Theory of Jurisprudence

The Philosophy of Malaysian Politics

2009-02-21T18:49:00.000-08:00

Bewildered in Malaysia, perplexed in Perak, stupefied in Selangor
— no wonder the masses are agitated

By Ooi Kee Beng
The Malaysian Insider
February 22, 2009

Extract of the article above:

[Quote]

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.

Politicians, even leading politicians, are certainly not expected to act like statesmen, and in a non-partisan manner.

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.

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.

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.

Malaysia’s addiction to conspiracy theories is quite incurable, fed as it is by dose after dose of bewildering episodes and partisan posturing.

It is not only Perak that is suffering a constitutional crisis. The whole country is mired in a misguided democracy. — Today

[Unquote]

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The writer is a Fellow at the Institute of Southeast Asian Studies.
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Source: The Malaysian Insider

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Zaid Ibrahim to PM Pak Lah: Abolish ISA Law

2008-09-29T23:49:00.000-07:00

Zaid Ibrahim writes open letter to PM
Sep 30, 08 1:53pm
Malaysiakini

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.

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.

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.

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.

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.

“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.

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.

Gov’t has failed the people

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.

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.

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.

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.

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.

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?

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.

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.

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?

‘Militant’ Ezam back in Umno

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.

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.

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.

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.

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.

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.

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.

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.

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.

Law used against dissidents

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.

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.

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.

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.

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.

They value freedom and the protection of civil liberties and this is true of people of other nations too.

I attempted to push for reform

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.

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.

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.

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.

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.

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.

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’.

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.

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.

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.

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?

ISA was never intended to be permanent

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.

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.

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.

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.

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.

Let us attempt to fulfil that solemn promise made by our beloved first prime minister to the people of this country.

Yours sincerely

Zaid Ibrahim

Source: Malaysiakini

Utopia: A Parable

2008-07-05T02:39:00.000-07:00

Utopia: The Parables of a National Discriminative Economic Policy

“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.”

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.

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.

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.

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?

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.

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.

If they could not find a remedy to these evils, it is a vain thing to boast of the severity of 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?

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 friars. 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.

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.

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.

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.

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.

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.

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,

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.

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.

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.

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?

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?

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.

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 gaoler 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.

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.

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.

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 not influence enough to correct other people’s folly, to take care to preserve himself.

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.

Reference:

The Fable was adapted from the book ‘Utopia’ by Sir Thomas More, written in the year 1515-1516. Utopia was printed at Louvain, Belgium, 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.

Sense-certainty - a Pure Being

2008-06-19T11:02:00.000-07:00

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.

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.

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.

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.

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.

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.

The concrete content which sense certainty furnishes makes mere apprehension free from conceptual comprehension, and appear to be the richest kind of knowledge.

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".

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.

Reference:
G.W.F. Hegel
The Phenomenology of Mind

Mahathirism & Schopenhauerism

2008-06-12T06:49:00.001-07:00

As I was reading Malik Imtiaz's article Our Malaysia Our Folly my thought process lead me to a cognitive journey through Mahathir's Dilemma passing by Ian Chin's Imploration, back South to Lingham's declaration and the subsequent Haidar's Commission of Inquiry's imputation, and returning back to Malik's poser: "The question is what do we do about it now?".

Suddenly, I read a poser in Arthur Schopenhauer's note which he writes: "Ho! Ho! What a pity this was not found out sooner!" (page 147, On the Principle of Sufficient Reason; Prometheus Books, 1891 4th Edition; 2006)

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:

"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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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!"

On the Social Contract

2008-04-12T07:44:00.001-07:00

Man is born free, and everywhere he is in chains.

One thinks himself the master of others, and still remains a greater slave than they.

- Jean Jacques Rousseau

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.

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.

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.

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.

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.

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.

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?

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.

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.

These clauses, properly understood, may be reduced to one – 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.

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.

Discarding those of which is not of the essence in the social compact, we shall find that it reduces itself to the following terms:

“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.”

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

Doubtless, there is a universal justice emanating from reason alone; but this justice, to be admitted among us, must be mutual.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

“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.”

“Wise men, if they try to speak their language to the common herd instead of its own, cannot possibly make themselves understood.”

It is impossible to translate wisdom into popular language.

Reference:

Jean Jacques Rousseau; On the Social Contract

Malaysian Courts are Opera House?

2008-02-19T18:49:00.000-08:00

Nazrin: Courts not opera houses

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.

“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.

“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.

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.

“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.

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.

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.

Lawyers must 'uphold sanctity of the courts'
By : Marc Lourdes

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.

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.

"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.

"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."

He said rule of law was also an important component in ensuring the continued confidence of the outside world, especially investors, towards our country.

"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.

"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.

"The courts and practitioners of law need to have strong spirits capable of upholding the respected institution."

Raja Nazrin said the courts need to be known as an institution that guarantees justice and defends the downtrodden.

"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.

Attorney-General Tan Sri Abdul Gani Patail, who also gave a speech, said all those who had passed did so on merit.

"No other criteria was used. Some people still ask if the qualifying board uses a quota system.

"I would like to stress that a quota, be it one of percentage or one of race, has never been used.

"All decisions are made fairly and professionally and based on merit," he said.

Ronald Dworkin: Law as Integrity

2007-12-04T06:53:00.000-08:00

Law as Integrity
Ronald Dworkin
Law's Empire, 1986

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

Ronald Dworkin's Right Thesis

2007-12-03T00:11:00.000-08:00

Right Thesis

Ronald Dworkin

Introduction

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.

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.

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.

Law as Seamless Web

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.

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’. Austin 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.

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.

Dworkin objects to judges acting as ‘deputy legislators’ for 2 reasons:

(i) Separation of Power: 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).

(ii) Retrospectivity & The Rule of Law: Dworkin’s 2^nd 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.”

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.

Judicial Discretion

For legal positivism, the law is the law posited. So what is the position in a case where a rule has not been posited?

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 Hyde Park?

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.

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?

Austinian positivism is clear – when the rules ran out the judge operate as a deputy legislator filling in the gaps. To Austin, 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. Austin was interested in the absolute clarity of law.

If for example, a judge decides that skateboards are included in the definition and are banned from Hyde Park, 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.

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.

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.

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.

Hart says that judges exercise strong discretion in hard cases. But that seems to equate: Rules + Discretion = New Rules.

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.

Legal Rules vs. Principles

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.

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.

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.

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.

Dworkin calls us to consider the actual operation of 4 cases, in particular, Riggs v Palmer.

In Riggs v Palmer, 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, Nullus Commodum Capere Potest De Injuria Sua propria, that is, no one can profit from his own wrong.

Rules also do not cover the development of the Common Law through precedent and cannot adequately explain the creation of the “Neighbouring Principle” in Donogue v Stevenson 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.

Similarly, Lord Denning’s development of Promissory Estoppel doctrine in High Trees case was not pulled out of thin air.

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.

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.

Rights vs. Rules

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.

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.

Criticism of Right Thesis

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.

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.’

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.

Dworkin replies that this is not a case of policy but a case where the judge compromises competing rights.

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/

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.

Hart criticizes Dworkin’s right answer thesis as flawed and vulnerable to criticisms. Hart described Dworkin as a “Noble Dreamer”.

Peter Fitzpatrick called Dworkin’s strategy to give systematic unity to the legal system and legal practice “Myth Making”.

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 …”

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.

Conclusion

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.

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.

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.

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.

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.

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.

This is what law is: for the people we want to be and the community we aim to have (Dworkin Law’s Empire)

Malaysian Jurisprudence - Part 1

2007-11-14T07:33:00.001-08:00

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.

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.

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.

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."

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.

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..."

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.

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."

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."

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."

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.

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.

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.

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.

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.

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.

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.

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.

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).

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.

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.

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.

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.

(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)

Necessity & Concept of Law

2007-11-13T10:42:00.000-08:00

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.

"The evil in this world has roots so vast and deep that law cannot be sufficient defence against it." (Del Vecchio)

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.

Thus Shu-hsiang wrote to the prime Minister of Cheng in 536 B.C. as follows:

"...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.

"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...

"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?

"...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.

"I have heard it said that a state which is about to perish is sure to have many governmental regulations."

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.

"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?"

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.

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.

(ref: R.H. Hickling; An Introduction to the Concept of Law in Malaysia, Pelanduk Publication, 2001)

Lord Denning's famous quote:

"... 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."

The Principle of Plenitude

2006-11-22T19:37:00.000-08:00

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.

Leibniz, in “Logic and Harmony” 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?

This is an abstract from Grant McCracken's article: The Politics of Plenitude

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.

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.

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?

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.

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.

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.

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.

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.

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.

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.

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.

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).

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.

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?

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.

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.

"... 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.

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.

http://www.cultureby.com/

Jeremy Bentham - Morals & Legislation

2006-11-22T03:10:00.000-08:00

"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."

- Jeremy Bentham; 1789
Introduction to the Principles of Morals and Legislation

Thomas Malthus - Inherent Rights

2006-11-22T03:09:00.000-08:00

"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."

- Thomas Robert Malthus (1766-1834);
An Essay on the Principle of Population

Antigone - Sophocles The Theban Plays

2006-11-21T05:56:00.000-08:00

This is from the famous and tragic Antigone, the third of the Thebian PLays by Sophocles.

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.

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.

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.

Antigone said to her sister Ismene: 'Now is the time to show whether or not you are worthy of your high blood.'

Ismene objected: 'You cannot bury him against the order.'

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.

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.'

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.

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.

CREON:
Now tell me, [Antigone], in a few words as you can,
Did you know the order forbidding such an act?

ANTIGONE:
I Knew it, naturally. It was plain enough.

CREON:
Any yet you dared to contravene it?

ANTIGONE:
Yes. That order did not come from God.
Justice, That dwells with the gods below, knows no such law.
I did not think your edicts strong enough
To overrule the unwritten unalterable laws of God and Heaven,
you being only a man.
They are not of yesterday, or today, but everlasting,
Though where they came from, none of us can tell.

Guilty of their transgression before God I cannot be,
For any man on earth,I knew that I should have to die, of course,
With or without your order.
If it be soon, So much the better.
Living in daily torment, As I do,
Who would not be glad to die?

This punishment will not be any pain,
Only if I had let my mother's son Lie there unburied,
Then I could not have borne it.
This I can bear. Does that seem foolish to you?
Or is it you that are foolish to judge me so?

CHORUS:
She shows her father's stubborn spirit: foolish
Not to give way when everything's against her.

ANTIGONE:
What greater honor could I wish? All these
Would say that what I did was honorable,
But fear locks up their lips. To speak and act
Just as he likes is a King's prerogative.

CREON:
You are wrong. None of my subjects thinks as you do.

ANTIGONE:
Yes sir, they do; but dare not tell you so.

ANTIGONE:
I was not a slave, but his brother, that died with him.

CREON: Attacking his country, while the other defended it.

ANTIGONE:
Even so, we have a duty to the dead.

CREON:
Not to give equal honor to good and bad.

ANTIGONE:
Who knows? In the country of the dead that may be the law.

CREON:
An enemy can't be a friend, even when dead.

ANTIGONE:
My way is to share my love, not to share my hate.

ANTIGONE TO ISMENE:
I love no friend whose love is only words.

ISMENE TO CREON:
The strongest mind cannot but break under misfortune's blow.
You could not take her - kill your own son's bride?

CREON:
Oh, there are other fields for him to plough.
No son of mine shall wed so vile a creature.

CHORUS:
Happy are they who know not the taste of evil.
From a house that heaven hath shaken
The curse departs not But falls upon all of the blood,
Like the restless surge of the sea when the dark storms drives
The black sand hurled from the deeps
And the Thracian gales boom down
On the echoing shore.

Roving ambition helps many a man to good,
And many it falsely lures to light desires,
Till failure trips them unaware, and they fall
On the fire that consumes them.
Well was it said, Evil seems good
To him who is doomed to suffer;
And short is the time before that suffering comes.

ENTERS HAEMON, CREON'S SON. (Antigone's husband)

CREON:
Son, you have heard, I think, our final judgment
Of your late betrothed. No angry words. I hope?

HAEMON:
I am your son, sir; by your wise decisions
My life is ruled, and them I shall always obey.
I cannot value any marriage tie
Above your own good guidance.

CREON:
Rightly said. Your father's will should have your heart's first place.
Only for this do fathers prays for sons
Obedient, loyal, ready to strike down
Their fathers' foes, and love their fathers' friends.
To the father of unprofitable sons
Is to be the father of sorrows, a laughing stock
To all one's enemies.

Do not be fooled, my son, By lust and the wiles of a woman.
You'll have bought Cold comfort if your wife's a worthless one.

No wound strikes deeper than love that is turned to hate.
This girl's an enemy; away with her,
And let her go and find a mate in Hades.

Once having caught her in a flagrant act
The one and only traitor in our state -
I cannot make myself a traitor too; So she must die.
Well may she prays a Zeus, The God of Family Love.

How, if I tolerate a traitor at home,
shall I rule those abroad?

HAEMON:
Father, there is nothing I can prize above
Your happiness and well-being. What greater good
Can a son desire? Can any father
Desire more from his son? Therefore I say,
Let not your first thought be your only thought.
Think if there cannot be some other way.

