tag:blogger.com,1999:blog-304444952024-03-15T18:10:31.681-07:00Theory of JurisprudenceMaverick SMhttp://www.blogger.com/profile/02871611453372513136noreply@blogger.comBlogger33125tag:blogger.com,1999:blog-30444495.post-38058356655016661762009-02-21T18:49:00.000-08:002009-02-21T18:50:15.396-08:00The Philosophy of Malaysian Politics<span style="color: rgb(0, 51, 51);font-size:130%;" >Bewildered in Malaysia, perplexed in Perak, stupefied in Selangor<br />— no wonder the masses are agitated </span><br /><br />By Ooi Kee Beng<br />The Malaysian Insider<br />February 22, 2009<br /><br />Extract of the article above:<br /><br />[Quote]<br /><br /><div style="text-align: justify;"><span style="font-style: italic;">In truth, the political game in Malaysia has reached the level where intrigues and hidden tactics are the order of the day, where the mass media, the police and the judiciary are no longer expected to act professionally, objectively, and with integrity.</span><br /><br /><span style="font-style: italic;">Politicians, even leading politicians, are certainly not expected to act like statesmen, and in a non-partisan manner.</span><br /><br /><span style="font-style: italic;">Under such circumstances, no one really expects any proof to be reliable or made readily available. Indeed, proof becomes rather superfluous where faith and trust in the institutions of state are in short supply.</span><br /><br /><span style="font-style: italic;">Perception is everything in politics, and in Malaysia, where the BN has been in power since independence and controls — and has consequently compromised — all the institutions of government to varying degrees, any episode that hurts the opposition is invariably believed to bear BN’s fingerprints.</span><br /><br /><span style="font-style: italic;">No evidence either way, be it in the Perak crisis or the Wong case, or even in the many politically charged criminal cases being heard at the moment in Malaysian courts, is taken at face value by the public.</span><br /><br /><span style="font-style: italic;">Malaysia’s addiction to conspiracy theories is quite incurable, fed as it is by dose after dose of bewildering episodes and partisan posturing.</span><br /><br /><span style="font-style: italic;">It is not only Perak that is suffering a constitutional crisis. The whole country is mired in a misguided democracy. — Today</span><br /><br /></div><br />[Unquote]<br /><br />********************************************************************************<br />The writer is a Fellow at the Institute of Southeast Asian Studies.<br />********************************************************************************<br /><br />Source: <a href="http://www.themalaysianinsider.com/index.php/opinion/ooikeebeng/18863-bewildered-in-malaysia-perplexed-in-perak-stupefied-in-selangor--no-wonder-the-masses-are-agitated">The Malaysian Insider</a><br /><br />*****************************************************Maverick SMhttp://www.blogger.com/profile/02871611453372513136noreply@blogger.com1tag:blogger.com,1999:blog-30444495.post-56648068067276275242008-09-29T23:49:00.000-07:002008-09-29T23:59:29.717-07:00Zaid Ibrahim to PM Pak Lah: Abolish ISA Law<span style="font-size:130%;"><span style="color: rgb(0, 0, 102);">Zaid Ibrahim writes open letter to PM</span></span><br /><span style="color: rgb(0, 0, 102);">Sep 30, 08 1:53pm</span><br /><span style="color: rgb(0, 0, 102);">Malaysiakini</span><br /><br /><div style="text-align: justify;">In our proclamation of independence, our first prime minister gave voice to the lofty aspirations and dreams of the people of Malaya: that Malaya was founded on the principles of liberty and justice, and the promise that collectively we would always strive to improve the welfare and happiness of its people.<br /><br />Many years have passed since that momentous occasion and those aspirations and dreams remain true and are as relevant to us today as they were then. This was made possible by a strong grasp of fundamentals in the early period of this nation.<br /><br />The federal constitution and the laws made pursuant to it were well founded; they embodied the key elements of a democracy built on the rule of law. The Malaysian judiciary once commanded great respect from Malaysians and was hailed as a beacon for other nations.<br /><br />Our earlier prime ministers, Tunku Abdul Rahman, Tun Razak and Tun Hussein Onn were truly leaders of integrity, patriots in their own right and most importantly, men of humility. They believed in and built this nation on the principles and values enunciated in our constitution.<br /><br />Even when they had to enact the Internal Security Act (ISA) 1960, they were very cautious and apologetic about it. Tunku stated clearly that the Act was passed to deal with the communist threat.<br /><br />“My cabinet colleagues and I gave a solemn promise to Parliament and the nation that the immense powers given to the government under the ISA would never be used to stifle legitimate opposition and silent lawful dissent”, was what the Tunku said.<br /><br />Our third prime minister, Tun Hussein Onn, reinforced this position by saying that the ISA was not intended to repress lawful political opposition and democratic activity on the part of the citizenry.<br /><br /><span style="font-weight: bold;">Gov’t has failed the people</span><br /><br />The events of the last three weeks have compelled me to review the way in which the ISA has been used. This exercise has sadly led me to the conclusion that the government has time and time again failed the people of this country in repeatedly reneging on that solemn promise made by Tunku Abdul Rahman.<br /><br />This has been made possible because the government and the law have mistakenly allowed the minister of home affairs to detain anyone for whatever reason he thinks fit. This subjective discretion has been abused to further certain political interests.<br /><br />History is the great teacher and speaks volumes in this regard. Even a cursory examination of the manner in which the ISA has been used almost from its inception would reveal the extent to which its intended purpose has been subjugated to the politics of the day.<br /><br />Regrettably, Tunku Abdul Rahman himself reneged on his promise. In 1965, his administration detained Burhanuddin Helmi, the truly towering Malay intellectual, a nationalist who happened to be a PAS leader. He was kept in detention until his death in 1969. Helmi was a political opponent and could by no stretch of the imagination be considered to have been involved in the armed rebellion or communism that the ISA was designed to deal with.<br /><br />This detention was an aberration, a regrettable moment where politics had been permitted to trump the rule of law. It unfortunately appears to have set a precedent and many detentions of persons viewed as having been threatening to the incumbent administration followed through the years.<br /><br />Even our literary giant, ‘sasterawan negara’ the late Tan Sri A Samad Ismail was subjected to the ISA in 1976. How could he have been a threat to national security?<br /><br />I need not remind you of the terrible impact of the 1987 Operasi Lalang. Its spectre haunts the government as much as it does the peace-loving people of this nation, casting a gloom over all of us. There were and still are many unanswered questions about those dark hours when more than a hundred persons were detained for purportedly being threats to national security. Why they were detained has never been made clear to Malaysians.<br /><br />Similarly, no explanation has been forthcoming as to why they were never charged in court. Those detainees included amongst their numbers senior opposition members of parliament who are still active in Parliament today.<br /><br />The only thing that is certain about that period was that Umno was facing a leadership crisis. Isn’t it coincidental that the recent spate of ISA arrests has occurred when Umno is again having a leadership crisis?<br /><br /><span style="font-weight: bold;">‘Militant’ Ezam back in Umno</span><br /><br />In 2001, Keadilan ‘reformasi’ activists were detained in an exercise that the Federal Court declared was in bad faith and unlawful. The continued detention of those that were not released earlier in the Kamunting detention facility was made possible only by the fact that the ISA had been questionably amended in 1988 to preclude judicial review of the minister’s order to detain.<br /><br />Malaysians were told that these detainees had been attempting to overthrow the government via militant means and violent demonstrations. Seven years have gone and yet no evidence in support of this assertion has been presented. Compounding the confusion even further, one of these so-called militants, Ezam Mohamad Noor, recently rejoined Umno to great fanfare, as a prized catch it would seem.<br /><br />At around the same time, members of PAS were also detained for purportedly being militant and allegedly having links to international terrorist networks. Those detained included Nik Adli, the son of Tuan Guru Nik Abdul Aziz Nik Mat, the menteri besar of Kelantan. Malaysians were made a promise by the government that evidence of the alleged terrorist activities and links of these detainees would be disclosed. To date no such evidence has been produced.<br /><br />The same formula was used in late 2007 when the Hindraf 5 were detained. Malaysians were told once again that these individuals were involved in efforts to overthrow the government and had links with the militant Liberation Tiger of Tamil Eelam of Sri Lanka. To date no concrete evidence have been presented to support this assertion.<br /><br />It would seem therefore that the five were detained for their involvement in efforts that led to a mobilisation of Indian Malaysians to express, through peaceful means; their frustration against the way in which their community had been allowed to be marginalised. This cause has since been recognised as a legitimate one. The Hindraf demonstration is nothing extraordinary as such assemblies are universally recognised as being a legitimate means of expression.<br /><br />In the same vein, the grounds advanced in support of the most recent detentions of Tan Hoon Cheng, Teresa Kok and Raja Petra Kamarudin leave much to be desired. The explanation that Tan Hoon Cheng was detained for her own safety was farcical. The suggestion that Teresa Kok had been inciting religious sentiments was unfounded as was evinced by her subsequent release.<br /><br />As for Raja Petra Kamarudin, the prominent critic of the government, a perusal of his writings would show that he might have been insulting of the government and certain individuals within it.<br /><br />However, being critical and insulting could not in any way amount to a threat to national security. If his writings are viewed as being insulting of Islam, Muslims or the Holy Prophet (pbuh), he should instead be charged under the Penal Code and not under the ISA.<br /><br />In any event, he had already been charged for sedition and criminal defamation in respect of some of his statements. He had claimed trial, indicating as such his readiness and ability to defend himself. Justice would best be served by allowing him his day in court more so where, in the minds of the public, the government is in a position of conflict for having been the target of his strident criticism.<br /><br /><span style="font-weight: bold;">Law used against dissidents</span><br /><br />The instances cited above strongly suggest that the government is undemocratic. It is this perspective that has over the last 25 plus years led to the government seemingly arbitrarily detaining political opponents, civil society and consumer advocates, writers, businessmen, students, journalists whose crime, if it could be called that, was to have been critical of the government.<br /><br />How it is these individuals can be perceived as being threats to national security is beyond my comprehension. The self-evident reality is that legitimate dissent was and is quashed through the heavy-handed use of the ISA.<br /><br />There are those who support and advocate this carte-blanche reading of the ISA. They will seek to persuade you that the interests of the country demand that such power be retained, that Malaysians owe their peace and stability to laws such as the ISA. This overlooks the simple truth that Malaysians of all races cherish peace. We lived together harmoniously for the last 400 years, not because of these laws but in spite of them.<br /><br />I believe the people of this country are mature and intelligent enough to distinguish actions that constitute a ‘real’ threat to the country from those that threaten political interests. Malaysians have come know that the ISA is used against political opponents and, it would seem, when the leadership is under challenge either from within the ruling party or from external elements.<br /><br />Malaysians today want to see a government that is committed to the court process to determine guilt or innocence even for alleged acts of incitement of racial or religious sentiment. They are less willing to believe, as they once did, that a single individual, namely the minister of home affairs; knows best about matters of national security.<br /><br />They value freedom and the protection of civil liberties and this is true of people of other nations too.<br /><br /><span style="font-weight: bold;">I attempted to push for reform</span><br /><br />Mr Prime Minister, the results of the last general election are clear indication that the people of Malaysia are demanding a reinstatement of the rule of law. I was appointed as your, albeit short-lived, minister in charge of legal affairs and judicial reform.<br /><br />In that capacity, I came to understand more keenly how many of us want reform, not for the sake of it, but for the extent to which our institutions have been undermined by events and the impact this has had on society.<br /><br />With your blessing, I attempted to push for reform. High on my list of priorities was a reinstatement of the inherent right of judicial review that could be enabled through a reversion of the key constitutional provision to its form prior to the controversial amendment in 1988.<br /><br />I need not remind you that that constitutional amendment was prompted by the same series of events that led not only to Operasi Lalang but the sacking of the then Lord President and two supreme court justices.<br /><br />Chief amongst my concerns was the way in which the jurisdiction and the power of the courts to grant remedy against unconstitutional and arbitrary action of the executive had been removed by Parliament and the extent to which this had permitted an erosion of the civil liberties of Malaysians.<br /><br />It was this constitutional amendment that paved the way for the ouster provision in the ISA that virtually immunises the minister from judicial review, a provision which exemplifies the injustice the constitutional amendment of 1988 has lent itself.<br /><br />I also sought to introduce means by which steps could be taken to assist the judiciary to regain the reputation for independence and competence it once had. Unfortunately, this was viewed as undesirable by some since an independent judiciary would mean that the executive would be less ‘influential’.<br /><br />I attempted to do these things and more because of the realisation that Malaysia’s democratic traditions and the rule of law are under siege. Anyway, there is nothing wrong with giving everyone an independent judiciary and the opportunity to a fair trial.<br /><br />This is consistent with the universal norms of human rights as it is with the tenets of Islam, the religion of the federation. Unchecked power to detain at the whim of one man is oppressiveness at its highest. Even in Israel, a nation that is perpetually at war the power to detain is not vested in one man and detention orders require endorsement from a judge.<br /><br />If there are national security considerations, then these can be approached without jettisoning the safeguards intended to protect individual citizens from being penalised wrongfully. In other jurisdictions involved in armed conflicts, trials are held in camera to allow for judicial scrutiny of evidence considered too sensitive for public disclosure so as to satisfy the ends of justice.<br /><br />If this can be done in these jurisdictions, why not here where the last armed struggle we saw, the very one that precipitated the need for the ISA, came to an end in the 1980s?<br /><br /><span style="font-weight: bold;">ISA was never intended to be permanent</span><br /><br />Any doubts as to the continued relevance of the ISA in its present form should have been put to rest by the recommendation by the Human Rights Commission (Suhakam) that the ISA be repealed and an anti-terror legislation suited to the times enacted in its place. Containing as it did a sunset clause in its original times, the ISA was never intended to be a permanent feature on the Malaysian legal landscape.<br /><br />Through its continued use in the manner described above and in the face of public sentiment, it is only natural that the ISA has become in the mind of the people an instrument of oppression and the government is one that lends itself to oppressiveness.<br /><br />Its continued use does not bode well for a society that is struggling to find its place in the global arena. It does not bode well for the democracy that is so vital for us to develop sustainably.<br /><br />Mr Prime Minister, I remember very clearly what you once said; that if one has the opportunity to do what is good and right for the country, then he must take on the task. I respect you deeply for that and if I were confident that I would have been able to do some good for Malaysia, I would have remained on your team.<br /><br />Sir, you are still the prime minister and you still have the opportunity to leave your footprint in Malaysian history. I urge you to do so by repealing the ISA once and for all.<br /><br />Let us attempt to fulfil that solemn promise made by our beloved first prime minister to the people of this country.<br /></div><br />Yours sincerely<br /><br />Zaid Ibrahim<br /><br /><br />Source: <a href="http://www.malaysiakini.com/news/90602">Malaysiakini</a>Maverick SMhttp://www.blogger.com/profile/02871611453372513136noreply@blogger.com4tag:blogger.com,1999:blog-30444495.post-30136206899106617302008-07-05T02:39:00.000-07:002008-07-05T02:44:34.122-07:00Utopia: A Parable<p class="MsoNormal"><span style="font-size: 14pt;">Utopia: The Parables of a National Discriminative Economic Policy<o:p></o:p></span></p> <p class="MsoNormal" style="margin: 0in 0.5in 0.0001pt; text-align: justify;"><i style="">“For everywhere one may hear of ravenous dogs and wolves, and cruel men-eaters, but it is not so easy to find states that are well and wisely governed.”<o:p></o:p></i></p> <p class="MsoNormal" style="text-align: justify;">There is reason to fear the discovery, which was thought would prove so much to their advantage, may by their imprudence become an occasion of much mischief to them. But it will be too long to dwell on all that had happened; it would be too great a digression from our present purpose; whatever is necessary to know, concerning those wise and prudent institutions which we observed among civilized nations, may perhaps be related to us on a more proper occasion.</p> <p class="MsoNormal" style="text-align: justify;">There is no reason to wonder at the matter, since this way of punishing the minorities was neither just in itself, nor good for the nation itself; the remedy was not effectual; for such thievery have become so great a crime, so severe so ever, not being able to restrain those from robbing who now finds no other way of livelihood.</p> <p class="MsoNormal" style="text-align: justify;">There is now a great number of such noblemen amongst them, that are themselves as idle as drones, that subsist on other men’s labor, on the labor of their tenants, whom, to raise their revenues, they pare to the quick. This indeed is the only instance of their frugality, for in all other things they are prodigal, even to the beggaring of themselves: but besides this, they carry about with them a great number of idle fellows, who never learned any art by which they may gain their living; and these, as soon as either their lord dies, or they themselves falls, are turned out of doors; for their lords are readier to feed idle people, than to take care of the needy; and often the heir is not able to keep together so great a family as his predecessor did. </p> <p class="MsoNormal" style="text-align: justify;">Now when the stomachs of those that are turned out of doors, grow keen, they resent no less keenly, and what else can they do?</p> <p class="MsoNormal" style="text-align: justify;">One who has been bred up in idleness and pleasure, and who was used to walk about with his miniature sword and buckler, despising all the others with an insolent scorn, is not fit for the spade and mattock: nor will he serve for so small a hire, and in so low a diet as he used to afford given to him.</p> <p class="MsoNormal" style="text-align: justify;">This sort of men are particularly cherished, for in them consists the forces of the nation for which they can occasion; since their birth inspires them with a nobler sense of honor, than is to be found among tradesmen or ploughmen. You may as well say that we ought to cherish thieves on the accounts of such birth rights, for they will never want the one, as long as they have the other, and as robbers prove sometimes as gallant soldiers, so soldiers often prove brave robbers; so near an alliance there is between those two sorts of life.</p> <p class="MsoNormal" style="text-align: justify;">If they could not find a remedy to these evils, it is a vain thing to boast of the severity of<span style=""> </span>such theft, which though it may have the appearance of justice, yet in itself is neither just, but rather, about convenient. For if they suffer their people to be ill educated and their manners to be corrupted from their infancy, and then made them for these crimes to which their first education disposed them, what else is to be concluded from this, but that we first made thieves and then provide for them?</p> <p class="MsoNormal" style="text-align: justify;">We have heard of many things which we have not been able to consider well; but the matter is plain: it shows their ignorance of their affairs which had misled them, and will in the last place answer all their arguments. I must say, extreme justice is an extreme injury; for we ought not to approve of these terrible policy that made capital offence, that made such form of justice equal to crime, as if there is no difference to be made between the destruction of mankind and the taking of others purse, between which, if we examine things impartially, there is likeness of disproportion. God has commanded mankind to be just and fair, and shall they destroy others for the want of money? For God had given man the right of disposing justice and equality, either of their own or of other peoples’; if it is pretended that the mutual consent of man in making such laws can authorize injustice and inequality of which God has given us no such example, that it frees people from their obligation of the divine law, and so makes injustice and inequality a lawful action; what is this, but to give a preference to human laws before the divine? And if this is once admitted, by the same rule men may in all other things put what restrictions they please upon the laws of God? We cannot imagine that in this new law of mercy, in which God treats us with the tenderness of a father, He has given us a greater license to cruelty. This would not deliver them from all beggars, except to take care of them as <span style="color: red;"><span style="color: rgb(0, 0, 0);">friars.