fateful virtue, and, in some cases, sin names, although they would never have labeled it magic. Nonetheless, a girl named Faith or Chastity was named so in the hope that she would live up to her name. The Puritans were trying to find an alternative to Biblical names, which they viewed as Catholic, or Jewish. . . .
“Jewish magical names are often the first initials of a spell. One of the most well known magical names is Agla, which stands for “Ataw Gebor Leolam Adonai”, meaning “Thou art mighty forever, Lord”. In Judaism, it is forbidden to say the name of God, which, of course, adds to the power of God’s name, and to the fascination with it. A branch of Jewish mysticism, Kabbalah, is dedicated to discovering the sacred name.
“Ancient Egyptians associated the name with the soul. It was believed that knowledge of a god or spirit’s name gave one complete power over that deity, and knowledge of a man’s name provided the power to do that man good or ill. A person could not exist without his name.”
My friend (Tom) read this last paragraph and had one of those Eureka! moments. He suddenly realized that ancient Egyptian principles concerning names may also apply in our modern courts.
His realization was partially based on his own courtroom conflict of several years ago when a judge asked for Tom’s name. Tom refused to provide that name. The judge huffed and puffed, threatened and cajoled, but when Tom wouldn’t give him his name, the judge ultimately dropped the case. Tom was pretty much amazed and didn’t exactly know what he was doing back then. So, when Tom read that “knowledge of a man’s name provided the power to do that man good or ill” and “A person could not exist without his name,” Tom thought he had finally found an explanation for the judge’s surprising dismissal of the case.
In today’s courts, one of the judge’s first acts is to ask the parties to the case to announce their names into the record. Tom suspects that you must give the judge the name in which you are appearing in that court before the judge has power to proceed in the matter. If so, then if you refused to provide your name, it might follow that the judge would be prevented from proceeding.
Whether the courts will be actually hamstrung if you refuse to provide your name is conjectural. However, the ancient Egyptian principles are certainly true to this extent: a “person” (party to a relationship/legal-fiction) can’t exist without a name.
Of course, a man—being made of flesh and blood—does not need a name to “appear”. We see can see hundreds or even thousands of men and women every day as we walk or drive through cities or down a highway. We don’t know their names, but they still appear along the sidewalks or sitting in automobiles we pass on the highway.
Men exist and can even “appear” by virtue of their physical reality. Even if we don’t know the name of a particular man, we can sometimes describe his physical appearance with sufficient detail that he can be later found. Police routinely show photographs or “line-ups” of possible suspects so that witnesses can identify a criminal who was seen, but not recognized by name. (When you stop to think about it, the first object of any police investigation is to find the names of the various victims, witnesses and suspects. Without names, can a criminal proceeding even begin?)
But a legal fiction (which has no physical reality) cannot “appear” without a name. Without a unique name, you can’t even describe a legal fiction. How tall was it? What race? About how old? Male or female? What weight?
A legal fiction has no meaningful characteristics or even existence without a name. For a legal fiction, the name is the only evidence of its existence. In fact, it might be argued that a legal fiction is its name.
For example, if you wanted to create your own corporation (legal fiction) to do business, what’s the first thing your state’s Secretary of State asks for? The name of the proposed corporation. If someone else has already created a corporation in your state with the same name that you’ve proposed, your application for corporate charter will be rejected. So far as I know, within a particular state, each corporation must have a unique name.
No such requirement exists for living men. We can have hundreds of “Robert Smith’s” living in the same State. But we can still distinguish between all of them by their dates of birth, physical appearance, etc. But how do you distinguish between two different corporations both named “IBM”? I won’t say that such distinctions can’t be drawn, but they are certainly difficult—and non-existent or at least extremely rare within any state.
Therefore, if a “person” (legal fiction or party to a relationship/legal-fiction) won’t give the court its “name,” the court might not be able to proceed. Like anyone else, a judge can’t “see” a legal fiction but he can see a living, flesh-and-blood attorney or fiduciary who expressly or implicitly claims to represent a legal fiction. In a sense, if the living man “Alfred Adask” implicitly claims to represent the person/fiction “ALFRED N ADASK,” and no one objects, then the judge will presumably go along with that claim.
Again, it’s arguable that a legal fiction is its name. Without its name being entered into a court record, a legal fiction might not appear or exist within that process. No name; no appearance; no fiction; no existence?
If a legal fiction/”person” isn’t named and represented, that “person” can’t appear in court until it is “named” on the record—and represented by some living being. Admittedly, it’s possible for courts to try someone accused of a criminal act “in abstentia” (while the defendant is “absent” from the court and perhaps not even represented by an attorney). Even so, it seems likely that a defendant (“ALFRED N ADASK”) doesn’t/can’t appear until the living man (“Alfred Adask” or an attorney hired by “Alfred Adask”) gives “ADASK’s” name to the court and consents to represent that person in the case at hand.
