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a2010 page 1
prof. florin
It is facts in the world that determine whether a theory is justified or not. Facts and facts alone settle our differences. > Criticism to this view, as advanced by relativism: these sets of facts are not available because it is possible that what is fact or evidence for one theory may not be fact or evidence for the other. - If there is any one characteristic of science that sometimes other disciplines dont have, is growth. Growth of scientific knowledge pertains to expanding knowledge, to knowledge getting nearer to truth. Popper believes that if we adopt a new theory over another, that is superior, meaning it predicts more, it brings us closer to the truth. There is increasing verisimilitude. - For Popper, science is always revolutionary. The scientist, because of the imperative of the method of science, always looks for error or falsifications in his theory, therefore expanding knowledge about the phenomena he is theorizing. Thomas Kuhn - According to Kuhn, intersubjective agreement oftentimes does not happen. For him, the dominant idea is changed by means of a paradigm shift. Differences are not solved by intersubjective consensus but by scientific revolutions, paradigm shifts. - While for Popper, these theories will sooner or later arrive at an intersubjective consensus, Kuhn believes those differences will not be patched up because their differences are fundamental, which refer to a basic idea of a paradigm. The resolution to the conflict is the dominance of one over the other. There are also extra-scientific factors that decide on the differences of scientific theories. - For Kuhn, science is only occasionally revolutionary, and that is when one paradigm replaces another. - On dogmatism > According to Kuhn, scientific enterprise may be objective and open-minded, but the individual scientist is very often not; they are often dogmatic. Dogmatism is not a trait of individuals but of community of scientists. > How is dogmatism manifested? + By preconceptions of the phenomenon they are studying about = i.e. Preconceived ideas, theories, convictions, etc = (later translated as paradigm) + By resistance to novelties and/or innovations > Scientist does not entertain the fact that he may be wrong/erroneous because of strongly held convictions. > Dogmatism has a useful role in science. It is a necessary ingredient in scientific work. > Functions of dogmatism: + Defines/provides the questions and answers to the questions; it determines the agenda for scientific research. + Provides sensitive detector of trouble spots/scientific anomalies from which scientific innovations are educed. > These functions provide a positive role to dogmatism. - According to Kuhn, what demarcates science from non-science is not the principle of verifiability (falsifiability) but the presence or absence of paradigms. - Paradigms are conducted through textbooks, which are written primarily for students. These textbooks have a set way of explaining scientific concepts, how to approach researches and experiments, and what to expect. There is an implied way of doing things, an implied question and answer structure. Initiation to and indoctrination to scientific paradigms happen through scientific education by means of textbooks. - Paradigm, characteristics > A fundamental scientific achievement.
a2010 page 2
prof. florin
- Criticisms on Kuhns views > If we take into consideration Kuhns view that paradigms are incommensurable, there are a number of implications/consequences: + We are swayed not by evidence but by extra-evidentiary considerations/factors = These extra-evidentiary factors may include values, fame, money, prestige, power, interest, etc. These usually determine/resolve rivalry between two paradigms. = It seems as if it is subjective factors which dictate scientific change + We will be saddled with relativism = There is no consideration that our view is nearer to the truth = What would be its account of scientific progress? Kuhns theory will have a problem dealing with scientific progress. + It seems that choosing a theory is like mob rule ruling paradigm. - Kuhns reply to criticisms (as discussed in his article Objectivity, Value Judgment, and Theory Choice, appended in later editions of his book The Structure of Scientific Revolutions) > Mixture of objective and subjective factors come into play when scientists choose a theory > Kuhns view of subjectivity is judgmental. Being subjective does not mean that the basis of ones judgment is not discussable. In fact, it should be discussable. If it is not discussable, it becomes a matter of taste; it becomes arbitrary and whimsical. > Extra-scientific considerations come into play when choosing a theory. These considerations cannot be inputted to the algorithm of theory choice. Thus, it is still Kuhns view that there is no algorithm of theory choice > In determining which paradigm to choose, Kuhn proposed five criteria, characteristics of a good scientific theory, which may be taken into consideration: + Accuracy + Consistency + Broad scope + Simplicity + Fruitfulness > Unanimity of theory choice does not mean that the criteria used are objective. They remain subjective.
a2010 page 3
prof. florin
excellence. The bar topnotcher is a powerful symbol, serving as a proxy for academic achievement and an indicium of professional success. The products are law schools that are not only compelled to teach bar exams subjects but are also motivated to produce future topnotchers. The consequence is that the teachers outline will be exhaustive, covering all cases and statutes required by the bar exams; classroom interaction will be about re-citations, the regurgitation of decided cases and chanting memorized information. This is nothing less than training for passivity in the face of atrocity. On re-creation of law schools The SC should reduce the number of bar examination subjects by one-half, leaving political law, remedial law, civil law, and ethics as the only bar subjects. It should also limit the scope of these bar examination subjects. The reduction of bar subjects do not necessarily mean easier bar exams. If the Court is truly determined to measure competence through the bar, it could make the reduced bar exams more difficult. In addition, the SC should do away with the practice of announcing bar topnotchers. All the Court needs to do is to publish, without distinctions, the names of those who passed. It may, for purposes of informing every bar examinee of how she fared in the different subjects, send a list of the subjects where she passed, without informing her of the scores she obtained. These minor re-calibrations are bound to alter the ecology of the law school. It will lead to a diversification of the curriculum of the different law schools, because then they would be able to offer different subjects depending on the kinds of advocacy of every law school administration. It would be a chance for the law schools to drop the bar review center paradigm and develop more socially relevant institutional identities. As a consequence of these changes, there will be a radical transformation in the way law is taught and thought about. The needed skills in the new regime will be creativity and the ability to access needed information. The enhanced freedom of law schools means that they will be able to design their curriculum along inter-disciplinary lines, paving the way for the emergence of a legal academy conversant in the language of the social and physical sciences. The students, freed from the task of memorizing, can now immerse themselves in the social projects of the law schools, giving them the chance to theorize the relevance of what they are studying to both the practical and immediate concerns of their community and the larger task of nation-building. They can now participate in a world of law that is grounded, engaging, intellectually fulfilling, and socially relevant.
a2010 page 4
prof. florin
POSTCOLONIALISM
a2010 page 5
prof. florin
- The existence of a Filipino nation is a fact, but the existence of a national consciousness is only a presupposition, if by national consciousness one means that sense of oneness which comes from a community of aspiration, response and action. - For Filipinos, the question of nationality has become one of identity but not of a consciousness of common aspirations and goals. - The growing disparity between identity and consciousness is responsible for the ambiguity of Filipino behavior, for the Filipinos east-west ambivalence, and for his marginal participation in the historic struggles of other colonial peoples. - The Philippines occupies a unique position in Southeast Asias revolutionary tradition: its people were the first in the region to rise in a national revolution against the colonizer. - The process of making a nation was interrupted and later tragically redirected to produce what is now a confused people who in their pathetic search for identity look to an idealized indigenous past and to the Hispanized culture of their colonial forbears and who in their desire to solve the problems of the present, dream of a future anchored on western concepts and values. - To understand the realm of consciousness, three historical influences must be examined: (1) the level of social and economic development attained before colonization, (2) the nature of Spanish rule, (3) the impact of American domination. Pre-Conquest Societies - The inhabitants of the Philippines did not possess a high degree of civilization and social structure during pre-conquest times as did their Southeast Asian brothers. - The population of the Philippines at point of contract with the Spanish conquerors lived in small scattered communities based on kinship ties and relying for sustenance mainly on subsistence agriculture. They did not erect structures of stone or any other hard material. - In these small and primitive communities, the level of organization was such that no surplus was being produced that could enable a ruling class to appropriate labor for luxury and for the construction of temples and palaces for self-glorification. - Pre-Spanish communities were subsistence economies and therefore had no classes in the economic sense. There was no state. The Philippines was subjected to western colonialism before it was influenced by the great cultures of Asia. - Exceptions: Certain Muslim communities in the south which were within the orbit of Islamic proselytization activities exhibited more advanced social formations. Other communities in the islands of Luzon and Visayas which were exposed to an expanding Islam exhibited certain social stratifications doubtless influenced by contact with these seafaring Muslims. - The dominant religion was not Islam. Early writers described certain forms of paganism, the belief in anitos, the absence of places of worship, and even animistic practice of ascribing supernatural power to stones and trees and animals. Islam Aborted - Had the Spaniards not arrived, the rest of the islands would surely have been Islamized and thoroughly exposed to the great Asian Traditions. - The Spaniards found Luzon strategically suited for their purpose. With Luzon as their stronghold and with their settlements in Cebu and Panay, they were now in a position to spread all over the Visayan region. - The Muslim south became a beleaguered fortress, the only segment of indigenous Philippine society that tenaciously resisted Hispanization and colonization and the only area which, because of its consequent isolation, was able to preserve and develop indigenous practices and culture as well as to continue to receive Muslim influences.
a2010 page 6
prof. florin
- The friars concentrated their attention on the children. Within a few years, these children grown to adulthood under the new dispensation were so thoroughly brainwashed that they became the foundation stone of a new colonial cultural establishment with the accompanying negative virtues that supported stultification of mind and spirit. Cultural Life - Religious concern seriously limited the literary life of the period. - The Spanish language was not taught except in schools reserved for children of Spaniards. Instead, the friars learned the dialects. This was an effort to screen the people from reading works in Spanish and for maintaining social distance. Dynamics of Ignorance - Ignorance became a material force in the colonial setting. Ignorance includes that state of relative paucity of knowledge (which within the given society may already be regarded as wisdom) arising from a low level of economic and social structures. - This intellectual underdevelopment progressively deepened and acquired new characteristics during the centuries of Spanish colonialism such that even new inputs of information and tolerated cultural activities only nurtured in most educated colonials ideas that actually impeded their escape from their intellectual captivity. - In due time, under a more sophisticated colonialism, the people acquired a distorted picture of their own reality, a warped sense of values and a way of life not consistent with their economic status. They even came to believe that with their westernized tastes they were better educated and generally better off than most of their Asian brothers. - In the Philippines, the development of ignorance, from a state of relative lack of knowledge to the glorification of intellectual accomplishments that did not relate to a deepening perception of their social reality but in the contrary perpetuated peripheral thinking that concealed reality, had its historical origins in the consecration of ignorance as a virtue in a Catholicized Philippines under friar rule was carried to its full flowering under the American occupation. The Spanish legacy of ignorance made it easier for the Americans to carry out their own process of miseducation. The Connecting Thread - Despite the growing hold of the dominant colonial consciousness, the revolutionary instinct of the people manifested itself in a series of actions which conventional observers have viewed as disconnected events although they were in reality assertions and dialectical progressions of the consciousness that was emerging. - Counter-consciousness manifested itself in various forms of resistance only to recede at each instance into the matrix of colonial consciousness because of unripe conditions and other factors, but which nevertheless became part of mass memory and therefore part of the Filipino tradition of struggle. - The history of the Filipino people and hence the growth of their consciousness and the attainment of national awareness is primarily the history of their struggles against colonial oppression. - The emergence of national consciousness during the Revolution was inextricably connected with a series of leaps in the intellectual awareness of political issues engendered not only by common grievances against oppression but also by development of a tradition of struggle stored in the racial memory. - When finally economic development had set in motion its own unifying influence, these forms of limited consciousness which had grown through centuries of accretion were transmuted into a national consciousness the culminating expression of which was the national revolution of 1896 when identity and consciousness became a unity.
a2010 page 7
prof. florin
A Revisionist View of Celebrated Revolts - While the masses were gaining more experience and education in struggle, these struggles would now be undermined by the personal motivations of the chiefs. - Since the native elite had acquired through their association with Spanish officials a taste for power, wealth and high titles, revolt meant for them something more than the eradications of Spanish oppression. - Although the people and the principales had common grounds for revolting, the fundamental division between the elite and the people which colonialism had created made it possible for the Spanish governor to subvert the leadership of the uprising. The chiefs had become used to maneuvering between the people and the governing power. The Religious Thread - By the middle of the 18th century, the masses were already becoming acutely aware of their economic exploitation by the religious. - The protest against the friars as economic exploiters later dovetailed with the demands of the native clergy for justice and equality, which found expression first in the fight for the secularization of the parishes and then in the demand for the Filipinization of the clergy - The demand for equal status within the Church became an important part of the general demand for equality and justice because the priesthood was one of the best channels for prestige and economic stability the dearest ambition of most families was to have a son become a priest. Economic Transformation - The changing economic landscape of the period from the mid-18th century up to the revolution of 1896 produced a new type of local elite. Reacting to the new economic and social climate, these new leaders became the articulators of a developing counterconsciousness which incorporated the peoples protests against colonial injustice and exploitation with the elites demand for equality and for those rights which would allow their class to pursue its economic ambitions. - The commercial activities of the British were an important factor in the opening of the Philippines to international trade. Another factor was the modification of Spanish colonial policies. - Because of the changes that were sweeping Europe at that time, there was a rethinking of Spanish economic policy. By the 19th century, the Philippines had entered into the stream of world commerce and the economic life of the people underwent fundamental changes. - It was not the Spaniards who were the prime movers and beneficiaries of the new economic development but the British and the Chinese. In fact, the Philippines was becoming an Anglo-Chinese colony despite the formal title of Spain. - Since agricultural exports had become a thriving activity, agricultural land took on new importance. Government functionaries, the principales, and the Chinese middlemen themselves became interested in acquiring land. Thus began the process of land consolidation. - But the Chinese could not take full advantage of economic developments because of official restrictions and the periodic outbursts of racial persecution to which the Spaniards subjected them and which led to the expulsion of thousands of their number. It was the Chinese mestizos, children of Chinese fathers and native mothers, who inherited the places vacated by the Chinese in the economy. When the Chinese were allowed back, the Chinese mestizos had already established themselves and although they gave up some of their trading activities to the Chinese, this only enabled them to concentrate on the expansion of their landed estates, particularly in Central Luzon.