</span> </span>Who quarrel more than beggars? They had conquered, but found that the trouble of keeping it was equal to that by which it was gained. The zeal of thy house hath eaten them up! Plato judged rightly, that except rulers themselves became philosophers, they who from their childhood are corrupted with false notions, would never fall in entirely within the councils of philosophers.</p> <p class="MsoNormal" style="text-align: justify;">It will either be said that equity lies of their sides, or some words in the law will be found sounding that way, or some forced sense will be put on others; and when all other things fail, their undoubted prerogative will be pretended, as that which is above all law, and to which a religious judge ought to have a special regard.</p> <p class="MsoNormal" style="text-align: justify;">Discourse so much out of the road could not avail anything, nor have any effect on those men whose minds were prepossessed with different sentiments; for it was said, that there’s no room for philosophy in the Courts of the ministers; yet there is another philosophy that is more pliable, that knows its proper scene, accommodates itself of it, and teaches a man with propriety and decency to act that part which has fallen to his share. But when one comedies is upon the stage and a company of servants are acting their parts, it would be better for us not to say anything than by mixing things of such different natures to make an impertinent tragic-comedy; for except all leaders are good men everything cannot be right, and that is a blessing that we do not at present hope to see. All that we could be able to do would be to preserve ourselves from being mad while they endeavor to cure the madness of themselves. They had become more secure in their wickedness and this is all the success that we have, for they must always differ from the rest, and the others shall signify nothing, or if they are to agree, they shall then only help forward their own madness.</p> <p class="MsoNormal" style="text-align: justify;">And therefore when such men are engaged in such a greed, that he will find no occasions of doing any good, the ill greed will sooner corrupt them, than be the better of them: or if notwithstanding all their ill character, a few still remains steady and innocent, yet their follies and knavery will be imputed to these few; and by mixing counsels with those, the few must bear their shares of all the blame that belongs wholly to the others.</p> <p class="MsoNormal" style="text-align: justify;">Though to speak plainly my real sentiments, I must freely own, that as long as there is any such policies of property, and while money is the standard of all other things, I cannot think that a nation can be governed either justly or happily; not justly, because the best things will fall to the share of the worst men; not happily, because all things will be divided among a few (and even these few are not in all respect happy), the rest being left to be absolutely miserable. </p> <p class="MsoNormal" style="text-align: justify;">Therefore when I reflect on the wise and good constitution of the Utopians, among whom all things are so well governed, and with so few laws, where virtue hath its due reward, and yet there is such an equality, that every man lives in plenty; when I compare with them our nation that are still ,making new laws, notwithstanding every one has his property; yet all the laws that they can invent have not the power either to obtain or preserve it, or even to enable men certainly to distinguish what is their own from what is another’s.</p> <p class="MsoNormal" style="text-align: justify;">When, I say, I balanced all these things in my thoughts, I grow more favorable to Plato, and do not wonder that he resolved not to make any laws for such as would not submit to a community of all things: for so wise a man could make a nation happy, which cannot be obtained so long as there is such unjust policies; for when every man draws to himself all that he can compass, by one title or another it must needs follow, that how plentiful so ever a nation may be, yet a few dividing the wealth of it among themselves, the rest must fall into indigence. So that there will be two sorts of people among them, who deserve that their fortunes should be interchanged: the former useless, but wicked and ravenous; and the latter, who by their constant industry serve the nation more than themselves, sincere and modest men, </p> <p class="MsoNormal" style="text-align: justify;">From whence I am persuaded, that till this policy is taken away there can be no equitable or just distribution of things, nor can the nation be happily governed; for as long as that is maintained, the greatest and the far best part of mankind will be still oppressed with a load of cares and anxieties.</p> <p class="MsoNormal" style="text-align: justify;">I confess without taking it quite away, those pressures that lie on a great part of them may be made lighter, but they can never be quite removed. For if laws were made to determine at how great an extent in soil, and at how much money every man must stop, to limit the ministers that they might not become too insolent, and that none might factiously aspire to public employment, that neither to be sold, nor make burdensome by a great expense; since otherwise those that serve in them would be tempted to reimburse themselves by cheats and corruptions, and it would become necessary to find out rich men for undergoing those employments which ought rather to be trusted to the wise. </p> <p class="MsoNormal" style="text-align: justify;">These laws, I say, might have such effect, and care might have on a sick creed, whose recovery is desperate: they might allay and mitigate the disease, but it could never be quite healed, nor the body politic be brought again to a good habit, as long as such policy remains; and it will fall out as in a complication of diseases, that by applying a remedy to one sore, they will provoke another, and that which removes the one ill symptom produces others, while the strengthening one part of the body weakens the rest. </p> <p class="MsoNormal" style="text-align: justify;">On the contrary, it seems to me that such men cannot live conveniently, where all things are common; how can there be any plenty, where every such man will excuse himself from labor? </p> <p class="MsoNormal" style="text-align: justify;">For as the hope to gain doth not excite him, so the confidence that he has in other men’s industry may make him slothful: if people come to be pinched with want, and yet cannot dispose of anything as their own; what can follow upon this but perpetual sedition and bloodshed, especially when the reverence and authority due to magistrates falls to the ground? </p> <p class="MsoNormal" style="text-align: justify;">For I cannot imagine how that we can kept up among those that are in all things equal to one another; I do wonder, that it appears so to them, since they have no notion, or at least no right one, of such a constitution.</p> <p class="MsoNormal" style="text-align: justify;">And therefore Fabricius, a man of a noble and exalted temper, said, he would rather govern rich men, than be rich himself, since for one man bound in wealth and pleasure, when all about him are mourning and groaning, is to be a <span style="color: rgb(51, 51, 51);">gaoler</span> and not a king. He is an unskillful physician, that cannot sure one disease without casting his patient into another; so he that can find no other way for correcting the errors of his people, but by taking from them the conveniences of life, shows that he knows not what it is to govern a free nation. He himself ought rather to shake off his sloth, or to lay down his pride; for the contempt or hatred that his people have for him, takes its rise from the vices in himself. Let him live upon what belongs to him, without wronging others, and accommodate his expense to his revenue. Let him not rashly revive laws that are abrogated by disuse, especially if they have been long forgotten, and never wanted; and let him never take any penalty for the breach of them, to which a judge would not give way in a private man, but would look on him as a crafty and unjust person for pretending to it. </p> <p class="MsoNormal" style="text-align: justify;">To these things I would add, that law among the Macarians, a people that lie not far from Utopia, by which their king, on the day on which he begins to reign, is tied by an oath confirmed by solemn sacrifices, never to have at once above a thousand pounds of gold in his treasures, or so much silver as is equal to that in value. This law, they tell us, was made by an excellent king, who had more regard to the riches of his country than to his own wealth; and therefore provided against the heaping up of so much treasure, as might impoverish the people. He thought that moderate sum might be sufficient for any accident; if either the king had occasion for it against rebel, or the kingdom against invasion of an enemy; but that it was not enough to encourage a princes of the soils to invade other men’s rights, a circumstance that was the chief cause of his making that law.</p> <p class="MsoNormal" style="text-align: justify;">If I say, I should talk of these or such like things, to men that had taken their bias another way, how deaf would they be to all I could say? No doubt, very deaf; and no wonder, for one are never to offer at propositions or advice that we are certain will not be entertained. Discourses so much out of the road could not avail anything, nor have any effect on men whose minds were prepossessed with different sentiments.</p> <p class="MsoNormal" style="text-align: justify;">For if a man was to see a creed run out every day into the rain, and take delight in being wet, if he knew that it would be to no purpose for him to go and persuade them to return to their houses, in order to avoid the storm, and that all that could be expected by his going to speak to them would be that he himself should be as wet as they, it would be best for him to keep within indoors; and since he had<span style=""> </span>not influence enough to correct other people’s folly, to take care to preserve himself.</p> <p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p> <p class="MsoNormal" style="text-align: justify;">For as I have not that capacity, even so if I had it, the public would not be one jot the better, when I had sacrificed my quiet to it. For most ministers apply themselves more to affairs of war than to the useful arts of peace; and in these I neither have any knowledge, nor do I much desire it; they are generally more set on acquiring new kingdoms, right or wrong, than on governing well those they possess. And among the ministers, there are none that are not so wise as to need no assistance, or at least that do not think themselves so wise, that they imagine they need none; and if they court any, if is only those for whim the ministers have much personal favor, whom by their fawning and flatteries they endeavor to fix to their own interests; and indeed Nature has so made us, that we all love to be flattered, and to please ourselves with our own notions.<br /></p><p class="MsoNormal" style="text-align: justify;"><br /></p> <p class="MsoNormal" style="text-align: justify;">Reference:</p> <p class="MsoNormal" style="text-align: justify;"><i style=""><span style="color: blue;">The Fable was adapted from the book ‘Utopia’ by Sir Thomas More, written in the year 1515-1516.<span style=""> </span>Utopia was printed at </span></i><st1:place><st1:city><i style=""><span style="color: blue;">Louvain</span></i></st1:City><i style=""><span style="color: blue;">, </span></i><st1:country-region><i style=""><span style="color: blue;">Belgium</span></i></st1:country-region></st1:place><i style=""><span style="color: blue;">, towards the end of 1516 under the editorship, in part, of the classical scholar Erasmus. Sir Thomas More briefly reigned as Chancellor of England, and not too long after that lost his head for openly contesting King Henry VIII’s right to assume full authority over the English Church.<o:p></o:p></span></i></p>Maverick SMhttp://www.blogger.com/profile/02871611453372513136noreply@blogger.com3tag:blogger.com,1999:blog-30444495.post-65411787533151367552008-06-19T11:02:00.000-07:002008-06-19T11:03:13.802-07:00Sense-certainty - a Pure Being<div style="text-align: justify;">If we direct our sensuous certainty attention to a "Now" we will let ourselves point out the "Now" that is asserted. We have therefore to enter the same point of time or of space, indicate them, point them out to ourselves, i.e. we must let ourselves take the place of the very same "I", the very same "This", which is the subject knowing with certainty.<br /><br />The "Now" is one that has been, and that is its truth; it does not have the truth of being, of something that is. No doubt this is true, that it has been; but what has been is in point of fact not genuinely real, it is not, and the point in question concerned what is, concerned being.<br /><br />In thus pointing out the "Now" we see then merely a process which takes the following course: First you point out the "Now", and it is asserted to be the truth. You point it out, however, as something that has been, or as something canceled and done away with. You thus annul and pass beyond that first truth and in the second place you now assert as the second truth that it has been, that it is superseded. But, thirdly, what has been is not; you then supersede, cancel, its having been, the fact of its being annulled, the second truth, negate thereby the negation of the "Now" and return in so doing to the first position: that "Now" is.<br /><br />The "Now" and pointing out the "Now" are thus so constituted that neither the one nor the other is an immediate simple fact, but a process with diverse moments in it.<br /><br />A "This" is set up; it is, however, rather an other that is set up; the "This" is superseded: and this otherness, this canceling of the former, is itself again annulled, and so turned back to the first. But this first, reflected thus into itself, is not exactly the same as it was to begin with, namely something immediate: rather it is a something reflected-into-self, a simple entity which remains in its otherness, what it is: a "Now" which is any number of "Nows". And that is the genuinely true "Now"; the "Now" is simple day-time which has many "Nows" within it - hours. A "Now" of that sort, again - an hour - is, similarly many minutes; and this "Now" - a minute - in the same way many "Nows" and so on.<br /><br />The "Now" is thus itself the very process which expresses what the "Now" in truth really is: namely a result, or a plurality of "Nows" all taken together. And the pointing out is the way of getting to know, of experiencing, that "Now" is a universal.<br /><br />The concrete content which sense certainty furnishes makes mere apprehension free from conceptual comprehension, and appear to be the richest kind of knowledge.<br /><br /> It is as a universal that we give utterance to sensuous fact. What we say is: "This", i.e. the universal this; or we say: "it is," i.e. being in general. We utter what is universal; we do not actually and absolutely say what in this sense-certainty we really mean. Language, however, as we see, is the more truthful; in it we ourselves refute directly and at once our own "meaning". It is not possible for us to express in words any sensuous existence with we "mean".<br /><br />Pure being remains as the essential element for this sense-certainty, since sense-certainty in its very nature proves the universal to be the truth of its object. But pure being is of something in which the process of negation and mediation is essential. Consequently it is not what we intend or "mean" by being, but being with the characteristic that it is an abstraction, the purely universal; and our intending "meaning" which takes the truth of sense-certainty to be something universal.<br /></div><br />Reference:<br />G.W.F. Hegel<br />The Phenomenology of MindMaverick SMhttp://www.blogger.com/profile/02871611453372513136noreply@blogger.com1tag:blogger.com,1999:blog-30444495.post-61772862298850865512008-06-12T06:49:00.001-07:002008-06-12T06:49:54.929-07:00Mahathirism & Schopenhauerism<div style="text-align: justify;">As I was reading Malik Imtiaz's article <a href="http://malikimtiaz.blogspot.com/2008/06/our-malaysia-our-folly.html">Our Malaysia Our Folly</a> my thought process lead me to a cognitive journey through Mahathir's Dilemma passing by Ian Chin's <a href="http://maverickysm.blogspot.com/2008/06/judge-ian-chin-exposes-mahathircrimesma.html">Imploration</a>, back South to <a href="http://www.malaysianbar.org.my/bar_news/berita_badan_peguam/lingam_i_was_bullshitting_and_bragging_.html">Lingham's declaration</a> and the subsequent <a href="http://thestar.com.my/news/story.asp?file=/2008/5/10/nation/21213763&sec=nation">Haidar's Commission of Inquiry's imputation,</a> and returning back to Malik's poser: "The question is what do we do about it now?".<br /><br />Suddenly, I read a poser in Arthur Schopenhauer's note which he writes: <span style="font-style: italic; color: rgb(0, 0, 153);">"Ho! Ho! What a pity this was not found out sooner!"</span> (page 147, On the Principle of Sufficient Reason; Prometheus Books, 1891 4th Edition; 2006)<br /><br />Reading through the various pages which I did not take much notice of his criticism of Kant, it then suddenly manifested in me the essential nature and meanings to the doctrine of Mahathirism in his ancient Dilemma and the observable á posteriori (empirical knowledge) of the present predicaments. By means of an amplification which only needed a little audacity, a theoretical oracle had been added to the practical oracle with which Mahathir had wrongly endowed his Reasons and we have this historical professor, Schopenhauer, who was actually writing a critique to express the straits to which Mahathir had deduced them. Let me share that passage here:<br /><br />"All that distinguishes human life so forcibly from that of animals and confers so great a superiority on man, is, as we have shown, based upon his faculty for these representations, this faculty evidently and unquestionably constitutes that Reason, which from time to time immemorial has been the prerogative of mankind.<br /><br />It cannot be denied that "he" first gave rise to the distorted view which followed in his principal work about the true nature of Reason, as opposed to the distorted conceptions for which we have to thank the "professors" of this century. Our "professor" decided that this faculty should henceforth be called 'Understanding' instead of 'Reason', and that all that is derived from it should be named 'Intelligent' instead of 'Rational', which of course had a strange awkward ring and a discordant tone.<br /><br />The Good, The True, and the Beautiful, were made to stand high in favor with the sentimental and tender-hearted as pretended ideas, though they are really only abstract conceptions; wherefore, like many other such abstracta, they are exceedingly empty. As regards their content, I have shown that Truth is a quality belonging exclusively to judgments: that is, a logical quality. Young people had easily be induced to believe that something peculiar and inexpressive lies behind them, which entitles them to be called ideas, and harnessed to the triumphal car of this would-be Reason.<br /><br />Reason supplies material knowledge from its own resources and conveys positive information transcending the sphere of possible experience; a Reason which, in order to do this, must necessarily contain innate ideas, is a pure fiction, invented by our "professional philosophers" and a product of the terror with which the Critique of Pure Reason (Mahathir's Dilemma?) has inspired them.<br /><br />I wonder now whether this gentleman know a certain Locke and whether he has ever read his work? Perhaps he may have done so in times long gone by, cursorily and superficially, while looking down complacently on this great thinker from the heights of their own conscious superiority; may be, too, in some inferior translation; for I do not yet see that the knowledge of his modern languages has increased in proportion to the deplorable decrease in that of ancient ones.<br /><br />Alas! Alas! the great mischief in the hero-worship of this sort, and in the glorification of this celebrity by his colleagues in office or hopeful aspirants to it, is precisely, that ordinary intellects are presented to honest credulous youths of immature judgment, as master minds, exceptions and ornaments of mankind. The celebrators forthwith throw all their energies into the barren study of the endless, insipid scribblings of such mediocrities, thus wasting the short, invaluable period allotted to them for higher education, instead of using it to attain the sound information they might have found in the works of those extremely rare, genuine, truly exceptional thinkers.<br /><br />For this generation also those great minds might have had life, had our youth not been cheated out of its share in their wisdom by these exceedingly pernicious extoller of mediocrity, members of the vast league and brotherhood of mediocrities, which is as flourishing today as it ever was and still hoists its flag as high as it can in persistent antagonism to all that is great and genuine, as humiliating to its members. Thanks to them, our age has declined to so low an ebb.<br /><br />But where was this falsehood originally hatched? How did the fiction first come into our world? I am bound to confess that it was first originated by his Categorical Imperative; for when this had once been admitted, nothing further was needed than the addition of a second, no less sovereign reason as its counterpart, or twin-sister.<br /><br />Now, although I grant that he first gave rise to this false assumption, I am nevertheless bound to add, that those who want to dance are not long in finding a piper.<br /><br />For it is surely as though a curse lay on mankind, causing them, in virtue of a natural affinity for all that is corrupt and bad, to prefer and hold up to admiration the inferior, not to say downright defective, portions of the works of eminent minds, while the really admirable parts are tolerated as merely necessary.<br /><br />We soon perceived therefore, that in spite of all their talk, these people really know nothing of it but the husk, the mere outer envelope, and that if perchance they may here or there have caught up of it, they have never penetrated to the depths of its meaning and spirit.<br /><br />We may at last perhaps discover that these heroic act upon the same principle as that idealistic bird, the ostrich, which imagines that by closing its eyes it does away with the huntsman. Ah well! we must bide our time; if the public can only be brought to take up meantime with the barren twaddle, the unbearably tiresome repetitions, the arbitrary constructions, and the infant-school morality of this gentleman - say, till I am dead and they can trim up my works as they like - we shall then see.