Surely to think your own the only wisdom,
And yours the only word, the only will,
Betrays a shallow spirit, an empty heart.

It is no weakness for the wisest man
To learn when he is wrong, know when to yield.

So father, pause, and put aside your anger.
I think, for what my young opinion's worth,
That, good as it is to have infallible wisdom,
Since this is rarely found, the next best thing
Is to be willing to listen to wise advice.

CREON:
Indeed! Am I to take lessons at my time of life
From a fellow of his age?

HAEMON:
No lesson you need be ashamed of.
It isn't a question of age, but of right and wrong.

CREON:
Would you call it right to admire an act of disobedience?

HAEMON:
Not if the act were also dishonorable.

CREON:
And was not this woman's action dishonorable?

HAEMON:
The people of Thebes thinks not.

CREON:
Since when do I take my orders from the people of Thebes?
I am King, and responsible to myself.

HAEMON:
A one-man state? What sort of a state is that?
You will be an excellent King - on a desert Island.

CREON:
You pleaded for her cause.

HAEMON:
No, yours and mine, and that of the gods of the dead.

CREON:
You'll never marry her this side of death.

HAEMON:
Then, if she dies, she does not die alone.
O father, I could call you mad, were you not my father.

CREON:
You don't toady me, boy; Keep that for your lady-love.
And what is more, by all the gods of heaven,
I'll make you sorry for your impudence.

CHORUS:
Where is the equal of love?
Where is the battle he cannot win,
The power he cannot outmatch?

Enter THERESIAS, the blind prophet, led by a boy.

THERESIAS:
All men fall into sin
But sinning, he is not for ever lost
Hapless and helpless, who can make amends
And has not set his face against repentance.
Only a fool is governed by self-will.

What prize outweighs the priceless worth of prudence?
What mischief matches the lack of it?
And there you speak of your own symptom.

It follows of necessity
From what you have done.
Even now the avenging Furies,
The hunters of Hell that follow and destroy,
Are lying in wait for you, and will have their prey,
When the evil you have worked for others falls on you.

The time has come, And soon,
When your house will be filled with the lamenta
Of men and of women; and every neighboring city
Will be goaded to fury against you,
For upon them Too the pollution falls when the dogs and vultures
Bring the defilement of blood to their hearths and altars.

You cannot escape
The sting of their sharpness.

Lead me home, my boy,
Let us leave him to vent his anger on younger ears,
Or school his mind and tongue to a milder mood
Than that which now possesses him. Lead on.

CREON:
It is true enough; and my heart is torn in two.
It is hard to give way, and hard to stand and abide
The coming of the curse.
Both ways are hard.

The ending was tragic. Haemon committed suicide. His mother heard of this also committed suicide.

The last word of Creon:
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...

CHORUS:
Of happiness the crown
And chiefest part
Is wisdom, and to hold
The gods in awe,
This is the law
That, seeing the stricken heart
Of pride brought down,
We learn when we are old.

EXEUNT.

Dworkin attack positivist model of rules

2006-10-26T09:35:00.000-07:00

Critical study of Dworkinian Theory

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. (Roscoe Pound, 1931)

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?

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”.

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.

Legal Principles

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.

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.

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.

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.

Principles vs. Rules

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.

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).

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.

Do judge make law?

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.

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.

Policies and Principles

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.

Criticisms

Many critics have doubted that principles and policy can be clearly distinguished in the manner Dworkin requires.

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.

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.

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.

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.

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.

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.

References:

Philosophy, Morality and Law (1965)
&
Philosophy and the Critique of Law (1971)

Ronald M Dworkin

Classical Natural Law Theory - Abstracts

2006-10-26T06:21:00.000-07:00

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.

"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).

"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).

"The law has the force of law only when it is promulgated." (J. Maritain; Man and the State 1951)

"Whether or not morality can exist without society, it is certain that politics cannot." (M MacDonald; Natural Rights 1948).

"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),

Good Government & Universal Education

2006-10-24T11:23:00.000-07:00

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.

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."

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.

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.

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.

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.

(Adapted from John Austin, 1832; The Province of Jurisprudence Determined)

---

John Austin - Victim of Misrepresentation

2006-10-23T09:46:00.000-07:00

"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."

- Buckland WW, 1949

Do purely intellectual arguments account for such a revolution in attitudes?

Are the issues that are argued over always the same?

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.

Consistent misrepresentation of a jurist's ideas, where the misrepresentations are sufficiently widespread, assumes a proportion of myth.

Austin was a victim of this kind of misrepresentation (Wayne Morrison 1982)

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.

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.

Legal Philosophy in Social & Political Context

2006-10-23T09:17:00.000-07:00

"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."

Adapted from Quentin Skinner

"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."

Adapted from Karl Mannheim; "The Illusion of the Immanent Flow of Ideas".

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.

Adapted from Roger Cotterrel; The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy.

"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."

Adapted from Tony Honore

Law, Command or Orders

2006-10-16T04:05:00.000-07:00

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 "Imperative Mood".

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 "Mere Request" ('pass the salt, please), uttered as a "Plea" ('do not kill me'), or may be a "Warning" ('Don't move) or is an "Ordering" 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.

If the gunman succeeds, we could described him as having "coerced" the victim and the victim as in this sense being in the gunman's power.

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".

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.

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.

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.

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: "a General Habit of Obedience".

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.

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.

Equality & Discrimination

2006-08-16T05:03:00.000-07:00

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.

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.

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.

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.

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.

Law is a Game of Manipulation

2006-08-16T00:25:00.000-07:00

L.A. Law’s Empire

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).

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:

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.

Stuart: Well, I had wine with lunch so I guess, it was …

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.

Stuart and Ann understand implicitly.

Ann: He drank it right before we left.

Michael: Are you willing to testify to this?

Ann: Yes.

Michael: Good … Very good.

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.

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:

1. Stuart had a .09 blood alcohol level, which is barely over the .08 DWI limit in California.
2. Two witnesses (Stuart and Ann) will testify that Stuart drank the wine just moments before he got into his car.
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.

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…”

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”.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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:

“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.”

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.

Source: Adapted from Pierre Schlag; “Normativity and the Politics of Form – L.A. Law’s Empire” (1991) University of Pennsylvania.

Moral as part of Law

2006-08-02T11:52:00.000-07:00

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.

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.

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.

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.

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.

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.

Abstract from MDA Freeman, Introduction To Jurisprudence- Meaning of Law; 7th Ed. 2004

The Problem about the Nature of Law
J.Raz (1982)

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.

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.

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.

The Lawyers' Perspective

Many legal philosophers start from an unstated basic intuition:

"The law has to do with those considerations which it is appropriate for the courts to rely upon in justifying their decisions."

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.

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:

Do the social phenomena generally called law present a common characteristic distinguishing them from other social phenomena of a similar kind?

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.

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.

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.

The Institutional Approach

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.

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:

They deal with disputes with the aim of resolving them.
They issue authoritative rulings which decides these disputes.
In their activities they are bound to be guided, at least partly, by positivist authoritative consideration.

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.

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.

Legalism - Law and Ideology

2006-08-02T11:46:00.000-07:00

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.

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.

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.

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.

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.

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.

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".

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.

Abstract from J. SHKLAR; Legalism - Law and Ideology; 1964

Philosophy or a Science of Law?

2006-08-02T09:24:00.000-07:00

"Obviously, 'Law' can never be defined. With equal obviousness, however, it should be said that the adherents of the legal institution must never give up to the struggle to define law, because it is an essential part of the ideal that it is rational and capable of definition..."

- A. Thurman, The Symbols of Government (1935), pp 36-37

The choice between a philosophy or a science of law is a matter of terminology. Philosophy was once the fashionable word. Physics was then known as "natural philosophy". Since then, science has become the rage. Science, however, is concerned with empirically observable facts and events, whereas philosophy is concerned with certain ultimate questions of structure. According to Bertrand Russell, "Science is what we know, philosophy is what we don't know."

Nowadays, the emphasis is rather on the structure of language and logic than on a search for some ultimate metaphysical reality beyond the realm of empirical fact. However, philosophers are seeking after "unifying concepts". In this regard, jurists who study law in its normative aspects, and who seek to identify and analyze the conceptual structure of all legal systems, as legal philosophers rather than legal scientists. Legal scientist are those who identify and compare what may be the common elements of different legal systems as a matter of fact rather than of logical necessity.

John Austin described his work as "philosophy of positive law", while Hans Kelsen, despite the philosophical character of his work, insists that his theory is a pure science of law. However, it must be borne in mind that the search for universal elements, whether in the realm of concepts or in that of actual patterns of social behavior, may prove futile and unrewarding. Jurisprudence entails both diversity as well as uniformity. The interest of the jurist in questions of moral and political philosophy, whilst widening the terrain of jurisprudence, has encourage philosophers to take an interest in legal theory. Equally, out of sociological and realist, jurisprudence has grown the re-emergence of sociology of law. The rediscovery of the sociologies of Durkheim, Weber, Marx and Tonnies was the initial, and remains a continuing stimulus. Inquiries into the relationship between law and social and economic order have led both to grand theory about the place of law in social theory, as in the writing of Unger and Hayek to explorations of types of social control and to an analysis of conflict resolution mechanism. The growth of normative jurisprudence signaling an awareness of a relationship between legal and political theory has led to a revival of interest in the writing of Kant, Bentham and Mill, and to a new emphasis on concepts such as liberty, justice and rights. The economic analysis of law can be explained by seeing them as concerned not so much with matters of justice as with the efficient allocation of resources.

To summarise, recent trends in jurisprudence exhibit a variety of movements linked by an increasing awareness of the fruits of inter-disciplinary cooperation and buttressed by a more sophisticated methodology.

(Acknowledgement: This article is an abstract from Freeman; Introduction To Jurisprudence- Nature of Jurisprudence; Sweet & Maxwell; 7th Ed. 2004)

Normative Character of Law

2006-08-02T09:09:00.000-07:00

Human laws are not in themselves statements of fact, they are rules or norms, which prescribe a course of conduct, and indicate what shoudl happen in default. Whether the norm itself is a correct statement within a particular system is another matter; this will depend not on factual verification but on whatever tests are accorded by that system. The sanction, however, is not usually connected in an empirical sense with the rule or its breach, but is merely indicative of what the rule itself prescribes, as the consequence of non-compliance.

Hence, normative rules must be carefully distinguished from physical laws, which state causal connections. Physical laws are subjected to verification, that is, they can be true or flase; but the notion of truth or falsity is inapplicable to normative rules. Such rules simply state what should or "Ought to" (sollen) happen. The use of the word "ought" does not necessarily imply moral obligation; the "ought" merely relates to the duty of compliance with the rule on pain of suffering the prescribed penalty. However, the legal "ought" may in some instances correspond with the moral "ought".

Thus the notion that a statement that something "ought" to be done is not to give a factual description but to prescribe a course of conduct based on the implication that reasons exist for so acting, and also on the existence of standards and criteria of appraisal, by which those reasons may be judged.

A rule of law, however, differs from this in that, it does not necessarily imply that reasons for compliance could be sought and perhaps given, but rather that it is derived from a valid authority. such an authority can consist in another norm.

Radbruch Formula

2006-07-08T03:44:00.000-07:00

According to Radbruch:

“The conflict between justice and legal certainty should be resolved in that the positive law, established by enactment, and by power, has primacy even when its content justice reaches an intolerable level that the law is supposed to give way as a ‘false law’ to justice. It is impossible to draw a sharper line between the cases of legalized injustice and laws which remain valid despite their false content. But another boundary can be drawn with the utmost precision. Where justice is not even aimed at, where equality is deliberately disavowed in the enactment of a positive law, then the law is not simple ‘false law’, it has no claim at all to legal status.”

In short, Radbruch’s formula can be express concisely as:

“Appropriately enacted and socially effective, norms lose their legal character or their legal validity when they are extremely unjust.” (That is: extreme injustice is no law).

Whoever supports this thesis has ceased to be a legal positivist. The great legal positivist Hans Kelsen expressed that: “any content whatsoever can be legal”. This is the positivist thesis of the separation of law and morality. But for the anti-positivist who adopts Radbruch’s Formula, there is nevertheless a limit, that of extreme injustice.

The conflict about Radbruch’s Formula is a philosophical conflict because it is a conflict about the concept of law. The question left to be answered are: ‘should one regard as continuing to be legally valid something which offended against fundamental principles of justice and the rule of law when it was legally valid in terms of positive law of the legal system which had perished? Can something be illegal today which in the past was legal? After 1945 German courts answered “yes” to this question.

Case 1: Practical Significance

The 1st example is a 1968 decision of the Federal Constitutional Court concerning Decree 11, Reich Citizenship Law, 1941. S.2 of Decree 11 reads:

“A Jew loses German nationality when he has his usual residence abroad at the time of coming into force of this decree or when he at a later date takes up his usual residence abroad at the time when he changes his usual residence to abroad.”

This case raised the question whether a Jewish lawyer, who had emigrated to Amsterdam shortly before the WW2 had lost his German nationality. The lawyer was deported from Amsterdam in 1942 and there was no news about his fate beyond that, so it had to be accepted that he had lost his life in a concentration camp.

The Federal Constitutional Court decided that the lawyer had not lost his German nationality because Decree 11 was from the outset void, the core reasoning given is that:

“…the decree are so evidently contradict fundamental principles of justice that the judge who applied them or recognized their legal consequences would pronounce injustice instead of law.”