a2010 page 8
prof. florin
- The legacy of ignorance could not prevent the germination of ideas of protest but it seriously undermined their thrust and integrity as later developments would reveal. - Both elite and masses were being pushed by material conditions toward a national revolution. Despite their affinity to Hispanic culture, the elite finally identified themselves with the people in whom they saw their source of support and strength. - The accumulated experiences of past struggles and a growing awareness of national identity brought about primarily by the emergence of a national market made the masses ripe for a leap into a more unified and ideologically consistent movement where their limited consciousness, activated during times of crisis, was transformed into a dynamic revolutionary consciousness. Thus with the articulations of the elite and the instinctual actions of the masses there occurred a convergence of thought and action. For a brief moment, the entire nation stood as one. - Among the rising elite, educational opportunities had activated a counterconsciousness which resulted in the articulation of protest and criticism of oppressive clerical and official policies. This articulation was basically reformist and assimilationist in nature since what the elite wanted primarily was better accommodation within the colonial system to enhance their economic interests and secure their social and cultural aspirations. Their ideas could be considered counter-consciousness in the sense that these demands went beyond the limits of what the colonial power could grant. The limited ends of the elite were encompassed in the broader goals of the people, a fact which gave the impression that they were the prime movers of revolution. - Since their actions were without any theoretical underpinning, the people were in fact resisting particular consequences of the system and not colonialism itself. Thus revolts were fierce but sporadic, disorganized and easily quelled by confrontation with superior force or by some minor and temporary accommodation. The people were in effect fighting fro certain limited or sectoral ends, therefore their consciousness was also partial or limited. The National Revolution - The limited consciousness of both sectorsthe elite and the massesinteracted and politicization of both led to a decisive rejection of reformism in favor of revolution when the lower middle class under the leadership of Andres Bonifacio was able to synthesize the desires of the people into a forthright demand for the abolition of Spanish colonialism. We therefore see the dialectical connection between the instinctual actions of the masses and the reformist articulations of the elite resulting in the negation of the latter by a more politicized action of the people. - The masses saw clearly the correspondence between the formulations of their leaders and their real aspirations. For the first time, they understood the need of a struggle on a national scale. Their partial consciousness was widened and they fought unswervingly against their oppressors. But the ilustrados, though they had been the articulators of national aspirations, ran true to the logic of their class and eventually compromised with the enemy in the Peace of Biak-na-Bato. - Actually, the people were in unceasing struggle, with or without the elite leaders. Enter the Americans - Because of the lack of common leadership for the countrywide movement, the compromises of Biak-na-Bato were able to seize once more the direction of the Revolution. They had the ilustrado prestige which the masses continued to regard with lingering respect, and they had the connections since the Americans were dealing with them.
a2010 page 9
prof. florin
concepts for the society they would build in freedom beyond the general ideas of brotherhood and equality preached by the Katipunan. - For their part, the ilustrado leaders of the Revolution saw in independence the opportunity to take over from the Spaniards. They believed that control should remain firmly in inlustrado hands. - Thus, when the elite began going over to the American side, there was disillusionment and disapproval but there was also confusion and a feeling of uncertainty among some sectors of the population as to the right course to follow. While the masses did rally to new leaders from their own ranks, there was no general and clear-cut condemnation of the elite who had abandoned them. This facilitated the use of the elite by the Americans to propagate the myths about American benevolence and altruism. - The peoples limited politicization was eventually overcome by the forces of the mind which were the products of centuries of colonialism. The masses gradually settled down to their old quiescence and once again followed their superiors. - The Americans set in motion the process of gradually negating the revolutionary consciousness of the Filipino people, for this evolving consciousness was subversive of colonial rule. - Absorbed into the system, the elite were fairly quickly Americanized through colonial education. Separation of Identity and Consciousness - Filipino identity and consciousness now faced a concerted threat from the new colonizer. The counter-consciousness that animated the struggle for independence had hardly developed into a new consciousness before that consciousness was again being modified to suit the needs of a new colonial system. - It is as this point that one begins to discern a growing separation between identity and consciousness. The counter-consciousness that was the product of struggles against oppression produced a distinct national identity which marked the emergence of a nation committed to a separate destiny and passionately defending its right to independence. American pacification efforts and miseducation redirected the energies of the new nation towards peripheral objectives by imbuing the Filipino with a new colonial consciousness, an Americanized consciousness which caused the dynamic revolutionary consciousness to be diluted and eventually to recede. - Three aspects of educational policy were particularly efficacious in advancing the process of Americanizing the Filipino consciousness: the institution of a nationwide public school system, the use of English as a medium of instruction, and the distortion of the history of the early American occupation in conjunction with the glorification of the American way of life, its heroes and institutions. - Like the Spaniards, the Americans used the Filipino elite as conduits of colonial policy, but unlike the Spaniards, they broadened the base of their influence by including wider sections of the population in the educational process. - Education had been one of the demands of the people under the Spaniards. Granted by the Americans, it gave the new conquerors an image of altruism. Little did the people know that the public school system was initially conceived as a tactic of pacification and worked throughout the American occupation as a subtle technique of control. - With American textbooks, young Filipinos began learning not only a new language but a new culture. Education became miseducation because it began to de-Filipinize the youth, taught them to regard American culture as superior to any other, and American society as the model par excellence for the Philippine society. - Not only was English the medium of instruction, competence in English became the basis for opportunities for employment and promotion in government and in private
a2010 page 10
prof. florin
- The principles of democracy which the Americans had made the touchstone of their proselytization process were now invoked by the people through their leaders whi had been exposed to progressive thought from abroad, particularly the US. - The depression drove the masses on the one hand to affiliation with radical organizations and on the other to outbursts of desperate and futile violence. Radicalization - The popular movement with the greatest immediate impact was the Sakdal. Its organ, published weekly in Tagalog, became the vehicle for bitter denunciations of the colonial establishment. Sakdal accused the leaders of the ruling political party of being the servants of the Americans and exposed the hypocrisy of the independence missions. It adopted the position that independence is not given but must be taken through united action of the people. They branded the educational system, as colonial and criticized school textbooks for glorifying American culture. They objected to the proposed establishment of American military and naval bases in the country after independence and charged that such bases would benefit only the US. They opposed further American investment and tried to make the people understand that the root cause of their poverty lay in the American stranglehold on the Philippine economy. - Other more radical groups, the Socialist Party and the Communists, provided leadership to many collective protests in the farms and strikes in urban centers. They tried to raise the issue of American imperialism in conjunction with the issues connected with land and employment. - The masses saw only their immediate ruling class and its military arm as their enemies. The same was true through a lesser extent in urban areas. Hence, at this point a class consciousness seemed to be developing faster than an anti-colonial consciousness - Despite the periodic falling back of present consciousness into the old conservatism, there remained oases of struggle principally in Central Luzon. Those who retained memories of past struggles were more easily activated by new sufferings and a new understanding of the causative factors of their oppression. - They demonstrated a higher level of consciousness and organization derived from the accumulated experience of the past, from the sharper economic contradictions of the period, and from the higher ideological level of worker-peasant leadership. Countervailing Forces - A number of factors operated to limit and distort the growth of a militant counterconsciousness. Urban intellectuals had been initially responsible for the infusion of a coherent ideology into the mass movements. But the class which should have spearheaded the struggle should have been the working class sustained by the peasantry. However, the working class was small. - Among both groups, therefore, the more fundamental cause of their oppression American colonialismwas insufficiently exposed. They impeded a deeper understanding of the real cause of their misery and limited the political significance of their collective actions. The growth of a counter-consciousness was hindered at every turn by the weight of miseducation and cultural Americanization. - The hold of colonial consciousness was dramatically demonstrated during the Japanese occupation. The Filipinos fought the Japanese and waited for the return of the Americans to receive from their hands the gift of independence. It did not occur to them to seize freedom for themselves. More Americanization - Cultural penetration received added impetus as Filipinos devoured the American cultural fare they had been deprived of during the Japanese occupation. Ironically,
a2010 page 11
prof. florin
institutionalization of a culture that is alien in language, in direction and in content, (6) an escapist attitude, (7) a consumer attitude, (8) minimal social concern except in the minor sense of charity and do-gooding. - Counter-consciousness is an indispensable weapon against the foreign influences that warp Philippine society. It can only become the new liberating consciousness when the Filipino once more takes up the struggle towards the completion of his identity. - The Filipino must now discover himself in the realm of consciousnessthat is, a consciousness that articulates its own economic, political and cultural aspirations and contraposes itself to an all-pervading consciousness that seeks to keep the Filipino people permanently integrated in a worldwide system that produces poverty, wars and degradation for the underdeveloped nations of the world.
GLOBAL WARMING
The Revenge of Gaia By James Lovelock
Revenge of Gaia: Why the Earth is Fighting Back - and How we Can Still Save Humanity (2006) a book by James Lovelock, published at a time when the debate on global warming is receiving widespread attention in society. Lovelock believes that it is too late to avoid significant global heating and significant climate change, making much of the Earth's surface much less hospitable for humans. As a result, there will be inevitable, major decline in the human population over the next hundred years. Because this problem is such an overwhelming, cataclysmic threat, he believes that nuclear power is our only short-term solution for the preservation of civilization as we know it. The dangers that many environmentalists see from nuclear power are quite minor with respect to most of Earth's ecologies. Lovelock sees benign alternate energy sources as inadequate and irrelevant at best. Lovelock draws a distinction between his original Gaia hypothesis of the 1970s and current, Gaia theory. He believes that the time will come when the US government takes global heating seriously and responds with immense planet-scale engineering fixes, perhaps space based. While he indicates these may succeed, he is despondent by the prospect that humans will have to deal with extra costs of maintaining an inhabitable surface climate, a task formerly done for us by Gaia. Climate storm forecast Lovelock thinks the time is past for sustainable development, and that we have come to a time when development is no longer sustainable. He proposes that we need sustainable retreat from an impending Climate Storm -- that we must retreat in an orderly fashion from the coming threats to our global habitat, to mitigate adverse impacts on human health and happiness. Table I. Deaths in the energy-producing industries, 1970-92. (p.102) Fatalitie Deaths per terawattFuel Who s year Coal 6400 Workers 342
a2010 page 12
prof. florin
other people have written and spoken eloquently about how the Gaia Theory can help us model human activities after the living systems of our planet; the concept offers lessons for the design of economic, energy, social and governmental systems.
Lovelock's arguments do make a lot of sense, but is it really that late to make a positive difference? Must we give up hope of improving things at such a critical time? At least one thing is certain. Whether Lovelock's ideas, not only of the Earth now but also in the future, are correct or not - only time will eventually tell. Global Warming Increase in the global average surface temperature resulting from enhancement of the greenhouse effect, primarily by air pollution. In 2001 the UN Intergovernmental Panel on Climate Change estimated that by 2100 global average surface temperatures would increase 2.5 to 10.4 F (1.4 to 5.8 C), depending on a range of scenarios for greenhouse gas emissions. Many scientists predict that such an increase would cause polar ice caps and mountain glaciers to melt rapidly, significantly raising the levels of coastal waters, and would produce new patterns and extremes of drought and rainfall, seriously disrupting food production in certain regions. Other scientists maintain that such predictions are overstated. The 1992 Earth Summit and the 1997 Kyoto Protocol to the United Nations Framework Convention on Climate Change attempted to address the issue of global warming, but in both cases the efforts were hindered by conflicting national economic agendas and disputes between developed and developing nations over the cost and consequences of reducing emissions of greenhouse gases. Gaia Theory The Gaia Theory posits that the organic and inorganic components of Planet Earth have evolved together as a single living, self-regulating system. It suggests that this living system has automatically controlled global temperature, atmospheric content, ocean salinity, and other factors, that maintains its own habitability. In a phrase, life maintains conditions suitable for its own survival. In this respect, the living system of Earth can be thought of analogous to the workings of any individual organism that regulates body temperature, blood salinity, etc. So, for instance, even though the luminosity of the sun the Earths heat source has increased by about 30 percent since life began almost four billion years ago, the living system has reacted as a whole to maintain temperatures at levels suitable for life. The Gaia theory was developed in the late 1960s by Dr. James Lovelock, a British Scientist and inventor, shortly after his work with NASA in determining that there was probably no life on Mars. His research led to profound new insights about life on Earth. The theory gained an early supporter in Lynn Margulis, a microbiologist at the University of Massachusetts. In the past 15-20 years, many of the mechanisms by which Earth self-regulates have been identified. As one example, it has been shown that cloud formation over the open ocean is almost entirely a function of the metabolism of oceanic algae that emit a large sulfur molecule (as a waste gas) that becomes the condensation nuclei for raindrops. Previously, it was thought that cloud formation over the ocean was a purely chemical/physical phenomenon. The cloud formation not only helps regulate Earths temperature, it is an important mechanism by which sulfur is returned to terrestrial ecosystems. The Gaia Theory has inspired many leading figures of the past 20 years, including Vaclav Havel, John Todd (inventor), Freeman Dyson (physicist), Al Gore, Joseph Campbell (mythology expert), and Elisabet Sahtouris (microbiologist). These and many
a2010 page 13
prof. florin
4. Natural selection is not powerful enough to build complex organisms this has already been refuted by a number of scholarly critiques. Also, theoretical work shows that natural selection can evolve complex organisms such as the eye in remarkably short time. Who would want this theory to be taught as science? The first four claims are religious ones, while the latter four have long been falsified. In the end, ID is just a mishmash of Christian dogma and discredited science. Evolution operates by well-known and proved mechanisms, including natural selection. Intelligent Design invokes supernatural processes whose details are never spelled out and thus not subject to scientific investigation (thus cannot have scientific acceptance). IDers are well aware of this deficiency, and have made promises to deliver a program. Nothing has come out so far.