<br /><br />But do this gentleman know what time of day it is? A long predicted epoch has set in; we have evident signs in the general diffusion of that shallow rationalism which is showing its bulldog face daily more and more overtly. It quietly sets to work to measure those profound mysteries over which decades have brooded and disputed with its draper's ell, and thinks itself wondrous wise withal.<br /><br />Just as in times of prevailing poverty and neglect, wolves begin to make their appearances in villages; so does Materialism, ever lying in wait, under these circumstances lift up its head and come to the front hand in hand with Bestialism, its companion, which some call Humanism.<br /><br />There comes a boiling-point in the scale of all intellectual development, at which all revelation and all authority evaporate, and man claims the right to judge for himself; the right, not only to be taught, but to be convinced. The leading-strings of his infancy have fallen off, and henceforth he demands leave to walk alone.<br /><br />Then it is that the desire for philosophy becomes serious and that mankind invokes the spirit of all the genuine thinkers who have issued from its ranks. Then, too, empty verbiage and the impotent endeavors of emasculated intellects no longer suffice; the want of a serious philosophy is felt, having other aims in view than fees and salaries, and caring little therefore whether it meets the approbation of cabinet-ministers, or councillors, whether it serves the purposes of this or that faction, or not; a philosophy which, on the contrary clearly shows that it has a very different mission in view from that of procuring a livelihood for the poor in spirit.<br /><br />Reason had for ages vainly argued and contended; and it is on such a mere product of imagination, such a completely fictitious reason as this, that the sham philosophy has been based for the last forty odd years; first, as a free construction and projection of the absolute ego and the emanation from it of the non-ego; then, as the intellectual intuition of absolute identity or indifference, and its evolutions to nature; or again, as the rising of god out of his dark-depths or bottomless pit.<br /><br />So this is the Reason, is it? Oh, no, it is simply a farce! Ho! Ho! What a pity this was not found out sooner!"<br /></div>Maverick SMhttp://www.blogger.com/profile/02871611453372513136noreply@blogger.com1tag:blogger.com,1999:blog-30444495.post-38750112316644541952008-04-12T07:44:00.001-07:002008-04-12T07:44:37.642-07:00On the Social Contract<div style="text-align: justify;"><span style="color: rgb(0, 0, 153);">Man is born free, and everywhere he is in chains.</span><br /><br /><span style="color: rgb(0, 0, 153);">One thinks himself the master of others, and still remains a greater slave than they.</span><br /><br />- Jean Jacques Rousseau<br /><br />Social order is a sacred right which is the basis of all other rights. Nevertheless, this right does not come from nature, and must therefore is founded on convention.<br /><br />The most ancient of all societies, and the only one that is natural, is the family, and even so the children remain attached to the father only so long as they need him for their preservation. As soon as this need ceases, the natural bond is dissolved. The children, released from the obedience they owed to the father, and the father, released from the care he owed his children, return equally to independence. If they remain united, they continue so no longer naturally, but voluntarily; and the family itself is then maintained only by convention.<br /><br />This common liberty results from the nature of man. His first law is to provide for his own preservation, his first cares are those which he owes to himself; and, as soon as he reaches years of discretion, he is the sole judge of the proper means of preserving himself, and consequently becomes his own master.<br /><br />The family then may be called the first model of political societies. The whole difference is that, in the family, the love of the father for his children repays him for the care he takes of them, while, in the State, the pleasure of commanding takes the place of the love which the chief cannot have for the people under him.<br /><br />Men in order to co-exist have to reached the point at which the obstacles in the way of their preservation in the state of nature shows their power of resistance to be greater than the resources at the disposal of each individual for his maintenance in that state.<br /><br />But, as men have no other means of preserving themselves than the formation, by aggregation, of a sum of forces great enough to overcome the resistance. These they have to bring into play by means of a single motive of power, and cause to act in concert.<br /><br />This sum of forces can arise only where several persons come together: but, as the force and liberty of each man are the chief instruments of his self-preservation, how can he pledge them without harming his own interests, and neglecting the care he owes to himself?<br /><br />The problem is to find a form of association which will defend and protect with the whole common force the person and goods of each associate, and in which each, while uniting himself with all, may still obey himself alone, and remain as free as before. This is the fundamental problem of which the Social Contract provides the solution.<br /><br />The clauses of this contract are so determined by the nature of the act that the slightest modification would make them vain and ineffective; so that, although they have perhaps never been formally set forth, they are everywhere the same and everywhere tacitly admitted and recognized, until, on the violation of the social compact, each regains his original rights and resumes his natural liberty, while losing the conventional liberty in favor of which he renounced it.<br /><br />These clauses, properly understood, may be reduced to one – <span style="color: rgb(204, 0, 0);">the total alienation of each associate, together with all his rights, to the whole community; for, in the first place, as each gives himself absolutely, the conditions are the same for all; and, this being so, no one has the interest in making them burdensome to others. The alienation being without reserve, the union is as perfect as it can be, and no associate has anything more to demand.</span><br /><br />Finally, each man in giving himself to all, gives himself to nobody; and as there is no associate over which he does not acquire the same right as he yields others over himself, he gains an equivalent for everything he loses, and an increase of force for the preservation of what he has.<br /><br />Discarding those of which is not of the essence in the social compact, we shall find that it reduces itself to the following terms:<br /><br /><span style="color: rgb(0, 0, 153);">“Each of us puts his person and all his power in common under the supreme direction of the general will, and, in our corporate capacity, we receive each member as an indivisible part of the whole.”</span><br /><br />At once, in place of the individual personality of each contracting party, this act of association creates a moral and collective body composed of as many members as the assembly contains voters, and receiving from his act its unity, its common identity, its life, and its will.<br /><br />The public person formed by the union of all other persons, formally took the name of city, and now takes that of Republic or Body Politic; it is called by its members: State when passive, Sovereign when active, and Power when compared with others like itself. Those who are associated in it take collectively the name of people, and severally are called citizen, as sharing in the sovereign power, and subjects, as being under the laws of the State. These terms are often confused and taken one for another; it is enough to know how to distinguish them when they are being used with precision.<br /><br />Instead of destroying natural inequality, the fundamental compact substitutes for such physical inequality an equality that is moral and legitimate, and that men, who may be unequal in strength or intelligence, become every one equal by convention and legal right.<br /><br /><span style="color: rgb(204, 0, 0);">As soon as this multitude is so united in one body, it is impossible to offend against one of the members without attacking the body, and still more to offend against the body without the members resenting it.</span><br /><br /><span style="color: rgb(0, 0, 153);">Duty and interest therefore equally oblige the two contracting parties to give each other help; and the same men should seek to combine, in their double capacity, all the advantages dependent upon that capacity.</span><br /><br />Each individual may have a particular will contrary or dissimilar to the general will which he has as a citizen. His particular interest may speak to him quite differently from the common interest: his absolute and naturally independent existence may make him look upon what he owes to the common cause as a gratuitous contribution, the loss of which will do no less harm to others than the payment of it is burdensome to himself.<br /><br />In order then that the social compact may not be an empty formula, it tacitly includes the undertaking, which alone can give force to the rest, that whoever refuses to obey the general will shall be compelled to do so by the whole body. In this lies the key to the working of the political machine; this alone legitimizes civil undertakings, which, without it, would be absurd, tyrannical, and liable to the most frightful abuses.<br /><br /><span style="color: rgb(204, 0, 0);">What man loses by the social contract is his natural liberty and an unlimited right to everything he tries to get and succeeds in getting; what he gains is civil liberty and the proprietorship of all he possesses.</span><br /><br />As nature gives each man absolute power over all his members, the social compact gives the body politic absolute power over all its members also; and it is this power which, under the direction of the general will, bears the name of Sovereign.<br /><br />Besides the public person, we have also to consider the private persons composing it, whose life and liberty are naturally independent of it. We are bound then to distinguish clearly between the respective rights of the citizens and the Sovereign, and between the duties the people have to fulfill as subjects, and the natural rights they should enjoy as men.<br /><br />Each man alienates, by the social compact, only such part of his powers, goods, and liberty as it is important for the community to control, but it must also be granted that the Sovereign (which ultimately transcend to become the Constitution of a State) is sole judge of what is right and accepted as equal and just.<br /><br /><span style="color: rgb(204, 0, 0);">The Sovereign for its part, cannot impose upon its subjects any fetters that are useless or unjust to the community; nor can it even wish to do so; for no more by the law of reason than by the law of nature can anything occur without a cause.</span><br /><br /><span style="color: rgb(204, 0, 0);">The undertakings which bind us to the social body are obligatory only because they are mutual; and their nature is such that in fulfilling them, we cannot work for others without working for ourselves.</span><br /><br />Equality of rights and the idea of justice which such equality creates originate in the preference each man gives to himself, and accordingly in the very nature of man.<br /><br /><span style="color: rgb(0, 0, 153);">It proves that the general will, to be really such, must be general in its object as well as its essence that it must both come from all and apply to all; and that it loses its natural rectitude when it is directed to some particular and determinate object.</span><br /><br /><span style="color: rgb(204, 0, 0);">As soon as a question of particular fact or right arises on a point not previously regulated by a general convention, the matter becomes contentious.</span><br /><br /><span style="color: rgb(0, 0, 153);">From whatever side we approach our principle, we reach the same conclusion, that the social compact sets up among the citizens an equality of such a kind, that they all bind themselves to observe the same conditions and should therefore all enjoy the same right.</span><br /><br /><span style="color: rgb(0, 0, 153);">Thus, from the very nature of the compact, every act of the Sovereign binds all the citizens equally, so that the Sovereign recognizes only the body of the nation, and draws no distinctions between those of whom it is made up.</span><br /><br /><span style="color: rgb(204, 0, 0);">We can see from this that the sovereign power does not and cannot exceed the limits of general conventions, and that every man may dispose at will of such goods and liberty as these conventions leave him; so that the Sovereign never has a right to lay more changes on one subject than on another, because, in that case, the question becomes particular, and ceases to be within its competency.</span><br /><br />By the social contract we have given the body politic existence and life; we have now by legislation to give it movement and will. For the original act by which the body is formed and united still in no respect determines what it ought to do for its preservation.<br /><br /><span style="color: rgb(0, 0, 153);">Doubtless, there is a universal justice emanating from reason alone; but this justice, to be admitted among us, must be mutual. </span><br /><br /><span style="color: rgb(204, 0, 0);">The law of justice is ineffective among men: they merely make for the good of the wicked and the undoing of the just, when the just man observes them towards everybody and nobody observes them towards him.</span><br /><br />Conventions and laws are therefore needed to join rights to duties and refer justice to its object. In the state of nature, where everything is common, I owe nothing to him whom I have promised nothing; I recognize as belonging to others only what is of no use to me.<br /><br /><span style="color: rgb(0, 0, 153);">The object of laws is always general. The law considers subject en masse and actions in the abstract, and never a particular person or action. Thus the law may indeed decree that there shall be privileges, but cannot confer them on anybody by name. It may set up several classes of citizens, and even lay down the qualifications for membership of these classes, but it cannot nominate such and such persons as belonging to them. In other words, no function which has a particular object belongs to the legislative power.</span><br /><br />As the law unites universality of will with universality of object, what a man, whoever he be, commands of his own motion cannot be a law; and even what the Sovereign commands with regard to a particular matter is no nearer being a law, but is a decree, an act, not of sovereignty, but of magistracy.<br /><br /><span style="color: rgb(0, 0, 153);">Laws are, properly speaking, only the conditions of civil association. The people, being subject to the laws, ought to be their author: the conditions of the society ought to be regulated solely by those who come together to form it. </span><br /><br />If each citizen is nothing and can do nothing without the rest, and the resources acquired by the whole are equal or superior to the aggregate of the resources of all the individuals, it may be said that legislation is at the highest possible point of perfection.<br /><br />He who has command over man ought not to have command over the laws. He who has command over the laws ought not any more to have it over man; or else his laws would be the ministers of his passions and would often merely serve to perpetuate his injustices; his private aims would inevitably mar the sanctity of his work.<br /><br />He, therefore, who draws up the laws has, or should have, no right of legislation, and the people cannot, even if it wishes, deprive itself of this incommunicable right, because, according to the fundamental compact, only the general will can bind the individuals, and there can be no assurance that a particular will is in conformity with the general will, until it has been put to the free vote of the people.<br /><br />Thus in the task of legislation we find together two things which appears to be incompatible: an enterprise too difficult for human powers, and, for its execution, an authority that is no authority.<br /><br />Conceptions that are too general and objects that are too remote are equally out of its range: each individual, having no taste for any other plan of government than that which suits his particular interest, find it difficult to realize the advantages he might hope to draw from the continual privations good laws impose.<br /><br />The legislator therefore, being unable to appeal to either force or reason, must have recourse to an authority of a different order, capable of constraining without violence and persuading without convincing; that man might obey freely, and bear with docility the yoke of the public happiness.<br /><br />All peoples have a kind of centrifugal force that makes them continually act one against another, and tend to aggrandize themselves at their neighbor’s expense. Thus the weak run the risk of being soon swallowed up; and it is almost impossible for any one to preserve itself except by putting itself in a state of equilibrium with all, so that the pressure is on all sides practically equal.<br /><br />“Legislation is made difficult less by what it is necessary to build up than by what has to be destroyed; and what makes success so rare is the impossibility of finding natural simplicity together with social requirements.”<br /><br />“Wise men, if they try to speak their language to the common herd instead of its own, cannot possibly make themselves understood.”<br /><br />It is impossible to translate wisdom into popular language.<br /></div><br /><br />Reference:<br /><br />Jean Jacques Rousseau; On the Social ContractMaverick SMhttp://www.blogger.com/profile/02871611453372513136noreply@blogger.com3tag:blogger.com,1999:blog-30444495.post-9979509800896736082008-02-19T18:49:00.000-08:002008-02-19T18:50:33.647-08:00Malaysian Courts are Opera House?<a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjpYoBfUXBjEr4jt2-LfJZ0qt-3Re4VY6qioFLpq8i78NpXgoOXzRIo3xw9MkBR0M1yBPbxkyi49e226HF7pYmAKSTnWmOBB1zahI8dq54bpvF2ijsOy0nuZ2-aRNaCFbLzhmJ_/s1600-h/Picture2.jpg"><img style="cursor: pointer;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjpYoBfUXBjEr4jt2-LfJZ0qt-3Re4VY6qioFLpq8i78NpXgoOXzRIo3xw9MkBR0M1yBPbxkyi49e226HF7pYmAKSTnWmOBB1zahI8dq54bpvF2ijsOy0nuZ2-aRNaCFbLzhmJ_/s320/Picture2.jpg" alt="" id="BLOGGER_PHOTO_ID_5168887454078557842" border="0" /></a><br /><br /><div style="text-align: justify;"><a href="http://www.thestar.com.my/news/story.asp?file=/2008/2/20/nation/20380005&sec=nation">Nazrin: Courts not opera houses</a><br /><br />The courts should not be allowed to sink to the level of theatrical operas or turned into an arena for individuals to gain political mileage, said Perak Regent Raja Dr Nazrin Shah.<br /><br />“We must, at all costs, never allow the courts to degenerate to a level where society regards them as a theatre performing an opera scripted by certain directors.<br /><br />“Control must also be exercised to prevent anyone from turning the courts into an arena to garner political mileage,” he said at the 13th convocation of the Certificate in Legal Practice Year 2007 examination at the Putra World Trade Centre here yesterday.<br /><br />He said a legal system that was just and had the people’s confidence was a prerequisite for ensuring that peace in the country is not undermined.<br /><br />“A just legal system is an effective instrument to deter citizens from seeking disastrous alternatives which could lead a developed country into a state of anarchy,” he said.<br /><br />Raja Dr Nazrin emphasised that a transparent and credible legal system was also an important component in enhancing the confidence of the outside world, particularly foreign investors, in the country.<br /><br />He said legal practitioners were duty-bound to uphold the sovereignty of the country’s judicial system and set a good example for the people.<br /></div><br /><a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhnVb7G-p8W9-IFqWEqcgP50JIDsw2JYMMfdssbFFNF4HFvDST9rmOHnpg60WNcBCPPe83TMSi4hBYKNo0TBbd_ZrjmfIVAyBFlJ5xERs9diNhGiYow6k_7GgK1ToriiQ3uL7tS/s1600-h/Picture3.jpg"><img style="cursor: pointer;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhnVb7G-p8W9-IFqWEqcgP50JIDsw2JYMMfdssbFFNF4HFvDST9rmOHnpg60WNcBCPPe83TMSi4hBYKNo0TBbd_ZrjmfIVAyBFlJ5xERs9diNhGiYow6k_7GgK1ToriiQ3uL7tS/s320/Picture3.jpg" alt="" id="BLOGGER_PHOTO_ID_5168887458373525154" border="0" /></a><br /><br /><a href="http://www.nst.com.my/Current_News/NST/Wednesday/National/2162879/Article/index_html">Lawyers must 'uphold sanctity of the courts'</a><br />By : Marc Lourdes<br /><br /><div style="text-align: justify;">Our courts should never be allowed to become theatres whose players act to a pre-ordained script, or a hunting ground for those seeking political influence.<br /><br />Regent of Perak Raja Dr Nazrin Shah said lawyers should set themselves as examples when it comes to obeying the law and should at all times defend the sanctity of the courts from being skewed by irresponsible parties.<br /><br />"A legal system based on firm ethical guidelines for lawyers will strengthen the check and balance mechanism between the legislative, the executive and the judiciary.<br /><br />"A system that has the people's confidence is a pre-condition to ensuring the peace of the nation is not jeopardized and it is an effective instrument to ensure the citizens do not look for more extreme alternatives that could lead to anarchy."<br /><br />He said rule of law was also an important component in ensuring the continued confidence of the outside world, especially investors, towards our country.<br /><br />"The sacred codes, enactments and acts of the law become meaningless if they are stained by the actions of those who do not honour the ethics of their profession.<br /><br />"The value of the law is in how those who have been given the trust to uphold it carry out their duties. Its strength and honour lie not in the beauty of courthouse architecture, high-tech facilities or in the fancy clothes of powerful advocates.<br /><br />"The courts and practitioners of law need to have strong spirits capable of upholding the respected institution."<br /><br />Raja Nazrin said the courts need to be known as an institution that guarantees justice and defends the downtrodden.<br /><br />"It needs to know only one language -- truth and justice for all, be it the rich, poor, of high rank or not, whether they are ruling or whether they are being ruled," he told the graduating class of students.<br /><br />Attorney-General Tan Sri Abdul Gani Patail, who also gave a speech, said all those who had passed did so on merit.<br /><br />"No other criteria was used. Some people still ask if the qualifying board uses a quota system.<br /><br />"I would like to stress that a quota, be it one of percentage or one of race, has never been used.<br /><br />"All decisions are made fairly and professionally and based on merit," he said.<br /></div>Maverick SMhttp://www.blogger.com/profile/02871611453372513136noreply@blogger.com4tag:blogger.com,1999:blog-30444495.post-10426354391853999182007-12-04T06:53:00.000-08:002007-12-04T06:55:02.667-08:00Ronald Dworkin: Law as Integrity<div style="text-align: center;">Law as Integrity<br />Ronald Dworkin<br />Law's Empire, 1986<br /></div><br /><div style="text-align: justify;">Key to Ronald Dworkin’s Constructive Interpretation of legal practice is the conception of Law as Integrity. Law as integrity holds a vision for judges which states that as far as possible judges should identify legal rights and duties on the assumption that they were all created by the community as an entity, and that they express the community’s conception of justice and fairness.