Decree 11 offends these fundamental principles and the contradiction with justice has reached so intolerable a level that it must be regarded as void from the outset.

Radbruch’s formulation of the “intolerable level” of the “contradiction” with “injustice” was applied.

Case 2: Practical Significance

A Jewish woman who emigrated to Switzerland in 1939 had left securities in a deposit in a German bank. After the war, she took up domicile in the Federal Republic of Germany (FRG) and demanded that the securities be restored to her. The question was whether she had lost her property under s.3, Para 1, Provision 1 of Decree 11, Reich Citizenship Law, 1941. S.3 of Decree 11 reads:

“The property of Jews who have lost their German nationality on the basis of this Decree becomes the property of the Reich with the loss of nationality.”

The Federal Court of Justice answered “no” to this question and confirmed her demand for restitution, the reason being that:

“S.3 of Decree 11 under the Reich’s Citizenship Law 1941 is to be regarded as from the outset void because of its iniquitous content which contradicts the foundational requirements of every order based on the rule of law.”

Following this anti-positivist solution the emigrant could demand her property back simply because she had never lost it. From the standpoint of legal positivism some correcting regulation was required if she were to have any title to her claim and this would hinge on the discretion of the legislature.

Case 3: Practical Significance

This case concerns a 20-year-old fugitive who on December 1984 attempted to get over the border structure with a ladder. 2 soldiers of the border patrol of the German Democratic Republic (GDR) caught sight of him. As he ascended the ladder it became clear to the soldiers that only directed fire stood a chance of preventing his flight. They shot at the fugitive. Though they aimed at his leg, there was a possibility that he would be killed by the sustained fire. The fugitive died as a result.

In 1992, the Berlin Provincial Court found the soldiers jointly guilty of manslaughter. The Federal Court of Justice rejected the appeals against the judgment and confirmed the convictions.

In accordance with the rules of the treaty on the restoration of German Unity, the general principle was valid for both soldiers that their deed was punishable only if it was punishable in terms of the valid law governing at the time and in the place it was done.

In issue as their ground of justification was s.27 of the 1982 Border Law of GDR. S.27, Para 2, Provision 1 reads:

“The use of firearm is justified to prevent the directly imminent carrying out or the continuation of a criminal act which, in the circumstances, appears to be a felony.”

S. 27, Para 5 states:

“When firearms are used the life of the person is if possible to be spared.”

Accordingly, it was a felony to break through the border as the fugitive had done. Fire was only opened after milder measures did not work – the fugitive was called back and a warning shot was fired. The soldiers had aimed at his leg. The flight could not have been prevented at all without firing and, given that he was seconds away from succeeding, single shots would not have been as sure.

However, the Berlin Provincial Court held that the soldiers should have complied with the fundamental principle of proportionality, which meant that the soldiers should not have opened continuous fire. In addition, the aim of preventing a criminal act which did not endanger the life of another could never justify the killing of a person, since his life is the most prized legal value.

In this regard, the Berlin Provincial Court got the positive law wrong. The deed of both the soldiers were justified by s.27, Para 2, Provision 1 and the deed was legal in terms of the positive law at the time. Both soldiers could only be punished if the justification ground of s.27, Para 2 did not apply.

The Federal Court of Justice did not adopt the reasoning. It brought Radbruch’s formula into play:

“…a justificatory ground can be disregarded if the offence is of a higher order of law when it manifested a patently gross offence to the fundamental tenets of justice and humanity: the offence must be so weighty that it violates the legal convictions of all nations in regard to people’s worth and dignity, the contradiction between positive law and justice must be so intolerable that the law has to give way to justice as a false law.”

The last sentence is an almost word for word repetition of Radbruch’s intolerability formula.

The Federal Court of Justice held that the fugitive’s death amounted to an extreme injustice in Radbruch’s sense.

Case 4: Candour Argument

This is a case decided by the Superior Provincial Court Bamberg in 1949 of a woman who wanted to get rid of her husband and thus denounced him to the authorities in 1944 for having made insulting remarks about Hitler. The wife was under no legal duty to report his acts, though what he had said was apparently in violation of statutes making it illegal to make statements detrimental to the government of the Third Reich.

The husband was sentenced to death, but this was not carried out and he was sent to frontline service. The Superior Provincial Court held that, although the conduct of the woman did not violate the law of the Third Reich, it was to be classified as a violation of the law because it “offended against the sense of justice and reasonableness of all right thinking people.” It thus convicted her of deprivation of freedom. The wife pleaded that her husband’s imprisonment was pursuant to the Nazi statutes and hence that she had committed no crime. The Court of Appeal held that the wife was guilty of procuring the deprivation of her husband’s liberty by denouncing him to the German courts, even though he had been sentenced by a court for having violated a statute, since, according to the Appeal Court, the statute was contrary to the sound conscience and sense of justice of all decent human beings.

This reasoning was followed in many cases which have been hailed as a triumph of the doctrines of natural law and as signaling the overthrow of positivism. The unqualified satisfaction with this result seems to be hysteria.

Hart objected in the following way:

“There were, of course, two choices. One was to let the woman go unpunished; one can sympathize with and endorse the view that this might have been a bad thing to do. The other was to face the fact that if the woman were to be published it must be pursuant to the introduction of a frankly retrospective law and with a full consciousness of what was sacrificed in securing her punishment in this way. Odious as retrospective criminal legislation and punishment may be, to have pursued it openly in this case would at least have had the merits of candour.”

The Candour argument is the strongest argument against Radbruch’s formula. One could say that it indeed leads to the conclusion that statutes which justify extreme injustice can never be law or achieve legal validity. According to Radbruch’s formula, it is justificatory ground of an iniquitous regime that is from the outset a nullity. Thus applying Radbruch’s formula does not retroactively change the legal situation; it just determines what at the time of the act the legal situation was. Of course from the perspective of the sheer facts of the matter there is a change, and just in this lies the critical bite of Radbruch’s formula. This change means that the prescription of the lex scripta is not upheld which secured trust in the appropriately enacted and socially effective law which existed at that time.

The core of Hart’s accusation of lack of candour is thus that Radbruch reduced the principle of Nulla poena sine lege to the prescription of the ius praevium and thus concealed the harm to the prescription of the lex scripta. In this way the fact is concealed that there is a choice between "the lesser of two evils”.

Radbruch’s formula excludes legal norms which fail to meet a particular moral criterion which are deemed to be legally defective legal norms. It is crucial that the defect asserted is a legal one and not merely moral.

Radbruch put forward the view that the legal positivism had made “both jurists and the people defenseless against just such arbitrary, cruel, and criminal statute.” His new formula was supposed to provide jurists with “weapons against a recurrence of such an unjust state.”

Radbruch’s formula is the result of a careful balance of 3 elements – justice, purposiveness and legal certainty.

Hart accused Radbruch of “extraordinary naivety”. Hart remarked that nothing followed for the concept of law from the fact that moral principles are “rationally defensible or discoverable”.

Radbruch’s formula seems to be an empowerment of the judge to decide against the law in cases in which his subjective convictions are particularly intensively affected. Hence, anti-positivism presupposes at least a rudimentary non-relativist ethic.

The Federal Constitutional Court justified its application of Radbruch’s formula in the decision about loss of nationality by saying that:

“…The attempt to destroy physically and materially certain parts of one’s own population, including women and children, in accordance with ‘racial’ criteria” intolerably contradicts justice and so amounts to an extreme injustice. Here, we should accept that there us a core area of human rights such that harm to it amounts to extreme injustice”.

In contrast to the destruction of Jews in the Third Reich, there is a serious controversy about whether the killings on the internal German border amount to extreme injustice. In this case, the question whether there was extreme injustice cannot be decided by appeal to evidence but only with the help of arguments.

Fuller objected that Radbruch’s recourse to some “higher law” was superfluous. Fuller suggested bringing into play as a substitute for such substantive standards his inner or internal morality of law, that is, his principle of legality:

“To me there is nothing shocking in saying that a dictatorship which clothes itself with a tinsel of legal form can be so far depart from the morality of order, from the inner morality of law itself, that it ceases to be a legal system.”

Because of the vagueness and ambiguity of the expression “law” (Recht), a decision on the correctness of Radbruch's formula is ultimately possible only on the basis of normative argument.

One can in fact abuse Radbruch’s formula in this way. The potential of abuse, however, never entails necessity. Radbruch was clear that his formula involved a choice between two evils and he did not make the slightest attempt to conceal this. In the end the question is whether it is preferable to incur the cost of a loss in legal certainty or a loss in substantive justice.

Radbruch, Fuller and Hart agreed that a retroactive law is to be recommended over the application of Radbruch’s formula.

One can go one step further and say that Radbruch’s formula is at least in the period after the collapse of an unjust regime, is unnecessary because the new legislature has the power to override legal injustice by means of retroactive law. However, this would be no solution if one takes into account the possibility that the new legislature is altogether inactive or not sufficiently active.

In the case of the Jewish emigrant’s deposit of security, if it were left up to the legislature and the legislature remained inactive; she would endure violation of her rights based on extreme injustice.

There are thus cases in which Radbruch’s formula is necessary to protect fundamental rights. The Federal Court of Justice used Radbruch’s formula to prevent the denial of justice through the restitutory law of restitution to the emigrant. This example shows that respect for the rights of the citizen requires Radbruch’s formula.

Regina v Dudley and Stephens

2006-06-30T12:05:00.000-07:00

Pavlína Hojecká

1. Introduction

Regina v. Dudley and Stephens, the famous story of a shipwrecked boat, two starving castaways and their act of cannibalism is one of the most important criminal law cases in the common law world. It set the tone on the troubled issue of whether the defence of "necessity" should be available in circumstances where life was taken in order to preserve another's life. Holding that no such defence is available, judges placed strict limits on the doctrine of necessity and influenced the development of defences to crimes in the common law for another hundred years. In fact, the decision still influences the law to the present day, as we will see while discovering the latest developments in this area of law.

The significance of Regina v. Dudley and Stephens lies in the fact that the English courts, for the first time, decisively and absolutely laid down the common law concerning this issue and upheld the principle that human life is to be protected at all costs, that life shall not be taken or sacrificed even to preserve one's own life and that the defence of necessity is no excuse.

This case is also a great human rights case. Here, an important principle was at stake: when, and under what circumstances, might one take the life of another in the eyes of the law? Resolving this problem, the court showed how strong the common law viewed the value of human life. The right to life was upheld as an undeniable right, no matter what the circumstances of the situation are. The decision reached in Regina v Dudley and Stephens is also a very controversial one. In this article, we will discover what crucial questions the jury and the court were asked to resolve and the attitude adopted. Further, we will also explore the criticisms of the solutions found in the verdict as well as the later development of this legal issue.

2. Facts of the Case

On 5 May 1884, the English yacht Mignonette started its voyage to Sydney, Australia from the village of Tollesbury in Essex. There was a crew of four on board: Tom Dudley, the captain; Edwin Stephens, the mate; Edmund Brooks, a crewman; and Richard Parker, the ship's boy. The voyage was uneventful until 5 July when, having deviated from the main trade route in search of fair weather, 1,600 miles off the Cape of Good Hope, the yacht was hit by a massive wave and sank within minutes, forcing the crew to put to sea in their lifeboat, a 13-foot open dinghy. For the first ten days, the crew survived on two tins of turnips, whatever rainwater they succeeded in collecting, and the innards and skin of a turtle, hauled aboard on the fourth day. The boat was drifting on the ocean, probably more than a thousand miles away from land.

On the eighteenth day, after seven days without food and five without water, Dudley proposed that lots should be drawn so that one of them could be sacrificed to feed the others. Brooks rejected the proposal and Richard Parker, to whom they were understood to refer, was not consulted. Stephens, although sceptical at first, was eventually persuaded that their only hope of survival lay in killing and eating the boy, by then drifting in and out of consciousness and by far the weakest of the four. On the day of the act in question, Dudley and Stephens spoke of their having families, and suggested that it would be better to kill the boy in order to save their lives, and Dudley proposed, that if there was no vessel in sight by the following morning the boy should be killed. The next day, no vessel appearing, Dudley suggested to Stephen and Brooks that the boy had better be killed. Stephens agreed to the act, Brooks dissented. The boy was lying at the bottom of the boat helpless and extremely weakened by famine and drinking seawater, unable to make any resistance. Dudley then approached the boy with the words, “Richard, your hour has come” and, receiving faint reply, “What? Me, sir?” answered “Yes, my boy” and stabbed him in the neck.

For the next four days all three men, including Brooks, fed on the boy’s body and drank his blood. On the fourth day after the act was committed, the three men were sighted by a German bark, the Montezuma and picked up by it, in the lowest state of prostration. They were carried to the port of Falmouth, where they faithfully recounted the details of the shipwreck and Richard Parker's death to the authorities. They were then charged with murder and tried at Exeter.