a2010 page 14
prof. florin
him think that in a pluralistic society that is the fairest way to go about education and training people for the future. Evolution is different from the confidence given to physics by people. The fundamental scientific idea of evolution by natural selection is not just mind-boggling; natural selection, by executing God's traditional task of designing and creating all creatures great and small, also seems to deny one of the best reasons we have for believing in God. So there is plenty of motivation for resisting the assurances of the biologists. Some of the methods used to exploit these urges are easy to analyze; others take a little more unpacking. Biology and the Development of the Eye Contemporary biology has demonstrated beyond all reasonable doubt: that natural selection - the process in which reproducing entities must compete for finite resources and thereby engage in a tournament of blind trial and error from which improvements automatically emerge - has the power to generate breathtakingly ingenious designs. Creationists use the development of the eye, which has been one of the favorite challenges. Only an intelligent designer could have created such a brilliant arrangement of a shape-shifting lens, an aperture-adjusting iris, a light-sensitive image surface of exquisite sensitivity, all housed in a sphere that can shift its aim in a hundredth of a second and send megabytes of information to the visual cortex every second for years on end. But as we learn more and more about the history of the genes involved, and how they work - all the way back to their predecessor genes in the sightless bacteria from which multicelled animals evolved more than a half-billion years ago - we can begin to tell the story of how photosensitive spots gradually turned into light-sensitive craters that could detect the rough direction from which light came, and then gradually acquired their lenses, improving their information-gathering capacities all the while. All it takes is a rare accident that gives one lucky animal a mutation that improves its vision over that of its siblings; if this helps it have more offspring than its rivals, this gives evolution an opportunity to raise the bar and ratchet up the design of the eye by one mindless step. And since these lucky improvements accumulate - this was Darwin's insight - eyes can automatically get better and better and better, without any intelligent designer. Brilliant as the design of the eye is, it betrays its origin with a tell-tale flaw: the retina is inside out. The nerve fibers that carry the signals from the eye's rods and cones (which sense light and color) lie on top of them, and have to plunge through a large hole in the retina to get to the brain, creating the blind spot. No intelligent designer would put such a clumsy arrangement in a camcorder, and this is just one of hundreds of accidents frozen in evolutionary history that confirm the mindlessness of the historical process. Evolution is cleverer than you are. Evolutionary biologists are often startled by the power of natural selection to "discover" an "ingenious" solution to a design problem posed in the lab.The designs found in nature are nothing short of brilliant, but the process of design that generates them is utterly lacking in intelligence of its own. Intelligent design advocates, however, exploit the ambiguity between process and product that is built into the word "design." For them, the presence of a finished product (a fully evolved eye, for instance) is evidence of an intelligent design process. Yes, eyes are for seeing, but these and all the other purposes in the natural world can
The Hoax of Intelligent Design and How it was Perpetrated By Daniel Dennett
PRESIDENT BUSH, announced that he was in favor of teaching about "intelligent design" in the schools to expose people to different schools of thought. People like
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- The article starts off with an account of Whites discovery of a human skeleton (dubbed the Herto Man) in Bouri village in Afar, Africa. White and his team of paleontologist excavated the remains of a Hominid and subjected it to tests and analyses for a period of over five years. Analysis showed the anatomy of the Herto man to lie at the outer limits of the large envelope of skull form among modern humans. From a paleontological perspective, this individuals skull was evidence for evolution, linking living people with their hominid ancestors. The article also describes other discoveries in other regions of Africa such as tools and animals buried under volcanic rock and mud. - Literal interpretation of the biblical accounts hold that humans remained basically unchanged after they were created. This interpretation was tested by the discovery of the Herto man. Here was someone whose anatomy linked him to earlier fossils that were not human. Thus providing evidence for the old debate: who was this and what did he represent? - Among those that contested the scientific discovery were Answers in Genesis, and Progressive Creationists. The former contested the radiometric dating and saw Herto man as a descendant of Adam. The latter accepted the dating but called Herto a nonhuman bipedal primate. The debate proved sterile, but itself constitutes evidence of the degree to which human fossils can upset strongly held religious beliefs. - As of the writing of the article, White and his team has recovered 277 hominid individuals, now under study at Ethiopias National Museum, many of them already published in top science journals. The glimpses are vital to understanding human origins and evolutions, but White claims that there are still many questions left unanswered simply because they dont have enough fossils. But it should be noted that hundred of fossils are anatomically and chronologically intermediate between modern animals and older ancestors. - There is the question of whether modern humans will ever be found alongside Australopithecus in the older sediments at Afar, sort of finding a definite connecting fossil to the missing link. White opines that as scientists, they must leave that possibility open, but realistically it becomes remote each time they find another fossil. - We have traditionally interpreted ourselves as the pinnacle of the evolutionary process. This view of the past is a narrow and misleading rendering of evolutionary history. The present has too often been imposed upon the past, the data of the past too quickly accommodated to preconceptions derived from the present. Out ancient human ancestors were neither humans nor chimpanzeesthey were creatures busy being themselves. Some went extinct. Others became us. - There are now tens of thousands of hominid fossils in museums around the world supporting the current knowledge of human evolution. The pattern that emerges from the vast body of hard evidence is consistent across thousands of investigations. All models, all myths involving the singular, instantaneous creation of modern humans fail in the face of this evidence. - A denial of evolutionhowever motivatedis denial of evidence, a retreat from reason to ignorance. - Today, evolution is the bedrock of biology, from medicine to molecules, from AIDS to zebras. Biologists cant afford to ignore the interconnectedness of living things, much as politicians cant understand people, institutions, or countries without understanding their histories. The implications of human evolution for law, medicine, agriculture and biotechnology are vast. Our very futures are tied to emergent diseases and changing climates. We ignore these realities at our peril. Rather than characterizing evolution as a process designed to create the world
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ATHEISM
Letters to a Christian Nation By Sam Harris
Note to the Reader - Since the publication of my first book, The End of Faith, thousands have written to tell me that I am wrong not to believe in God. The most hostile of these communications have come from Christians. It is clear that such hatred draws considerable support from the Bible (the most disturbed correspondents always cite chapter and verse) - The Christian I address is in a narrow sense of the term (believes, at a minimum, that the Bible is the inspired word of God and that only those who accept the divinity of Jesus Christ will experience salvation after death.) - Here, I have set out to demolish the intellectual and moral pretensions of Christianity in its most committed forms. Consequently, liberal and moderate Christians will not always recognize themselves in the Christian I address. - Accdg. to the most common interpretation of biblical prophecy, Jesus will return only after things have gone horribly awry here on earth. The fact that nearly half the American population believes this, purely on the basis of religious dogma, should be considered a moral and intellectual emergency. Letter to a Christian Nation - There are many points on which you and I agree if one of us is right, the other is wrong; the Bible is either the word of God, or it isnt; If Christianity is correct, and I persist in my unbelief, then I will suffer the torments of hell. - Consider: every devout Muslim has the same reasons for being a Muslim that you have for being a Christian. And yet you do not find their reasons compelling. The burden is upon them to prove that their beliefs are valid. They have not done this. - Truth is, you know exactly what it is like to be an atheist with respect to the belief of Muslims. That is the way Muslims view Christianity. And that is the way I view all religions. The Wisdom of the Bible - The idea that the Bible is the perfect guide to morality is simply astounding, given the contents of the book: > Whenever children get out of line, beat them with a rod (Proverbs 13:24, 20:30) > If they talk back, we should kill them (Exodus 21:15) - It is true that Jesus said some profound things about love and charity and forgiveness. The Golden Rule is a wonderful precept but numerous teachers offered the same instruction centuries before Jesus (Zoroaster, Buddha, Confucius)
- Take Jainism which teaches utter non-violence. While they believe many improbable things about the universe, they do not believe things that lit the fires of the Inquisition. The Bible is so muddled and self-contradictory that it was possible for Christians to burn heretics alive for five long centuries. - Consult the Bible and you will discover that the creator of the universe clearly expects us to keep slaves Leviticus 25:44-46 The Ten Commandments are also worthy of some reflection. The first four of these injunctions have nothing to do whatsoever with morality. Commandments 5 through 9 address morality but there are obvious biological reasons why people treat their parents well and do think badly of murderers, adulterers, thieves and liars. And to close it, the creator of the universe could think of no human concerns more pressing than the coveting of servants and livestock. Real Morality - You believe that unless the Bible is accepted as the word of God, there can be no universal standard of morality. But we can easily think of more objective sources of moral order that do not require the existence of a lawgiving God. - Everything about human experience suggests that love is more conducive to happiness than hate is. - Religion allows people to imagine that their concerns are moral when they are not. This explains why Christians like yourself expend more moral energy opposing abortion than fighting genocide; why you are more concerned about human embryos than the promises of stem-cell research; why you can preach against condom use (just to prevent premarital sex) while millions die from AIDS each year. - Consider: a 3-day old embryo is a collection of 150 cells called blastocyst. There are, for comparison, more than a 100,000 cells in the brain of a fly. But you cant sacrifice a blastocyst for the sake of a sever burn victim or a child with a deformed spine. And all this is traced to the idea of a soul. Doing Good for God - But what about all the good things done in the name of God? While Christian missionaries do many noble things at great risk to themselves, their dogmatism still spreads ignorance and death. - By contrast, volunteers for secular organizations do not waste time telling the people about the virgin birth of Jesus or that condom use is sinful. - While Mother Teresa was a great force for compassion, this was channeled within the rather steep walls of her religious dogmatism. In one of her speeches, she referred to abortion as the greatest destroyer of peace. This remark is astonishingly misguided. - More than 50% of all human conceptions end in spontaneous abortion. 20% of all recognized pregnancies end in miscarriage. If God exists, He is the most prolific abortionist of all. Are Atheists Evil? - Do members of atheist organizations in the US commit more than their fair share of crimes? - Crowds of thousands gathered throughout the Muslim world-burning European embassies, issuing threats, taking hostages, killing people-in protest over cartoons depicting the Prophet Muhammad first published in a Danish newspaper. Is there a newspaper in earth that would hesitate to print cartoons about atheism in fear of being killed or kidnapped in reprisal? - Consider the Holocaust: the anti-Semitism that built the Nazi camps was a direct inheritance from medieval Christianity. Both Catholic and Protestant churches have a shameful record of complicity with the Nazi genocide.
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- Problem is, our fear of provoking religious hatred has rendered unwilling to criticize ideas that are increasingly maladaptive and patently ridiculous. Our competing religious certainties are impeding the emergence of a viable, global civilization. - Faith inspires violence in at least two ways. First, people often kill other human beings because they believe that the creator of the universe wants them to do it. Second, far greater numbers of people fall into conflict with one another because they define their moral community on the basis of their religious affiliation. - The idea that Islam is a peaceful religion hijacked by extremists is fantasy, and it is now a particularly dangerous fantasy for Muslims to indulge. But how can we ever hope to reason with the Muslim world if we are not reasonable ourselves? How can interfaith dialogue, even at the highest level, reconcile worldviews that are fundamentally incompatible and, in principle, immune to revision? The truth is, it really matters what billions of human beings believe and why they believe it. Conclusion - I would be the first to admit that the prospects of eradicating religion in our time do not seem good. Still, the same could have been said about the efforts to abolish slavery at the end of the eighteenth century. The analogy is not perfect, but it is suggestive. - I have no doubt that your acceptance of Christ coincided with some very positive changes in your life. I do not wish to denigrate any of these experiences. I would point out, however, that billions of other human beings have had similar experiences but they had them while thinking about Krishna, or Allah, or the Buddha, while making art or music, or while contemplating the beauty of Nature. - Some researchers have speculated that religion itself may have played an important role in getting groups of prehistoric humans to socially cohere. But that religion may have served some necessary function for us in the past does not preclude the possibility that it is now the greatest impediment to our building a global civilization. - This letter is a product of failure the failure of many brilliant attacks upon religion that preceded it, the failure of our schools to announce the death of God in a way that each generation can understand, the failure of media to criticize the abject religious certainties of our public figures- failures great and small that have kept almost every society on this earth muddling over God and despising those who muddle differently.
NATURAL LAW
Introduction to Jurisprudence Chapter III Natural Law By Dennis Lloyd
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- Two principles, which animated medieval thought: (1) unity derived from God, and involving one faith, one church and one empire, and (2) the supremacy of law, not merely man-made. - Thomas Aquinas divides law into four categories. Lex aeterna (divine reason known only to God and the blessed who see God in his essence), Lex Divina (law of God revealed in the Scriptures), Lex naturalis (consists of participation of the eternal law in rational creatures and therefore intuitively known and knowable), Lex humana (positive law, which must be virtuous, necessary, useful, clear and for the common good). The aforementioned categories must be understood, as a unified concept. Renaissance, Reformation and Counter-reformation - The Renaissance led to an emphasis on the individual and free will and hman liberty and rejection of the universal collective society if medieval Europe in favor of independent national states. - Machiavelli examined human institutions without regard for divine prescriptions, and in light of naked expediency. - Natural law though eclipsed was later on revived by Thomism, the principal advocates of which are Vitoria and Suarez. These thinkers contended that our knowledge of the principles of natural justice was said to be wholly independent of any knowledge of revelation. It was not possible to neglect the law of nature since all men from the beginning of creation have in fact been subject to it. - Suarez, in a departure from Aquinas thinking argued that jus gentium differed from natural law and is actually straightforwardly a case of human positive law. It followed that private property justified as part of the law in Thomist theory, had no further basis than the laws men made for themselves. - Locke escaped from Suarez awkward conclusion by arguing that the right to hold property was a right of nature and not a mere privilege from positive law. - The social contract ideologies associated with Hobbes, Locke and Rousseau can also be traced to 16th century Thomist thought. The concept of consent was invoked to explain how it is possible for a free individual to become the subject of a legitimate state. - A question which Counter-Reformation Thomist thinkers addressed was whether the commands of a human sovereign were always binding. Lutherans argued that the commands of an ungodly ruler could never be binding in a court of conscience. The Thomists response was essentially what Bellarmine explained: anyone who sets aside either the natural, the positive, the divine or the human law, must in every case be sinning against the eternal law of God. Grotius and International Law - The secularization of natural law is usually held to begin with Grotius who asserted that natural law would subsist even if God did not exist (etiamsi daremus non esse Deum). - According to Finnis (in his analysis of Grotius), what Grotius was claiming is that what is right or wrong depends on the nature of things, and not on a decree of God, but the normative significance of moral rightness depends fundamentally upon there being a decree expressing Gods will that the right be done. The significance of Grotius thought is in a shift of emphasis towards the natural reason of man. - Grotius main concern was to establish a system of international law to regulate the affairs and warfare of the rising nation-states. The sovereigns of every state according to him were bound by natural law. The linkage with natural law to his discourse is however unclear. Natural law ends up with a subsidiary role as its details are worked out.
Literally means law of nations or some interpret it as law of the world. In the context of natural law, jus gentium is understood as the law that natural reason establishes among all mankind and is followed by all peoples alike.
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- The positivist movement sought to relegate natural law to the sphere of morals and religion and to segregate manmade law as a distinct phenomenon whose validity did not rest on divine or supernatural sanctions. Twentieth century - The decline in social and economic stability, the expansion of governmental activity, as well as the growth of weapons of destruction and policies of genocide coupled with reviving doubts as to the method of empirical sciences, have led to a resurgence in favor of natural law thinking. - In the US, the existence of fundamental rights in the Constitution has given more scope for the natural lawyer and the Universal Declaration of Human Rights and the European Convention on Human Rights are essentially natural law documents. - Lon Fuller (1902-1978), in his secular view of natural law, sees the affirmation of the reason in legal ordering as the most fundamental tenet of natural law. The process of moral discovery is a social one, and that there is something akin to a collaborative articulation of shared purposes by which men come to understand better their own ends and to discern more clearly the means for achieving them. The connection between law and morality is a necessary one. - H.L.A. Harts arguments show the coming together of positivism and natural law. While Hart is viewed as the leader of contemporary positivism, his views actually restate a natural law position form a semi-sociological point of view. He places emphasis on an assumption of survival as a principal human goal. He points out that there are substantive rules which are essential if human beings are to live continuously together in close proximity. In light of the inevitable features of human condition (such as human vulnerability, approximate equality, limited altruism, limited resources, limited understanding and strength of will), there follows a natural necessity for certain minimum forms of protection for persons, property and promises. - Finnis believes that natural law is the set of principles of practical reasonableness in ordering human life and human community. Drawing on Aristotle and Aquinas, Finnis sets up the proposition that there are certain basic goods for human beings. The basic principles of natural law are pre-moral. These basic goods are objective values in the sense that every reasonable person must assent to their value as objects of human striving. Finnis lists seven basic goods: (1) life, (2) knowledge, (3) play, (4) aesthetic experience, (5) sociability and friendship, (6) practical reasonableness, (7) religion. Liberty and Human Rights - An emphasis on individual liberty and freedom has been a distinctive feature of the western political and legal philosophy since the 17th century, associated particularly with the doctrine of natural rights. - The doctrine of natural rights resulted in the widespread acceptance of the existence of fundamental rights built into the constitutional framework as a bill of rights, as well as receiving recognition internationally by means of Covenants of Human Rights agreed upon between States.
Liberty and Civil Disobedience - There are two kinds of freedom: positive and negative. - Positive freedom is a spiritual concept concerned in its social context with attaining an order of society which allows the fullest possible development of the powers of selfrealization of every human being.