<br /><br />According to law as integrity, proposition of law are true if they figure in or follow from the principles of justice, fairness and procedural due process, which provide the best constructive interpretation of the community’s legal practice.<br /><br />Law as integrity states that the law must speak with one voice, so judges must assume that the law is structured on coherent principles about justice, fairness and procedural due process, and that in all fresh cases which comes before them, judges must enforce these so as to make each person’s situation fair and just by the same standard – that is to say, treat everyone equally.<br /><br />Dworkin argues that, law as integrity offers a blueprint for adjudicator which directs judges to decide cases by using the same methodology from which integrity was derived viz, constructive interpretation.<br /><br />Integrity is both a legislative and an adjudicative principle. Legislative principle requires law makers to try to make the laws morally coherent. Lawmakers are required to ask the assumption that integrity is a distinct ideals of politics, for politics, and honors politics. If it fits these dimensions, then adjudicative principles is ready to begin.<br /><br />Central to Dworkin’s project that to develop a theory of adjudication it is necessary to engage in a constructive interpretation of legal practice. Adjudicative principles instruct that the law be seen as coherent in that way, as far as possible. Constructive interpretation is a methodology for interpreting social practices, texts and work of art. The distinctive feature of this is that it is argumentative.<br /><br />The process of constructive interpretation is made up of three analytical stages: (1) Pre-interpretive stage, (2) Interpretive stage, (3) Post-interpretive stage. In the Pre-interpretive stage, a participant identifies the rules and standards that constitute the practice. Then, in the interpretive stage, the interpreter settles on some general justification for those elements identified at the pre-interpretive stage. At the post-interpretive stage, participant adjusts his sense of what the practice really requires so as to better serve the justification he accepts at the interpretive stage.<br /><br />Of the three stages, the interpretive stage is the pre-eminent. The proposal must satisfy two dimensions: (1) it must be consistent with the data identified as constituting the practice at the pre-interpretive stage; (2) he must choose a justification that he believes shows it in the best light.<br /><br />For Dworkin, the historical legal record must constitute the source of legal interpretation: this interpretation must fit into the existing both of legal materials. It should not be thought that a judge committed ton law as integrity is required to interpret laws in the light of the purposes which gave rise to them. On the contrary, he is required to impose order over doctrine, not to discover order in the forces that created it.<br /><br />Dworkin is compelled to conclude that what constrain interpretation is not historical legal materials in some objective sense, but the judges convictions about “fit”. According to Dworkin, the constrain upon judges arises from their personal need as individuals to integrate their convictions about “fit” with their convictions about whether their interpretation shows the interpreted practice in its best light.<br /><br />To understand “fit” Dworkin employs the idea of the ‘Chain Novel’. Imagine that a number of novelist agree to write one chapter each of a proposed novel. Clearly, there will be constraints of ‘fit’ upon the author of the second chapter, constraints which will increase through each successive chapter.<br /><br />Because law as integrity sees the law as a coherent whole, law as integrity requires the judges to go through the whole law to consider an interpretation. The interpreted law as integrity holds that judges would both fit and justifies what has gone on before as far as possible.<br /><br />Just as the interpretation within a chain novel, in law it is a delicate balance of political convictions of different sorts. In law, as in literature, these must be sufficiently related, and yet disjointed to allow an overall judgment that trades off an interpretation’s success on one standard against failure on another.<br /><br />If, for example, it is decided in the case of McLoughlin v O’Brian (1983) that Mrs. McLoughlin deserves compensation for her injury, then the question that we need to analyze is whether legal practice is seen in a better light if the community accepts the principle that people in Mrs. McLoughlin’s position deserves compensation.<br /><br />To the positivist, in the McLoughlin case, the judges must exercise discretion and make law, which is then applied retrospectively to the parties in the case.<br /><br />It is noted that, if the judge is guided by law as integrity, he is directed to regard as law what morality would suggest to be the best justification for past decisions. If this is so, a judge deciding McLoughlin employs his own moral convictions. If the judge is satisfied that the law as he understands it favors Mrs. McLoughlin, he will feel justified in thus deciding whatever the present legislature thinks, whether or not popular morality concurs.<br /><br />Law as integrity provides a consistency in principle which requires that various standards governing the states use of coercion against the citizen be consistent in order to have a single vision of justice.<br /><br />If a judge deciding the McLoughlin case is tempted to decide against Mrs. McLoughlin, he would first ask himself whether any principled distinction can be drawn between her case and other mothers who suffer emotional damage at the scene of an accident.<br /><br />Positivism is different from law as integrity because it rejects consistency in principle as a source of legal rights. Positivism does not require judges to justify their decisions to the entirety of the law. Positivism does not consider the law as having an integral life of its own. Positivism will present the law as comprising of a set of discrete decisions, which judges have the discretion to make or amend law.<br /><br />On the contrary, law as integrity sees the law as a coherent phenomenon, rather than a set of discrete decisions. Law as integrity requires judges to justify their decisions to the entirety of the law, which is considered to have an integral life of its own.<br /><br />Consistency in principle supposes that people have legal rights which follows from legislation and precedents which enforce coercion. Mindful of this, law as integrity supposes that people are entitled to a coherent and principled extension of past decisions even when judges disagree about what that means.<br /><br />Positivism denies this, since it denies consistency in principle as a judicial virtue for dissecting ambiguous statute and in exact precedents to try to achieve this. The methodology of Dworkin’s model judge, Hercules, emphasizes this point.<br /><br />Law as integrity requires judges to treat the techniques that they use in interpreting statutes and measuring precedents not simply as tools handed down by the legal system, but as principles they assume can be justified in political theory, and when that is in doubt they construct a theory of the system to better them.<br /><br />To Dworkin, no mortal judge can or should try to articulate his instinctive working theory or make theory so concrete and detailed, that no further thoughts will be necessary case by case. He must threat any general principles or rules as thumb he has followed in the past as provisional and stand ready to abandon these in favor of more sophisticated and searching analysis when the occasion demands.<br /><br />It is nevertheless possible for any judge to confront fresh and challenging issues as a matter of principle, and this is what law as integrity demands of him.<br /><br />Law as integrity is at best a conception for hard cases. Law as integrity explains and justifies easy cases as well as hard cases and it also shows why they are easy. So easy cases are, for law of integrity, only special cases of hard cases, and, to Dworkin, we need not ask question when we already know the answer.<br /><br />The process of adjudication inherent in the theory of law as integrity yields right answer to question of law. For Dworkin, in most hard cases there are right answers to be hunted by reason and imagination.<br /><br />As a consequence of this conception of law, lawyers are invited to search for an answer in legal materials using reasons and imagination to determine the best way to interpret legal data. It is therefore possible for lawyers to confront fresh and challenging issues as a matter of principle, and this is what law as integrity demands of him.<br /><br /><br /><br /><br /></div>Maverick SMhttp://www.blogger.com/profile/02871611453372513136noreply@blogger.com20tag:blogger.com,1999:blog-30444495.post-81043703936031095002007-12-03T00:11:00.000-08:002007-12-03T00:15:34.813-08:00Ronald Dworkin's Right Thesis<p class="MsoNormal" style="text-align: center;" align="center"><span style="font-size: 18pt;">Right Thesis<o:p></o:p></span></p> <p class="MsoNormal" style="text-align: center;" align="center">Ronald Dworkin</p> <p class="MsoNormal"><o:p> </o:p></p> <p class="MsoNormal"><b style="">Introduction<o:p></o:p></b></p> <p class="MsoNormal" style="text-align: justify;">The judiciary plays an important role in all legal system. But the question is: How does a judge decides a case? If a case is brought to the court, the judge cannot refuse to adjudicate it on the basis that there is no precedent or the lawyer cannot cite any authority on the point of law.</p> <p class="MsoNormal" style="text-align: justify;">In this connection, Dworkin observed that there is a right answer to each case. Dworkin’s Right Thesis involves the general claim that within legal practice and a proper understanding of the nature of law, rights are more fundamental than rules. This is the opposite claim to most legal positivists.</p> <p class="MsoNormal" style="text-align: justify;">Rights are trumps in Dworkin’s Theory, which means that if there is any right which comes into conflict with any policy, the right must prevail.</p> <p class="MsoNormal" style="text-align: justify;"><b style="">Law as Seamless Web<o:p></o:p></b></p> <p class="MsoNormal" style="text-align: justify;">The law is to be treated as a seamless web in which there always is a right answer. Judicial decisions are characteristically generated by principles and enforces existing political rights, so that litigants are entitled to the judge’s best judgment about what their rights are. To Dworkin, different judge may come to different conclusions but he insists that judges may not rely on their own political views but only on their beliefs in the soundness of those convictions.</p> <p class="MsoNormal" style="text-align: justify;">It has long been received opinion that judges “filled in the gaps” left by rules by using their discretion. HLA Hart has written, “That the rule-making authority must exercise discretion…” Hart saw rules as ‘open-textured’. <st1:city><st1:place>Austin</st1:place></st1:City> saw no problem in this. It is the thesis of Dworkin that judicial discretion in what Dworkin calls its “Strong Sense” does not exist. Dworkin rejects the view regarding judicial discretion. The judges often are heard to say: “We find the law to be this”, and they say they discover the law. They do not profess the law to be their own discretion.</p> <p class="MsoNormal" style="text-align: justify;">For Dworkin, judges are always constrained by the law. In every adjudication of the so-called “hard-cases’ there are controlling standards which a judge is obligated to follow.</p> <p class="MsoNormal">Dworkin objects to judges acting as ‘deputy legislators’ for 2 reasons:</p> <p class="MsoNormal" style="margin-left: 0.75in; text-align: justify; text-indent: -0.5in;"><!--[if !supportLists]--><span style="">(i)<span style="font-family: "Times New Roman"; font-style: normal; font-variant: normal; font-weight: normal; font-size: 7pt; line-height: normal; font-size-adjust: none; font-stretch: normal;"> </span></span><!--[endif]--><b style="">Separation of Power</b>: It offends the democratic ideal that a community should be governed by elected officials answerable to the electorate. The judge not being elected must not substitute his own will as against the legislature. (In Lord Simmons words, “it’s a naked usurpation of legislative functions).</p> <p class="MsoNormal" style="margin-left: 0.75in; text-align: justify; text-indent: -0.5in;"><!--[if !supportLists]--><span style="">(ii)<span style="font-family: "Times New Roman"; font-style: normal; font-variant: normal; font-weight: normal; font-size: 7pt; line-height: normal; font-size-adjust: none; font-stretch: normal;"> </span></span><!--[endif]--><b style="">Retrospectivity & The Rule of Law</b>: Dworkin’s 2<sup>nd</sup> objection to judicial originality is that “if a judge makes a new law and applies it retrospectively in the case before him, then the losing party will be punished, not because he has violated some duty he had, but rather a new duty created after the event.”<br /> <!--[if !supportLineBreakNewLine]--><br /> <!--[endif]--></p> <p class="MsoNormal" style="text-align: justify;">If judges are to make law, as what Hart said, that would be in contradiction to the theory of separation of power. If judges were to make law in hard cases, they would be applying the law retrospectively; that’s against the rule of law. Citizen has a complaint that even though he was not surprised by retrospective legislation, there was no liability at that time he did the act. If the citizen is being made retrospectively liable, it is because there was no law at that time that made him liable that places a special duty upon the legislature to justify retrospective legislation.</p> <p class="MsoNormal" style="text-align: justify; font-weight: bold;">Judicial Discretion</p> <p class="MsoNormal" style="text-align: justify;">For legal positivism, the law is the law posited. So what is the position in a case where a rule has not been posited?</p> <p class="MsoNormal" style="text-align: justify;">Take a skateboard case. The actual legal position is likely to focus on language: “Is a skateboard a vehicle for the purpose of the by-law which prohibits vehicles to be used in <st1:place>Hyde Park</st1:place>?</p> <p class="MsoNormal" style="text-align: justify;">The rule does not extend to determine the question of skateboards. Thus there is a gap in the law. We can simply say that because there is no mention, they are permitted. Both sides cannot refer to decided case-laws. The prosecution might say it is included in the mischief of the Act. </p> <p class="MsoNormal" style="text-align: justify;">Dworkin wishes us to consider carefully what lawyers are actually doing as a matter of legal principle in hard cases. If both sets of lawyers are serious, both sides believe that they are correct. Both sides actually believe that there is an answer. Why then go to the court if you do not believe that your side is correct, that the law Is as you claim?</p> <p class="MsoNormal" style="text-align: justify;">Austinian positivism is clear – when the rules ran out the judge operate as a deputy legislator filling in the gaps. To <st1:city><st1:place>Austin</st1:place></st1:City>, rules do not have extensionality. However, Neil MacCommick in his “Legal Rights and Legal Reasoning” said that we can extend rules by analogy but this will extend positivism in a way which goes against the essential core: it’s clarity. <st1:city><st1:place>Austin</st1:place></st1:City> was interested in the absolute clarity of law.</p> <p class="MsoNormal" style="text-align: justify;">If for example, a judge decides that skateboards are included in the definition and are banned from <st1:place>Hyde Park</st1:place>, he adds to the wordings of the Statute – he comes to a posited decision. But the judge has now extended the law and this binds the future. </p> <p class="MsoNormal" style="text-align: justify;">Dworkin is not satisfied with this model. The reasons are: Discretion is not free-standing but part of a process. Discretion, like the hole in the doughnut, does not exist except as an area left open by a surrounding belt of restriction. Discretion is not outside the law but internal to the law. If judicial decision making was unfettered discretion we would have to say that it is no special role for judges beyond being a political and administrative official. If judges were unfettered law makers they would have to be democratically elected.</p> <p class="MsoNormal" style="text-align: justify;">If judges simply exercised discretion and make new rules they would be changing the rules of the game. Each time they do so they also commit a fraud on the litigants.</p> <p class="MsoNormal" style="text-align: justify;">Dworkin has an alternative theory. The first step is to make a distinction between strong and weak discretion. Strong discretion is where the officials are bound by pre-existing standards set by the authority. Weak discretion is when the standard cannot be applied in a mechanical way. There’s a need to evaluate what the standard means in a new case. In weak discretion, there is no gap in the law. Strong discretion does not exist for judges. Weak discretion is part of the judicial role. The discretion is controlled and there are no gaps in the law.</p> <p class="MsoNormal" style="text-align: justify;">Hart says that judges exercise strong discretion in hard cases. But that seems to equate: Rules + Discretion = New Rules. </p> <p class="MsoNormal" style="text-align: justify;">In order to understand Dworkin’s criticism of Hart, we need to understand the distinction drawn by Dworkin regarding Rules and Principles, and Constructive Interpretation as propounded by Dworkin.</p> <p class="MsoNormal" style="text-align: justify;"><b style="">Legal Rules vs. Principles<o:p></o:p></b></p> <p class="MsoNormal" style="text-align: justify;">Legal rules and principles for Dworkin exist to express and protect rights in the legal order. For Dworkin, the central approach within law emphasizes rights and the protection of the individual, including the protection of minorities who are left out of the consideration of the utilitarian.</p> <p class="MsoNormal" style="text-align: justify;">Unlike the legal positivists, Dworkin insists that you can’t think of law as just rules. The idea that laws are rules induces distortion in legal reasoning. Instead we must distinguish rules from principles, policies and other non-rule standards.</p> <p class="MsoNormal" style="text-align: justify;">In the operation of the legal system, policies are not appropriate to legal reasoning and principles are more important than rules as they surround the structure of rules.</p> <p class="MsoNormal" style="text-align: justify;">All rules produce problem cases or hard cases which cannot be resolved by logical application of rules. Dworkin argues that in hard cases judges make use of standards that do not function as rules but operates as principles. Where two rules conflict, one rule is always wrong or invalid. Rules therefore operate in an all-or-nothing fashion.</p> <p class="MsoNormal" style="text-align: justify;">Dworkin calls us to consider the actual operation of 4 cases, in particular, <u>Riggs v Palmer</u>.</p> <p class="MsoNormal" style="text-align: justify;">In <u>Riggs v Palmer</u>, Elmer murdered his grandfather in order to inherit his will. Had the court taken the positivist view, that all laws are valid by the formal test (as per Hart’s thesis), the court would most probably decide in favor of Elmer. But the court did not allow Elmer to profit from his own wrong. That decision proceeded not on rules but on a principle of law, <b style=""><i style="">Nullus Commodum Capere Potest De Injuria Sua propria</i></b>, that is, no one can profit from his own wrong.</p> <p class="MsoNormal" style="text-align: justify;">Rules also do not cover the development of the Common Law through precedent and cannot adequately explain the creation of the “Neighbouring Principle” in <u>Donogue v Stevenson </u>by Lord Atkin. The creative role of Lord Atkin lies in his giving constructive interpretation of the earlier cases and formulating the principle in a new way.</p> <p class="MsoNormal" style="text-align: justify;">Similarly, Lord Denning’s development of Promissory Estoppel doctrine in <u>High Trees case</u> was not pulled out of thin air.</p> <p class="MsoNormal" style="text-align: justify;">We can see that the rules have a different meaning and different effect when you apply relevant principles. Whereas policies are the collective goals of society pursued by the legislature, democratically elected, principles are internal to law and are developed by the judiciary. So the rule that a person may not benefit from his own wrong is a principle which is found throughout the law.</p> <p class="MsoNormal" style="text-align: justify;">For Dworkin, judges are always constrained by the law. There is no law beyond the law. In every adjudication of hard cases there are controlling standards which the judge is obligated to follow. Judicial decisions are generated by principles and enforces existing rights so that litigants are entitled to the judge ‘best judgment’ about what their rights are. Judges may not rely on their own political views but only on their belief in the soundness of their contributions.</p> <p class="MsoNormal" style="text-align: justify;"><b style="">Rights vs. Rules<o:p></o:p></b></p> <p class="MsoNormal" style="text-align: justify;">Dworkin distinguishes right from rules. Rights are more fundamental than rules in a legal system. Rules express rights but the rights exist before their expression in the form of rules. This is opposed to HLA Hart’s view where rights develop from legal rules. The reason why Dworkin says rights are more important is because rights develop in the legal system through the working out of the political morality.</p> <p class="MsoNormal" style="text-align: justify;">In summary, Dworkin’s right thesis asserts that a right legal answer would be one that asserts and protect rights which are explicit or implicit in the fundamental values of the legal system. To get the right answer, judges must have the ultimate wisdom from the history of decisions and the understanding of the political value of a system. A right answer is one which produces a better fit with existing law and legal practices. Here, Dworkin constructs a model of such a judge called Hercules. Although Hercules is only an ideal model, judges have an obligation to aim for the right answer.</p> <p class="MsoNormal" style="text-align: justify;"><b style="">Criticism of Right Thesis<o:p></o:p></b></p> <p class="MsoNormal" style="text-align: justify;">MacCommick assert that the proposition that judge have a weak discretion and that they are to find the right answer from the principles is unsustainable.</p> <p class="MsoNormal" style="text-align: justify;">Critics such as Greenawalt have argues that the ‘denial of discretion is wrong and is inconsistent with our ordinary understanding of judicial responsibilities for opinions. To suggest that judges have discretion is not to imply that they have license to do what they will. The institution of judging offers the judge choice only within the constraints of judgment.’