3. Unusual Procedure

Once the three were arrested, they were brought before the Falmouth borough Magistrates. This was a preliminary inquiry to determine whether charges against the men should be proceeded with or whether the men should be set free. They were charged with murder and held in custody for a further hearing. On 6 November 1884, the crewmembers were tried at Exeter. Much to the discontent of the intentions of the authorities involved, there was a great crowd at the courtroom, showing its sympathy in favour of the prisoners. Arguably for this reason, the trial judge, Baron Huddleston, decided to take an unusual step and asked the jury to return a special verdict. He explained to them that this was a procedure commonly used to ensure that the case would be reviewed by a higher court. By this step, the jury was basically confined to determining the facts and was not allowed to render a proper verdict. Moreover, it is believed that the special verdict was drafted by Baron Huddleston himself. Also, curiously, the special verdict contained no finding as to whether it was "necessary" to sacrifice the life of Richard Parker.

In the special verdict, the jury found that: “if the men had not fed upon the body of the boy, they would probably not have survived to be picked up and rescued, but would within the four days have died of famine; that the boy, being in a much weaker condition, was likely to have died before them; that at the time of the act in question there was no sail in sight, nor any reasonable prospect of relief; that under the circumstances there appeared to the prisoners every probability that, unless they fed, or very soon fed, upon the boy or one of themselves, they would die of starvation; that there was no appreciable chance of saving life except by killing someone for the others to eat; that, assuming any necessity to kill anybody, there was no greater necessity for killing the boy than any of the other three men.”
After returning the special verdict, setting out the facts only, the matter was referred to the Queens Bench Division for its decision.

4. The Appeal

The case was argued and decided on 4 and 9 December 1884, in the Divisional Court of the Queen’s Bench Division, before an expanded panel of judges consisting of Lord Coleridge, Chief Justice; Grove and Denman Judges; Pollock and Huddleston (the trial judge), Barons. The prisoners’ counsel, Mr. Collins, argued that English law did recognise a defence of necessity, that applied to the facts, justified or excused the killing of Parker. It was with this contention that the Court was mainly concerned. He referred to a case mentioned in the medical work of Nicolas Tulpius, a Dutch writer, in which several seamen were stranded, cast lots to see who would be sacrificed, and subsequently were "treated with kindness by the Dutch and sent home to St. Christopher." The court, however, decided not to argue at length with counsel’s arguments. After the cousel’s speech, Lord Coleridge simply commented, "We need not trouble you, Mr. Attorney-General to reply, as we are all of the opinion that the prisoners must be convicted." The Attorney General then suggested that it was proper for the court to pronounce sentence.

The judgment of the court was handed down by Lord Coleridge, Chief Justice. After stating the facts, he recited the special verdict, adding his opinion that the prisoners “might possibly have been picked up the next day by a passing ship: or they might possibly not have been picked up at all; in either case it is obvious that the killing of the boy would have been an unnecessary and profitless act.” He also noted that “it is not even suggested that his death was due to any violence on his part attempted against, or even so much as feared by, them who killed him.” Subsequently, Lord Coleridge proceeded to discuss the merits of the case: "There remains to be considered the real question in the case, whether killing, under the circumstances set forth in the verdict, be or not be murder. The contention that it could be anything else was to the minds of us all both new and strange.”

To solve the “real question” of the case, the Chief Justice threw himself into a lengthy review of legal texts. His aim was to find out if there is any such defence of necessity to murder.

Firstly, he discussed the various definitions of murder in books of authority, which imply that, “in order to save your own life you may lawfully take away the life of another, when that other is neither attempting nor threatening yours, nor is guilty of any illegal act whatever towards you or anyone else.” According to Coleridge, these definitions, when examined, do not sustain the contention. Bracton, writing in the time of Henry III, was the first to be considered. Coleridge, stated that it is clear that Bracton is speaking of “necessity in the ordinary sense, the repelling by violence – violence justified so far as it was necessary for the object – any illegal violence used towards oneself" and that he is thinking of physical danger. The Chief Justice hurried to add however, that Bracton’s view, is not supported by the great authority of Lord Hale. In Hale’s opinion, “the necessity which justifies homicide is that only which has always been, and is now, considered a justification.” According to him, necessity, which justifies homicide, is of two kinds: 1. That necessity which is of a private nature and 2. That necessity which relates to the public justice and safety. The private justification is where “that necessity which obliged a man to his own defence and safeguard” To Coleridge, it is clear that Hale regarded the private necessity which justified, and alone justified, the taking the life of another for the safeguard of one's own to be what is commonly called self-defence.

To make it even clearer, he cites the words of Lord Hale himself: “If a man be desperately assaulted, and in peril of death, and cannot otherwise escape, unless to satisfy his assailant’s fury he will kill an innocent person present, the fear and actual force will not acquit him of the crime and punishment of murder if he commit the fact, for he ought rather to die himself than to kill an innocent; but if he cannot otherwise save his own life, the law permits him in his own defence to kill the assailant, for, by the violence of the assault and the offence committed upon him by the assailant himself, the law of nature and necessity hath made him his own protector cum debito moderamine inculpate tuteloe.” Furthermore, Hale touched upon the issue of extreme necessity either of hunger or clothing: “I take it that here in England,… if a person, being under necessity for want of victuals or clothes, shall upon that account…steal another man’s goods, it is a felony and crime by the laws of England punishable with death.” If therefore, Lord Hale is clear, as he is, that extreme necessity of hunger does not justify larceny, he would certainly, as Coleridge wanted to demonstrate, be clear in denying necessity to murder.

Several other English authorities were reviewed by Lord Coleridge: Sir Michael Foster's Discourse on Homicide, Sir Edward East, Stanndforde and Lord Russell. The conclusion is easy to predict: they all share Lord Hale’s view. Lord Bacon’s broad proposition that a threat to one’s existence justifies the taking of an innocent life was rejected as not being “law at the present day”. But what about precedent cases that would offer the court much needed guidance? "Decided cases there are none", stated Coleridge firmly. The case of seven English sailors referred to by counsel, mentioned in a medical treatise published in Amsterdam, appeared to him as an authority in an English court, as unsatisfactory as possible.” A previous American case, United States v. Holmes, in which sailors were found guilty for throwing passengers overboard to save others, was, according to Lord Coleridge, correctly decided but on the somewhat strange ground that the proper mode of determining who was to be sacrificed was to vote upon the subject by ballot. In fact, the court in Holmes recognised necessity as a defence to murder. Naturally, for the Chief Justice, this case was not an “authority satisfactory to a court in this country”.

Neither did Lord Coleridge find any guidance in the words of the Commission for preparing the Criminal Code. They stated: ”We are not prepared to suggest that necessity should in every case be a justification; we are equally unprepared to suggest that necessity should in no case be a defence. We judge it better to leave such questions to be dealt with when, if ever, they arise in practice by applying the principles of law to the circumstances of the particular case.”

The Chief Justice then proceeded to ”apply the principles of law to the circumstances of this particular case” and found that the deliberate killing of Richard Parker was clearly murder, unless the killing can be justified by some well recognised excuse admitted by law. It is further admitted that there was in this case no such excuse, unless the killing was justified by what has been called necessity.

“But the temptation to the act which existed here was not what the law has ever called necessity. Nor is this to be regretted. Though law and morality are not the same, and though many things may be immoral which are not necessarily illegal, yet the absolute divorce of law from morality would be of fatal consequence, and such divorce would follow if the temptation to murder in this case were to be held by law an absolute defence of it. It is not so. To preserve one’s life is, generally speaking, a duty, but it may be the plainest and the highest duty to sacrifice it….these duties impose on men the moral necessity, not of the preservation, but of the sacrifice, of their lives for others, from which in no country …will men ever shrink…It is not correct, therefore, to say that there is any absolute and unqualified necessity to preserve one’s life.”

According to Lord Coleridge, to admit the defence of necessity in this case would be a very dangerous thing to do and could be the “legal cloak for unbridled passion and atrocious crime” . A number of questions, to which it is very difficult to find an answer would arise: Who is to be the judge of this sort of necessity? By what measure is the comparative value of lives to be measured? Is it to be strength, or intellect, or what? Should it be the one who is to profit by it to decide who is to be killed? And finally: Was it more necessary to kill Richard Parker than one of the grown men? The answer for Lord Coleridge was clearly, no.

At the end of his judgement, the Chief Justice explains his position. “It must not be supposed that, in refusing to admit temptation to be an excuse for crime, it is forgotten how terrible the temptation was, how awful the suffering…We are often compelled to set up standards we cannot reach ourselves, and to lay down rules which we could not ourselves satisfy. But a man has no right to declare temptation to be an excuse, though he might himself have yielded to it, nor allow compassion for the criminal to change or weaken in any manner the legal definition of the crime.”

Thus, Tom Dudley and Edwin Stephens were both found guilty of murder and sentenced to death. The sentence was later commuted to six months’ imprisonment, without hard labour.

5. Criticisms of the Verdict

The decision in Regina v Dudley and Stephens provoked much criticism, which can be divided into two groups: criticism of the legal opinion of the verdict and criticism of the decision being a political tool of Home Office policy. Firstly, let us review the major points of the legal opinion criticisms first. The most important standpoint in the verdict is its rejection of the concept of self-preservation as defence to murder on the ground that such a rule would violate the principle that no person's life is worth more than another's and its proposition of the duty of self sacrifice instead.

Sir James Stephen commented on Lord Coleridge's opinion three years later: “I should have agreed with the rest of the Court had I been a member of it in R. v. Dudley though not in all the reasoning of the judgment. …I could not go so far as to say, as the judgment delivered by Lord Coleridge says, that any case can impose on a man "a duty" (if the word means a legal duty) "not to live but to die…Whatever estimate may be formed of self-sacrifice, it seems to me to be a duty of which the law can take no notice, if indeed it is a duty at all, which is not a legal question.”

Another interesting comment on Coleridge’s duty of self-sacrifice comes from Tom Stacy, Professor of Law at the University of Michigan. Lord Coleridge revokes that self-sacrifice as a duty of dying for others is recognised in war and supported by Jesus's "Great Example." However, his view that the duty of sacrificing oneself for others should have required Dudley and Stephens to do nothing appears curious to Stacy. In contrast with the examples of war and Jesus, in which self-sacrifice saves others from destruction or evil, he says, “self-sacrifice in the lifeboat would have had the perverse consequence of causing others to die. Instead of requiring that all starve together, the duty of self-sacrifice would seem to have required one of the crewmen to voluntarily allow himself to be killed so that the others might survive.” To Stacy, the strange position of Lord Coleridge can only be understood in light of the unstated premise that Dudley and Stephens would have had no responsibility for causing the deaths of others through inaction.

Another form of opposition to the verdict comes from utilitarian legal thinkers. According to them, Coleridge obscures the fact that Parker's death may have saved the lives of three men. This idea is based on a theoretical foundation: of utility. Here, an action is justified if it produces more utility in terms of its future consequences than do alternative actions. This standpoint would seem to support the necessity of killing in this case.

“Dudley and Stephens" choice was between doing nothing, which they were reasonably certain would cause the death of all four, or shortening the life of a semi-conscious boy who already was very close to death, thereby giving the other three a good chance to live. Surely saving three lives would produce more utility than having all four die.” For Lord Coleridge, however, this view is too short-sighted because it ignores the long-term consequences of a rule permitting necessity killings. Further in this direction, professor Stacy analyses the verdict on the act/omission basis. He points out that Lord Coleridge gave no consideration to any responsibility Dudley and Stephens would have had for the death of all four as consequence of their inaction. Here, one cannot simply show their lack of criminal intent. Although they did not wish for anyone to starve as a result of their inaction, they knew that this would happen. Instead, according to Stacy, Lord Coleridge appeals to the act/omission distinction.

The Anglo-American rule is that, absent special circumstances that impose a duty to act, a person has no general legal responsibility for the consequences of an omission. However, to Stacy, Dudley and Stephens had responsibility for Parker's death because his death resulted from Dudley's action. But Lord Coleridge implicitly assumed that those on the lifeboat had no duties toward one another sufficient to impose an obligation to take action. They therefore would have had no legal responsibility for the consequences of their inaction. Stacy concludes that whilst it remains true that recognition of a necessity defence might lead to some killings that are not necessary, non-recognition of the defence could result in an even greater number of preventable deaths of innocents. The second limb of opposition, emphasises the undue presence of policy making in the court's decision. While studying this case one cannot avoid asking why it was that a trial was held in the case of Dudley and Stephens? Public opinion was strongly in favour of Dudley and Stephens.

For centuries, past events before the described incident, represented precedents on what to do in an emergency situation on the high seas. The custom of the sea seemed to permit, or at least ignore, the practice of sacrificing one to save others. No previous case of similar circumstances except the Holmes case had gone to court.
So why such a drastic change in 1884 in the case of Mignonette? The 1880s were a time when civilization flowered. It found itself at great difficulty to condone a practice of sacrificing a fellow human being to save others outside the context of war. For the peace and dignity of the kingdom, therefore, it was essential that some clear-cut ruling be made to set a definitive rule in the issues of life and death on the high seas which would be precedential for other similar situations. That is why the Home Secretary, as we now know from various documents, made such an effort to put Dudley and Stephens on trial, having already determined that the death sentences should be commuted to brief terms of imprisonment. It also appears that the judiciary, knowing where the sympathy of the public lay, had already made their mind up on the issue of guilt, and virtually bypassed the jury.