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POSITIVISM
Introduction to Jurisprudence Chapter VI Positive Law By Dennis Lloyd
I. Introduction - the chapter concentrates on the outstanding figures of contemporary jurisprudence; Hart, Dworkin, Rawls and Nozick, and thus tries to throw light on the concept of law (as depicted by Hart), justice (as seen through Rawls magisterial book), rights (the emphasis being on the rights thesis of Dworkin) and libertarianism (the focus being on Nozicks minimal state). - includes a critical legal studies of the economic analysis of law which, together with critical legal studies, is dominating American intellectual legal life - a short section is given to a discussion of Hohfelds classic on fundamental legal conceptions - an extract from MacCormick appears in this chapter- some characteristics of contemporary legal philo to which he draws attention, in particular the rediscovery of practical reason, notably in the writings of Raz. One result of Razs pursuit of reasons for action is to direct our attention, when looking at a concept like obligation to act. In his article the Problem About the Nature of Law he shows that there is a difference between there being some sound reasons for conduct being legally obligatory and its actually being so. - the search for what it is that separates law from other normative phenomena continues amongst positivists. It is a feature of contemporary jurisprudence that this search has taken jurists into newer terrains - Dworkin was concerned, and rightly so, with the inadequacies of positivistic explanations of how disputes were determined when, as is so often the case, we run out of rules. He has attempted to construct a theory of law out of a theory of adjudication. He shows that judges use, and must use, moral considerations in addition to rules found in legislation and case law. He argues that these moral considerations are integral to the moral theory justifying the enacted and case law binding on the judges. But, surely not all the considerations a judge uses in his deliberations and
reasoning constitute the law? Dworkin seems to assume they do, though he offers no explanation as to why that should be so. - Contemporary analytical jurisprudence owes much to Hart. It was he shook English jurisprudence out of its lethargy in the 1950s. It was he who placed theorizing about law back into the mainstream of philo. The significance of Harts contribution also lies in his application of philo to substantive legal issues, such as causation, to practices like punishment and to questions of moral philo such as the legitimacy of legal intervention into private immorality. Hart demonstrated the need for those interested in the concept of law to appreciate the insights of analytical, particularly linguistic, philo. - Dworkin has placed the issues of jurisprudence back- where they were in the days of Bentham- in the realm of moral and political philo. His contributions to jurisprudence are matched by his contributions to the devt of a liberal political theory. It is his view that the right to equal concern and respect is the fundamental principle of moral theory, and that utilitarianism is no sub for a theory committed to taking rights seriously. - One of Dworkins sharpest critics is Hart. It is the brunt of Harts argument that if someones liberty is restricted he is not being treated as an equal. Dworkin does not think that this usually happens and that it occurs only when a persons convictions and values are condemned by others. - as a critic of utilitarianism Dworkin is naturally sceptical of a contemporary variant, the economic analysis of law. He is of the view that judges should decide civil cases, wherever possible, so as to maximize the aggregate wealth of society. Wealth maximization is a proxy for the max. of utility and Dworkin rejects both. - jurisprudence is currently experiencing a period of intellectual ferment; the scope and scale of contemporary concerns include rights, privacy, abortion, nuclear deterrence, equality, freedom of speech, paternalism, discrimination, exploitation. II. Harts Concept of Law - he turns his back on a tradition which seemed to believe that definitions could solve the difficulties to which the words embodying the concepts gave rise - he believed that a more fruitful approach would be to elucidate the conditions to which true statements are made in legal contexts about rights, corporations, etc. - Hart, in the preface of Concept quotes JL Austins remarks that we may use a sharpened awareness of words to sharpen our awareness of phenomena. This is the goal of the The Concept od Law. The book is offered as an essay in descriptive sociology, but this description is as likely to mislead as to guide. It is rather an essay in analytical jurisprudence, in conceptual analysis which, for all its faults, remains the most significant post-war text in jurisprudence. A. An outline of Harts Jurisprudence - for Hart the legal system is a system of social rules. The rules are social in 2 senses: first in that they regulate the conduct of members of societies; secondly, in that they derive from human social practices. Like rules of morality, laws are concerned with obligations: they make certain conduct obligatory. But unlike rules of morality they have, what MacCormick calls, a systematic quality which hinges on the interrelationship of 2 types of rules, called by Hart primary rules and secondary rules. - he objected to Austins command theory in the grounds that it failed to encompass the variety of laws. His theory distinguishes between primary duty-imposing rules, and secondary power-conferring rules or which lay down rules governing the composition and powers of courts, kegislatures and other official bodies. These
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B. The Internal Aspect of Law - this constitutes a radical break with the thought of his positivist predecessors Austin and Bentham and also sharply differentiates Harts thinking from that of Kelsen. For Kelsen there is a separate category of human thought (the ought) radically distinct from the is and, therefore, from human psychology. - Harts view is that normativity hinges on human attitudes to human action. Law depends not only on the external social pressures which are brought to bear on human beings, but also on the inner point of view that such beings take towards rules conceived as imposing obligations. In other words, in primitive societies an internal point of view on the part of its members is necessary for the preservation of group cohesion and solidarity. In legal systems, however, certainly in stable, mature ones, it is not necessary for citizens to possess an internal point of view. - Harts explanation of social rules is thus dependent on a hermeneutic approach. This approach is concerned with understanding the significance of human actions of others; Hart introduces the internal aspect of rules to distinguish rules from habitswhat he is denying is the possibility of explaining rules solely by reference to external patterns of behavior. - Hart says that what is necessary is there should be a critical reflective attitude to certain patterns of behavior as a common standard, and that this should display itself in criticism, demands for conformity, and in acknowledgments that such criticisms and demands are justified, all of which find their characteristic expression in the normative terminology of ought, must and should, right and wrong. - But what comes first: criticism or attitude? Criticism is said to depend on the attitude but attitude is explained by reference to criticism and its justification. There is circularity here which requires, but does not receive, further attention and explanation MacCormick suggests that what is missing is an elucidation of what is denoted by rules being generally accepted, supported by criticism, supported by pressure for conformity and so on; he believes that such an elucidation must be by reference to a volitional element: a wish or will that the pattern be upheld, a preference for conforming to non-conforming conduct. On what are these wishes based? In part the answer may be feelings that the individuals have, feelings of being bound, so that they want others to experience these same feelings; Hart, in believing that the internal aspect is often misrepresented as a mere matter of feelings, may himself have underestimated the importance of the emotional. C. The Rule of Recognition - Harts criticisms of the Austinian view of sovereigntyhe points out that a mere habit of obedience cannot explain the continuity of law, that is to say, the fact that obedience is rendered not merely to the initial ruler, but to his successor upon the demise of that ruler; first, because habits are not normative and second, because habits of obedience to one individual cannot, though accepted rules can, refer to a class of future successive legislators as well as the current one, or render obedience to them likely= as Hart puts it, habitual obedience to one legislator neither affords grounds for the statement that he is likely to be obeyed - there is also the problem of accounting for the persistence of law: why are Acts of Parliament passed in the 19th century still law today? The concept of habitual obedience cannot explain why the citizens of today cannot be said habitually to obey a sovereign long since dead. - Theres also the problem of legal limitations on the sovereign. Austins theory could not accommodate these: sovereignty subject to legal limitations was for him the contradiction in terms. Hart points out that it is a misconception to view legal limitations as legal duties. They are rather legal disabilities. Limits here implies not the presence of duty but the absence of legal power.
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discretion. The rule of recognition gives us the capacity to identify a law and principles are standards which are to be considered as inclining in one direction or another. But there is no reason why an ultimate test should not be formulated by which rules and principles could be identified; it would seem that Dworkin himself comes close to accepting something like a master rule, because he distinguishes between settled law in which principles are embedded from unsettled law which provides the hard cases which are to be decided by the principle so derived. - It is perfectly possible to construct a positive theory of law and adjudication which incorporates principles. It is MacCormicks view that principles do belong within the genus law and interact with the rules, underpin them, hedge them in, qualify them, and justify the enunciation of new rulings as tested out by consequentialist arguments. He disagrees with Dworkin who believes that the law is gapless. He denies that judges may exercise what Dworkin calls, Strong discretion. There are considerable constraints on what judges may do. He does not agree with Dworkin that the limited discretion that judges have are characterized as weak, with all that that implies. There is a residual area of pure practical disagreement. - Harts Concept does not purport to provide a theory of adjudication. What MacCormicks Legal Reasoning and Legal Theory makes clear is that a positivist theory like Harts is capable of addressing itself to the problems Dworkin rightly uncovered in Harts model of positivism. III. Rawls and Distributive Justice - some of the earliest thinking about justice is found in Aristotle Nichomachean Ethics goods should be distributed to individuals on the basis of their relative claims this is a framework for examining diff. conceptions of justice; thus, goods might be distributed according to needs or desert or moral virtue, etc. - On of the most interesting recent attempts to defend principles of justice is found in John Rawls A Theory of Justice. - Rawls conception of justice demands: > maximization of liberty, subject only to such constraints as are essential for the protection of liberty itself > equality for all > fair equality of opportunity and the elimination of all inequalities of opportunity based on earth or wealth - Rawls rejects basic structures which incorporate arbitrary inequalities but he does not espouse egalitarianism. What he defends may be described as a qualified egalitarianism. - Rawls theory differs utilitarianism in 3 significant ways: 1. Utilitarians can accept inequalities and social arrangements wherein some benefit at the expense of others, provided that the benefits exceed the costs so that the outcome is the maximization of overall welfare level (the greatest happiness of the greatest number) 2. while utilitarians defend liberty and political rights, they have no objection to limiting liberty or restricting political rights, provided doing so would promote greater welfare. On the other hand, Rawls first principle (Equal maximum liberty principle) means that there are some rights like freedom of speech and association, right to vote, which may not be sacrificed just to increase the aggregate welfare level. 3. Rawls conception of benefits is different from utilitarianism. The latter is concerned with welfare; Rawls defines benefits in terms of primary goods, liberty and opportunity, income and wealth and the bases of self-respect.
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- The state grows by an invisible-hand process and by morally permissible means, without anyones rights being violated. - Against the argument that the state is necessary (or is the best instrument) to achieve distributive justice, Nozick puts forward his entitlement theory of justice (a persons holdings are just if acquired through just original acquisition or just transfer or through the rectification of injustices in the first two senses). If each persons holdings are just, then the total set of distribution of holdings is just. - Nozick concludes that no state is justified in applying a principle or principles which aim at some end-result and specify some patterned distribution. In addition, the state should confine itself to enforcing contracts, prohibiting thefts and taking such other measures to secure holding to those entitled to them. - The minimal state treats us as inviolate individuals who may not be used in certain ways by others as means of tools or instruments or resources: it treats us as persons having individual rights with the dignity that this constitutes...It allows us, individually or with whom we choose, to choose our life and realize our ends. - The main contribution of Nozick is to challenge the concept of distribution. He forces us to ask not how can distribution be other than equal but why should there be distribution at all. - Nozicks objection to tax is rooted in his belief in the absolutely inviolable character of property rights. Judith Jarvis Thomson however provides a convincing case that such cannot be defended. - Thomson: Property claims are to be sustained when in addition to having acquired title to an object in suitable ways, we value that object highly: such claims may be overridden when a life will be lost in the absence of an infringement of rights. Rights are derivative from human interests and needs; constraints are not as inflexible as Nozicks conception of them. - First part of Nozicks Book: Justifies the minimal night-watchman state against anarchists. Nozick does not provide any independent epistemic criteria for assessing the procedures of the emergent dominant agency. - Second part: Nozick adduces arguments against the extensive state. It is this aspect that is most controversial, containing Nozicks defense of libertarian capitalism. - Nozicks principal argument against distributionist theories of justice rests on their failure to cohere with his ideal of individual liberty. The right to property is an expression of the right to liberty. For Nozick the right to liberty is defined by reference to the right to property. - The central flaw in Nozicks arguments is the abstractness of the individualism they presuppose. Nozick assumes that it is possible to isolate people in this way, whereas in reality people are constituted by the societies into which they are socialized and live. - Lukes: Abstract individualism is a distorting lens which satisfies the intellect while simplifying the world. V. The Economic Analysis of Law - the economic analysis of law is an attempt to offer a sophisticated, scientific alternative to utilitarianism. One of the problems with utilitarianism is the lack of a method for calculating the effect of a decision or policy on the total happiness of the relevant population: it offers no reliable technique for measuring change in the level of satisfaction of one individual relative to a change in the level of satisfaction of another. - the concept of value employed by economists is a truism: a thing has value (utility) for a person when that person values it. How much value a thing has for a given person is said to be measured by the maximum that person would be willing to pay for it or the minimum the person would be willing to take to give it up. Economists support this by two arguments: The first depends on the dominant guiding principle of minimizing
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because it lends itself to this pattern of distribution, but because it is that economic analysis requires and sanctions such patterns of distribution under the guise of pursuing the presumably desirable goal of efficiency. - Coleman: > if rights are assigned in this way, the richer not only get richer, but because their newly acquired entitlements increase their wealth further, they are in an even better position to increase their wealth again by securing more rights on the grounds that their doing so is required by efficiency. Thus, efficiency not only depends on prior wealth inequities; pursuing efficiency leads inevitably to further inequities. + It can however, be argued that this inequality is a facet of the market and not just merely of the economic analysis of law. In these terms, the ideology argument is no more of an objection to economic analysis of law than it is of markets generally. > Coleman makes the point that there is nothing in economic analysis ruling out the making of compensatory lump-sum payments by those who gain entitlements to the losers. So, the gain in efficiency need not create a snowball effect in favor of those who obtain rights on efficiency grounds. He is thus led to the conclusion that there is no bias favoring one economic group in the economic analysis of law. + This may be a logical conclusion but how to close to the realities of the world is it? What is envisaged is an abstract economic man. People in the real world are not always able to assess what is in their rational self-interest and then act upon it. In the real world, peoples needs change. There is also altruism, a concern for the community, an interest in the environment. -Leff: > he argued that the basic intellectual technique of the economic analysis of law is the substitution of definitions for both normative and empirical propositions. He saw the move to the economic analysis of law as an attempt to get over, or at least get by, the complexity thrust upon us by the realists. > his point is that the economic analysis of law is a gross over-simplification > his view is that the basic propositions in the economic analysis of law are not empirical propositions at all. They are all generated by reflection on an assumption about choice under scarcity and rational maximization. -Posner: In his Economic Analysis of Law, he detected a book in which it is apparently plausible to declare it may be possible to deduce the basic formal characteristics of law itself from economic theory. And his comment, rather sarcastically was, what bliss. -What the economic analysis of law is doing is expressing normative propositions in descriptive form, slipping in ought propositions almost surreptitiously. - Contemporary American jurisprudence is characterized by two movements: the economic analysis of law is one, the critical legal studies movement the other. The latter is not a reaction to the former though its exponents are critical of it. But it is an heir to the realist movement and it has in the economic analysis of law a successor to the formalism against which the first realists revolted. VI. Rights - A key concept in contemporary political, moral and legal philosophy is that of rights. What marks out contemporary explorations is their moral and analytical sophistication and their scope. The most striking of contemporary debates in legal philosophy is between those who espouse rights-based theories and those who put forward goalbased theories. - Distinction between them is easy enough to statea requirement is right-based when generated by a concern for some individual interest and goal-based when propagated
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freedoms. Their importance is thus, morally speaking, derivative, and is contingent and relative to circumstances. - Dworkins other reason for rejecting the general right to liberty is that the right to property would be qualified and restricted by the consideration of how its acquisition and use affect the interests of those other than the owner. - This still leaves open the question as to where rights come from. In legal contexts, whether we have a certain right may be answered by consulting the authoritative sources of law. In moral matters there are no books, so that looking up the answer is not an available option. - So, what is there when there are rights? As Narveson expresses it: there must be certain features or properties of those who have them such that we have good reason to acknowledge the obligation to refrain form interfering with, or possibly to sometimes help their bearers to do the things they are said to have the right to do, or have those things they are said to have a right to have. Rights are dependent, then, on reasoned argument. - What sort of reasoned argument do we find in a right-based moral theory? -Dworkins argument again: > He identifies the existence of a moral right against the state when for some reason the state would do wrong to treat a person in a certain way, even though it would be in the general interest to do so. It is clear that what is wrong for the state to do is what the state has a duty not to do; he seems to be defining rights in terms of duties > But why is it wrong for the state to act in a particular way? Is it because the individual has a right on which state action of a particular sort would illegitimately trample? If this is what Dworkin is saying, his argument is inherently circular. > In addition, he offers a substantive explanation of the values underlying certain rights. He sees rights as safeguards, inserted into political and legal morality to prevent the corruption of the egalitarian character of welfarist calculations by the introduction of external preferences.-- But this does not even attempt to explain why rights should prevail over non-welfarist social goals. Even with a utilitarian framework, the explanation works only on the assumption of a fundamental right to equality underlying both the utilitarian considerations and the aprticular claims of right that trump them. - We have been contrasting right-based moral theories with consequentialist theories, of which utilitarianism is the paradigm. But we have been counting without the view, now propagated by Hare amongst others, that a mature theory of social utility can indeed accommodate the protection of certain key rights of individuals. A discovery that it could might well run counter to our intuitions, if no our experience, where the social interest often determines what rights individuals have. But Hare is rather surprised that critics of utilitarianism who lay great weight on the right to equal concern and respect, should object when utilitarians show equal concern by giving equal weight to the equal interests of everybody, a precept which leads straight to Benthams formula and to utilitarianism itself. The problem with this view is that although there may well be utilitarian reasons for respecting justified legal rights, these reasons are not the same as the moral force of such rights, because they neither exclude direct utilitarian arguments against exercising rights nor those for interfering with them. --This view is not uncontentious: Greenawalt and Hare have already responded to it. What the debate shows is the resilience of utilitarianism and that the conclusive inability of utilitarianism to accommodate rights has not yet been shown. Even if it could be shown that utilitarianism could generate rights, it would, of course, by no means follow that these rights would have the same content as those upheld within the liberal tradition.