</p> <p class="MsoNormal" style="text-align: justify;">Greenawalt argues that there are also examples which contradict the right theories. For example, in a case of nuisance, the judge may consider the effect of his discretion on the community before accepting the right of the claimant. Such cases indicate that judges do decide on policies while determining the rights of the individual.</p> <p class="MsoNormal" style="text-align: justify;">Dworkin replies that this is not a case of policy but a case where the judge compromises competing rights.</p> <p class="MsoNormal" style="text-align: justify;">Other critics also criticize Dworkin on the ground that the right thesis cannot be demonstrated that there is only one right answer to a question. Supposing two judges are to decide whether Elmer is entitled to inherit his grandfather’s property, they may answer this question differently from each other and yet claim that each answer is the right answer. How do we demonstrate that there is only one right answer to a problem/</p> <p class="MsoNormal" style="text-align: justify;">Dworkin’s answer is that it is insufficient to say that there can be no right answer just because they cannot be proved or demonstrated.</p> <p class="MsoNormal" style="text-align: justify;">Hart criticizes Dworkin’s right answer thesis as flawed and vulnerable to criticisms. Hart described Dworkin as a “Noble Dreamer”.</p> <p class="MsoNormal" style="text-align: justify;">Peter Fitzpatrick called Dworkin’s strategy to give systematic unity to the legal system and legal practice “Myth Making”.</p> <p class="MsoNormal" style="text-align: justify;">To his critics, Dworkin continues to build his myth and noble dream. While he began his writing in the early 1970s, Dworkin’s best known work, Law’s Empire was published in 1986. To Dworkin’s supporters, he is offering an uplifting image of law. Dworkin challenges us to renew our faith in the law by recasting the lenses through which we view the role of law and legal practice. In Dworkin’s word: “We live in and by the law … it makes us what we are …”</p> <p class="MsoNormal" style="text-align: justify;">Stephen Guest says, “Dworkin’s Thesis is not his own making but it has been ascribed to him. It can be said that what Dworkin meant to say was that there is a possibility of finding the best answer. In other words, the judge is given the hope that he must not give up thinking that there is no best answer at all.</p> <p class="MsoNormal" style="text-align: justify;"><b style="">Conclusion<o:p></o:p></b></p> <p class="MsoNormal" style="text-align: justify;">Dworkin’s Right Thesis wants us not to relent but to make the utmost effort to get the best answer. It is a sort of ideal that Dworkin seems to present to the judge in practical pursuit. As per Stephen Guest, “He (the judge) may not get it right but the duty is upon him to try nevertheless.</p> <p class="MsoNormal" style="text-align: justify;">Dworkin’s work has consistently been concerned with judicial interpretation of law and the role of judges. Dworkin is clear as to the political values he is committed to. His philosophy stresses a ‘Right’ approach over utilitarian calculations.</p> <p class="MsoNormal" style="text-align: justify;">It is aptly to describe Dworkin’s theory of law lies in the best moral interpretation of existing social practices. His theory of justice is that all political judgments ought to rest ultimately upon the injunction that, people are equal as human beings, irrespective of the circumstances.</p> <p class="MsoNormal" style="text-align: justify;">However, it seems Dworkin is very much influenced by professor Ron Fuller. His outlook of law come to be colored deeply by ethics and morality as expressed in hi theory and can be seen in his preferences of principles over rules. As a matter of fact, all legal principles pertain to the domain of morality.</p> <p class="MsoNormal" style="text-align: justify;">My criticism of Dworkin’s analysis is that Dworkin sought to merge the descriptive elements with the prescriptive to the extent that he has sacrificed reality to a noble dream.</p> <p class="MsoNormal" style="text-align: justify;">However, dreams have their place. They are better than nightmares. This dream looks at what the law can achieve. It sees a purpose to law rather than a mere instrument for social control. We awake from the dream refreshed.</p> <p class="MsoNormal" style="text-align: justify;">This is what law is: for the people we want to be and the community we aim to have (Dworkin Law’s Empire)</p>Maverick SMhttp://www.blogger.com/profile/02871611453372513136noreply@blogger.com19tag:blogger.com,1999:blog-30444495.post-80288595754798274132007-11-14T07:33:00.001-08:002007-11-14T07:34:01.276-08:00Malaysian Jurisprudence - Part 1<div style="text-align: justify;">The significance and effectiveness of any law depends upon the extent of popular knowledge of its existence, and acceptance of its consequences, by those to whom it applies or to whom it is directed.<br /><br />Law is but dimly perceived as an instrument of justice. But the courts we know are but courts of law, not justice: for justice is divine, and in the study of law, justice itself has little or no relevance. Law, however, is one of the means by which we strive for justice; but even as we strive, we know that seldom do we succeed, and that the best we can hope for is harmony between the ying and the yang.<br /><br />Malaysia has adopted a democratic form of government, a form of government based on the principle that political power lies in the will of the majority, and that the elected representatives of the people can give effect to that will. Such form of government can degenerate into a tyranny, for it depends upon the willingness of the minority to accept the will of the majority, or if the law devised did not represent a balance between what is ideal, and what is possible, and the absence of decency and fair play by those in power which are the basic fundamentals for maintaining the harmony of society.<br /><br />When we use the word "Law" we invoke a concept of equality, that all are to be treated equally. Article 8(1) of the Federal Constitution states that "all persons are equal before the law and entitled to the equal protection of the law."<br /><br />The law thus seeks equality, yet it imposes different burdens upon different classes of persons. The courts have to seek to reconcile these conflicting interests by evolving the doctrine of reasonable classification. The basis of this doctrine is that the guarantee of equality before the law and equal protection of the law does not require all persons to be treated alike, but that only persons in like circumstances must be treated alike.<br /><br />Aristotle noted that "it is thought that justice is equality, and so it is, though not for everybody but only for those who are equals, and it is thought that inequality is just, for so indeed it is, though not for everybody, but for those who are unequal..."<br /><br />Aristotle's doctrine was reflected in Article 153 of the Federal Constitution, which provides for certain privileges for Bumiputeras; the rationale is that, these people set out from a position of disadvantage and inequality of opportunity. On this assumption the law therefore interposes in a rough and ready fashion, a sort of machinery to redress the inequality so perceived.<br /><br />In Sadurski's view, "equality before the law requires equal treatment of relevantly equal people. It is not that we believe that the law is just by virtue of its being equal but rather, we believe that it is equal on the basis that it is just."<br /><br />In John Rawls A Theory of Justice, "in order to treat all persons equally, to provide genuine equality of opportunity, society must give more attention to those with fewer assets and to those born into the less favourable social positions. The idea is to redress the bias of contingencies in the direction of equality."<br /><br />All these are reasonable enough, but the nature of the handicaps suffered and the price to be paid by the society, rich and poor alike, for the removal of this bias id not so easy to assess. What was evidently clear is the fact that "preferential treatment" does not cure causes,; it operates only in the sphere of consequences. In Brennan J's view, "Formal equality before the law is an engine of oppression destructive of human dignity if the law entrenches inequalities in the political, economic, social, cultural or any other fields of public life."<br /><br />Discussion of Article 153 of the Constitution is unfortunately inhibited by the Sedition Act; it is seditious to question any privilege established or protected by Article 153 except in relation to the implementation.<br /><br />Law and Sovereignty: One of the paradoxes of law is that law requires the existence of some sort of sovereign authority, coupled with the maintenance of machinery that will keep that sovereign in check and responsible to some sort of lawmaking assembly that is representative of the will of the people.<br /><br />Bodin, who produced a theory of sovereignty in 1576 saw law as the command of the sovereign. John Austin states that "the matter of jurisprudence is positive law; law, simply and strictly so called; or law set by political superiors to political inferiors. Austin develops the famous theory of sovereignty, the essence of which resided in the notion of the "habitual obedience" to a determinate and common superior. For Austin, law was the command of a sovereign which requires obedience from those who habitually obeyed.<br /><br />It is impossible to understand the concept of sovereignty in Malaysia, except in Malaysian terms. The notion of sovereignty assumes that within every political and legal system, there is some authority - the sovereign - whose decision on all issues is final.<br /><br />The Malacca Sultanate has had a profound influence upon the development of the concept. The Sultan had absolute authority. The office of the Sultan combined both temporal and spiritual elements and these elements were strengthened by our traditional Malay concept known as "Daulat" which can be interpreted as 'sovereignty'. Daulat thus entails unquestionable loyalty from his subjects. Out of the past has emerged the present concept of sovereignty in Malaysia.<br /><br />While the word "kedaulatan" is generally accepted as to mean sovereignty, the word "Kerajaan" indicates the condition of having a "Raja" but sometimes, it denotes governmental authority.<br /><br />The idea of a "social contract" under which men surrender their rights to a Ruler in return for his protection, is generally regarded as false, yet it is astonishing how persistent it is, even today. In Thomas Hobbes view of which his view persist in our Malaysian law, the sovereign was never a party to the contract and was not to be bound by it. According to S.63 Interpretation Act 1967, "No written law in any manner whatsoever affect the rights of the Yang diPertuan Agong or the Government unless it is expressly provided or it appears by necessary implication that the Yang diPertuan Agong or the Government, as the case may be, is to be bound thereby." Article 181 of the Federal Constitution provides that "no proceedings whatsoever shall be brought in any court against the Ruler of a State in his personal capacity." This was modified in 1993 where the immunity was removed by an amendment Act A848. Under the amendment a Ruler can besued or tried by a Special Court set up under Article 182.<br /><br />The word sovereign inevitably invokes a consideration of the word prerogative, which means exercising a privilege. Royal prerogatives are those attributes of a Ruler in that they are not bound or limited or regulated by written law. The advent of constitutional government in Malaysia marked the beginning of the end for the royal prerogatives of the Malay rulers and that the sovereignty was now subjected to the control of an omnipotent parliament.<br /><br />However, part of the attributes of the Rulers' prerogatives are assiduously preserved in so many areas of law. That the royal prerogatives have survived is due in part to political necessity, and in part to human vanity (such as the proliferation of titles and decorations).<br /><br /> Abolish the Rulers, and they would in all probability be replaced by others who, in due course of time, would assert the same prerogatives; perhaps wearing other names and adopting other forms, but preserving the same substance.<br /><br />Sovereignty is much a political fact as well as a legal fact. A constitutional ruler is one who rules in accordance with the constitution and under the democratic parliamentary system, a Ruler does as he is told by the elected representatives of the people. Sovereignty is not always where it seem to be. The ultimate power in the State would now be the State Legislative Assembly, a body consisting entirely of elected members and under the Federal Constitution, the power rests with the parliament under the leadership of the prime minister.<br /><br />Looking ahead, there is certain naivety in the belief that the blaze of independence, the Rulers would lose all their authority and become the creatures of politicians. The credentials of some of those politicians were, after all, quite often far from impeccable, and alas, they remain so. Now it seems some of them had perpetuated the age of moronism.<br /><br />In years to come it is hope that the law may perhaps be seen as something for the barbarians, as rules no civilised man will need, for men will observe them by instinct. Whether that golden age will come is to be doubted, for the varied appetites of man-in-power have created so complex a series of system of laws, so costly an apparatus for the imposition of order and the control of the environment, that the laws of men seem likely to grow more insidious year by year.<br /><br />(<span style="font-style: italic; color: rgb(0, 0, 153);">Note: This essay is an abstraction from the essays written by R.H. Rickling in his work, Malaysian Law: An Introduction to the Concept of Law in Malaysia; Pelanduk Publications, 2001</span>)<br /></div>Maverick SMhttp://www.blogger.com/profile/02871611453372513136noreply@blogger.com2tag:blogger.com,1999:blog-30444495.post-63463807894460605112007-11-13T10:42:00.000-08:002007-11-13T10:46:52.676-08:00Necessity & Concept of Law<div style="text-align: justify;">Over the last few years, the waters have reversed their flow. The very essence of law is that it develops within society of its own vitality.<br /></div><br /><div style="text-align: justify;">"The evil in this world has roots so vast and deep that law cannot be sufficient defence against it." (Del Vecchio)<br /></div><br /><div style="text-align: justify;">For whilst lawmakers undoubtedly had influenced our society it is equally true that the society now demands greater influences on the application of law to ensure that justice is not only said but seen to be done, and that the balance needs to be addressed with a more even hand.<br /></div><br />Thus Shu-hsiang wrote to the prime Minister of Cheng in 536 B.C. as follows:<br /><br /><div style="text-align: justify;"><span style="font-style: italic;">"...Anciently, the early kings conducted their administering by deliberating on matters as they arose; they did not put their punishments and penalties into writing, fearing that this would create a contentiousness among the people which could not be checked. Therefore they used the principles of social rightness to keep the people in bounds, held together through their administrative procedures, maintaining good faith and presented them with benevolence. </span><br /><br /><span style="font-style: italic;">"When the people know what penalties are, they lose their fear of authority and acquire a contentiousness which causes them to make their appeal to the written words of the laws...</span><br /><br /><span style="font-style: italic;">"Today sir, you have built dykes and canals, set up an administration which evokes criticism and cast books of punishments. Is it not going to be difficult to bring tranquility to the people in this way? </span><br /><br /><span style="font-style: italic;">"...As soon as people know the grounds on which to conduct disputation, they will reject the accepted ways of behavior and make their appeal to the written word, arguing to the last over the tip of an awl or knife. Disorderly litigations will multiply and bribery will become current. By the end of your era, Cheng will be ruined. </span><br /><br /><span style="font-style: italic;">"I have heard it said that a state which is about to perish is sure to have many governmental regulations."</span><br /><br />All contemporary evidence suggests, despite the blind faiths of politicians, that the way to the millennium is not likely to be paved with more statutory control and using it to oppress and suppress the citizens.<br /><br />"If we could stand off from the world and view it at the moment, what would we see? Would we observe a society in the early infancy of man, or would we see already signs of degeneracy and decay?"<br /><br />When power is assumed by a ruler, it still has an almost supernatural content; and then, by instinct, men realize that it must be tempered by wisdom. Wisdom seeks righteousness, and righteousness seeks certain stable values and principles. We aspire to justice, but the best we can contrive, and all we can hope from any legal system is to minimize injustice.<br /><br />Legal rules, based on an instinctive respect for life, freedom, truth, fairness, harmony and justice, are at the core of all human law. Society, when faced with an extraordinary situation, must survive by finding a solution, or fall into anarchy.<span style="font-style: italic;"><br /><br /><br /></span>(ref: R.H. Hickling; An Introduction to the Concept of Law in Malaysia, Pelanduk Publication, 2001)<br /><br /><br />Lord Denning's famous quote:<br /><br /><span style="font-style: italic; color: rgb(153, 0, 0);">"... it's now an incoming tide flowing up the estuaries. It is now like a tidal wave bringing down our sea wall and flowing inland over our fields and houses - to the dismay of all."</span><br /></div>Maverick SMhttp://www.blogger.com/profile/02871611453372513136noreply@blogger.com1tag:blogger.com,1999:blog-30444495.post-1164253109807068562006-11-22T19:37:00.000-08:002006-11-22T19:40:55.373-08:00The Principle of Plenitude<div style="text-align: justify;">In the Principle of Plenitude, Plato described the universe as a place where "all that can be imagined must be," one in which no potential of existence remains unfulfilled.<br /><br /><a href="http://www.philosophypages.com/hy/4j.htm#principles">Leibniz, in “Logic and Harmony”</a> described the Principle of the Plenum (or principle of plenitude) affirms that the actual world, considered as a set of monads, is as full as it can possibly be. Since there is no genuine interaction among distinct substances, there would be no sufficient reason for the non-existence of any monad that would be consistent with the others within a possible world. Hence, anything that can happen will; every possibility within this world must be actualized. The world in which we live, then, is but one among the infinitely many possible worlds that might have existed. What makes this one special?<br /></div><br /><div style="text-align: justify;">This is an abstract from Grant McCracken's article: <a href="http://www.reason.com/news/show/30733.html">The Politics of Plenitude</a><br /></div><br /><div style="text-align: justify;">Increasingly, the world won't go along with our attempts to reduce it. Where once there was simplicity and limitation, everywhere there is now social difference, and that difference proliferates into ever more diversity, variety, heterogeneity.<br /></div><br /><div style="text-align: justify;">So various and changing is this new social world around us that we can barely keep up with the pace of transformation. The tremors of change can be felt everywhere. Perhaps most of all in our politics, where plenitude is at the heart of continuing and sometimes bitter conflict. Both left and right have attempted to manage plenitude; both have failed. The reasons for their failure may help us understand the commotion around us.<br /></div><br /><div style="text-align: justify;">But for the political right it is compelling evidence that things have gone terribly wrong. There is anarchic, willful, recklessly individualistic behavior everywhere. There is evidence that we are losing touch with our most grounding and stabilizing traditions, that any kind of kook can give us advice on private and public life. The world feels tippy, puzzling, dangerous, and odd. We have lives to create, children to raise, communities to build, futures to secure. How are we to do this in a land of a persistent sense that the rules, decorum, and politesse have fled the land?<br /></div><br /><div style="text-align: justify;">As the world becomes more various, not just on the margin but at the center, the party that turns its back on difference asks for trouble.<br /></div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">The trick is to see that plenitude is our tradition. It is one of the traditions of which we have the right to be most proud--not just the ability to endure differences, but the ability to make them. The continual creation of difference, variety, and novelty may be a signature gesture of our culture. It is most certainly a defining characteristic as we enter the next century. This is the tradition that we must honor.<br /></div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">But plenitude is a restless creature. It will not forgive fixity. It will not endure stasis. It will not allow identity politics to insist on certain orthodoxies because these are "good to think" and variously clarifying of what the emergent group might become. Plenitude resists conformity, orthodoxy, conventions, and rules. We cannot close Pandora's Box behind us. Plenitude is breaking through the orthodoxy imposed by a middle-class, centrist, bourgeois society, and with this change come opportunities of liberation of every kind. To resist this force is not just pointless. It is wrong.<br /></div><br /><div style="text-align: justify;">Plenitude is a force for the infinitely divisible. It will use groups as its vehicle as long as this is possible, but it will make individuals the unit of agency the moment it is impossible. Plenitude has found a friend in individualism, and there is good evidence that it will be a lasting affair. Plenitude makes the individual the locus and an engine of much of its innovative activity. It will happily create a world that is an addition of individuals. Groups will cease to matter.<br /><br /></div><div style="text-align: justify;">More problematically, everyone must necessarily belong to many groups. Our world is filling up with differences. And this is a good thing, for some of these differences advance the cause of human dignity. Plenitude embraces those who would otherwise be persecuted for their difference. Better, plenitude dispenses with "permission." No one needs the liberal generosity of the mainstream to exist. It is enough merely to stake out a social space and to occupy it. Plainly, this is to the good.