6. Later Developments

The Dudley and Stephens decision laid down a very strict rule of criminal law tempered only by judicial discretion to give a light sentence and left a very enduring mark on the understanding of necessity in the common law world. In 1931, a distinguished American judge, Benjamin Cardozo supported Coleridge’s opinion: “Where two or more are overtaken by a common disaster, there is no right on the part of one to save the lives of some by the killing of another.” Moreover, the decision played a decisive role in the exclusion of murder from the purview of duress per minas - a situation when one’s actions were constrained by direct human threats. In the Irish case of Whelan (1934), the Court of Criminal Appeal cited Murnaghan J, saying that “murder is a crime so heinous that [it] should not be committed even for the price of life and in such a case the strongest duress would not be any justification”

In Steane (1947), Lord Goddard also speaking obiter, excluded murder from the ambit of duress. Even earlier, American case law followed the same path (Arp v. State, 1983; State v. Nargashian, 1904.

Then, in 1969, gradual erosion of the strict rule began by the dictum in R. v. Kray (Ronald), stating that duress was available to an accessory to murder. Taking Kray as a basis, in D.P.P. for Northern Ireland v. Lynch (1975) the majority of the House of Lords held that duress was available to an accomplice to murder. The high point in this direction was, however, reached earlier in a South African case of S. v. Goliath (1972). There, duress was accepted as a defence to murder:

“It is generally accepted…that for the ordinary person in general his life is more valuable than that of another…. Should the criminal law then stat that compulsion could never be a defence to a charge of murder, it would demand that a person who killed another under duress…would have to comply with a higher standard than that demanded of the average person. I do not think that such an exception to the general rule which applies in criminal law is justified.”

This erosion was only a temporary affair. In Abbott v R (1977), duress was rejected as a defence to the principal in murder and the u-turn was completed by an important decision of Howe (1987). Here, the House of Lords had to decide whether to perpetuate the distinction between principals and accomplices. They decided not to do so and, unanimously rejecting the Lynch doctrine, favoured the rule that renders duress and necessity unavailable as defences in all prosecutions for murder.

Speaking for the court, Lord Hailsham returned to the Dudley and Stephens concept of heroic sacrifice: “ In general, I must say that I do not at all accept in relation to the defence of murder it is either good morals, good policy or good law to suggest, as did the majority in Lynch and the minority in Abbott that the ordinary man of reasonable fortitude is not to be supposed to be capable of heroism if he is asked to take an innocent life rather than sacrifice his own. Doubtless in actual practice many will succumb to temptation, as they did in Dudley and Stephens. But many will not…I have known in my lifetime of too many acts of heroism by ordinary human beings…” Furthermore, on the basis of Howe, the House of Lords in Gotts (1992), held that duress cannot be a defence to attempted murder either.

Notwithstanding all this, it would be premature to conclude that necessity can never be a defence to murder in common law. In the recent case of conjoined twins (Re A [children], 2000) B, in order to save the life of the stronger, A. The situation here was that there were two connected twins, which each had their own head, brain, heart, and lungs. The parents and the physicians understood that allowing them to remain joined would cause both to die. The alternative was to separate the twins surgically, but if the operation was performed, B would be killed and A would probably live, as indeed happened. If the operation was not performed, both would die. The court based their decision on necessity, distinguishing Dudley and Stephens, because there was no problem of selection - the weaker condition of B was one of the circumstances of the case. The principle set in this case theerefore appears to be that it is lawful to kill B where, as it is known, B is threatened with imminent death but even the short continuation of his life would kill A as well.

To end this review of the latest developments on necessity as a defence to murder, let us mention an interesting remark by the authors of the Smith & Hogan textbook of criminal law. They think that following the destruction of the World Trade Center in New York “it now appears to be recognized that it would be lawful to shoot down the plane, killing all the innocent passengers and crew if this were the only way to prevent a much greater impending disaster”, and this on the basis of necessity as a defence.

7. Significance of Dudley and Stephens

To conclude this analysis of the Dudley and Stephens case, let us contemplate the real significance of its decision. Lord Coleridge’s verdict clearly and decisively sets the rule that no matter how harsh the circumstances of the situation are, there is no defence of necessity to murder in common law. That is, to save one's own life, one cannot willingly take somebody else’s innocent life. Stating that where there is a problem of choice between innocent lives, no individual is entitled to decide who should die, the court reaffirmed that everybody has an equal right to life and shall enjoy the same protection under common law.

Even though this doctrine was unanimously confirmed in the recent case of Howe, we should not overestimate its scope. Firstly, neither Lord Coleridge’s dismissal of Holmes nor his rejection of the lottery principle form part of the ratio decidendi and are not largely accepted by legal writers. More importantly, the Dudley and Stephens doctrine does not seem to apply where there is no need to select a victim, as we saw in the case of conjoined twins. It has also been suggested that the Dudley case would be distinguishable, where the person sacrificed has innocently imperilled the lives of others. Even though the strict protection of the right to life in the decision of Regina v Dudley and Stephens, later confirmed in Howe, continues to be a part of the common law, it would be premature to conclude that necessity can never be a defence to murder nor that further developments of this issue is improbable.

Speluncean Explorers (1949)

2006-06-30T12:01:00.000-07:00

Source: L.L. Fuller

In the Supreme Court of Newgarth 4300

Fact: The defendants, having been indicted for the crime of murder, were convicted and sentenced to be hanged by the Court of General Instances of the county of Stowfield. They bring the petition of error before this Court. The facts sufficiently appear in the opinion of the Chief Justice.

Truepenny, CJ:

The four defendants are members of the Speluncean Society, an organization of amateurs interested in the exploration of caves. Early in May of 4299, they, in the company of Roger Whetmore, then also a member of the Society, penetrated into the interior of a limestone cavern…. While they were in a position remote from the entrance to the cave, a landslide occurred. Heavy boulders fell in such a manner as to block completely the only known opening to the cave. When the men discovered their predicament they settled themselves near the obstructed entrance to wait … a rescue party. When the imprisoned men were finally released it was learned that on the 23rd day after their entrance into the cave, Whetmore had been killed and eaten by his companions.

(Note: The model for this is R v Dudley and Stephens as to which see AWB Simpson, Cannibalism and the Common Law (1984)).

From the testimony of the defendants, which was accepted by the jury, it appears that it was Whetmore who first proposed the use of some method of casting lots, calling the attention of the defendants to a pair of dice he happened to have with him …

Before the dice were cast, Whetmore declared that he withdrew from the arrangement, as he had decided on reflection to wait for another week before embracing an expedient so frightful and odious. The others charged him with a breach of faith and proceeded to cast the dice. When it came Whetmore’s turn, the dice were cats for him by one of the defendants and he was asked to declare any objections. The throw went against him and he was then put to death and eaten by his companions.

After the rescue of the defendants … they were indicted for the murder of Roger Whetmore … The trial judge then sentenced them to be hanged, the law of our Commonwealth permitting him no discretion with respect to the penalty to be imposed. After the release of the jury, its members joined in a communication to the Chief Executive asking that the sentence be commuted to an imprisonment of 6 months. The trial judge addressed a similar communication to the Chief Executive …

It seems that to me that in dealing with this extraordinary case the jury and the trial judge followed a course that was not only fair and wise, but the only course that was open to them under the law. The language of our statute is well known: “Whoever shall willfully take the life of another shall be punished by death.” This statute permit of no exception applicable to this case, however our sympathies may incline us to make allowance for the tragic situation in which these men found themselves.

In a case like this, the principle of executive clemency seems admirably suited to mitigate the rigour of the law, and I propose to my colleagues that we follow the example of the jury and the trial judge by joining in the communications they had addressed to the Chief Executive. There is every reason to believe that these requests for clemency will be heeded, coming as they do from those who have studied the case and had an opportunity to become thoroughly acquainted with all its circumstances. It is highly improbable that the Chief Executive would deny these request unless he were himself to hold hearings at least as extensive as those involved in the trial below, which lasted for 3 months. The holding of such hearings would scarcely be compatible with the function of the Executive as it is usually conceived. I think we may therefore assume that some form of clemency will be extended to these defendants. If this is done, then justice will be accomplished without impairing either the letter or spirit of our statutes and without offering any encouragement for the disregard of law.

Foster J.:

I am shocked that the Chief Justice, in an effort to escape the embarrassments of this tragic case, should have adopted, and should have proposed to his colleagues, an expedient at once so sordid and so obvious. I believe something more is on trial in this case than the fate of these unfortunate explorers; that is the law of our Commonwealth. If this Court declares that under our law these men have committed a crime, then our law itself convicted in the tribunal of common sense, no matter what happens to the individuals involved in this petition of error. For us to assert that the law we uphold and expound compels us to a conclusion we are ashamed of, and from which we can only escape by appealing to a dispensation resting within the personal whim of the Executive, seems to me to amount to an admission that the law of this Commonwealth no longer pretends to incorporate justice.

For myself, I do not believe that our law compels the monstrous conclusion that these men are murderers, I believe, on the contrary, that it declares them to be innocent of any crime. I rest this conclusion on two independent grounds, either of which is of itself insufficient to justify the acquittal of these defendants.

The first of these grounds rest on a premise that may arouse opposition until it had been examined candidly. I take the view that the enacted or positive law of this Commonwealth, including all of its statutes and precedents, is inapplicable to this case, and that the case is government instead by what ancient writers in Europe and America called the “Law of Nature”.

This conclusion rests on the proposition that our positive law is predicated on the possibility of men coexistence in society. When a situation arises in which the co-existence of men becomes impossible, then a condition that underlies all of our precedents and statutes has ceased to exist. When the condition disappears, then it is my opinion that the force of our positive law disappears with it. We are not accustomed to applying the maxim “cessante ratione legis, cessat et ipsa lex” to the whole of our enacted law, but I believe that this is a case where the maxim should be applied.

The proposition that all positive law is based on the possibility of men’s co-existence has a strange sound, not because the truth it contains is strange, but simply because it is a truth so obvious and pervasive that we seldom have occasion to give words to it. Like the air we breathe, it so pervades our environment that we forget that it exists until we are suddenly deprived of it. Whatever particular objects may be sought by the various branches of our law, it is apparent on reflection that all of them are directed toward facilitating and improving men’s co-existence and regulating with fairness and equity the relations of their life in common. When the assumption that men may live together loses its truth, as it obviously did in this extraordinary situation where life only became possible by the taking of life, then the basic premises underlying our whole legal order have lost their meaning and force.

Had the tragic events of this case taken place a mile beyond the territorial limits of our Commonwealth, no one would pretend that our law was applicable to them. We recognize that jurisdiction rests on a territorial basis. The grounds of this principle are by no means obvious and are seldom examined. I take it that this principle is supported by an assumption that it is feasible to impose a single legal order upon a group of men only if they live together within the confines of a given area of the earth’s surface. The premise that men shall co-exist in a group underlies, then, the territorial principle, as it does all of law. Now I contend that a case may be removed morally from the force of a legal order, as well as geographically. If we look to the purposes of law and government, and to the premises underlying our positive law, these men when they made their fateful decision were as remote from our legal order as if they had been a thousand miles beyond our boundaries. Even in a physical sense, their underground prison was separated from our courts and writ-servers by a solid curtain of rock that could be removed only after the most extraordinary expenditures of time and effort.

I conclude, therefore, that at the time Roger Whetmore’s life was ended by these defendant, they were to use the quaint language of 19th Century writers, not in a “state of civil society” but in a “state of nature”. This has the consequence that the law applicable to them is not the enacted and established law of this Commonwealth, but the law derived from those principles that were appropriate to their condition. I have no hesitancy in saying that under those principles they were guiltless of any crime.

What these men did was done in pursuance of an agreement accepted by all of them and first proposed by Whetmore himself. Since it was apparent that their extraordinary predicament made inapplicable the usual principles that regulate men’s relations with one another, it was necessary for them to draw, as it were, a new charter of government appropriate to the situation in which they found themselves.

It has from antiquity been recognized that the most basic principle of law or government is to be found in the notion of contract of agreement. Ancient thinkers, especially during the period from 1600 to 1900 used to base government itself on a supposed original social compact. Skeptics pointed out that this theory contradicted the known facts of history, and that there was no scientific evidence to support the notion that any government was ever founded in the manner supposed by the theory. Moralist replied that, if the compact was a fiction from a historical point of view, the notion of a compact or agreement furnished the only ethical justification on which the powers of government, which include that of taking life, could be rested. The powers of government can only be justified morally on the ground that these are powers that reasonable men would agree upon and accept if they were faced with the necessity of constructing anew some order to make their life in common possible.

Fortunately our Commonwealth is not bothered by the perplexities that beset the ancients. We know as a matter of historical truth that our government was founded upon a contract or free accord of men. The archeological proof is conclusive that in the first period following the Great Spiral the survivors of that holocaust voluntarily came together and drew up a charter of government. Sophistical writers have raised questions as to the power of those remote contractors to bind future generations, but the fact remains that our government traces itself back in an unbroken line to that original charter.