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- Strength of this theory is that it covers all types of rights and all types of rightsbearers Difficulty/weakness with this view > It does not explain why rights should be tied to benefits in the first place ex. Can Xs parents be advanced by a rule without the rule conferring on him rights? A parents interests may be advanced by the rule limiting the contracts that a minor child of his may make, but no rights are conferred on him by that that rule. B. Hohfelds Analysis of Rights - Noted the ambiguity with which sentences using the concept of right were fraught. - The sentence X has a right to R is different from X has a book. The first is normative, the second is descriptive. - The problem is that the truth of normative statements may only be established by reference to rules. But X has a right to R may, Hohfeld showed, be used to depict a number of different ideas which in everyday discourse, include legal discourse, were easily confused. - He shows that the sentence X has a right to R may mean that Y (or anyone) has a duty to let X do R, so that X has a claim against Y. - The sentence usually means that X is free to do or refrain from doing something. It is not a question of what Y must do but of what X may do. Hohfeld called this right a privilege, others call it liberty. - privilege confers a special position and accurately captures some privileges. Ex. The rule that a judge does no legal wrong in speaking slander in his judicial privilege. - right is also sometimes used where what is meant is power. Powers are usually parasitic on claim-rights and privileges. However powers may also exist independently of other sorts of rights. - The term right is sometimes used to describe the absence of a power-immunity. - Problems with Hohfelds Analysis > He purports to analyze fundamental legal concepts (such as rights, duties) but he has no concept of law nor does he attempt to define what it is that gives his conceptions their legal character. > While Hohfeld is correct to state that every right in a strict sense implies the existence of a correlative duty, not every duty implies a correlative right. > By his failure to analyze duty Hohfeld misses the point hat duties are not all of one type. > Other concepts are explained inadequately. ex. power is described in terms of control but control itself is not further discussed: right in the strict sense is described in terms of claim but claiming itself is far from an uncontentious or unambiguous activity.
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- Whatever we might do, there is no way of preventing those advantages which only some can have, and which it is desirable that some should have, from going to people who neither individually merit them nor will make as good a use of them as some other person might have done. This cannot be solved by the coercive powers of the State. - La carriere ouverte aux talents: (during the classical liberal movement) people demand that all manmade obstacles to the rise of some should be removed, that all privileges of individuals should be abolished. The duty of the govt was not to ensure that everybody had the same prospect of reaching a given position but merely to make available to all on equal terms those facilities which in their nature depended on govt action. - This all should be allowed to try concept has been replaced with the concept of all must be assured an equal start & same prospects. Deliberate adaptation of opportunities to individual aims and capacities would then be the opposite of freedom. Conflict Between Merit and Value - Much that appears as a demand for greater equality is in fact a demand for a more just distribution of the good things of this world (not just envy, but also creditable motives). - Most people object to the fact that differences in reward do not correspond to any recognizable differences in merits of those who receive them. Wrong answer: A free society on the whole achieves this kind of justice. Proper answer: It is an essential characteristic of a free society that an individuals position should not necessarily depend on views that his fellows hold about the merit he has acquired. - Use of Merit in the article to describe attributes of conduct that make it deserving of praise; the moral character of the action and not the value of the achievement - Reward according to merit must in practice mean reward according to assessable merit (merit that other people can recognize and agree upon). Merit is not a matter of the objective outcome but of subjective effort. - The possibility of a true judgment of merit thus depends on the presence of precisely those conditions whose general absence is the main argument for liberty. It is because we want people to use knowledge which we do not possess that we let them decide for themselves. But insofar as we want them to be free to use such capacities which we do not have, we are not in a position to judge the merit of their achievements. Principle of Remuneration and Freedom of Choice - The incompatibility of reward according to merit with freedom to choose ones pursuit is most evident in those areas where the uncertainty of the outcome is great and our individual estimates of the chance of various kinds of effort very different (i.e. research, econ activities of speculation); yet, this risk also holds true for any chosen object we decide to pursue. - If the choice is to be as wise as it is humanly possible to make it, the alternative results anticipated must be labeled according to their value. If the remuneration did not correspond to the value, then he would have no basis for deciding whether it is worth the risk and effort. Of course, what we want is for people to achieve a maximum of usefulness at a minimum of pain and sacrifice, therefore a minimum of merit. - The prizes that a free society offers for the result serve to tell those who strive for them how much effort they are worth. However, the same prizes will go to all those who produce the same result, regardless of effort. Consequences of Distribution According to Merit - Nobody should be rewarded more than he deserves for his pain and effort. It presumes what the argument for liberty specifically rejects: that we can and do know
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paycheck every week to pay for the operas we want to see. But if I have the right to force him to pay for my pet projects, hasnt he equally the right to force me to help pay for his? Perhaps he in turn wants the government to subsidize rock-androll. Other cases similar to the opera lovers: - The Great Pyramids [someones utopian vision but it was the fruit of the lives and labors of other men] - Free medical care. [nothing is really free because this benefit would have to be taken from someone else who will have to work longer to pay for it] - Rent control laws, subsidies, etc. 3. No human being should be a nonvoluntary mortgage on the life of another. The wealth that some men have produced should not be fair game for looting by government. Hospers contends that the right to property is the most misunderstood and unappreciated of human rights, and it is one most commonly violated by governments. It is consistently underplayed by intellectuals today, sometimes even frowned upon, as if we should feel guilty for upholding such a right in view of all the poverty in the world. Actually, the right to life would be illusory without the right to property since depriving people of property is depriving them of the means by which to live. Indeed, it is second only to the right to life. Even the freedom of speech is limited by considerations of property. Does a person have a right to agitate and scream in your house without your consent? Your property rights is prior to the persons wish to scream or expectorate or write graffiti on your building. [Remember the person who shouted fire! in a crowded theater?] But why have individual property rights? Why not have lands and houses owned by everybody together? If everybody owns everything, then everyone has an equal right to go everywhere, do what he pleases, take what he likes, destroy if he wishes, grow crops or burn them, trample them under, and so on. Every itinerant hippie could come in and take over, sleeping in your beds and eating in your kitchen and not bothering to replace the food supply or clean up the mess. Since no one would be responsible for anything, the property would soon be destroyed. Beginning as a house that one family could use, it would end up as a house that no one could use. And if the principle continued to be adopted, no one would build houses anymore or anything else. What about property you inherit? Do you have a right to that? You have no right to it until someone decides to give it to you. Consider the man who willed it to you; it was his, he had the right to use and dispose of it as he saw fit; and if he decided to give it to you, this is a windfall for you, but it was only the exercise of his right. Had the property been seized by the government at the mans death, or distributed among numerous other people designated by the government, it would have been a violation of his rights: for he, who worked to earn and sustain it, would not have been able to dispose of it according to his own judgment.
GOVERNMENT Government is the most dangerous institution known to man. Throughout history it has violated the rights of men more than any individual or groups of individuals could do. The bumper sticker signs are chillingly accurate: Beware: the government is armed and dangerous. For libertarians, the only proper role of government is that of the protector of the citizen against aggression by other individuals [see Type 2 below].
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something for free is to expect it to be paid for by others whether they choose to or not. Should government have a role in assisting the needy, in providing social security, in legislating minimum wages, in fixing prices and putting a ceiling on rents, in curbing monopolies. In erecting tariffs, in guaranteeing jobs, in managing the money supply? To these and all similar questions, libertarians answer with an equivocal no. Libertarians insist that with restrictions removed, the economy would flourish like never before. With controls taken off business, existing enterprises would expand and new ones would spring into existence satisfying more and more consumer needs; millions more people would be gainfully employed instead of subsisting on welfare, and all kinds of research and production, released from the stranglehold of government, would proliferate, fulfilling mans needs and desires as never before. It has always been so whenever government has permitted men to be free traders on a free market.
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- As long as libertarians think of themselves as putting forth such a moral ideal, they cannot allow that it would be unreasonable both to require the rich to sacrifice the liberty to meet some of their luxury needs in order to benefit the poor and to require the poor to sacrifice the liberty to meet their basic nutritional needs in order to benefit the rich. If one of these is to be adjudged reasonable, it must be the requirement that the rich sacrifice the liberty to meet some of their luxury needs so that the poor can have the liberty to meet their basic nutritional needs. - If a right to liberty is taken to be the ultimate political ideal, then, contrary to what libertarians claim, not only would a system of welfare rights be morally required, but also such a system would clearly benefit the poor. LOCKEAN LIBERTARIANISM - Rights conception of liberty: Liberty is being unconstrained by other persons from doing what one has a right to do. - A right to life understood as a right not to be killed unjustly and a right to property understood as a right to acquire goods and resource either by initial acquisition or voluntary agreement. - A right to life understood as a right not to be killed unjustly would not be violated by defensive measures designed to protect ones person from life-threatening attacks. Yet would this right be violated when the rich prevent the poor from taking what they require to satisfy their basic nutritional needs? - Libertarians would want to argue that such killing is simply a consequence of the legitimate exercise of property rights and, hence, not unjust. Applying the ought implies can principle, there can be the assessment of two opposing accounts of property rights: a) a right to property is not conditional upon whether other persons have sufficient opportunities and resources to satisfy their basic needs. b) initial acquisition and voluntary agreement can confer title of property on all goods and resources except those surplus goods and resources of the rich that are required to satisfy the basic needs of those poor who through no fault of their own lack opportunities and resources to satisfy their own basic needs. - A persons action welfare rights (welfare rights established by libertarians) can be violated only when other people through acts of commission interfere with a persons exercise of that right, whereas a persons action and recipient welfare rights (welfare rights established by libertarian democrats) can be violated by such acts of commission and by acts of omission as well. - Libertarians will tend to favor two morally legitimate ways of preventing the exercise action welfare rights: a) Libertarians can provide the poor with mutually beneficial job opportunities. b) Libertarians can institute adequate recipient welfare rights that would take precedence over the poors action welfare rights. - Once a system of welfare rights is seen to follow irrespective of whether one takes a right to liberty or rights to life and property as the ultimate political ideal, the justification for a welfare state becomes straightforward and compelling. LIBERTARIAN OBJECTIONS - Tibor Machan criticizes the preceding argument that a libertarian ideal of liberty leads to a right to welfare, accepting its theoretical thrust but denying its practical significance. - He says that people normally do not lack the opportunities and resources to satisfy their basic needs. - The poors right to welfare is not claimed to be unconditional. Rather it is said to be conditionally principally upon the poor doing all that they need legitimately can to
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- The goal of a theory of rights would be defeated if rights were typically in conflict. It is applying moral institutions on numerous institutions when rights claims would conflict. - Most critics of libertarianism assume some doctrine of basic needs which they invoke to show that whenever basic needs are not satisfied for some people, while others have resources which are not basic needs for them, the former have just claims against the latter. - Problems of this doctrine: > It lacks foundation for the needs of some persons must be claims upon the lives of others. > To what ends are these needs, and whose ends are these? - Without guaranteeing welfare and equal opportunity rights, Lockean libertarianism violates the most basic tenets of any morality, that what one ought to do, that which one is free to do, that one is morally responsible only for those acts that one had the power to either to choose to engage in or to choose not to engage in. It presupposes that one has the capacity and option to do or not to do what he should. - If Sterba were correct about Lockean libertarianism, typically contradicting ought implies can, his argument would be decisive. He observes that ought implies can is violated when the rich prevented the poor form taking what they require to satisfy their basic needs even though they have tried all means available to them that libertarians regard as legitimate for acquiring such resources. - When people defend their property, they are protecting themselves against intrusive acts of some other person, acts that would normally deprive them of something to which they have a right, and the other has no right. - The typical conflict situation in society involves people who wish to take shortcuts to earning their living by attacking others so as to reach the same goal. - The integrity of the law would be seriously endangered if the government entered areas that required it to make very particular judgments and depart from serving the interests of the public as such. - The Lockean libertarian argues that private property rights are morally justified in part because they are the concrete requirement for delineating the sphere of jurisdiction of each persons moral authority, where ones own judgment is decisive. - Normally, persons do not lack the opportunities and resources to satisfy their own basic needs. Even if we grant that some helpless, crippled, retarded, or destitute persons could offer nothing to anyone that would merit wages enabling them to carry on with their lives and perhaps even flourish, there is still the other possibility of seeking help. - The destitute typically have options other than to violate the rights of the well-off. Ought implies can is satisfiable by the moral imperative that the poor ought to seek help, not loot. There is then no injustice in the rich preventing the poor from seeking such loot by violating the right to private property. Ought implies can is fully satisfied if the poor can take the kind of action that could gain them the satisfaction of their basic needs, and this action could well be asking for help. - The bulk of poverty in the world is not caused by natural disaster or disease. Rather it is political oppression, whereby people are not legally permitted to look out for themselves in production and trade. The famines and poverty are not the result of charity but of oppression. It is the kind that those who have the protection of even a seriously compromised document and system protecting individual negative rights, do not experience. To ameliorate such hardship, it is necessary to be free of others oppression, not to be free to take other peoples belongings. - Charity or generosity is not a categorical imperative.