<br /></div><br /><div style="text-align: justify;">But plenitude should also give us pause. It has a darker side. It is capable of creating horrifying aberrations. Plenitude encourages the "mustering" of paramilitary groups who cultivate their own deeply skewed notion of the world. It encourages a world so decentered that even the bombing of federal office buildings in Oklahoma City can seem plausible. Plenitude encourages the monstrous.<br /><br />We have a choice. Plenitude can create the glorious or the monstrous. It depends on what we do with difference. It depends on what difference becomes for us.<br /><br />Traditionally, difference has been a path to identity paved with hostility and antagonism. It has given us a "sharpener" of identity and a recipe for action: find the odd man, the odd group, the odd nation, the odd culture, and then: mock, repudiate, assault, and, too often, exterminate. Worse, our path to definition may be found through acts of differentiation, antagonism, and hostility against the other.<br /><br />By this reckoning, things look rather grim. More difference can only mean more antagonism. If we are filling up with differences, we will find ourselves surrounded by otherness and increasingly called upon to challenge it. New and emerging identities will put our own in question. Our identity will depend upon the defacement of their identity. Plenitude's world has the potential to make us smaller, meaner, more loathing, and more loathsome. It will be worse for others, the bigots and the hatemongers. These people will find themselves so provoked by the rising tide of plenitude that any act of opposition will seem tolerable (and psychologically necessary).<br /><br />But there is an other use for difference. There is good evidence that our entire culture is shifting in a transformational direction. More and more, we are prepared to try on difference, to test it out. This is a radically new approach to difference, one that completely shifts the field of assumptions. In this new transformational model, we use difference as a definitional opportunity. We use it as a shape to try on and act out. Our most fundamental reflexes are rewired. We move from difference as contradistinction to difference as definition. We move from difference as sharpening to difference as shaping. Difference is less and less for "pushing off," and more and more for "trying on." Almost certainly, we will pursue both. And this too will prove, as everything seems to, yet another engine for our plenitude.<br /><br />There is a second reason to be frightened. Plenitude challenges our most fundamental ideas of social and political association. What becomes of the "common good" in a body politic that has precious little in common? What happens to the "community" when it fills up with differences? How can we hope to act in concert when we are speciating so intensively and so extensively?<br /><br />I wish I had a clever answer. I have what is merely a sneaking suspicion. There is a common culture that unites the world of plenitude. It is, I think, the marketplace. As long as we can meet somewhere in the exchange of something for the benefit of someone, we have a foundation that can sustain plenitude. After all, say what you will about the marketplace, capitalism, and the consumer culture, they have got us this far.<br /><br />We have reason to be frightened of the world that plenitude is constructing for us. But it is also true that there may be a net to catch us when we fall. Plenitude will continue to spin off more, and more different, species of social life, but that does not mean that commonality cannot be fashioned. It doesn't mean that these very different species cannot work out some system of mutual recognition that leaves their differences uncompromised. The marketplace is not a perfect solution. It is never a pretty solution. It is rarely a just solution. But it is rather better than the alternative--a tyranny or tower of babel we can none of us survive.<br /><br />"... I think the thing we most have to fear is amnesia--our well-practiced ability to forget what we know about ourselves. We come to terms with one part of the culture of commotion, but we forget this when we take up another part. And we forget both of these when we sit down to contemplate the tremendous innovations taking place in the worlds of scholarship, business, or art. By systematically forgetting what we know about the disparate pieces of our society, we never have to come to terms with the revolution that is taking place throughout it.<br /><br />The real danger is that by insisting on the partial view, by selectively forgetting what we know, we need never come fully to grips with the new realities of our world. Plenitude is upon us. It will not go away. It will continue to transform everything about us. It is time to see it whole.<br /></div><br />http://www.cultureby.com/Maverick SMhttp://www.blogger.com/profile/02871611453372513136noreply@blogger.com1tag:blogger.com,1999:blog-30444495.post-1164194001655828922006-11-22T03:10:00.000-08:002006-11-22T03:13:21.656-08:00Jeremy Bentham - Morals & Legislation<div style="text-align: justify;">"Nature has placed mankind under the governance of two sovereign masters, Pain and Pleasure. It is for them alone to point out what we ought to do, as well as to determine what we shall do. On the one hand the standard of right and wrong, on the other the chain of causes and effects, are fastened to their throne."<br /></div><br /><span style="font-style: italic;">- Jeremy Bentham; 1789</span><br /><span style="font-style: italic;">Introduction to the Principles of Morals and Legislation</span>Maverick SMhttp://www.blogger.com/profile/02871611453372513136noreply@blogger.com1tag:blogger.com,1999:blog-30444495.post-1164193801444437512006-11-22T03:09:00.000-08:002006-11-22T03:10:01.453-08:00Thomas Malthus - Inherent Rights<div style="text-align: justify;"> "A man who is born into a world already possessed, if he cannot get subsistence from his parents on whom he has a just demand, and if the society do not want his labour, has no business to be where he is. At nature's mighty feast there is no vacant cover for him. She tells him to be gone, and will execute her own orders."<br /></div><br />- Thomas Robert Malthus (1766-1834);<br />An Essay on the Principle of PopulationMaverick SMhttp://www.blogger.com/profile/02871611453372513136noreply@blogger.com1tag:blogger.com,1999:blog-30444495.post-1164117476311966322006-11-21T05:56:00.000-08:002006-11-21T05:57:56.323-08:00Antigone - Sophocles The Theban PlaysThis is from the famous and tragic Antigone, the third of the Thebian PLays by Sophocles.<br /><br /><div style="text-align: justify;">Antigone was one of the daughters of Oedipus who had been cursed by the gods due to his mistaken killing of his own father (the King of Thebes) and his subsequent marriage of his own mother and assumption of the throne of Thebes.<br /><br />After the death of Oedipus, civil war broke out and a battle was waged in front of the 7th Gate of Thebes - the 2 sons of Oedipus led the opposing factions and at the height of the battle fought with each other taking each other's life. The brother of Oedipus, Creon, and uncle of Antigone was now the undisputed master of the city and resolving to make an example of the brother who had fought against him refused the right of honorable burial to Polynices. A penalty of death was promulgated against any who should defy this order and this order was accepted as lawful command of the ruler.<br /></div><br /><div style="text-align: justify;">Antigone asked her sister Ismene if she would help her bury their brother Polynices. Antigone was distaughted, while the brother Eteocles has been buried in full honor of the state, Polynices had been left unburied, unwept, a feast of flesh for keen eyed carrion birds.<br /><br />Antigone said to her sister Ismene: 'Now is the time to show whether or not you are worthy of your high blood.'<br /><br />Ismene objected: 'You cannot bury him against the order.'<br /></div><br /><div style="text-align: justify;">Ismene appeals to Antigone to realise and be realistic about their position. She appeals to Antigone to realise that she is but a woman and cannot move against the power of men.<br /><br />Antigone releases her sister from the obligation but says that irrespective of the threat of death she will bury her brother: 'If I die for it what happens, I shall be content to die beside a brother whom I love ...live if you will, live, and defy the holiest laws of heaven.'<br /></div><br /><div style="text-align: justify;">Her sister Ismene can only say: Go then, if you are determined, to your folly. But remember that those who love you ...love you still.<br /><br />Creon is face with Antigone who was apprehended. Given the fact that Antigone was married to his son, Creon offers Antigone the opportunity to say she had not heard the law or had misunderstood the meaning.<br /></div><br />CREON:<br />Now tell me, [Antigone], in a few words as you can,<br />Did you know the order forbidding such an act?<br /><br />ANTIGONE:<br />I Knew it, naturally. It was plain enough.<br /><br />CREON:<br />Any yet you dared to contravene it?<br /><br />ANTIGONE:<br />Yes. That order did not come from God.<br />Justice, That dwells with the gods below, knows no such law.<br />I did not think your edicts strong enough<br />To overrule the unwritten unalterable laws of God and Heaven,<br />you being only a man.<br />They are not of yesterday, or today, but everlasting,<br />Though where they came from, none of us can tell.<br /><br />Guilty of their transgression before God I cannot be,<br />For any man on earth,I knew that I should have to die, of course,<br />With or without your order.<br />If it be soon, So much the better.<br />Living in daily torment, As I do,<br />Who would not be glad to die?<br /><br />This punishment will not be any pain,<br />Only if I had let my mother's son Lie there unburied,<br />Then I could not have borne it.<br />This I can bear. Does that seem foolish to you?<br />Or is it you that are foolish to judge me so?<br /><br />CHORUS:<br />She shows her father's stubborn spirit: foolish<br />Not to give way when everything's against her.<br /><br />ANTIGONE:<br />What greater honor could I wish? All these<br />Would say that what I did was honorable,<br />But fear locks up their lips. To speak and act<br />Just as he likes is a King's prerogative.<br /><br />CREON:<br />You are wrong. None of my subjects thinks as you do.<br /><br />ANTIGONE:<br />Yes sir, they do; but dare not tell you so.<br /><br />ANTIGONE:<br />I was not a slave, but his brother, that died with him.<br /><br />CREON: Attacking his country, while the other defended it.<br /><br />ANTIGONE:<br />Even so, we have a duty to the dead.<br /><br />CREON:<br />Not to give equal honor to good and bad.<br /><br />ANTIGONE:<br />Who knows? In the country of the dead that may be the law.<br /><br />CREON:<br />An enemy can't be a friend, even when dead.<br /><br />ANTIGONE:<br />My way is to share my love, not to share my hate.<br /><br />ANTIGONE TO ISMENE:<br />I love no friend whose love is only words.<br /><br />ISMENE TO CREON:<br />The strongest mind cannot but break under misfortune's blow.<br />You could not take her - kill your own son's bride?<br /><br />CREON:<br />Oh, there are other fields for him to plough.<br />No son of mine shall wed so vile a creature.<br /><br />CHORUS:<br />Happy are they who know not the taste of evil.<br />From a house that heaven hath shaken<br />The curse departs not But falls upon all of the blood,<br />Like the restless surge of the sea when the dark storms drives<br />The black sand hurled from the deeps<br />And the Thracian gales boom down<br />On the echoing shore.<br /><br />Roving ambition helps many a man to good,<br />And many it falsely lures to light desires,<br />Till failure trips them unaware, and they fall<br />On the fire that consumes them.<br />Well was it said, Evil seems good<br />To him who is doomed to suffer;<br />And short is the time before that suffering comes.<br /><br /><br /><span style="font-style: italic; color: rgb(51, 51, 255);">ENTERS HAEMON, CREON'S SON. (Antigone's husband)</span><br /><br />CREON:<br />Son, you have heard, I think, our final judgment<br />Of your late betrothed. No angry words. I hope?<br /><br />HAEMON:<br />I am your son, sir; by your wise decisions<br />My life is ruled, and them I shall always obey.<br />I cannot value any marriage tie<br />Above your own good guidance.<br /><br />CREON:<br />Rightly said. Your father's will should have your heart's first place.<br />Only for this do fathers prays for sons<br />Obedient, loyal, ready to strike down<br />Their fathers' foes, and love their fathers' friends.<br />To the father of unprofitable sons<br />Is to be the father of sorrows, a laughing stock<br />To all one's enemies.<br /><br />Do not be fooled, my son, By lust and the wiles of a woman.<br />You'll have bought Cold comfort if your wife's a worthless one.<br /><br />No wound strikes deeper than love that is turned to hate.<br />This girl's an enemy; away with her,<br />And let her go and find a mate in Hades.<br /><br />Once having caught her in a flagrant act<br />The one and only traitor in our state -<br />I cannot make myself a traitor too; So she must die.<br />Well may she prays a Zeus, The God of Family Love.<br /><br />How, if I tolerate a traitor at home,<br />shall I rule those abroad?<br /><br />HAEMON:<br />Father, there is nothing I can prize above<br />Your happiness and well-being. What greater good<br />Can a son desire? Can any father<br />Desire more from his son? Therefore I say,<br />Let not your first thought be your only thought.<br />Think if there cannot be some other way.<br /><br />Surely to think your own the only wisdom,<br />And yours the only word, the only will,<br />Betrays a shallow spirit, an empty heart.<br /><br />It is no weakness for the wisest man<br />To learn when he is wrong, know when to yield.<br /><br />So father, pause, and put aside your anger.<br />I think, for what my young opinion's worth,<br />That, good as it is to have infallible wisdom,<br />Since this is rarely found, the next best thing<br />Is to be willing to listen to wise advice.<br /><br />CREON:<br />Indeed! Am I to take lessons at my time of life<br />From a fellow of his age?<br /><br />HAEMON:<br />No lesson you need be ashamed of.<br />It isn't a question of age, but of right and wrong.<br /><br />CREON:<br />Would you call it right to admire an act of disobedience?<br /><br />HAEMON:<br />Not if the act were also dishonorable.<br /><br />CREON:<br />And was not this woman's action dishonorable?<br /><br />HAEMON:<br />The people of Thebes thinks not.<br /><br />CREON:<br />Since when do I take my orders from the people of Thebes?<br />I am King, and responsible to myself.<br /><br />HAEMON:<br />A one-man state? What sort of a state is that?<br />You will be an excellent King - on a desert Island.<br /><br />CREON:<br />You pleaded for her cause.<br /><br />HAEMON:<br />No, yours and mine, and that of the gods of the dead.<br /><br />CREON:<br />You'll never marry her this side of death.<br /><br />HAEMON:<br />Then, if she dies, she does not die alone.<br />O father, I could call you mad, were you not my father.<br /><br />CREON:<br />You don't toady me, boy; Keep that for your lady-love.<br />And what is more, by all the gods of heaven,<br />I'll make you sorry for your impudence.<br /><br />CHORUS:<br />Where is the equal of love?<br />Where is the battle he cannot win,<br />The power he cannot outmatch?<br /><br /><span style="font-style: italic; color: rgb(51, 51, 255);">Enter THERESIAS, the blind prophet, led by a boy.</span><br /><br />THERESIAS:<br />All men fall into sin<br />But sinning, he is not for ever lost<br />Hapless and helpless, who can make amends<br />And has not set his face against repentance.<br />Only a fool is governed by self-will.<br /><br />What prize outweighs the priceless worth of prudence?<br />What mischief matches the lack of it?<br />And there you speak of your own symptom.<br /><br />It follows of necessity<br />From what you have done.<br />Even now the avenging Furies,<br />The hunters of Hell that follow and destroy,<br />Are lying in wait for you, and will have their prey,<br />When the evil you have worked for others falls on you.<br /><br />The time has come, And soon,<br />When your house will be filled with the lamenta<br />Of men and of women; and every neighboring city<br />Will be goaded to fury against you,<br />For upon them Too the pollution falls when the dogs and vultures<br />Bring the defilement of blood to their hearths and altars.<br /><br />You cannot escape<br />The sting of their sharpness.<br /><br />Lead me home, my boy,<br />Let us leave him to vent his anger on younger ears,<br />Or school his mind and tongue to a milder mood<br />Than that which now possesses him. Lead on.<br /><br />CREON:<br />It is true enough; and my heart is torn in two.<br />It is hard to give way, and hard to stand and abide<br />The coming of the curse.<br />Both ways are hard.<br /><br /><span style="font-style: italic; color: rgb(51, 51, 255);">The ending was tragic. Haemon committed suicide. His mother heard of this also committed suicide.</span><br /><br />The last word of Creon:<br />I learn in sorrow. Upon my head God has delivered this heavy punishment, has struck me down in the ways of wickedness, and trod my gladness under foot. Such is the bitter affliction of mortal man. I am nothing. I have no life. Lead me away...<br /><br />CHORUS:<br />Of happiness the crown<br />And chiefest part<br />Is wisdom, and to hold<br />The gods in awe,<br />This is the law<br />That, seeing the stricken heart<br />Of pride brought down,<br />We learn when we are old.<br /><br /><span style="font-style: italic;">EXEUNT.</span>Maverick SMhttp://www.blogger.com/profile/02871611453372513136noreply@blogger.com2tag:blogger.com,1999:blog-30444495.post-1161880777045218462006-10-26T09:35:00.000-07:002006-10-26T09:39:37.063-07:00Dworkin attack positivist model of rules<span style="font-weight: bold;">Critical study of Dworkinian Theory<br /></span><br /><div style="text-align: justify;"><span style="font-style: italic;">In the philosophy of pragmatism, pragmatism implied a distrust of absolutes and a belief that values (including the value of truth) are realized only in practice, as the successful means of achieving deliberately chosen ends. The sociological movement in jurisprudence is a movement for pragmatism as a philosophy of law for putting the human factor in the central place and relegating logic to its true position as an instrument. That instrument to be used is for realizing the destiny of common law as a continuous expression of the changing patterns of community life. </span>(Roscoe Pound, 1931)<br /><br />According to positivist analytical jurists, judges in hard cases cannot apply law to reach their decisions but necessarily exercise discretion. Since the authority for this exercise of discretion cannot easily be explained in legal terms, the judge as ‘legislator’ (adjudicator) is a highly problematic figure unless seen in Austinian terms as the delegate of a sovereign electorate. Such a judge must, in a democracy, defer always to the democratic will as expressed in legislation. Consequently, judges’ tendencies will always be to favour the majority will so expressed. They will lack the authority to protect minorities through the exercise of creative discretion against the majority. Yet rights are precisely those legal entitlements that should be enforceable against anyone – even an opposed majority. Must it be said that in hard cases there are no rights to be relied on?<br /><br />Dworkin’s concern to escape the limitations of positivism is to affirm law’s capacity to defend broad liberal values of individual freedom and autonomy, if necessary against majority wishes reflected in government policies. He sees a central task of law as to prevent, not aid, the “tyranny of the majority”.<br /><br />Dworkin’s position is not framed as a defence of common law thoughts. His emphasis is on the protection of rights and on the moral autonomy of the citizen. Rights, for Dworkin, are thus antecedent to and give meaning to legal rules; that law is more fundamental than rules and that rules are incomplete and problematic expression of the content of law. This position is close to classical common law thought which recognizes the essence of law in principles expressing the reason of law, not in rules.<br /><br /><span style="font-weight: bold;">Legal Principles</span><br /><br />Once the task of the judge has been defined as to enforce ‘rights and obligations whose present power is independent of the majority will judges are in no sense legislators. They do not derive authority, like democratic legislature, from their representing the will of the majority. Nor is it the judge’s task to implement that will, however it is to be understood. Judicial authority must derive from a different source and support a different role from that of a legislature.<br /><br />Like Roscoe Pound, Dworkin see the judge as deriving both the authority to develop law and the resources to do so from within law itself, not from some external source such as Austinian sovereign whose policy defines this authority of which judges use in their task of interpreting hard cases.<br /><br />Principles are part of law in the sense that they control and regulate officials. Dworkin’s strategy is to show that principles, which cannot be reduced to legal rules, are treated in practice by courts as legal authorities which cannot be ignored: that they are essential elements in reaching decision in hard cases. Dworkin seeks to argue that in all cases a structure of legal principles stands behind and informs the applicable rules.<br /><br />A favorite illustration in Dworkin’s writing, of legal principles is the case of Riggs v Palmer (1889) in which the New York State Court of Appeals refused to allow Elmer Palmer to inherit property as a beneficiary under the will of his grandfather, whom he had murdered by poisoning. The applicable legal rule appears to be that legacies contained in legally valid testamentary dispositions are to be guaranteed by law in accordance with the wishes of the testator. Yet the court in Riggs v Palmer consciously decides not to apply the rule and does so by relying on a general principle that a wrongdoer should not be allowed to profit from his own wrong. It is not judicial discretion which operates to defeat the ordinary rule but an interpretation of the rule in the light of a governing legal principle.<br /><br /><br /><span style="font-weight: bold;">Principles vs. Rules</span><br /><br />While legal rules may be identifiable by using some positive test expressed in terms of rules of recognition, basic norm or sovereign command, legal principles cannot be so identified. They emerge, flourish and decline gradually by being recognized, elaborated and perhaps eventually discarded over time in the ongoing history of the legal system concerned.<br /><br />Because they defy positivist test that neatly distinguish law from non-law they cast doubt on the whole structure of positivist explanation. And this is fundamental because, as Riggs v Palmer shows, principles control the applicability of rules. The direction of Dworkin’s argument at this point might suggest the conclusion that the internal-external dichotomy dividing law from non-law, or legal insiders from legal outsiders, is to be discarded. (Legal insiders are those participating in the interpretation of legal rules and principles and so involved in determining creatively what is and what is not law, while outsiders are those uninterested in or unable to play the interpretive game).