If, therefore, our hangmen have the power to end men’s lives, if our sheriffs have the power to put delinquent tenants in the street, if our police have the power to incarcerate the inebriated reveler, these powers find their moral justification in that original compact of our forefathers. If we can find no higher source for our legal order, what higher source we expect these starving unfortunates to find for the order they adopted for themselves? I believe that the line of argument I have just expounded permits of no rational answer. I realize that it will probably be received with a certain discomfort by many who read this opinion, who will be inclined to suspect that some hidden sophistry must underlie a demonstration that leads to so many unfamiliar conclusions. The source discomfort is, however, easy to identify. The usual conditions of human existence incline us to think of human life as an absolute value, not to be sacrificed under any circumstances…
Every highway, every tunnel, every building we project involves a risk to human life. Taking these projects in the aggregate, we can calculate with some precision how many deaths the construction of them will require; statisticians can tell you the average cost in human lives of a thousand miles of a four-lane concrete highway. Yet we deliberately and knowingly incur and pay this cost on the assumption that the values obtained for those who survive outweigh the loss.

If these things can be said of a society functioning above ground in a normal and ordinary manner, what shall we say of the supposed absolute value of a human life in the desperate situation in which these defendants and their companion Whetmore found themselves?

This concludes the exposition of the first ground of my decision. My second ground proceeds by rejecting hypothetically all the premise on which I have so far proceeded. I concede for purposes of argument that I am wrong in saying that the situation of these men removed them from the effect of our positive law and I assume that the Consolidated Statutes have the power to penetrate five hundred feet of rock and to impose themselves upon these starving men huddled in their underground prison.

Not it is, of course, perfectly clear that these men did an act that violates the literal wording of the statute which declares that he who “shall willfully take the life of another” is a murderer. But one of the most ancient bits of legal wisdom if the saying that a man may break the letter of the law without breaking the law itself.

Every proposition of positive law, whether contained in a statute, or a judicial precedent, is to be interpreted reasonably, in the light of its evident purpose. This is the truth so elementary that it is hardly necessary to expatiate on it. Illustrations of its application are numberless and are to be found in every branch of the law. In Commonwealth v Staymore the defendant was convicted under a statute making it a crime to leave one’s car parked in certain areas for a period longer than 2 hours. The defendant had attempted to remove his car, but was prevented from doing so because the streets were obstructed by a political demonstration in which he too no part and which he had no reason to anticipate. His conviction was set aside by this Court, although his case fell squarely within the wording of the statute…

The statute before us for interpretation has never been applied literally. Centuries ago it was established that a killing in self-defense is excused. There is nothing in the wording of the statute that suggests this exception. Various attempts have been made to reconcile the legal treatment of self-defense with the words of the statute, but in my opinion these are all merely ingenious sophistries. The truth is that the exception in favor of self-defense cannot be reconciled with the words of the statute, but only with its purpose.

The true reconciliation of the excuse of self-defense with the statute making it a crime to kill another is to be found in the following line of reasoning. One of the principle objects underlying any criminal legislation is that of deterring men from crime. Now it is apparent that if it were declared to be the law that a killing in self-defense is murder such a rule could not operate in a deterrent manner. A man whose life is threatened will repel his aggressor, whatever the law may say. Looking therefore to the broad purpose of criminal legislation, we may safely declare that this statute was not intended to apply to case of self-defense.

When the rationale of the excuse of self-defense is thus explained, it becomes apparent that precisely the same reasoning is applicable to the case at bar. If in the future any group of men ever find themselves in the tragic predicament of these defendants, we may be sure that their decision whether to live or die will not be controlled by the contents of our criminal code. Accordingly, if we read this statute intelligently it is apparent that it does not apply to this case. The withdrawal of this situation from the effect of the statute is justified by precisely the same consideration that were applied by our predecessors in office centuries ago to the case of self-defense.

I accept without reservation the proposition that this Court is bound by the statutes of our Commonwealth… The line of reasoning I have applied above raises no question of fidelity to enacted law, though it may possible raise a question of the distinction between intelligent and unintelligent fidelity… The correction of obvious legislative errors or oversights is not to supplant the legislative will but to make that will effective.

I therefore conclude that on any aspect under which this case may be viewed these defendants are innocent of the crime of murdering Roger Whetmore, and that the conviction should be set aside.

Tatting J:

As I analyze the opinion just rendered by my brother Foster, I find that it is shot through with contradictions and fallacies. Let us begin with his first proposition: these men were not subject to our law because they were not in a “state of civil society” but in a “state of nature”. I am not clear why this is so, whether it is because of the thickness of the rock that imprisoned them, or because they were hungry, or because they had set up a “new charter of government” by which the usual rules of law were to be supplanted by a throw of the dice. Other difficulties intrude themselves. If these men passed from the jurisdiction of our law to that of “the law of nature,” at what moment did this occur? Was it when the entrance to the cave was blocked, or when the threat of starvation reached a certain defined degree of intensity, or when the agreement for the throwing of the dice was made? These uncertainties in the doctrine proposed by my brother are capable of producing real difficulties. Suppose, for example, one of the men had had his 21st birthday while he was imprisoned within the mountain. On what date would we have to consider that he had attained his majority – when he reached the age of 21, at which time he was, by hypothesis, removed from the effects of the law, or only when he was released from the cave and became again subject to what my brother calls our “positive law”? These difficulties may seem fanciful, yet they only serve to reveal the fanciful nature of the doctrine that is capable of giving rise to them.

But it is not necessary to explore these niceties further to demonstrate the absurdity of my brother’s position. Mr Justice Foster and I are the appointed judges of a court of the Commonwealth of Newgarth, sworn and empowered to administer the law of the Commonwealth. By what authority do we resolve ourselves into a Court of Nature? If the men were indeed under the law of nature, whence comes out authority to expound and apply that law? Certainly we are not in a state of nature.

Let us look at the contents of this code of nature that my brother proposes we adopt as our own and apply to this case. What a topsy-turvy and odious code it is! It is a code in which the law of contracts is more fundamental than the law of murder. It is a code under which a man may make a valid agreement empowering his fellows to eat his own body. Under the provision of this code, furthermore, such an agreement once made is irrevocable, and if one of the parties attempts to withdraw, the others may take the law into their own hands and enforce the contract of violence – for though my brother passes over in convenient silence the effect of Whetmore’s withdrawal, this is the necessary implication of his argument.

The principles my brother expounds contain other implications that cannot be tolerated. He argues that when the defendants set upon Whetmore and killed him … they were only exercising the rights conferred upon them by their bargain. Suppose, however, that Whetmore had had conferred upon his person a revolver and that when he saw the defendants about to slaughter him he had shot them to death in order to save his own life. My brother’s reasoning applied to these facts would have to be denied to him. If his assailants were acting rightfully in seeking to bring about his death, then of course he could no more plead the excuse that he was defending his own life than could a condemned prisoner who struck down the executioner lawfully attempting to place the noose about his neck.

All of these considerations make it impossible for me to accept the first part of my brother’s argument. I can neither accept his notion that these men were under the odious and perverted rules that he would read into that code. I come now to the second part of my brother’s opinion, in which he seeks to show that the defendant s did not violate the provisions of NCSA. Here the way, instead of being clear, becomes for me misty and ambiguous, though my brother seems unaware of the difficulties that inhere in his demonstrations.

The gist of my brother’s argument may be stated in the following terms: No Statute, whatever its language, should be applied in a way that contradicts its purpose. One of the purposes of any criminal statutes is to deter. The application of the statute making it a crime to kill another to the peculiar facts of this case would contradict this purpose, for it is impossible to believe that the contents of the criminal code could operate in a deterrent manner on men faced with the alternatives of life and death. The reasoning by which this exception is read into the statute is, my brother observes, the same as that which is applied in order to provide the excuse of self-defense.

Now let me outline briefly, however, the perplexities that assail me when I examine my brother’s demonstration more closely. It is true that a statute should be applied in the light of its purpose, and that one of the purposes of criminal legislation is recognized to be deterrence. The difficulty is that other purposes are also ascribed to the law of crimes. It has been said that one of its objects is to provide an orderly outlet for the instinctive human demand for retribution … It has also been said that its object is the rehabilitation of the wrongdoers … Other theories have been propounded. Assuming that we must interpret a statute in the light of its purpose, what are we to do when it has many purposes or when its purposes are disputed?

A similar difficulty is presented by the fact that although there is authority for my brother’s interpretation of the excuse of self-defense, there is other authority which assigns to that excuse a different rationale … The taught doctrine of our law schools … runs in the following terms: The statute concerning murder requires a “willfully” act. The man who acts to repel an aggressive threat to his own life does not act “willfully”, but in response to an impulse deeply ingrained in human nature. I suspect that there is hardly a lawyer in this Commonwealth who is not familiar with this line of reasoning …

Now the familiar explanation for the excuse of self-defense, just expounded obviously cannot be applied by analogy to the facts of this case. These men acted not only “willfully” but with great deliberation and after hours of discussing what they should do. Again we encounter a forked path, with one line of reasoning leading us in one direction and another in a direction that is exactly the opposite. This perplexity is in this case compounded, as it were, for we have to set off one explanation, incorporating in a virtually unknown precedent of this Court, against another explanation, which forms a part of the taught legal tradition of our law schools, but which, so far as I know, has never been adopted in any judicial decision…

… I have difficulty in saying that deterrent effect whatever could be attributed to a decision that these men were guilty for murder. The stigma of the murderer is such that it is quite likely, I believe, that if these men had known that their act was deemed by the law to be murder, they would have waited for a few days at least before carrying out their plan. During that time some unexpected relief might have come. I realize that this observation only reduces the distinction to a matter of degree, and does not destroy it altogether. It is certainly true that the element of deterrence would be less in this case than it is normally involved in the application of the criminal law.

There is still a further difficulty in my brother Foster’s proposal to read an exception into the statute to favor this case, though again a difficulty not even intimated in his opinion. What shall be the scope of this exception? Here the men cast lots and the victim was himself originally a party to the agreement. What would have to decide if Whetmore had refused from the beginning to participate in the plan? Would the majority be permitted to overrule him? Or suppose, that no plan was adopted at all and the others simply conspired to bring about Whetmore’s death, justifying their act by saying that he was in the weakest condition. Or again, that a plan of selection was followed but one based on a different justification than the one adopted here, as if the others were atheists and insisted that Whetmore should die because he was the only one who believed in an after life. These illustrations could be multiplied, but enough have been suggested to reveal what a quagmire of hidden difficulties my brother’s reasoning contains.

Of course I realize on reflection that I may be concerning myself with a problem that will never arise, since it is unlikely that any group of men will ever again be brought to commit the dread act that was involved here. Yet, on still further reflection, even if we are certain that no similar case will arise again, do not the illustrations I have given show the lack of any coherent and rational principle in the rule my brother proposes? Should not the soundness of a principle be tested by the conclusions it entails, without reference to the accidents of later litigational history? Still, if this is so, why is it that we of this Court so often discuss the question whether we are likely to have later occasion to apply a principle urged for the solution of the case before us? Is this a situation where a line of reasoning not originally proper has become sanctioned by precedent, so that we are permitted to apply it and may even be under obligation to do so?

The more I examine this case and think about it, the more deeply I become involved. My mind becomes entangled in the meshes of the very nets I throw out for my own rescue. I find that almost every consideration that bears on the decision of the case is counterbalanced by an opposing consideration leading in the opposite direction. My brother Foster has not furnished to me, nor can I discover for myself, any formula capable of resolving the equivocations that beset me on all sides.

I have given this case the best thought of which I am capable. I have scarcely slept since it was argued before us. When I feel myself inclined to accept the view of my brother Foster, I am repelled by the feeling that his arguments are intellectually unsound and approach mere rationalization. On the other hand, when I inclined that these men be put to death when their lives have been saved at the cost of the lives of ten heroic workmen, it is to me a matter of regret that the prosecutor saw fit to ask for an indictment for murder. If we had a provision in our statute making it a crime to eat human flesh, that would have been a more appropriate charge. If no other charge suited to the facts of this case could be brought against the defendants, it would have been wiser, I think, not to have indicted them at all. Unfortunately, however, the men have been indicted and tried, and we have therefore been drawn into this unfortunate affair.

Since I have been wholly unable to resolve the doubts that beset me about the law of this case, I am with regret announcing a step that is, I believe, unprecedented in the history of this tribunal, I declare my withdrawal from the decision of this case.

Keen J.:

I should like to begin by setting to one side 2 questions which are before this Court.

The first of these is whether executive clemency should be extended to these defendants if the conviction is affirmed. Under our system of government, that is a question for the Chief Executive, not for us. I therefore disapprove of that passage in the opinion of the Chief Justice in which he in effect gives instructions to the Chief Executives as to what he should do in this case and suggests that some impropriety will attach if these instructions are not heeded. This is a confusion of governmental functions – a confusion of which the judiciary should be the last to be guilty. I wish to state that if I were the Chief Executive I would go farther in the direction of clemency than the pleas addressed to him propose. I would these men altogether, since I believe that they have already suffered enough to pay for any offence they may have committed. I want it to be understood that this remark is made in my capacity as a private citizen who by the accident of his office happens to have acquired an intimate acquaintance with the facts of this case. In the discharge of my duties as judge, it is neither my function to address directions to the Chief Executive, not to take into account what he may or may not do, in reaching my own decision, which must be controlled entirely by the law of this Commonwealth.