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others from reaching the higher levels of the hierarchy through their own merit. No one can forfeit this equality other than through some crime of his own, for no legal transaction can make him cease to be his own master. He can be considered happy in any condition so long as he is aware that, if he does not reach the same level as others, the fault lies either with himself, or with circumstances for which he cannot blame others. 3. the independence of each member of a commonwealth as a citizen in the question of actual legislation, all are free and equal under existing public laws, but not as regards the right to make these laws. Those who are not entitled to this right are nonetheless obliged to comply with these laws, and likewise enjoy their protection, for all right depends on laws. A public law is the act of a public will, from which all right proceeds, and which must itself be unable to do injustice to anyone. This requires the will of the entire people (since all men decide for all men and each decides for himself), for one can never act unjustly toward oneself. The basic law, which can only come from the general, united will of the people, is called the original contract. The only qualification required by a citizen is that he must be his own master, and must have some property (which can include any skill, trade, fine art or science) to support himself. If he must earn his living from others, he must earn it by selling that which is his, and not by allowing others to make use of him; for he must serve no one but the commonwealth. In this respect, artisans and large or small landowners are equal, and each is entitled to one vote only. The number of those entitled to vote on matters of legislation must be calculated purely from the number of property owners, not from the size of their properties. Those who possess the right to vote must agree unanimously to the law of public justice. An entire people, however, cannot be expected to reach unanimity, but only to show a majority of votes (and not even of direct votes, but simply the votes of those delegated in a large nation to represent the people). Thus the actual principle of being content with majority decisions must be accepted unanimously and embodied in a contract; and this itself must be the ultimate basis on which a civil constitution is established. Conclusion We need not assume that this contract actually exists as a fact, for it cannot possibly be so. It is merely an idea of reason, which nonetheless has undoubted practical reality; for it can oblige every legislator to frame his laws in such a way that they could have been produced by the united will of a whole nation, and to regard each subject as if he had consented within the general will. This is the test of the rightfulness of every public law. If the law is such that a whole people could not possibly agree to it, it is unjust; but if it is at least possible that a people could agree to it, it is our duty to consider the law as just. If a people, under some existing legislation, were asked to make a judgment which in all probability would prejudice its happiness, they can do nothing but obey. No generally valid principle of legislation can be based on happiness. The doctrine that salus publica suprema civitatis lex est retains its authority, but the public welfare which demands first consideration lies in the legal constitution which guarantees everyone his freedom within the law, so that each remains free to seek his happiness in whatever way he thinks best, so long as he does not violate the freedom and rights of his fellow subjects.
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- Another side of justifying a particular description of the original position is to see if the principles which would be chosen match the considered convictions of justice or extend them in an acceptable way. - Reflective Equilibrium > A description of the initial situation that both expresses reasonable conditions and yields principles which match considered judgments duly pruned and adjusted. > It is an equilibrium because at lat principles and judgments coincide; and it is reflective since it is known what principles judgments conform and the premises of their derivation. > But this equilibrium is not necessarily stable. It is liable to be upset by further examination of the conditions which should be imposed on the contractual situation and by particular cases which may lead us to raise judgments. Two Principles of Justice - The 2 principles of justice that would be chosen in the original position: 1. Each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others. 2. social and economic inequalities are to be arranged so that they are both a. reasonably expected to be to everyones advantage b. attached to positions and offices open to all - The 2 principles are a special case of a more general conception of justice that can be expressed as follows: > All social values liberty and opportunity, income and wealth, and the bases of self-respect are to be distributed equally unless an unequal distribution of any, or all, these values is to everyones advantage. - Injustice is simply inequalities that are not to the benefit of all. - The 2 principles are at least plausible conception of justice. The question is how one is to argue for them more systematically. - One can work out their consequences for institutions and note their implications for fundamental social policy. - One cal also try to find arguments in their favor that are decisive from the standpoint of the original position. It is useful as a heuristic device to think of the 2 principles as the maximin solution to the problem of social justice. - There is an analogy between the 2 principles and the maximin rule for choice under uncertainty. - This is evident from the fact that the 2 principles are those a person would choose for the design of a society in which his enemy is to assign him his place. - The maximin rule tells us to rank alternatives by their worst possible outcomes: we are to adopt the alternative worst outcome of which is superior to the worst outcomes of the others. - The term maximin means maximum minimorum; and the rules directs our attention to the worst that can happen under proposed course of action and to decide in the light of that. The Final Formulation of the Principles of Justice First Principle - Each person is to havean euqal right tot eh most extensive total system of equal basic liberties compatible with similar system of liberty for all. Second Principle - Social and economic inequalities are to be arranged so that they are both:
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First Priority Rule (The Priority of Liberty) - The principles of justice are to be ranked in lexical order and therefore liberty can be restricted only for the sake of liberty. There are two cases: a) A less extensive liberty must strengthen the total system of liberty shared by all; b) A less than equal liberty must be acceptable to those with the lesser liberty. Second Priority Rule (The Priority of Justice over Efficiency and Welfare) - The second principle of justice is lexically prior to the principle of efficiency and to that of maximizing the sum of advantages; and fair opportunity is prior to the difference principle. There are two cases: a) An inequality of opportunity must enhance the opportunities of those with the lesser opportunity; b) An excessive rate of saving must on balance mitigate the burden of those bearing this hardship. General Conception - All social primary goods liberty and opportunity, income and wealth, and the bases of self-respect are to be distributed equally unless an unequal distribution of any or all of these goods is to the advantaged of the least favored.
use to develop principles that favor his or her own particular circumstances, in other words the knowledge that makes for and sustains prejudices, the principles chosen from such a perspective are necessarily fair. For example, if one does not know whether one is female or male in the society for which one must choose basic principles of justice, it makes no sense, from the point of view of self-interested rationality, to endorse a principle that favors one sex at the expense of another, since, once the veil of ignorance is lifted, one might find oneself on the losing end of such a principle. Hence Rawls describes his theory as justice as fairness. Because the conditions under which the principles of justice are discovered are basically fair, justice proceeds out of fairness. In such a position, behind such a veil, everyone is in the same situation, and everyone is presumed to be equally rational. Since everyone adopts the same method for choosing the basic principles for society, everyone will occupy the same standpoint: that of the disembodied, rational, universal human. Therefore all who consider justice from the point of view of the original position would agree upon the same principles of justice generated out of such a thought experiment. Any one person would reach the same conclusion as any other person concerning the most basic principles that must regulate a just society. The principles that persons in the Original Position, behind the Veil of Ignorance, would choose to regulate a society at the most basic level (i.e., prior even to a Constitution) are called by Rawls, aptly enough, the Two Principles of Justice. These two principles determine the distribution of both civil liberties and social and economic goods. The first principle states that each person in a society is to have as much basic liberty as possible, as long as everyone is granted the same liberties. That is, there is to be as much civil liberty as possible as long as these goods are distributed equally. (This would, for example, preclude a scenario under which there was a greater aggregate of civil liberties than under an alternative scenario, but under which such liberties were not distributed equally amongst citizens.) The second principle states that while social and economic inequalities can be just, they must be available to everyone equally (i.e., no one is to be on principle denied access to greater economic advantage) and such inequalities must be to the advantage of everyone. This means that economic inequalities are only justified when the least advantaged member of society is nonetheless better off than she would be under alternative arrangements. So, only if a rising tide truly does carry all boats upward, can economic inequalities be allowed for in a just society. The method of the original position supports this second principle, referred to as the Difference Principle, because when we are behind the veil of ignorance, and therefore do not know what our situation in society will be once the veil of ignorance is lifted, we will only accept principles that will be to our advantage even if we end up in the least advantaged position in society. These two principles are related to each other by a specific order. The first principle, distributing civil liberties as widely as possible consistent with equality, is prior to the second principle, which distributes social and economic goods. In other words, we cannot decide to forgo some of our civil liberties in favor of greater economic advantage. Rather, we must satisfy the demands of the first principle, before we move on to the second. From Rawls' point of view, this serial ordering of the principles expresses a basic rational preference for certain kinds of goods, i.e., those embodied in civil liberties, over other kinds of goods, i.e., economic advantage. Having argued that any rational person inhabiting the original position and placing him or herself behind the veil of ignorance can discover the two principles of justice, Rawls
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hypotheticalization is employed, it seems to be proposed that I can be bound by agreements that others, different from me, would have made. It is like saying that I ought to be bound to respect S on account of your having agreed to be bound by S. While it might (though it needn't) be reasonable to suppose that I can be bound by agreements that I would myself have entered into if given the opportunity, it is just crazy to think that I can be bound by agreements that, demonstrably, I wouldn't have made even if I had been asked. Rawls's solution to this problem reflects the complexity of his original position argumentation and the idea of reflective equilibrium which it depends on. In effect, Rawls identifies two contracts, one framing the other. The first contract is one that, as we actually are, each of us makes with the surrogate who is to represent us in secondstage contractual reasoning. As I am, I agree that the question is NOT "Do I agree as I actually am to S?" but, instead, "Would I agree if I were ___ to S?", or, in other words, "Will I be bound by agreements that will be made in respect of S by my idealized surrogate (or better self)?" Once I have answered "Yes" (of course hypothetically; there is no actual survey) to the first, framing question, I will be bound to the demands of S so long as my idealized surrogate -- the subject of the second, framed (and still hypothetical) contractual question -- says "Yes" to the system S of social arrangements. (This is what Rawls meant when he characterized the parties to the original position as trustees for the interests of you and me.) Crudely, the reasoning runs as follows. I agree to be represented by X for certain purposes; X agrees that the system S is a legitimate one; hence I am bound by this system, for my trustee has agreed to it on my behalf -- this is one of the purposes for which s/he was to represent me. As Rawls said (1999, p.514): "Finally, we may remind ourselves that the hypothetical nature of the original position invites the question: why should we take any interest in it, moral or otherwise. Recall the answer: the conditions embodied in the description of this situation are ones that we do in fact accept. Outline PART I the theory of justice: the aim Aim of the theory is to find principles of justice. The principles are to apply to the 'basic structure' - the institutions and processes - that form the basis of society. The principles are to provide 'a way of assigning rights and duties in the basic institutions of society and they define the appropriate distribution of the benefits and burdens of social cooperation.' - Rawls the 'original position' Rawls argues that the principles that should govern the basic structure of society are those that would be chosen in an imaginary 'original position'. In this position, rational agents choose principles behind a 'veil of ignorance'. The 'original position' thus looks like a hypothetical contract. the principles 1 [Liberty principle] 'Each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all.' 2 'Social and economic inequalities are to be arranged so that they are both:(a) [Difference principle] to the greatest benefit of the least advantaged, consistent with the just savings principle, and (b) [Opportunity principle] attached to offices and positions open to all under conditions of fair equality of opportunity.'
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List p122 includes classical utilitarianism, maximising average utility, various perfectionist principles and some mixed ones. List omits distribution according to need or to desert, and libertarianism. Rawls discusses libertarianism Original position central to Rawls's theory The specification of the OP choice situation is such that whatever principles are chosen from the OP choice situation must be just principles. Rawls writes: 'We want to define the original position so that we get the desired solution. If a knowledge of particulars is allowed, then the outcome is biased by arbitrary contingencies'. PART III The role of the original position Epistemological - Imagining what would be chosen in the OP a useful way to discover what justice requires. Justificatory - Just as Hobbes and Locke's contract theories try to justify our obligations to government, the OP justifies the two principles of justice using a hypothetical contract. Explicatory - Maybe just useful demonstrative tool allowing Rawls to lay out neatly the assumptions underlying his principles of justice. The hypothetical contract Not like a real contract. Real contract: actual people sit down to discussion, complete with interests and life plans and prejudices and various failures of rationality. Each person signs up to such a contract because overall, given interests and life plans and so on, he or she thinks the contract will benefit him or her. Rawls' hypothetical contract Doesn't really happen, so hypothetical. Contractors are idealised in terms of rationality and lack of certain knowledge. Choice from OP unanimous. He writes: 'we can view the choice in the original position from the standpoint of one person selected at random. If anyone after due reflection prefers a conception of justice to another, then they all do, and a unanimous agreement can be reached.' Problem - Does the hypothetical choice of the two principles in the OP show us that we owe any allegiance to the two principles? - Problem whether the original position justifies the acceptance of the two principles of justice. - Remember our worries about hypothetical contracts last week. Objections to the OP 1. Veil of ignorance. Some people think the point of political bargaining is to use what you have - talent, money and so on - to bargain for what you can get. 2. Envy. People in the OP are not envious. Real people are, of course, they don't like others having more than they do. Defense of Rawls
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By Rickard Miller
*basically the article is a critique of Rawls difference principle
prof. florin
OVERVIEW - certain aspects of Marxism would preclude the requisite agreement to uphold the difference principle throughout different circumstances of justice - the contractual commitment would not be made if some societies in the circumstances of justice display the following three features: 1. no social arrangement that is acceptable to the best-off class is acceptable to the worst off class - According to Marx, there is no social contract that the best-off class and the worst-off class will agree in. - This reflects the peoples rational pursuit of self-interests. Moreover, improvements of the relative position of the worst-off class cannot be brought about by any appeals to he universal sense of justice. 2. the best-off class is a ruling class (one whose interests are served by the majorpolitical and ideological institutions) - 2 aspects of this rule, the repressive and the ideological - official instruments of coercion are employed , in almost all crucial instances of class conflict, in favor of the best-off class. - Ideological institutions help to maintain the special status of the best-off class. 3. the need for power and wealth typical of the best-off class is much more acute than that of the rest of society - the need for power and wealth of a typical member of the best-off classis sufficiently great that such a person would be miserable if his society were transformed to accord with the egalitarian demands of the difference principle. ON THE DERIVATION OF THE DIFFERENCE PRINCIPLE - marxists would claim that the best-off people in an exploitative society cannot be made to gie up their privileges except by force. If the Marxist theory is right, someone in the original position would foresee that the difference principle may be intolerable to him, if he turn out to be a typical member of the ruling class. - Rawls: difference principle is a principle of mutual benefit > Such reasoning is inadequate when the best-off class is a ruling class in an exploitative society. A ruling class can, for centuries, maintain as much cooperation as it needs, because ideological institutions serves its interests, while restraining most who do not cooperate and dissuading most of who are tempted not to, y employing the coercive status of the state. Thus, if the best-off are sometimes the ruling class, someone in the riginal position would foresee that if he turns out to be one of the best-off, his interests may not lie in the realization of Rawls standard of social justice - If the exploitive ruling class Marx describes existed, the reasoning about the strains of commitment that Rawls uses against utilitarianism would also count against a commitment to help realize the difference principle immediately or as soon as the veil of ignorance is lifted. - It might still seem possible that that the argument from the strains of commitment might persuade one to help maintain some gradual course of development toward full realization. But if the exploitive ruling class existed, an argument from the strains of commitment would not in fact support a gradualist commitment to the difference principle. Any rate of change is either too fast for the best-off or too slow for the worstoff. The best-off would not accept an advance toward equality beyond a certain limit.