<br /><br />Principles differ from rules in other fundamental ways. They do not apply in an all-or-nothing fashion, as rules do. Rules are either applicable or not; principles have a “dimension of weight”. Legal rules cannot logically conflict – if they seem to do so one rule must be an exception to the other and can be written into it. Otherwise one of the rules must be invalid. But there may be conflicting principles applicable in the same case. The task of legal interpretation then involves weighing the principles against each other as they relate to the case in hand. One might consider equitable principles as example. The maxim ‘equity regards as done that which ought to be done’, ‘equity will not perfect an imperfect gift’ and ‘equity will not allow a statute to be used as an instrument of fraud’ might suggest different results when applied to the same case. The judge’s task would be to assess their relative weight in the particular circumstances, so as to reach a conclusion by applying them.<br /><br /><br /><span style="font-weight: bold;">Do judge make law?</span><br /><br />Dworkin does not deny the need for weak discretion. Judges do make law because all the resources for their proper decisions are provided by the existing law as correctly understood. A judge does not decide a case in a legal vacuum but on the basis of existing rules which express, and at the same time, are informed by, underlying legal principles.<br /><br />The task of a judge faced with a hard case is, therefore, to understand what decision is required by the whole doctrinal structure of existing law. If rules do not give judge guidance, a broader understanding of the patterns of values that have gradually developed in the legal system and are expressed in the combination of rules and principles, does offer that guidance. Judges must understand the content of the legal system and gives effect to it in their judgments to the best of their ability. Their task is undoubtedly creative. Yet it is not legislative. Properly understood, the judicial role is not the dynamic one of making law like a legislator, nor is it the purely passive one of ‘finding law’. The judge must make the law the best that it can be through creative interpretation of existing legal resources, but no non-legal materials are to be used in doing so. There is simply no room for the exercise of strong judicial discretion. Dworkin’s theory allows judges to asses critically the work of their predecessors even to the extent of declaring and refusing to follow their ‘mistakes’ which is similar to classical common law thought.<br /><br /><br /><span style="font-weight: bold;">Policies and Principles</span><br /><br />While the application of principle is fundamental to the judicial function, this is, for Dworking, to be distinguished clearly from the invocation of policies – standards setting out economic, political, or social goals to be reached. The latter are normally not a matter for judges, but for legislatures. While the law that Dworkinian judges are required creatively to apply will have been influenced by policy matters, policy should not shape their legal judgments in the way that principles – the expression of the community’s moral and political values reflected in law – must.<br /><br /><span style="font-weight: bold;">Criticisms</span><br /><br />Many critics have doubted that principles and policy can be clearly distinguished in the manner Dworkin requires.<br /><br />For Dworkin, the attempt to explain judicial creativity leads to the conclusion that this can be done only by becoming a participant in interpreting law in the particular legal system concerned. However, Dowrkin’s approach leads to serious problems for normative legal theory as an explanation of judicial decision-making and processes of doctrinal development.<br /><br />Dworkin makes some determined efforts to avoid his theory becoming a defence of professional prerogatives or of the intellectual or moral autonomy of professional legal knowledge. Thus he insists that the community of participants in legal interpretation is not just a community lawyer. Anyone living in a society and actively committed to the values of its legal system is properly seen as a participant in the task of interpreting that society’s law.<br /><br />It follows that a citizen can properly disagree with the interpretation of the law offered by the highest court of the legal system. A citizen’s allegiance is to the law, not to any particular person’s view of what the law is, and he does not behave unfairly so long as he proceeds on his own considered and reasonable view of what the law requires. What is reasonable is matters of interpretive debate and lawyers and judges have no monopoly of such judgments.<br /><br />Thus Dworkin provides a justification for civil disobedience, not one justifying breach of law, but one that justifies following a reasonably held interpretation of law that happens to differ from that made by official legal authorities. For Dworkin, this is not a licence to disobey but an assertion that there can be cases where the meaning of law is a matter of legitimate dispute. In such cases the view of citizen dissenters ought to be respected and their acts, based on such a view, should be judged with official tolerance.<br /><br />It seems profoundly unrealistic to ask for official toleration of acts that will be seen as law-breaking. It is also profoundly unrealistic to consider non-lawyer citizens, on the one hand, and lawyers and judges, on the other, as part of the same community of legal interpreters. Thus the image of community is entirely unconvincing.<br /><br />If law is to be understood as interpretation, it is important to recognize clearly in legal theory that lawyers almost entirely monopolize that interpretation. Any other view seems either naively idealistic or a willful refusal to recognize evidence from social experience.<br /></div><span style="font-weight: bold;"><br />References:</span><br /><br />Philosophy, Morality and Law (1965)<br />&<br />Philosophy and the Critique of Law (1971)<br /><br />Ronald M DworkinMaverick SMhttp://www.blogger.com/profile/02871611453372513136noreply@blogger.com2tag:blogger.com,1999:blog-30444495.post-1161868918137299062006-10-26T06:21:00.000-07:002006-10-26T06:21:58.146-07:00Classical Natural Law Theory - Abstracts<div style="text-align: justify;">According to Aquinas, law is a rule or measure of action in virtue of which one is led to perform certain actions and restrained from the performance of others. But the rule and measure of human action is reason. It is reason which directs action to its appropriate end. Reason has power to move to action from the will. But will, if it is to have power or authority, must be regulated by reason when it commands. It follows that the law must have as its proper object the well-being of the whole community. The first principle object is the ordering of the common good. A private person has no authority to compel right living. He may only advise; but if his advise is not accepted he has no power of compulsion. But the power of compulsion belongs either to the community as a whole or to its official representative. Men, unlike other animals, has the weapon of reason with which to exploit his base desire and cruelty.<br /><br />"Whatsoever therefore is consequent to a time of Warre, where every man is enemy to every man, the same is consequent to the time, wherein men live without other security, than what their own strength, and their own invention shall furnish them withall." (Thomas Hobbes; Leviathan 1651).<br /><br />"Every one has a right to punish the trangressors of that law to such a degree as may hinder its violation". (John Locke; Tow Treaties of Government).<br /><br />"The law has the force of law only when it is promulgated." (J. Maritain; Man and the State 1951)<br /><br /><br />"Whether or not morality can exist without society, it is certain that politics cannot." (M MacDonald; Natural Rights 1948).<br /><br />"To command what cannot be done is not to make law; it is to unmake law, for a command that cannot be obeyed serves no end but confusion, fear and chaos. A law that changes everyday is no law at all. Increasingly, the principle object of government seems to be, not that of giving the citizen rules by which to shape their conduct, but to frighten him into impotence. A mere respect for constituted authority must not be confused with fidelity to law." (Ron Fuller; The Morality of Law 1969),<br /></div>Maverick SMhttp://www.blogger.com/profile/02871611453372513136noreply@blogger.com1tag:blogger.com,1999:blog-30444495.post-1161714254251131392006-10-24T11:23:00.000-07:002006-10-24T11:25:26.233-07:00Good Government & Universal Education<div style="text-align: justify;">In the context of intellectuality, government is a matter of rational management to be guided by principles of utility. The real security for good government would not be popular participation but an enlightened population who would not obey government blindly but on the basis of a critical recognition of its rational purposes.<br /><br />To ensure an enlightened population, there is a need for universal education which would make it possible for the broad population to distinguish sound policies and scientific principles (of political economy) from "The lies and fallacies of those who would use them to sinister purposes and from the equally pernicious nonsense of their weak and ignorant well-wishes."<br /><br />While most ordinary subjects lacked both time and inclination to master knowledge that would make acquiescence in government a fully rational affair, they could learn at least the 'leading principles' of those matters (such as social ethics and economics) that concerns government, and if they were imbued with those principles, and were practised in the art of applying them, they would be docile to the voice of reason, and armed against sophistry and errors. It is rational reasonings that could circumscribe the irrational and customary basis (semua ok) of the acceptance of authority.<br /><br />The habit of obedience to the sovereign is rooted in custom, prejudices and reason bottomed in the principle of utility, that is, a recognition of the expediency of government. In a soundly educated people, reason would play a most important role. Equally, fear of sanction or punishment is not likely to be more powerful in deterring deviance than is the fear of public disapprobation, with its countless train of evils.<br /><br />The making extensive use of coercion through law in the matter of government, is also an image of a state that can be based on reason, provided it is guided by the principle of utility and securing the allegiance of subjects to the sovereign ideally through their rational understanding and not prejudice, fear or blind habit. Nevertheless, we must recognised that populations are kept largely unenlightened by their rulers. Hence much government does in fact rely on irrational, habitual popular acquiescence. Universal education is thus the only prescription for a sound, enlightened policy.<br /><br />Until the ethical notion of men were more clear and consistent, no considerable improvement could be hoped for in our legal and political institutions. Education remained the key to advance but the struggle is now seen as a far harder one than originally envisaged; perhaps indeed, an impossible one.<br /></div><br /><br /><span style="font-style: italic;">(Adapted from John Austin, 1832; The Province of Jurisprudence Determined)</span><br /><br />---Maverick SMhttp://www.blogger.com/profile/02871611453372513136noreply@blogger.com1tag:blogger.com,1999:blog-30444495.post-1161622563207467472006-10-23T09:46:00.000-07:002006-10-23T09:56:03.326-07:00John Austin - Victim of Misrepresentation<div style="text-align: justify;"><span style="font-style: italic;">"Attitudes in the legal world to Austin had altered since late 19th century: He was a religion; today he seems to be regarded as a disease."</span><br /><br /><span style="color: rgb(51, 51, 255);">- Buckland WW, 1949</span><br /><br />Do purely intellectual arguments account for such a revolution in attitudes?<br /><br />Are the issues that are argued over always the same?<br /><br />Sometimes as in Austin's case, a particular part of the writer's theoretical enterprise, and not necessarily that which is considered most fundamental, is treated in most later commentary as if it were his entire theoretical contributions.<br /><br />Consistent misrepresentation of a jurist's ideas, where the misrepresentations are sufficiently widespread, assumes a proportion of myth.<br /><br /><span style="font-style: italic;">Austin was a victim of this kind of misrepresentation</span> <span style="color: rgb(51, 51, 255);">(Wayne Morrison 1982)</span><br /><br />If we are to try to understand how legal philosophy has developed and how its debates and disputes have been formed and conducted, the answers cannot be found entirely in the logic of philosophical arguments. They are in part at least, located in the wider context of ideas and activities in which theories are developed and evaluated.<br /><br />The approach to understanding legal philosophy is to understand the significance of substantive content of legal philosophy's debates about the nature of law. It argues, however, that that content is to be understood not as timeless but as a response to the conditions and problems existing at particular historical moments in Western legal development.</div>Maverick SMhttp://www.blogger.com/profile/02871611453372513136noreply@blogger.com2tag:blogger.com,1999:blog-30444495.post-1161620618400225162006-10-23T09:17:00.000-07:002006-10-23T09:23:38.423-07:00Legal Philosophy in Social & Political Context<div style="text-align: justify;"><span style="font-style: italic;">"Political life sets the main problems for the political theorist, causing a certain range of issues to appear problematic, and a corresponding range of questions to become the leading subjects of debate. This view does not entails that theoretical ideas are to be treated as a straightforward outcome of their social base, but are certainly to be read in terms of their wider intellectual context."</span><br /><br /><span style="color: rgb(51, 51, 255);">Adapted from Quentin Skinner</span><br /><br /><br /><br /><span style="font-style: italic;">"The works of the past appear to the scholar as pictures in a gallery - an array of discrete entities. The temptation to construe this array as an organic and continuous growth is well-nigh irresistible to those who confine their interest to the historical records of creative expression. What is ignored in this imagery are the intervening areas in which men act and react as social beings."</span><br /><br /><span style="color: rgb(51, 51, 255);">Adapted from Karl Mannheim; "The Illusion of the Immanent Flow of Ideas".</span><br /><br /><br /><br /><span style="font-style: italic;">Thus, while ideas have intellectual origins and may exert intellectual influence, these relationships and lines of development are mediated by social factors - the acts of people as social beings. These factors may relate to professional and political considerations.</span><br /><br /><span style="color: rgb(51, 51, 255);">Adapted from Roger Cotterrel; The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy.</span><br /><br /><br /><br /><br /><span style="font-style: italic;">"Decade after decade, Positivist and Natural Lawyers face one another in the final of the world cup... Victory goes now to one side, now to the other, but the enthusiasm of players and spectators alike ensures that the loser will take its revenge. Perhaps this interminable dispute reflects issues of such supreme difficulty and significance that agreement can never be reached. Perhaps the legal theorist can only cheer and jeer, and label his opponent a moral leper or a disingenuous romantic."</span><br /><br /><span style="color: rgb(51, 51, 255);">Adapted from Tony Honore</span></div>Maverick SMhttp://www.blogger.com/profile/02871611453372513136noreply@blogger.com1tag:blogger.com,1999:blog-30444495.post-1160997506537813482006-10-16T04:05:00.000-07:002006-10-16T04:18:26.546-07:00Law, Command or Orders<div style="text-align: justify;">In the social life one person may express a wish that another person should do or abstain from doing something. When this wish is expressed not merely as a piece of interesting information or deliberate self-revelation but with the intention that the person or institution addressed should conform to that wish expressed, it is customary to use a special linguistic form called the <span style="font-weight: bold;">"Imperative Mood"</span>.<br /></div><div style="text-align: justify;"><br />The varieties of social situation in which use is characteristically made of imperative forms of language are extremely diverse, yet the importance of which is marked by certain familiar classifications. Such expressions may be a <span style="font-weight: bold;">"Mere Request"</span> ('pass the salt, please), uttered as a <span style="font-weight: bold;">"Plea"</span> ('do not kill me'), or may be a <span style="font-weight: bold;">"Warning"</span> ('Don't move) or is an <span style="font-weight: bold;">"Ordering"</span> not merely asking ('shut up'), still less pleading, such as in the case of a gunman who says to the bank clerk, 'Hand over the money or I will shoot', in order to secure compliance with the expressed wishes, implying that the speaker threatens to do something which a normal man would regard as harmful or unpleasant and renders the affected party to an unwilling course of conduct.<br /><br />If the gunman succeeds, we could described him as having <span style="font-weight: bold;">"coerced"</span> the victim and the victim as in this sense being in the gunman's power.<br /><br />In nicer linguistic mood, we can also say that the gunman "Ordered" the victim to "Obey" as the situation suggests that some "Rights" or "Authority" to give order was present in this case. However, such suggestions of authority may attach the expressions "Order backed by Threats" and "Coercive Orders" or a "Command".<br /><br />Commands carries a very strong implications that there is a relatively stable hierarchical organisation of men in which the commander occupies a position of pre-eminence. Where a Command is given, there is always a latent threat of harm in the event of disobedience. But to "Command" characteristically to exercise authority, not power to inflict harm; it is primarily an appeal not to fear but to respect for authority.<br /><br />Such particularised form of controls are rather exceptional and an ancillary accompaniments or reinforcements of general forms of directions which are addressed to particular individuals or institutions and do not indicate a particular act to be done. The general type of conduct expected are to see that it applies to those directed and expectations of compliance. If the primary general directions are not obeyed, attentions will be drawn to them and compliance then demanded or else the disobedience will be identified and recorded with the subsequent threats of punishment imposed. In all cases, the range of application is a question of interpretation of the particular direction aided by general understanding.<br /><br />It is true there is a sense in which the gunman has an ascendancy or superiority over the victim; it lies in his ability to make a threat which might well be sufficient to make the victim do the particular thing he was impliedly told to do so. There is no other form of relationship between them except this shortlived coercive one, but for the gunman's purpose this may be enough without the need to issue standing orders to be followed. Hence we are to use the notion of orders backed by threats or sanctions as explaining what the rules are, that there is a general belief on the part of those to whom the general orders apply that disobedience is likely to be followed by the execution of the threat not only on the first promulgation of the order, but continuously until the order is withdrawn or cancelled.<br /><br />If such a general belief in the continuing likelihood of the execution of the threat is to exist, it may be that the power to carry out threats attached to such standing orders affecting large numbers of persons could only in fact exist, and would only be thought to exist, it it was known that some considerable number of the population were prepared both themselves to obey voluntarily, independent of fear of the threat, and to cooperate in the execution of the threats on those who disobeyed. We must suppose that, whatever the motive, most of the orders are more often obeyed than disobeyed by most of those affected. We shall call this: <span style="font-weight: bold;">"a General Habit of Obedience".</span><br /><br />It remains indeed to be seen whether this simple general notion of "Habitual Obedience" to general orders backed by threats is really enough to reproduce the settled character and continuity which the democratic system possesses.<br /><br />These varieties of law, in spite of its appearance to the contrary, are really just complicated or disguised versions of this same form. Something more must be revealed about the data and about the person who gives the figures. The legal system of a modern state is characterised by a certain kind of supremacy within its territory and independence and they are not as simple as they appear to be, but what, on a common sense view (which may not prove adequate) is essential to them, may be expressed as an inhibition of conduct with fairly well-defined limits.<br /><br /></div>Maverick SMhttp://www.blogger.com/profile/02871611453372513136noreply@blogger.com1tag:blogger.com,1999:blog-30444495.post-1155729850328374792006-08-16T05:03:00.000-07:002006-08-16T05:04:10.343-07:00Equality & Discrimination<div style="text-align: justify;">Equality by itself is not a bipolarity; it is a continuum. However, in our society it is made into a bipolarity. To require that one be the same as those who set the standard - those which one is already socially defined as different from - simply means that equality is conceptually designed never to be achieved. Those who most need equal treatment will be the least similar to those whose situation says the standard as against which one's entitlement to be equally treated is measured.<br /><br />Doctrinally, the deepest problems of inequality will not find the lesser race in 'similarly situated' to the "privileged". Far less will practice of inequality requires that acts be intentionally discriminatory. All that is required is that the "status quo" be maintained. As a strategy for maintaining social power, first structure reality unequally, then require that entitlement to alter it be grounded on a lack of distinction in situation; then structure perception so that different equals inferior, then require that discrimination be activated by evil minds who know they are treating equals as less.<br /><br />Let what the discriminant says matter, then they will discourse on questions of morality. Take your foot off their necks, then we will hear in what tongue you speak.<br /><br />For as long as human equality is limited by race difference, whether you like it or don't like it, whether you value it or seek to negate it, whether you stake it out as a grounds of humanism or occupy it as a terrain of misoneism, meritocracy and justiciability will be born, degrade and die.