The second question that I wish to put to one side is that of deciding whether what these men did was right or wrong, wicked or good. That is also a question that is irrelevant to the discharge of my office as a judge sworn to apply, not my conceptions of morality, but the law of the land. In putting this question to one side I think I can also safely dismiss without comment the first and more poetic portion of my brother Foster’s opinion. The element of fantasy contained in the arguments developed there has been sufficiently revealed in my brother Tatting’s somewhat solemn attempt to take those arguments seriously …

Whence arise all the difficulties of the case, then, and the necessity for so many pages of discussion about what ought to be so obvious? The difficulties, in whatever tortured form they may present themselves, all trace back to a single source, and that is a failure to distinguish the legal from the moral aspects of this case. To put it bluntly, my brothers do not like the fact that the written law requires the conviction of these defendants. Neither do I, but unlike my brothers I respect the obligations of an office that requires me to put my personal predilections out of my mind when I come to interpret and apply the law of this Commonwealth.

Now, of course, my brother Foster does not admit that he is actuated by a personal dislike of the written law. Instead he develops a familiar line of argument according to which the court may disregard the express language of a statute when something not contained in the statute itself, called its “purpose”, can be employed to justify the result the court considers proper. Because this is an old issue between myself and my colleague, I should like, before discussing his particular application of the argument to the facts of this case, to say something about the historical background of this issue and its implication for law and government generally…

We now have a clear-cut principle, which is the supremacy of the legislature branch of our government. From that principle flows the obligation of the judiciary to enforce faithfully the written law, and to interpret the law in accordance with its plain meaning without reference to our personal desires or our individual conceptions of justice. I am not concerned with the question whether the principle that forbids the judicial revision of statutes is right or wrong, desirable or undesirable: I observe merely that this principle has become a tacit premise underlying the whole of the legal and governmental order I am sworn to administer.

Yet though the principle of the supremacy of the legislature has been accepted in theory for centuries, such is the tenacity of professional tradition and the force of fixed habits of thought that many of the judiciary have still not accommodated themselves to the restricted role which the new orders imposes on them. My brother Foster is one of that group; his way of dealing with statutes is exactly that of a judge living in the 3900’s.

We are all familiar with the process by which the judicial reform of disfavored legislative enactments is accomplished …

The process of judicial reform requires 3 steps: The first of these is to divine some single “purpose” which the statute serves. This is done although not one statute in a hundred has any such single purpose, and although the objectives of nearly every statute are differently interpreted by the different classes of its sponsors. The second step is to discover that a mythical being called the legislator, in the pursuit of this imagined “Purpose” overlooked something or left some gap or imperfection in his work. Then comes the final and most refreshing part of the task, which is, of course, to fill the blank thus created. Quod erat faciendum… (meaning: which was to be done)

One could not wish for a better case to illustrate the specious nature of this gap-filling process than the one before us. My brother thinks he knows exactly what was sought when men made murder a crime and that was something he calls “deterrence”. My brother Tatting has already shown how much is passed over in that interpretation. But I think the trouble goes deeper. I doubt very much whether our statute making murder a crime really has a “purpose” in any ordinary sense of the term. Primarily, such a statute reflects a deeply felt human conviction that murder is wrong and that something should be done to the man who commits it. If we were forced to be more articulate about the matter, we would probably take refuge in the more sophisticated theories of the criminologists, which, of course, were certainly not in the minds of those who drafted our statute. We might also observe that men will do their own work more effectively and live happier lives of they are protected against the threat of violent assault…

If we do not know the purpose of s.12A, how can we possibly say there is a gap in it? How can we know what its draftsmen thought about the question of killing men in order to eat them? It remain abundantly clear that neither I nor my brother Foster knows what the “purpose” of s.12-A is.

Considerations similar to those I have just outlined are also applicable to the exception in favor of self-defense, which plays so large a role in the reasoning of my brothers Foster and Tatting. As in dealing with the statute, so in dealing with the exception, the question is not the conjectural Purpose of the rule, but is scope. Now the scope of the exception in favor of self-defense as it has been applied by this Court is plain: it applied to cases of resisting an aggressive threat to the party’s own life. It is therefore too clear for argument that this case does not fall within the scope of the exception, since it is plain that Whetmore made no threat against the lives of these defendants.

The essential shabbiness of my brother Foster’s attempt to cloak his remaking of the written law with an air of legitimacy comes tragically to the surface in my brother Tatting’s opinion. Justice Tatting struggles manfully to combine his colleague’s loose moralism with his own sense of fidelity to the written law. The issue of this struggle could only be that which occurred, a complete default in the discharge of the judicial function. You simply cannot apply a statute as it is written and remake it to meet your wishes at the same time.
Now I know that the line of reasoning I have developed in this opinion will not be acceptable to those who look only to the immediate effects of a decision and ignore the long-run implications of an assumption by the judiciary of a power of dispensation. A hard decision is never a popular decision. Judges have been celebrated in literature for their sly prowess in devising some quibble by which a litigant could be deprived of his rights where the public thought it was wrong for him to assert those rights. But I believe that judicial dispensation does more harm in the long run than hard decisions. Hard cases may even have a certain moral value by bringing home to the people their own responsibilities toward the law that is ultimately their creation, and by reminding them that there is no principle of personal grace that can relieve the mistakes of their representatives.

Indeed I will go farther and say that not only are the principles I have been expounding those which are soundest for our present conditions, but that we would have inherited a better legal system from our forefathers if those principles had been observed from the beginning. For example, with respect to the excuse of self-defense, if our courts had stood steadfast on the language of the statute the result would undoubtedly have been a legislative revision of it. Such a revision would have drawn on the assistance of natural philosophers and psychologists, and the resulting regulation of the matter would have been an understandable and rational basis, instead of the hodge-podge of verbalisms and metaphysical distinctions that have emerged from the judicial and professional treatment.

These concluding remarks are, of course beyond any duties that I have to discharge with relation to this case, but I include them here because I feel deeply that my colleagues are insufficiently aware of the dangers implicit in the conceptions of the judicial office advocated by my brother Foster.

I conclude that the conviction should be affirmed.

Handy J:

I have listened with amazement to the tortured ratiocinations to which this simple case has given rise. I never cease to wonder at my colleague’s ability to throw an obscuring curtain of legalisms about every issue presented to them for decision. We have heard this afternoon learned disquisitions on the distinction between positive law and the law of nature, the language of the statute and the purpose of the statute, judicial functions and executive functions, judicial legislation and legislative legislation …

What have all these things to do with the case? The problem before us is what we, as officers of the government, ought to do with these defendants. That is a question of practical wisdom, to be exercised in a context, not of abstract theory, but of human realities. When the case is approached in this light, it becomes, I think, one of the easiest to decide that has ever been argued before this Court.

Before stating my own conclusions about the merits of the case, I should like to discuss briefly some of the more fundamental issues involved – issues on which my colleagues and I have been divided ever since I have been on the bench.

I have never been able to make my brothers see that government is a human affair, and that men are ruled, not by words on paper or by abstract theories, but by other men. They are ruled well when their rulers understand the feelings and conceptions of the masses. They are ruled badly when that understanding is lacking.

Of the branches of the government, the judiciary is the most likely to lose its contact with the common man. The reasons for this are, of course, fairly obvious. Where the masses react to a situation in terms of a few salient features, we pick into little pieces every situation presented to us. Lawyers are hired by both sides to analyze and dissect. Judges and attorneys vie with one another to see who can discover the greatest number of difficulties and distinctions in a single set of facts. Each side tries to find cases, real or imagined, that will embarrass the demonstrations of the other side. To escape this embarrassment, still further distinctions are invented and imported into the situation. When a set of facts has been subjected to this kind of treatment for a sufficient time, all the life and juice have gone out of it and we have left a handful of dust.

Now I realize that whenever you have rules and abstract principles lawyers are going to be able to make distinctions. To some extent the sort of thing I have been describing is a necessary evil attaching to any formal regulation of human affairs. But I think that the area which, really stand sin need of such a regulation is greatly overestimated. There are, of course, a few fundamental rules of the game that must be accepted if the game is to go on at all. I would include among these the rules relating to the conduct of elections, the appointment of public officials, and the term during which an office is held. Here are some restraint on discretion and dispensation, some adherence to form,, some scruple for what does and what does not fall within the rule, is, I concede, essential. Perhaps the area of basic principle should be expanded to include certain other rules, such as those designed to preserve the free civilmoign system.

But outside of these fields I believe that all government officials, including judges, will do their jobs best if they treat forms and abstract concepts as instruments. We should take as our model, I think, the good administrator, who accommodates procedures and principles to the case at hand, selecting from among the available forms those most suited to reach the proper result.

The most obvious advantage of this method of government is that it permits us to go about our daily tasks with efficiency and common sense. My adherence to this philosophy has, however, deeper rooted. I believe that it is only with the insight this philosophy gives that we can preserve the flexibility essential if we are to keep our actions in reasonable accord with the sentiments of those subject to our rule.

More governments have been wrecked, and more human misery caused, by the lack of accord between ruler and ruled than by any other factor that can be discerned in history. Once drive a sufficient wedge between the mass of people and those who direct their legal, political, and economic life, and our society is ruined. Then neither Foster’s Law of Nature nor Keen’s Fidelity to written law will avail us anything.

Now when these conceptions are applied to the case before us, its decision becomes, as I have said, perfectly easy. In order to demonstrate this I shall have to introduce certain realities that my brothers in their coy decorum have been seen fit to pass over in silence, although they are just as acutely aware of them as I am.

The first of these is that this case has aroused an enormous public interest, both here and abroad. Almost every newspaper and magazine has carried articles about it; columnist have shared with their readers confidential information as to the next governmental move; hundreds of letters-to-the-editor have been printed. One of the great newspaper chains made a poll of public opinion on the question, “what do you think the Supreme Court should do with the Speluncean explorers”? about 90% expressed a belief that the defendants should be pardoned or let off with a kind of token punishment. It is perfectly clear, then, how the public feels about the case. We could have known this without the poll, of course, on the basis of common sense, or even by observing that on this Court there are apparently 4 ½ men, or 90% who share the common opinion.

This makes it obvious, not only what we should do, but what we must do if we are to preserve between ourselves and public opinion a reasonable and decent accord. Declaring these men innocent need not involve us in any undignified quibble or trick. No principle of statutory construction is required that is not consistent with the past practices of this Court. Certainly no layman would think that in letting these men off we had stretched the statute any more than our ancestors did when they created the excuse of self-defense. If a more detailed demonstration of the method of reconciling our decision with the statute is required, I should be content to rest on the argument developed in the second and less visionary part of my brother Foster’s opinion.

Now I know that my brothers will be horrified by my suggestion that this Court should take into account of public opinion. They will tell you that public opinion is emotional and capricious, that it is based on half-truths and listens to witnesses who are not subject to cross-examination. They will tell you that the law surrounds the trial of a case like this with elaborate safeguards, designed to insure that the truth will be known and that every rational consideration bearing on the issues of the case has been taken into account. They will warn you that all of these safeguards fo for naught if a mass opinion formed outside this framework is allowed to have any influence on our decision.

But let us look candidly at some of the realities of the administration of our criminal law. When a man is accused of crime, there are, speaking generally, 4 ways in which he may escape punishment. One of these is a determination by a judge that under the applicable law he has committed no crime. This is, of course, a determination that takes place in a rather formal and abstract atmosphere. But look at the other 3 ways in which he may escape punishment. There are: (1) a decision by the prosecutor not to ask for an indictment; (2) an acquittal by the jury; (3) a pardon or commutation of sentence by the executive. Can anyone pretend that these decisions are held within a rigid and formal framework of rules that prevents factual errors, excludes emotional and personal factors, and guarantees that all the forms of the law will be observed?

In the case of the jury we do, to be sure, attempt to cabin their deliberation within the area of the legally relevant, but there is no need to deceive ourselves into believing that this attempt is really successful. In the normal course of events the case now before us would have gone on all of its issues directly to the jury. Had this occurred we can be confident that there would have been an acquittal or at least a division that would have prevented a conviction. If the jury had been instructed that the men’s hunger and their agreement were no defense to the charge of murder, their verdict would in all likelihood have ignored this instruction and would have involved a good deal more twisting of the letter of the law than any that is likely to tempt us. Of course the only reason that didn’t occur in this case was the fortuitous circumstances that the foreman of the jury happened to be a lawyer. His learning enabled him to devise a form of words that would allow the jury to dodge its usual responsibilities.

My brother Tatting expresses annoyance that the prosecutor did not, in effect decide the case for him by not asking for an indictment. Strict as he is himself in complying with the demands of legal theory, his is quite content to have the fate of these men decided out of court by the Prosecutor on the basis of common sense. The Chief Justice, on the other hand, wants the application of common sense postponed to the very end, though like Tatting, he wants no personal part in it.

This brings me to the concluding portion of my remarks, which has to do with executive clemency. Before discussing that topic directly, I want to make a related observation about the poll of public opinion. As I have said, 90% of the people wanted the Supreme Court to let the men off entirely or with a more or less nominal punishment. The 10% constituted a very oddly assorted group, with the most curious and divergent opinions … Although almost every conceivable variety and shade of opinion was represented in this group, there was, so far as I know, not one of them, nor a single member of the majority of 90% who said, “I think it would be a fine thing to have the courts sentence these men to be hanged, and then to have another branch of the government come along and pardon them.” Yet this is a solution that has more or less dominated our discussions and which our Chief Justice proposes as a way, by which we can avoid doing an injustice and at the same time preserve respect for law. He can be assured that if he is preserving anybody’s morale, it is his own, and not the public’s, which knows nothing of his distinctions. I mention this matter because I wish to emphasize once more the danger that we may get lost in the patterns of our own thought and forget that these patterns often cast not the slightest shadow on the outside world.