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- Legal Realism: Realists claimed to do science better and contended that the judicial method embraced by Scientific Jurisprudence was legal magic and word-jugglery. Argued that law is indeterminate. Legal reasoning can rarely be said to require a particular result in a given case. This is the indeterminacy argument. Related to the skeptics view of law. > much of the attack on CLS is based on the movements embrace of the indeterminacy argument. - Indeterminacy Argument: a claim that for virtually every rule there is a counterrule, some lawyerly gambit available to put the legal question at issue in equipoise. > If legal cases maybe plausibly argued either way on the basis of legal rules, then how can the judge choose between the competing claims of the parties? : - Realists: embrace the view that legal questions are social policy questions, even if the judges and lawyers are unaware of such fact. They would decide those questions based on their psychological, sociological, economic assumptions, and rationalize their decisions by invoking legal rules and principles. Realists conclude that judges should consciously and frankly engage in sophisticated and fact-sensitive social science so they can make better policy. - Response to the Realist critique: Legal academia and the establishment bare were threatened by a school of thought that viewed judging as mere policy-making, rather than the analytic reasoning that Scientific Jurisprudence had envisioned. - Fischl makes 2 points, regarding the Realists legacy in mainstream legal thought, and the Realists continuing influence on modern legal theory: 1. Principal legacy of Legal Realism for mainstream legal thought is the introduction of social policy analysis as an indispensable element of sophisticated legal reasoning and argument, but in a form the bears precious little resemblance to the far subtler version the Realists had in mind. Policy analysis as we practice it today is every bit as indeterminate as the legal rules it would supplement. 2. The Realist critique has served as the starting point for most serious legal theory in the latter half of the century. The argument that legal rules cannot, of themselves, decide cases, is well accepted. But so is the blief that there is still something special about the nature of legal reasoning, something makes it neutral and objectivem distinct from politics and ideology. As a result, most legal theorists outside of CLSbelieve law is different from politics but disagree as to any plausible basis for that belief. - CLS Explained: Where does CLS fit in all of this? It combines a progressive political critique with a skeptical jurisprudence. The skeptical jurisprudence rejects altogether the possibility of neutral judicial decision making. The very nature of legal discourse is connected to human experience and interaction. > whenever a judge is called upon to construe the meaning of a text or a private agreement between citizens, she will have to make a value judgment about the merits of the dispute that brings the parties to court. The only question is whether she will do so consciously and openly. - Another difficulty with the image of the law as neutral and apolitical, aside from the problem of interpretation: What we think of as natural forms of human association are often simply a reflection of unexamined social conventions that are embodied in and reinforced by the law. > the current situation is a choice, not a natural or necessary phenomenon. It only seems natural because of our habits. A major aim of CLS is to open up such subjects to democratic examination and debate. 2 challenges to CLS:
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The issue of nihilism is really a dispute over this fundamental premise: that reason can adjudicate value conflicts and that it is both possible and necessary to justify legal rules and institutions on the basis of determinate and objective decision procedures. Internal Critique Critical Legal Scholars claim- law or rights or legal theory is indeterminate. Legal theory is infinitely manipulable. (An empirical claim and an internal critique that uses the premises of traditional legal theory against itself). - Questions: If legal reasoning does not determine the outcomes, what does? And if that something else determines outcomes, why isn't that just legal reasoning by another name? - Indeterminacy is a claim about legal doctrine. Doctrine is an ambiguous term that includes both legal rules and arguments. Rules - principles used to justify the result directly. Arguments - they support more specific rules or standards which are said to determine the result. - A legal theory or a legal rule is determinate if it tells us what to do. A completely determinate theory or rule will leave us no choice; a relatively determinate theory or rule will constrain our choices, more or less narrowly, within boundaries. The claim that a legal doctrine is indeterminate means that the doctrine allows choice rather than constraining or compelling it. - Current way of thinking about law: we have to draw lines between principles and counter- principles, determine the scope of existing rules, and decide whether to change the rules. - Determinacy - necessary to the ideology of the rule of law. It is the only way judges can appear to apply the law rather than make it. - Determinate rules and arguments are desirable because they restrain arbitrary judicial power. At the same time, determinacy is threatening. Completely determinate set of rules would require judges to apply existing rules mechanically even in unforeseen circumstances where the policy underlying the rule might not apply. Adopting a completely determinate set of rules would therefore substitute one form of arbitrariness (over-and under-inclusiveness of rules) for another (over- broad discretionl). - Indeterminacy, like determinacy, is both desirable and threatening. It is desirable because it allows judges, in generating or applying rules, and juries) in applying flexible standards like due care, to appeal directly to their intuition and fit the law to particular situations. At the some time, indeterminacy is threatening because it appears to allow judges and juries too much discretion. - Legal theories and sets of rules incorporate both determinacy and indeterminacy. Legal doctrine-rules and theories-incorporates both rigid rules and flexible standards, general principles and particular principles. - Traditional legal theory requires a relatively large amount of determinacy as a fundamental premise of the rule of law. Our legal system, however, has never satisfied this goal. - Critique by certain CLS: Theorists and judges are almost always mistaken when they claim that they have discovered a set of arguments that, by itself, provides the requisite amount of determinacy for the legal system. Legal doctrine is far more indeterminate than traditional theorists realize it is. If traditional legal theorists are correct about the importance of determinacy to the rule of law, then by their own criteria, the rule of law has never existed anywhere. Why Legal Doctrine Does Not Compel Our Choices Legal theory or set of legal rules are completely determinate if: comprehensive, consistent, directive and self-revising.
The Player and the Cards: Nihilism and Legal Theory By Joseph William Singer
Nihilism is a philosophy that answers the question What shall we do and how shall we live? with it does not matter just anything goes. - John Irving: nihilism is a religion vastly lacking in seriousness - Nihilism is a central issue of contemporary legal theory - As used in this article, nihilism has both an epistemological and a moral component Epistemological (i.e., theory of knowledge): it is impossible to say anything true about the world; it is impossible or fruitless to describe the world; all possible description are equally invalid because we cannot be sure that any description is reliable Moral (i.e., theory of morality): there is no meaningful way to decide how to live a good life; any action may be described as right or wrong, good or bad; since we cannot know what to do, it does not matter what we do The issues raised by the Critical Legal Studies (CLS) movement have brought nihilism to center stage. - CLS: law is not apolitical and objective; the ideology of legal reasoning is used to make our institutions appear natural and our rules appear neutral - CLS: focuses on three topics: (i) law varies according to time and place; (ii) legal reasoning is indeterminate and contradictory; and (iii) law is not neutral (it legitimizes configurations of economic and political power) - CLS: legal reasoning is a way of simultaneously articulating and masking political and moral commitment Traditional legal theorys (TLT) critique of CLS: CLS embraces nihilism If it is true that legal reasoning is indeterminate or incoherent and that its claims to objectivity are false, two problems arise: (i) on an individual level, the question is how can we know what we should do and how we should live?; what makes one persons values better than anyone elses values?; and (ii) on a social level, the question is whether it is possible to set up a legal system based on the rule of law.
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Second, because they are based on relatively controversial values about which we do not expect unanimity. Those decisions are arbitrary'' not because they are unconsidered, but because they vary depending on the decisionmaker's beliefs. nd - The 2 kind of arbitrariness does not, by itself, make prediction impossible. Decisions that are not determined by a coherent theory, but which are considered, may be predictable if we know enough about the context in which the decision is made. - This CONTEXT includes the institutional setting, the customs of the community, the role of the decisionmaker, and the ideology of the decisionmaker. (Ex. How are issues on sex education and contraception dealt with in the Philippines, considering the highly religious context?)Legal doctrine is a part of this context, and both influences and is influenced by it. - Several reasons why an understanding of the legal context may enable us to predict legal results: First, an existing structure of legal argumentation orients thought according to a predictable scheme. Example: as long as we think of the separation of powers as governing solely the relations among the judiciary, the legislature, and the executive, we are unlikely to view corporations as repositories of sovereign power and include them in considerations of how to balance power among governmental institutions. Second, that orientation of thought limits the number and variety of perceived ways to resolve conflicts. Example: as long as we think of labor law as a set of rules and institutions to govern collective bargaining between unions and employers, we are unlikely to consider the remedy of employee ownership of large enterprises. Third, the choices made by judges or legal theorists are often predictable because these decisionmakers share a legal culture. Judges more likely to fit cases within the rule than the exception. - Legal doctrines are always potentially indeterminate. Judges can move the line between rules and exceptions, or create new exceptions. Ultimately, judges always have the power to revise the rules. That judges may do these things, however, does not mean they will do them. Because judges participate in a legal culture that suggests how they are to act as judges, we can often predict how they will act. - The legal culture shared by judges and theorists encompasses shared understandings of proper institutional roles and the extent to which the status quo should be maintained or altered. This culture includes common sense'' understandings of what rules mean as well as conventions (the identification of rules and exceptions) and politics (the differentiation between liberal and conservative judgesl. - To the extent legal decisions are predictable, they can be explained by legal culture. This does not mean that legal decisions are completely predictable. On many issues, no conventions are available. Many other issues are outside mainstream political controversy and therefore we cannot predict what individual judges will think about them. It is precisely because of these uncertainties as well as gaps in the legal rules, and because legal reasoning is indeterminate and manipulable, that judges often surprise us by using existing arguments to justify results that we did not expect. - For a legal theory to appear to determine results, one of two tricks must be used. First, the theorist can define criteria for rule choice or can define a rule that is sufficiently specific that there will be little or no disagreement about the result it suggests. Second, the theorist can make a series of limiting assumptions that so narrow the field of choice as to make a principle appear to determine outcomes.
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legislative reports, executive orders) that have been promulgated by some authoritative governmental source, and with unwritten rules that are accepted by the sovereign as having coercive power. - Ronald Dworkin (modern rights thinkers) tend to equate law with rights that individuals simply have, regardless of whether the state has promulgated any authoritative expression of those rights. - Concept of Accurate Representation assumes that law is a matter of knowledge rather than judgment. Law is something that can be perceived; it does not have to be created. *The Author rejects the view that legal rules are legitimate if they accurately represent some external source. It is wrong to turn discretionary normative decisions into non-discretionary descriptions. Such theories mystify us by obscuring important facts. To figure out how we should act and live together, we must make moral choices. 2. Accurate representation and the problem of method. - Legal theories that purport to provide a substantive foundation for legal rules assume that we can know what the legal rules should be by describing such things as the Constitution or rights. Positivists point to the Constitution, meaning both the text of the authoritative document and the unwritten rules that judges recognize as having coercive powering. Rights theorists point to nature or reality or consensus or reason or some combination of those. The problem is that both the Constitution and rights are too general to describe accurately without saying much more about them. Legal theorists who rely on the metaphor of accurate representation therefore become obsessed with the problem of method. This preoccupation with polishing makes substantive theories resemble theories that are based solely on method. Rhetorically, substantive theories of law are quite different from purely procedural theories. Substantive theories: The goal of substantive theories is to represent accurately substantive rules that exist somewhere. The substantive theory assumes that right rules exist and that we can find them. Procedural theories: Theories that are based solely on identifying an objective decision procedure do not assume that any particular right answer exists. A procedural theory assumes that no rule is right apart from a method; the right method yields the right rule.
Decision Procedures 3. Legal reasoning. When legal scholars claim that legal reasoning is justified only if it is objective, they have at least two points in mind: First, they distinguish between subjective, personal preference, and objective, interpersonal validity. The subjective/objective dichotomy assumes that a basic distinction exists between opinions that are merely a matter of personal preference about which we do not expect agreement, and opinions that are intersubjectively valid and about which, as a result, we do expect intelligent persons of good will to be able to agree. Moral views are intersubjectively valid if they are views that everyone who thought about moral issues from a legitimate common perspective. Proponents of procedural objectivity expect agreement not
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decision procedure, and human beings simply do not have an innate thinking process that unites us all in a common framework of inquiry. - The second possible meaning of objectivity is normal discourse. Normal discourse is that which is conducted within an agreed-upon set of conventions about what counts as a relevant contribution, what counts as answering a question, what counts as having a good argument for that answer or a good criticism of it. Abnormal discourse is what happens when someone joins in the discourse who is ignorant of these conventions or who sets them aside. - Under this view, the word objective'' is an empty compliment we confer on principles with which we agree. The compliment is empty because it is circular: People accept a legal rule if it is based on objective principles; objective principles are principles those people accept; people therefore accept the legal rule because they agree with it. - To escape this circle, it is necessary to believe that human beings possess an overeating and antecedently existing rational method that tells us how to decide legal or moral questions. This is the belief that reason can adjudicate value conflicts. But we have no antecedently existing rational method to determine whether people are justified in accepting the criteria they accept. We can judge the criteria that others accept only by whatever criteria we accept. If they do not accept our criteria, there is no way to prove that they are wrong. 5. Rational consensus - Rational consensus assumes not only that if reasonable people talk long enough they will agree on the criteria for determining the legal rules but that reason will generate an accurate picture of our society's rational consensus. - This procedure combines the metaphor of accurate representation and the metaphor of a decision procedure. We are trying to generate an accurate picture of the considered judgment of the community; at the same time, we are trying to figure out what the considered view of others would be if everyone thought in a sufficiently rational way. - It repeats, rather than resolves, the subjective/objective dichotomy. - Rational agreement appears both objective and subjective because it combines two competing foundations for legal theory: consensus and reason. These are the two-and the only two-foundations that have been proposed by traditional legal theorists to provide the objective procedure for legal reasoning. - Consensus is a necessary basis for the liberal society because governments derive their just powers from the consent of the governed. The laws governing us therefore cannot be legitimate unless we somehow agree to them, either through custom or legislation. - Consensus theorists acknowledge, however, that consensus alone is an insufficient basis for government and law. Everyone could agree to some- thing horrible, like slavery. * Rousseau's version, a participant in the social con- tract seeks the good of everyone, not just herself. This ensures the proper limits to individual selfassertion. * Rawls' version, a participant in the social contract seeks her individual goals under certain conditions that will ensure an enlightened outcome. - Consensus theories incorporate the second foundation for legal theory - reason. The social contract never took place; it is an intellectual construct designed to help us determine, not what other people around us think, but what reasonable people of adequate experience would think if they followed a rational decision procedure. - We must be able accurately to describe rational consensus if it is to provide an objective basis for our moral or political views, or for legal rights. If we cannot
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- Viewing legal theory in this way will allow us to exorcise the wrongful expectation that some politically neutral, apostolical method can generate answers to questions about what the legal rules should be. - Moreover, we cannot respond adequately to problems faced in life by generating abstract moral categories. Discussion of moral and legal choices must focus on the rich context in which those problems occur. - As Robert Gordon argues, we need into unfreeze the world as it appears to common sense as a bunch of more or less objectively determined social relations and to make it appear as (we believe) it really is: people acting, imagining, rationalizing, justifying. It may indeed be useful to develop general models to describe social life. - But when it comes time to make decisions, we should recognize that we are making decisions rather than discovering ourselves. In making those decisions, it is right to focus on the particular social context, to decide whether our descriptive model actually applies in that case and whether we are allowing the model to turn our attention away from facts that we would otherwise consider to be important. 2. Law and politics. a. Private Realm versus Public Realm. - Differing value systems cause political and moral disagreement, but disagreement in law is explained by the claim that one or the other party to the controversy has made a mistake, not by reference to conflicting values. - It is now possible to outline the relationships among the concepts of determinacy, objectivity, and neutrality. Traditional theorists think of neutrality as the allowance of arbitrary freedom of action (legal liberty) within state-imposed limits (legal rights and duties). The limits on free actions are legitimate because they are both determined by and based on objective criteria. - This simple picture breaks down, however. Both the concept of determinacy and the concept of objectivity repeat within themselves the subjective/objective dichotomy that characterizes the concept of neutrality. - The subjective element of neutrality is the idea of legal liberty: Individuals should be allowed to pursue their own conceptions of happiness, whatever they are. The objective element of neutrality is the idea of legal rights or duties: Principles about which everyone should be able to agree impose limits to freedom of action. In this view, both determinacy and objectivity appear to be objective''. However, prevalent notions of what determinacy and objectivity mean contain potentially contradictory qualities. - Therefore, the notions of determinacy and objectivity both support and undermine the central premise of the liberal social contract view of the state, the notion of neutrality. All three concepts can be subdivided into components that non be characterized as either objective or subjective: neutrality (pursuit of happiness v. rational legal rules); objectivity (reason v. consensus); determinacy (rigid rules v. flexible standards). All three notions repeat within themselves the contradictions they were intended to resolve. b. Transcending the Dichotomies. While there is no way to prove that the distinctions between reason and desire, and between law and politics, are false, it is possible to argue that those dichotomies no longer serve a useful function. They are no longer useful because they obscure important facts. First, those distinctions obscure the extent to which views of the appropriate area of freedom determine what limits on freedom of action are allowable. The notion of the right to pursue happiness obscures the fact that it includes within itself contradictory principles: freedom and control.