<br /><br />As a nation, we should settle for nothing less than equal protection of the laws under which one would be born, live, and die, in a country where protection is not a dirty word and equality is not a special privilege.<br /></div>Maverick SMhttp://www.blogger.com/profile/02871611453372513136noreply@blogger.com2tag:blogger.com,1999:blog-30444495.post-1155713189884235202006-08-16T00:25:00.000-07:002006-08-16T00:26:29.896-07:00Law is a Game of Manipulation<div align="justify"><strong>L.A. Law’s Empire<br /></strong><br />On Thursday, March 29, 1990, at approximately 10:00 p.m., Stuart Markowitz was arrested for DWI (drunk driving). The shock of Stuart’s arrest is compounded by the fact that he and his wife, Ann, had planned to go off to a motel to do “some unbelievably sinful things” (have sex). The promise of innocent sex is violently and definitively crushed by the powerful long arm of the law. If you are a member of the legal community, it evokes the iconic intrusion into the marital bedroom condemned in Griswold v Connecticut (1965).<br /><br />Stuart’s breathalyzer tests read .09 (permissible limit is .08). Stuart had been sipping wine with Ann moments before the arrest, but he certainly did not look drunk. Fortunately, Stuart will be represented by Michael Kuzak, Stuart’s brash, young, sexy, terribly competent and ruthless partner. Micheal sits down with Ann and Stuart to explain the law:<br /><br />Michael: Peter Himeson is the best toxicologist in the state. If he testifies for us, our stock goes way up. O.K. to the facts … Now, you had a glass of wine minutes before leaving the restaurant right.<br /><br />Stuart: Well, I had wine with lunch so I guess, it was …<br /><br />Michael: Yes, but timing is very important. Let me explain something. It takes 30minutes for a drink to get into your bloodstream. That means that if you had a glass of wine, just before you got into the car, our expert witness could testify that it wasn’t in your system when you were arrested … this is very important testimony … So … when do you think you had that last glass of wine.<br /><br />Stuart and Ann understand implicitly.<br /><br />Ann: He drank it right before we left.<br /><br />Michael: Are you willing to testify to this?<br /><br />Ann: Yes.<br /><br />Michael: Good … Very good.<br /><br />Note that Michael has just elicited the testimony he would like the witness to give without once inviting any reference to the truth of the matter. Michael understands, of course, that, his role is circumscribed. He cannot overly suborn perjury, or, more precisely, he cannot knowingly allow Ann or Stuart to lie about the chronology of Stuart’s drinking. On the other hand, there is no rule of law, no provision of the ethical code, nothing at all that compels Michael affirmatively to find out the trust about when the drinking occurred.<br /><br />To perform the case well, Michael Kuzak will in fact had to make the case go away before trial. To this end, he has prepared the entire case before going to see the D.A. The provable facts are as follows:<br /><br />1. Stuart had a .09 blood alcohol level, which is barely over the .08 DWI limit in California.<br />2. Two witnesses (Stuart and Ann) will testify that Stuart drank the wine just moments before he got into his car.<br />3. The state’s top toxicologist – a highly respected person in the field – will testify that based on this time line, it would have been impossible for Stuart to be drunk at the time of the arrest.<br /><br />Armed with these rhetorical obstacles to conviction, Michael Kuzak goes to see the D.A., a woman he happens to know by name. He tells her the provable facts. He adds that the case has been scheduled before judge Matthews – a judge whom both Michael and the D.A. know to be a friend of the senior partner in Michael’s firm. She looks skeptical. Michael pleads with her. He asks for a favor: “I need this one.” Michael’s tone implies: “come on, please, just this time…”<br /><br />Michael and the D.A. apparently have a professional friendship, an informal relation that arises from the repeated contacts of the routine. Very likely they have had cases against each other. It is this kind of professional friendship that sustains the vast informal network through which the long arm of the law does much of its work; plea bargains, settlements, consent decrees, etc. this is the network of the law within the law – the “Shadow Law”.<br /><br />The shadow law works smoothly and efficiently in the shadow of the unwieldy bilateral monopolies created by the state’s statutory criminal law. The shadow law reduces transaction cost through an institution known as the “favor bank”, a huge, constantly rearranging assembly of ties, loyalties, debts, and obligations. To outsiders, it is the secret economy of the law operating in the interstitial spaces left by the rational structure of explicit doctrinal law. The favor bank is in significant part a feudal institution – hierarchical in structure and operated on principle of loyalty and honor, and on ties of professional friendships, like the one between Michael and the D.A.<br /><br />In the end, the favor bank, the shadow law, and Michael’s performance, have done their work: the charges will be reduced to “reckless driving –dry.” And that’s what matters to us: Stuart is just too nice a guy to be convicted.<br /><br />At the end of this episode, Stuart and Ann are back at their law offices and Stuart drops this inevitable bombshell: “I was guilty; three glasses of wine,” he says.<br /><br />This is a brilliant piece of script writing it is brilliant because it confirms the central point that law is a game of power and manipulation. The lawyers manipulate and control. The law manipulates and controls as it tells its story through the mouths of the various legal actors – the lawyer, the D.A, the suspect, and the witness – all acting in their legal roles. And it is only when the long arm of the law is retracted and the choreographed legal roles have been dropped, that Stuart can tell us that he was in fact drunk.<br /><br />We thus come to understand that whether or not Stuart will be convicted for DWI has virtually nothing to do with whether or not he was legally drunk at the time of the arrest. It was everything to do with the quality of the performance by various actors (most notably, Michael Stuart, Ann, the Cop, the D.A. and the experts) within the stylized, sometimes highly circumscribed roles that the law has scripted and structured for them.<br /><br />The image of law presented here is the performance of rhetorical moves within scripted, stylized roles than can be used by the various actors to invoke or suppress institutional power. There are ratios of power among the various actors, and depending how all the actors deploy their power possibilities, it will be this outcome rather than that which will be produced.<br /><br />From the perspective of the law in the books or law in the law school, Michael has engaged in some very questionable practices. Yet from a purely institutional perspective, he had done a good job of it. Besides, this is what real law is like – playing the power ratios and manipulating the performance to get the right result.<br /><br />This is a world in which deceit plays an important part. Ann, Stuart and Michael succeeded in deceiving some of the other characters on the show (including each other). By the end of the show, Stuart even ends up deceiving himself: reflecting upon the fact that by being able to pay $3,000 for a top toxicologist, he was able to beat the rap. Stuart says: “I’m just lucky.” But Stuart abstract himself away from this unwelcome bit of social self-knowledge, denies to himself that he is part of this web of social power, and avoids any reckoning with the social sources of his power; it’s just plain, dumb, ineffable luck. This is an extraordinary moment of self-deception.<br /><br />Here we get a wonderful insight into how the average lawyer manages to deal with the web of social power in which he is enmeshed. Like Stuart, the typical lawyer denies that he is of the web. He claims that he is outside or above the web.<br /><br />One of the striking aspects of L.A. Law is that, it is often a better approximation of the world of law practices than the routine academic productions of normative legal thoughts. Everyone can understand that professional power is the juice that makes the wheels of the law-bureaucracies run. Lawyers tend to see their professional power as resting, “not on rules of law, but on local knowledge, insider access, connections, and reputations. Informal intimate relations with all levels of personnel in the system are sine qua non.<br /><br />The favor bank and the shadow law, more than the reason of the better arguments, is the stuff of law. Normative legal thoughts implicitly assume that “we are a government of laws, not men.” However, practicing lawyers know very well that “it makes all the difference which judge is deciding a case.<br /><br />Thus, for the effective trial lawyers, truth, rationality, and moral values play a role but only in an instrumental sense – only insofar as they aid the lawyer in effectively manipulating the jury/judge to reach the pre-determined desired outcomes. Control and manipulation are the objective. What matters is not the rationality of a story but whether the story will rhetorically and cognitively produce the desired result; what matters is not moral value, but the moralistic self-image of the jurors/judge.<br /><br />Neither the truth, nor the rational content, nor the moral effect matters. What matters is the relation itself: who commands, who silences, who is believed, etc. lawyers know all this. To be effective, all of this must be implicitly understood – indeed internalized – as a system of differentiated relations among power, truth, rationality, rhetoric, and deceit. As Dauer and Leff put it:<br /><br />“A lawyer is a person who on behalf of some people treats other people the way bureaucracies treat all people – as non-people. Most lawyers are free-lance bureaucrats, who can be hired to use typically in a bureaucratic setting, bureaucratic skills – delay, threat, selective surrender, almost-genuine passion – on behalf of someone unable to do all that for himself, or someone willing to pay others to do it for him.”<br /><br />In conclusion, to the extent, then, normative legal thought remains concerned about the adequacy of its representations of the social sphere; it cannot afford to dismiss L.A. Law’s Empire. To the extent that normative legal thought is or wants to consider itself an authentic enterprise, it must recognize the advanced bureaucratization of the practice of law, and strive to understand how its own psychological, sociological, and rhetorical maps are so discordant with those on L.A. Law’s Empire.<br /><br /><em><strong>Source:</strong> <span style="color:#3333ff;">Adapted from Pierre Schlag; “Normativity and the Politics of Form – L.A. Law’s Empire” (1991) University of Pennsylvania.<br /></span></em></div>Maverick SMhttp://www.blogger.com/profile/02871611453372513136noreply@blogger.com2tag:blogger.com,1999:blog-30444495.post-1154549297374545912006-08-02T11:52:00.000-07:002006-08-02T13:22:24.066-07:00Moral as part of Law<div style="text-align: justify;">There are some who assert that even if law and morals are distinguishable it remains true that morality is in some way an integral part of law or of legal development, that morality is "secreted in the interstices" of the legal system, and to that extent is inseparable from it.<br /><br />Thus it has been said that law in action is not a mere system of rules, but involves the use of certain principles, such as that of the equitable and the good (aequum et bonum). By the skilled application of these principles to legal rules the judicial process distills a moral content out of the legal order, though it is admitted that this does not permit the rules themselves to be rejected on the general found of their immorality.<br /><br />Another approach would go much further and confer upon the legal process an inherent power to reject immoral rules as essentially non-legal; this seems to resemble the classical natural law mode of thought, but it is urged, the difference is that according to the present doctrine it is a matter of the internal structure of the legal system, which treats immoral rules as inadmissible rather than as being annulled by an external law of nature.<br /><br />If value judgments such as moral factors, form an inevitable feature of the climate of legal development, as in generally admitted, it is difficult to see the justification for this exclusive attitude.<br /><br />Value judgment which enter into law will require consideration of what would be a just rule or decision, even though not objective in the sense of being based on absolute truth, may, nevertheless, be relatively true, in the sense of corresponding to the existing moral standards of the community.<br /><br />Whether it is convenient or not to define law without reference to subjective factors, when we come to observe the phenomena with which law is concerned and to analyse the meaning and use of legal rules in relation to such phenomena, it will be found impossible to disregard the role of value judgments in legal activity, and we cannot exercise this functional role by stigmatising such judgments as merely subjective or unscientific.<br /><br /><span style="font-style: italic; color: rgb(153, 51, 0);">Abstract from MDA Freeman, Introduction To Jurisprudence- Meaning of Law; 7th Ed. 2004</span><br /><br /><span style="font-weight: bold;">The Problem about the Nature of Law<br />J.Raz (1982)</span><br /><br />The theory of knowledge attempts to clarify the nature of knowledge, the philosophy of logic examines the definition of logic, moral philosophy reflects on the nature and boundaries of morality and so on.<br /><br />One finds philosophers who took the enquiry concerning the nature of law to be an attempt to define the meaning of the word "law". Traditionally those who adopted the linguistic approach concentrated on the word "law". However, it encountered the overwhelming problem that that word is used in a multiplicity of non-legal contexts. We have laws of nature and scientific laws, laws of God and thought, of logic and of language, etc. Clearly the explanation of "law" has to account for its use in all these contexts and equally clearly any explanation which is so wide and general can be of very little use to legal philosophers.<br /><br />Only one assumption can the explanation of "law" hope to provide the answer to the legal philosopher's inquiry into the nature of law. That assumption is that the use of "law" in all its contexts but one is analogical or metaphorical or in some other way parasitical on its core meaning as displayed in its use in one type of context and that that core meaning is the one the legal philosopher has at the centre of his enquiry. Unfortunately, the assumption is mistaken. Its implausibility is best seen by examining the most thorough and systemic attempt to provide an analysis of "law" based on this assumption, that proposed by John Austin in The Province of Jurisprudence Determined.<br /><br />The Lawyers' Perspective<br /><br />Many legal philosophers start from an unstated basic intuition:<br /><br />"The law has to do with those considerations which it is appropriate for the courts to rely upon in justifying their decisions."<br /><br />Most theorists tend to be by education and profession lawyers and their audience often consists primarily of law students. Quite naturally and imperceptibly they adopted the lawyers' perspective on the law. Lawyers' activities are dominated by litigation in court, actual or potential. They not only conduct litigation in the courts. They draft documents, conclude legal transactions, advise clients, etc., always with an eye to the likely outcome of possible litigation in which the validity of the document or transaction or the legality of the client's action may be called into question. From the lawyer's point of view the law does indeed consist of nothing but considerations appropriate for courts to rely upon.<br /><br />Hans Kelsen says he follows a combination of the linguistic approach and the institutional approach: "Any attempt to define a concept in question. In defining the concept of law we must begin by examining the following questions:<br /><br />Do the social phenomena generally called law present a common characteristic distinguishing them from other social phenomena of a similar kind?<br /><br />The clue to the methodological approach Kelsen was in fact pursuing is in his insistence that legal theory must be a pure theory. Kelsen regarded it as doubly pure. It is pure of all moral argument and it is pure of all sociological facts. Kelsen indicates his belief that the analysis of legal concepts and the determination of the content of any legal system depends in no way at all on the effects the law has on the society or the economy, nor does it involve examination of people's motivation in obeying the law or in breaking it.<br /><br />For Kelsen, it is self-evident that legal theory is free of all moral considerations. The task of legal theory is clearly to study law. If law is such that it cannot be studied scientifically then surely the conclusion that if the law does involve moral considerations and therefore cannot be studied scientifically, then legal theory will study only those aspects of the law which can be studied scientifically.<br /><br />Since Kelsen has no good reason to insist that legal theory should be free from moral consideration, he has no good reason to delimit the law in the way he does.<br /><br />The Institutional Approach<br /><br />It is the lawyer's perspective which delivers the verdict. Yet there is something inherently implausible in adopting the lawyer's perspective as one fundamental methodological stance. There is no doubting the importance of the legal profession and of the judicial system in society. It is however, unreasonable to study such institutions exclusively from the lawyer's perspective.<br /><br />Institutional approach seems much superior to its rivals. The institutional approach strives to present an analysis of a central political institution should be accepted as the analysis of law. From the institutional point of view, the basic intuition is the starting point for further critical reflection. It is entirely plausible to regard the notion of law as bound up with that of a judicial system but what are the essential characteristics of a court and why are they important to the political organization of society? Three features characterize courts of law:<br /><br /><ol><li>They deal with disputes with the aim of resolving them.</li><li>They issue authoritative rulings which decides these disputes.</li><li>In their activities they are bound to be guided, at least partly, by positivist authoritative consideration.</li></ol>At the highest level of philosophical abstraction the doctrine of the nature of law can and should be concerned with explaining law within the wider context of social and political institutions. It shows how the inclination to identify the theory of law with a theory of adjudication and legal considerations with all those appropriate for courts is based on a short sighted doctrine overlooking the connection of law with the distinction between executive and deliberative conclusion. Clearly, a theory of adjudication is a moral theory. It concerns all the considerations affecting reasoning in the courts, both legal and non-legal.<br /><br />When the doctrine of the nature of law is identified with a theory of adjudication it becomes itself a moral theory. The doctrine of the nature of law yields a test for identifying law the use of which requires no resort to moral or any other evaluative argument. But it does not follow that one can defend the doctrine of the nature of law itself without using evaluative arguments. Its justification is tied to an evaluative judgment about the relative importance of various features of social organizations and these reflect our moral and intellectual interest and concerns.<br /><br /></div>Maverick SMhttp://www.blogger.com/profile/02871611453372513136noreply@blogger.com3tag:blogger.com,1999:blog-30444495.post-1154544454038650922006-08-02T11:46:00.000-07:002006-08-02T11:47:34.046-07:00Legalism - Law and Ideology<div style="text-align: justify;">Legalism is the ethical attitude that holds moral conduct to be a matter of rule following, and moral relationship to consist of duties and rights determined by rules. Like all moral attitudes that are both strongly felt and widely shared it expresses itself not only in personal behavior but also in philosophical thought, in political ideologies, and in social institutions. It is in short, a complex of human qualities, not a quantity to be measured and labeled.<br /><br />It is suggested here that one ought not to think of law as a discrete entity that is "there" but rather to regard it as part of a social continuum. At one end of the scale of legalistic values and institutions stand its most highly articulate and refined expressions, the courts of law and the rules they follow; at the other end is the personal morality of all those men and women who think of goodness as obedience to the rules that property define their duties and rights.<br /><br />Legalism as an ideology does express itself in policies, in institutional structures, and in intellectual attitudes. As a social ethos which gives rise to the political climate in which judicial and other legal institutions flourish, legalism is beyond reproach. Legalism gives legal thinking its distinctive flavor on a vast variety of social occasions, in all kinds of discourse, and among men who may differ in every other ideological respect. Legalism is, above all, the operative outlook of the legal profession, both bench and bar.<br /><br />The courts are expected to interpret the law, not to alter it. To seek rules, or at least a public consensus that can serve in place of a rule, must be the judge's constant preoccupation, and it affects his choices in ways that are unknown to less constrained political agents. To avoid the appearance of arbitrariness is a deep inner necessity for him. In the case where no basic social decision, whether made by court or legislation, can ever meet with unanimous approval in a heterogeneous society. Without consensus the appearance of neutrality evaporates.<br /><br />Every offended party characteristically responds to a decision by accusing the judge of "legislating". It is not the law, which is clearly far from self-evident, but the judge, who is at fault, and an erring judge is a legislating judge, since the losing party begins its case by presenting its version of the true law.<br /><br />As long as substantial interests and expectations are disappointed by judicial decisions, there can be no realization of legalistic hopes for a neutral judicial process.<br /><br />Law exists to satisfy legally argued expectations, and the loser is sure to feel that the judge, not the law, has arbitrarily deprived him of "his own".<br /><br />Modern legal theory would be incomprehensible if it were forgotten that its creators are themselves lawyers and that professional habits of mind exercise a real influence upon them as they strive to extract the formal essence of law from the confusion of its historical reality.<br /><br />Abstract from J. SHKLAR; Legalism - Law and Ideology; 1964<br /></div>Maverick SMhttp://www.blogger.com/profile/02871611453372513136noreply@blogger.com2