I come now to the most crucial fact in this case, a fact known to all of us on this Court, though one that my brothers have seen fit to keep under the cover of their judicial robes. This is the frightening likelihood that if the issue is left to him, the Chief Executive will refuse to pardon these men or commute their sentences. As we all know, our Chief Executive is a man now well advanced in years, of very stiff notions. Public clamor usually operates on him with the reverse of the effect intended …

Their scruple about acquiring accurate information directly does not prevent them from being very perturbed about what they have learned indirectly. Their acquaintance with the facts I have just related explains why the Chief Justice, ordinarily a model of decorum, saw fit in his opinion to flap his judicial robes in the face of the Executive and threaten him with excommunication if he failed to commute the sentence. It explains, I suspect, my brother Foster’s feat of levitation by which a whole library of law books was lifted from the shoulders of these defendants. It explains also why even my legalistic brother Keen emulated Pooh-Bah in the ancient comedy by stepping to the other side of the stage to address a few remarks to the Executive “in my capacity as a private citizen”…

I must confess that as I grow older I become more and more perplexed at men’s refusal to apply their common sense of discouragement and dismay. I only wish that I could convince my brothers of the wisdom of the principles I have applied to the judicial office since I first assumed it …

…I conclude that the defendants are innocent of the crime charged, and that the conviction and sentence should be set aside.

Tatting J:

I have been asked by the Chief Justice whether, after listening to the two opinions just rendered, I desire to re-examine the position previously taken by me. I wish to state that after hearing those opinions I am greatly strengthened in my conviction that I ought not to participate in the decision of this case.

Judgment

The Supreme Court being evenly divided the conviction and sentence of the Court of General Instances is affirmed. It is ordered that the execution of the sentence shall occur at 6.am, Friday, April 2, 4300, at which the Public Executioner is directly to proceed with all convenient dispatch to hang each of the defendants by the neck until he is dead.

Postscript

Now that the court has spoken its judgment, the reader puzzled by the choice of date may wish to be reminded that the centuries which separate us from the year 4300 are roughly equal to those that have passed since the Age of Pericles. There is probably no need to observe that the Speluncean Case itself is intended neither as a work of satire nor as a prediction in any ordinary sense of the terms. As for the judges who make up Chief Justice Truepenny’s court, they are, of course, as mythical as the facts and precedents with which they deal. The reader who refuses to accept this view, and who seeks to trace out contemporary resemblances where none is intended or contemplated, should be warned that he is engaged in a frolic of his own, which may possibly lead him to miss whatever modest truths are contained in the opinions delivered by the Supreme Court of Newgarth. The case was constructed for the sole purpose of bringing into a common focus certain divergent philosophies of law and government. These philosophies presented men with live question of choice in the days of Plato and Aristotle. Perhaps they will continue to do so when our era has had its say about them. If there is any element of prediction in the case, it does not go beyond a suggestion that the questions involved are among the permanent problem of the human race.

The Sovereign & The People

2006-06-29T10:04:00.000-07:00

From the social pact, we shall find in each of us contributes to the group his person and the powers which he wields as a person under the supreme direction if the general will and we receive into the body politics each individual as forming an indivisible part of the whole.

As soon as the act of association becomes a reality, it substitutes for the person of each of the contracting parties a moral and collective body made up of as many members of the constituting assembly has votes, which body receives from this very act of constitution its unity, it dispersed self, and its will. The public person thus formed by the union of individuals was known as the Republic or Body Politic. This, when it fulfills a passive role is known as by its members as The State, when in active role, as The Sovereign People, and, in contrast to other similar bodies, as a Power. In respect of the constituent associates, it enjoys the collective name of The People, the individuals who compose it being known as Citizens in so far as they share in the sovereign authority, as Subjects in so far as they owe obedience to the laws of the State.

The act of association implies a mutual undertaking between the body politic and its constituent members. Each individual comprising the former contracts with himself and has a twofold function. As a member of the sovereign people he owes a duty to each of his neighbours and as a citizen to the sovereign people as a whole.

However, no man can be held to an undertaking entered into with himself, because there is a great difference between a man's duty to himself and to a whole of which he forms a part.

It shoudl be pointed out that a public decision which can enjoin obedience on all subjects to the Sovereign, by reason of the double aspect under which each is seen, cannot, on the contrary, bind the Sovereign in his dealings with himself. Consequently, it is against the nature of the body politic that the Sovereign should impose upon himself a law which he cannot infringe. For since he can regard himself under one aspect only, he is in the position of an individual entering into a contract with himself. Whence it follows that there is not, nor can be, any fundamental law which is obligatory for the whole body of the People, not even the social contract itself.

The Sovereign solely from the sanctity of the said Social Contract, can never bind itself, even in its relation with a foreign power, by any decision which might derogate from the validity of the original act. It may not, for instance, alienate any portion of itself, nor make submission to any other sovereign. To violate the act by reason of which it exists would be tantamount to destroying itself, and that which is nothing can produce nothing.

As soon as a mob has become united into a body politic, any attack upon one of its members is an attack upon itself. Still more important is the fact that, should any offence be committed against the body politic as a whole, the effect must be felt by each of its members. Both duty and interest, therefore, oblige the two contracting parties to render one another mutual assistance. The same individuals should seek to unite under this double aspect all the advantages which flow from it.

In order, then, that the social compact may not be but a vain formula, it must contain the single undertaking which can alone give force to the whole, namely, that whoever shall refuse to obey the general will must be constrained by the whole body of his fellow citizens to do so: which is no more than to say what it may be necessary to compel a man to be free - freedom being that condition which, by giving each citizen to his country, guarantees him from all personal dependence and is the foundation upon which the whole political machine rests, and supplies the power which works it.

Only the recognition by the individual of the rights of the community can give legal force to undertakings entered into between citizens, which, otherwise, would become absurd, tyrannical, and exposed to vast abuses.

Source: J.J. Rousseau; The Social Contract - Of the social fact & Of the sovereign

Acquiring Social Knowledge

2006-06-29T09:07:00.000-07:00

To understand the logic of the behavior of matter, one observes the behavior itself. The action of men is meaningful to them. Men define their situation and act in certain ways to achieve their ends. In doing so, they construct a social world. An understanding of man’s subjective intentions requires interpretive understanding by theorists who share these subjective meanings. To make sense of an act, an observer must place it within a category which he can comprehend, and it may mean something totally different to the actor himself. The danger is of missing the significance of the act to the participants themselves. Rather than focusing on behavior, it is commonly suggested that the theorist should be concerned with action.

Action arises from meanings which defines social reality. People assign meanings to situations and to the actions of others, and react in terms of the interpretation suggested by these meanings. Action is the result of expectations arising out of past experience. Meaning is found within social life and history. The meaning of our social world is given to us by the past history and present structure of our society. In Alfred Schutz’s words:

“It has a particular meaning and relevance structure for the human beings living, thinking and acting therein. They have pre-selected and pre-interpreted this world by a series of common-sense constructs of the reality of daily life, and it is these thought-objects which determine their behavior, define the goal of their action, and the means available for obtaining them”. (Alfred Schutz; The Phenomenology of the Social World; 1972).

When we enter the social world it is already organized and coherent. We experience the world as an unquestionable reality. We know this social world through a shared stock of knowledge and the correctness of this knowledge is continually reinforced by the actions of others. It follows from this that explanations of human actions must take into account of the meanings which those concerned assign to their acts.

As can be seen, the outside world is complex. The result is we are likely to be selective, to oversimplify and to lose information in the process. Our ability to test information diminishes as objects recede into the distance. It becomes very easy for us to reduce the strange, the problematic, to inconsequentiality, even, triviality.

To make sense of an act, an observer must place it within a category which he can comprehend and it may mean something totally different to the actor himself. The danger is of missing the significance of the act to the participants themselves. Rather than focussing on behavior, it is commonly suggested that we should be concerned with actions. Actions arises from meanings which defines social reality. People assign meanings to situations and to the actions of others, and react in terms of the intepretation suggested by these meanings. Action is the result of expectations arising out of past experience. meaning is found within social life and history. The meaning of our social world is given to us by the past history and present structure of our society.

Just remember Bertrand Russell: Science is what we know; Philosophy is what we don't know!

In order to discover, we must commence with the awareness of anomaly, i.e. with the recognition that nature has somehow violated the paradigm-induced expectations that govern normal science. It then continues with a more or less extended exploration of the area of anomaly. If an anomaly is to invoke crisis, it must usually be more than just an anomaly We therefore have to ask what it is that makes an anomaly seem worth concerted scrutiny, and to that question there is probably no fully general answer. Any cases we examined are characteristics but scarely prescriptive.

All crisis begins with the blurring of a paradigm and the consequent loosening of the rules. Falsification, though it surely occurs, does not happen with, or simply because of, the emergence of an anomaly or falsifying instance. Instead, it is a subsequent and separate process that we may call verification since it consists in the triumph of a new paradigm over the old one.

The man who embraces a new paradigm must often do so in defiance of the evidence provided by problem validation. We must, that is, have faith that the new paradigm will succeed with the many that confront it, knowing only that the older paradigm has failed with a few. A decision of that kind can only be made on faith...

If clarity is needed to gain entry, consistency is required to remain there.

Any values or norms presented or endorsed within a human society constitute its most subjective aspect and, in the end, assessment of the evaluative content is a matter for personal moral judgment which cannot be tested except by reference to that individual's own moral standard.

To define is strictly to substitute a word or words for another set of words, and these further words may and generally will stand in need of additional explanations.

That choice will be influenced by the ideology of the chooser and at such, linguistic recommendations may be activated consciously or subconsciously by some underlying premises. It must be borne in mind that beneath even the most apparent, there may lurk deeply held political ideologies.

Words themselves usually contain many emotional overtones and the choice of language may act as what have been termed "persuasive definitions", inducing practical and psychological consequences or effects on the part of those to whom they are directed.

For to assert that the principles we uphold and expound compels us to a conclusion we are ashamed of, and from which we can only escape by appealing to a dispensation resting within the personal whim of the executives, seems to amount to an admission that the principles we have no longer pretends to incorporate justice.

The proposition that all positive principles of our law is based on the premise of men's co-existence has a strange sound ... like the air we breath, it so pervades our environment that we forget that it exists until we are suddenly deprived of it.

It has from antiquity been recognized that the most basic principle of law and government is to be found in the notion of social contract or agreement. The power of government can only be justified morally on the ground that these are powers that reasonable men would agree upon and accept if they were faced with the necessity of constructing anew some order to make their life in common possible. If we can find no higher source for our social order, what higher source should we expect those starving unfortunate to find for the order they adopted for themselves? The usual conditions of human existence incline us to think of human life as an absolute value, not to be sacrificed under any circumstances. If things can be said of a society functioning above ground in a normal and ordinary manner, what shall we say of the supposed absolute value of a human life in the desperate situation in which those deprived found themselves?

It may be possible to raise a question of the distinction between intelligent and unintelligent fidelity... it is a question of practical wisdom, to be exercised in a context, not of abstract theory, but of human realities.

The Social Contract

2006-06-29T09:06:00.000-07:00

The Social Contract

That We Must Always Go Back to an Original Compact

…Not matter how many isolated individuals may submit to the enforced control of a single conqueror, the resulting relationship will ever be that of Master and Slave, never of People and Ruler.

An individual may conquer half the world, but he is still only an individual. His interests, wholly different from those of his subjects, are private to himself. When he dies his empire is left scattered and disintegrated. He is like an oak which crumbles and collapses in ashes so soon as the fire consumes it.

Before, therefore, we consider the act by which a People is constituted as their “king”, it were well if we considered the act by which a People chooses such. For it necessarily precedes the other, and is the true foundation on which societies rest.

Had there been no original compact, why, unless the choice were unanimous, should the minority ever have agreed to accept the decision of the majority? What right have the hundred who desire a master to vote for the ten who do not? The institution of the franchise is, in itself, a form of compact, and assumes that, at least once in its operation, complete unanimity existed.

Now, since men can by no means engender new powers but can only unite and control those of which they are already possessed, there is no way in which they can maintain themselves save by coming together and pooling their strength in a way that will enable them to withstand any resistance exerted upon them from without. They must develop some sort of central direction and learn to act in concert.

Such a concentration of powers can be brought about only as the consequence of an agreement reached between individuals. But the self-preservation of each single men derives primarily from his own strength and from his own freedom. How, then, can he limit these without, at the same time, doing himself an injury and neglecting that care which it is his duty to devote to his own concerns?

Some form of association must be found as a result of which the whole strength of the community will be enlisted for the protection of the person and property of each constituent member, in such a way that each, when united to his fellows, renders obedience to his own will, and remains as free as he was before.

This is the basic problem of which the Social Contract provides the solution.

Whoso gives himself to all gives himself to none. And, since there is no member of the social group over whom we do not acquire precisely the same rights as those over ourselves which we have surrendered to him, it follows that we gain the exact equivalent of what we lose, as well as an added power to conserve what we already have.

Source: J.J. Rousseau