I’m currently fixated on the ancient Biblical principle—“out of the mouth of two or three shall a thing be established”—still applies in modern courts. I know that Black’s Law Dictionary defines “prima facie evidence” as that provided by one witness. I suspect that “probable cause” (at least as that term was defined in common law) required a minimum of two witnesses. I believe that the prosecutor in criminal matters has discretion to proceed or dismiss a case when there’s only one witness (prima facie evidence). I suspect that prosecutors must proceed with criminal complaints if there are two or more sworn witnesses.
Why? Because “out of the mouths of two or three shall a thing be established.” If I (one “mouth”) report that somebody stole my car, the prosecutor may or may not seek to prosecute the case since I am only one witness. If a second witness (second “mouth”) also testifies to the theft, the theft is apparently “established” and the prosecutor must prosecute that case.
So, I wonder how many witnesses it takes to “establish” a “name”. Do you need only one witness (prima facie evidence) to provide a “name”? Or must there be two witnesses: 1) plaintiff and 2) defendant—who both claim or admit the “name”?
Is it possible that one witness whose testimony is unrefuted is sufficient to establish the existence of a relationship, but two witnesses are required to establish the name of the second party to that relationship?
I’m not sure that Tom’s application of ancient Egyptian principles is precisely correct, but his and my speculations have at least clarified one important principle: no legal fiction can exist without a “name”. Unless clothed with a name, the legal fiction is not merely invisible, it is non-existent.
Again, it might be argued that a legal fiction is its “name”.
• The Egyptian principle that the person does not exist without a name is easily applied to legal fictions, but application of that principle to the modern concept of “persons” is a bit more complex. As I understand it, a “person” can be 1) a legal fiction (in which case, the Egyptiam principle is easy to apply); but can also be 2) a party to a relationship between two or more “persons”. All relationships are legal fictions. The “person” who is party to a “relationship” must therefore be a kind of “legal fiction” or a component of a “legal fiction”. It seems likely that the all-upper-case name (“ADASK”) signifies a person or legal fiction.
Without that name, the “person” or legal fiction may not exist or at least can’t appear.
All of which brings us back to the seemingly fantastic possibility that, if you won’t give the judge your “name,” the judge can’t proceed.
• I’m inclined to see a significance in a judge’s need to obtain your name that’s different from Tom’s current speculation. As a kid, I watched movies about knights, Robin Hood and Roman warriors where some actor inevitably appeared with a message and claimed to “come in the name of Prince John” or “come in the name of Caesar” or some such. Clearly, to come in such “name” was to come in the authority of Prince John, Caesar, etc.
I therefore suspect that when a kindly old judge asks, “Will you give me your name, sir?” he may be asking “Will you voluntarily consent to give me your authority to proceed in this matter?” If both parties give the judge their names, both parties may have consented to give the judge a “jurisdiction” over the case which he apparently does not have inherently. In other words, my speculation suggests that the court may not actually possess some necessary jurisdiction to proceed as an inherent power; that the court can only assume jurisdiction if both sides voluntarily consent to give their mutual authorities to proceed to decide the matter in question; that each side is presumed to have given the court its authority to proceed when it gives the court its “name”. That’s all conjecture, but at least plausible.
This conjecture concerning the absence of a court’s inherent jurisdiction is consistent with the theory that most modern state courts operate in some private capacity rather than as true judicial courts under the judicial department created by the State constitution. Under this theory, modern state courts function something like private arbitration services whose decisions can be binding—but only if both parties initially consent to be bound by the arbitration process. If either party refuses to consent to a private arbitration process, the process cannot proceed.
Does something similar take place in our state courts if a defendant refuses to “give his name”? If the defendant and/or representative for the defendant-person-fiction does not give the defendant’s name, perhaps the defendant cannot be deemed to have consented to “appear” and voluntarily participate in the court’s “private” (?) process. If the defendant/person/fiction does not give its name, perhaps it does not give its authority for the court to proceed privately in whatever matter is before the court.
It’s possible that some mix of both my conjecture (based on authority) and Tom’s analysis (based on appearance) may apply. Maybe the court needs a “person’s” name not only to make that “person” “appear” but also to grant the court authority/jurisdiction to proceed in the matter.
So there’s my half-baked theory du jour. It’s not fully formed but it still offers a couple of intriguing possibilities (in my opinion, at least) that are worth your consideration.
Thanks for reading.