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- Nonetheless, rejection of the metaphors of accurate representation and decision procedures does not logically require us to become agnostic about all our moral and political values. Adoption of the metaphor of conversation does not logically commit us to anything in particular. It does, however, allow us consciously to assume responsibility for what we do. 2. The substance of nihilism. As a normative theory, nihilism is not contentious. Nihilism as a moral theory is not simply a negation of every other theory; it is, instead, the view that it does not matter what we believe, and that no one is entitled to say that anyone else is wrong. Traditional legal theorists fear that adopting the metaphor of conversation as a description of legs reasoning logically requires the moral vacuum of nihilism. But that metaphor hardly requires such a substantive result; it also does not require the various consequences commonly assumed to flow from it-indifference, personal imposition, majority rule, totalitarianism, or doing just what you like. 3. Incoherence. The idea that our moral beliefs are neither grounded in nature or reason nor logically derived from general principles does not force us to adopt nihilism; we are not required to believe that we should have no beliefs or that it does not matter what we believe. People can hold moral beliefs deeply without believing that they are true'' or ungrounded in reasons: Our legal and philosophical discourse has confused the issue of whether a belief is justified with the issue of whether it is trueness Many fear that if we give up the idea of rational decision procedures, nothing will be left. But the metaphor of conversation does not require us to become indifferent to what happens around us. It could require indifference only if morality required decision procedures. But morality cannot require anything because it is an abstraction, and abstractions are what we make them. Virtue may not be knowledge, but it certainly is not callous indifference. Why? Because I assert it to be so. What we do and believe matters. It does not matter that I cannot prove this to be so; what matters is the human assertion of responsibility. 4. Personal imposition. Giving up the metaphor of rational decision procedures also does not mean that judges will impose their personal views of the good life on others. It is true, however, that judges impose their personal views of law. It could hardly be otherwise. Judges do not all agree on what the legal rules should be. Enough dissents are written to demonstrate this. Under the traditional view, disagreement is evidence of mistake on one side or the other. In my view, disagreement is evidence of disagreement about what the rules should be, and nothing more. 5. Majority rule. Majority rule possesses no privileged position in a moral skeptic's universe. The fear of judicial tyranny is that, in the absence of objective and principled limits on what judges do, judges will interfere too much with the legislature. The lack of a principle-moral skepticism-cannot logically require acceptance of the principle of deference to the majority. The answer to this conundrum is for judges to resort to ad hoc, contextualized judgments about the division of power between judges and legislators. Sometimes judges should defer to the expressed will of the legislature; at other times they should overrule it. Sometimes judges should fail to provide remedies for injured plaintiffs in the absence of any legislative direction; at other times, they should provide remedies without waiting for legislative action. Judges have to make judgments about the proper exercise of their power in specific cases. 6. Totalitarianism. Giving up the idea that reason can adjudicate value conflicts does not require us logic-ally to support either unlimited governmental power or unlimited legislative power. It simply requires us to make judgments about the legitimacy of various exercises of govern- mental power. 7. Doing just what you like. The horror of people doing just what they like is based on two ideas. The first is that what people really like is doing horrible things to each other. If we let them do just what they like, they will all choose to be awful to each
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- We are not destined to live in a world in which we must choose between believing in some ultimate permanent foundation for law and morality (rationalism) or believing that all views are as good as all others and it does not matter what we believe or do (nihilism). We need to get over the feeling that a view is either one that all persons should accept because it is grounded in reality or it is just your opinions. The fact that contemporary legal theory is internally contradictory is not, by itself, something to bemoan. - The contradictory principles in legal reasoning accurately reflect the fact that we have conflicting goals and we are not at all sure how to reconcile them. Traditional legal theory is objectionable, not because it is contradictory, but because it claims to give us determinate, objective, and neutral decision procedures to resolve the contradictions. - None of these things is true: Legal theory is far more indeterminate and open-ended than its adherents claim, and it expresses controversial political and moral commitments rather than universal principles grounded in human rationality. - We redraw a line between competing principles and then create a theory to describe where we chose to place the line. But the theory does not itself reconcile those values or tell us where to draw the line. To think otherwise is to reify theory, to remove it from human control and to pretend that it is telling us what to do. But it cannot tell us what to do-we created it. As I argued earlier, it can structure our thinking in a way that limits our perception of the available alternatives. But it is important to remember that this is because we structured if to do this. We told ourselves what to do. Criticism cannot magically generate answers. - Internal criticism - criticism that uses a paradigm's criteria against the paradigm itself - merely shows that a certain theory does not do what it purports to do. - On the other hand, external criticism - criticism that challenges the fundamental assumptions of a mode of discourse - also cannot generate answers. Any alternative premises that might be the basis of a new paradigm have already been assumed before the critique began. Thus, the external critique of the old paradigm does not give us anything new except a striking contrast with the new paradigm we have already invented. - Traditional legal theorists have assumed that the goal of theory is to generate answers. It is possible to caricature this view of theory as the belief that important questions about life can be answered by use of a formula, a mechanical decision procedure. - However, the sophisticated versions of this view of normative theory are not mechanical at all: They explicitly account for the active role of the theorist in decisionmaking. They even combine in ingenious ways elements of both determinacy and indeterminacy, objectivity and subjectivity, to give us the sense that theory constrains our choices only to the extent constraint is desirable and allows innovative judgment and flexibility only to the extent those qualities are desirable. But in the end, all the sophisticated versions of theory that seek to describe it as a decision procedure based on a sure foundation are supremely unconvincing; they cannot convince precisely because they are so sophisticated. - The dilemma comes down to this: For a theory to generate answers, it must be mechanical, yet no mechanical theory can render an adequate account of our experience of legitimate moral choice. We cannot even escape the dilemma by trying to make some of our choices mechanical and some open- ended. - Expressive theory emphasizes the active role of the theorist in deciding how to characterize situations, and in deliberating, conversing, introspecting, and judging. It also emphasizes the communal nature of theory and its complex relations with social life. The kernel of truth in the idea of rational consensus is that all ideas and actions involve relations among people.
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- We should alter the social conditions that cause loneliness. Loneliness as a quality is a bit tricky, a bit hard to define. In another mood, I would call it alienation. But loneliness has a sharper bite to it; it is more evocative. We have separated our lives into the public realms of the market and politics, in which we wage Hobbes' war of all against all, and the private realms of family, friendship and religion, in which we practice cooperation and community. On a small, local scale, our public lives should some- how come to resemble our private lives more closely. I do not know how we can accomplish this. But the loneliness of the world of the market is wrong.
QUEER THEORY
The Trouble with Normal By Michael Warner
THE ETHICS OF SEXUAL SHAME - Almost everyone fails to control his/her sex life. - Theres also the urge to control someone elses sex life through harmful or coercive sex, etc. We do this through prohibition or regulation. - Sex is a disgrace. Shame is never out of the picture. Diogenes thought that the sense of shame was hypocrisy, a denial of our nature. He masturbated in the marketplace. - An ethical response to shame should not require us to pretend that shame doesnt exist. - Sex: most people dont like it because in sex, they lose control, they merge ones consciousness with the lower orders of animal desire and sensation. - Moralists paint a pastoral picture of sex when they pretend that sex is or should be only about love and intimacy. It is futile to deny the ordinary power of sexual shame. - How do we get rid of sexual shame? Get rid of sex. But this is not the question. Rather, what do we do with our shame? Pin it on someone else. - Although nearly everyone is embarrassed about sex, some stand at greater risk than others. Theyre stigmatized as deviants or criminals. - For most people, the ethical response to sexual shame seems to be more shame. - Pronouncements about what kind of sex is or isnt good for others are by no means a thing of the past. Religion still invokes biblical authority over alleged sex offenders. Secular arguments persist as well. HIERARCHIES OF SHAME - The politics of shame distorts everything. The official gay movement has lost sight of that politics becoming more and more enthralled by respectability. Instead of broadening campaign against sexual stigma beyond sexual orientation, it has narrowed its scope to issues of sexual orientation that have least to do with sex. It has turned into an instrument for normalizing gay men and lesbians. - Sex has a politics. Hierarchies of sex sometimes serve no real purpose except to prevent sexual variance. - Criminalization of innocuous behaviors as homosexuality is rationalized by portraying them as menaces to health. - Rubin said people sort good sex from bad sex by hierarchies. (eg: heterosexual is good, homosexual is bad, married is good, unmarried is bad, monogamous is good, promiscuous is bad, etc.)
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mechanism for many rights and privileges. As long as culture considered marriage a right, it was necessary to demand it. - Despite this, gay and lesbian groups didnt pursue marriage as central part of their strategy over the next 20 yrs. - Queer thought both before and after Stonewall rested on ff principles: - Marriage is idealized by mythology. - Diversity of sexual and intimate relations is worthy of respect and protection. - Resist attempt to make norms of straight the standards by w/c queer life should be measured. - Resist notion that state should be allowed to accord legitimacy to some kinds of consensual sex but not others - Morality, respectability, decorum, was a way of regulating sexual pleasures and relations. - It made itself alert to institutions like marriage designed to both reward those inside it and discipline those outside it. - We must consider the unrecognized dignity of these outcasts. - The greatest beneficiaries of gay marriage would be the next generations of homosexual youth because they would have more open role models. MARRIAGE WITHOUT COST - Marriage is an impt personal choice and a basic human right. Whether gays decide to get married or not, it shld be our choice. The issue is not the desirability of marriage, but the desirability of the right to marry. - Marriage has become the central legitimating institution by w/c state regulates and permeates peoples most intimate lives - Dunlaps argument: Whoever gets state support first wins. You are free to pursue other avenues but of course dont blame us if you find yourself stigmatized. Just dont bother us with talk about social justice for the unmarried, because that would deprive married couples right to diversity. - Many gays and lesbians think that marriage is a relationship between 2 people who love each other end of story. But a lawyer knows that love isnt necessary for legally sanction marriage and vice versa. One can be married without love, one can love w/o marrying. Nor is the purpose of legal marriage to make a public statement. You can make a public statement w/o any kind of ceremony. A legal marriage, on the other hand, might be private. - Marriage is a state-conferred legal partnership status. But many gays and lesbians who want marriage seem to focus on the way it confers respectability. They dont even mention the extensive slate of legally enforceable benefits. They assimilate it to the model of coming out. It is driven by expressive need. - The culture of marriage, in fact, thrives on stories of revolt against it. - Wolfson argues we have no right to question lesbians and gays who want marriage. Their desires must be valid because they are just desires. Wolfson is right to reject the idea that gays & lesbians who want to marry are simply imitating straights. But there is also naivete in the implication that false consciousness cannot exist. Wolfson assumes that whatever passes as common sense must be right. - People might marry for all kinds of reason. - Because marriage is one of the constraints on life, to judge its worthiness is not to condemn people in it. Its a public institution, not a private relation. Its ramifications reach as far as the legal force and cultural normativity. - Restriction of marriage to heterosexuals is discrimination, but to combat that inequality requires us to think beyond mere inclusion of gay couples. - Wolfsons view of marriage as personal choice is inadequate to evaluate strategy of pursuing legal marriage because it neglects marriages legal and cultural
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employee not because she was African American but for wearing cornrows, a hairstyle strongly associated with African Americans; and Jespersen v. Harrah's, in which an appellate court upheld the firing of a casino bartender not because she was a woman but because she refused to wear makeup - Covering, Yoshino posits, is "the dark side of assimilation." While he recognizes that assimilation "is often necessary to fluid social interaction, to peaceful coexistence," when it becomes a demand for covering, it becomes a "hidden assault on our civil rights." Within "traditional civil rights classifications like race, sex, orientation, religion, and disability," racial minorities are pressured to "act white," women to act more like men, homosexuals to not "flaunt," the religious to hide their beliefs, and the disabled to keep their impairments out of sight. Note: The specific types of covering that follow arent really all that important. You may skip to the conclusion if you want. RACIAL COVERING - Racial covering occurs when non-whites act white by modulating their behaviors. - Sometimes individuals resist pressure to cover their race, ethnicity, or national origin by bringing lawsuits alleging discrimination. They routinely lose. Examples of such cases include Rogers v. American Airlines (1981), in which an African-American woman was forbidden to wear cornrows, Hernandez v. New York (1991), in which a Latino potential juror was struck for proficiency in Spanish, and several cases which national origin minorities were fired for lapsing into their native tongues in English-only workplaces. The burden should be on the state to demonstrate a compelling reason to foreclose a cultural practice, rather than on the individual to demonstrate that their practice is immutably part of their identity. SEX-BASED COVERING - Discrimination against women has taken a different form from discrimination against other groups. Men have historically cherished women, so long as they conformed to the domestic role. The mind-set through which men limit women in the name of loving them is known as separate spheres -- an ideology under which men inhabit the public sphere of work, culture, and politics, while women inhabit the private sphere of hearth and home. - Today, the most obvious forms of separate-spheres ideology have been abolished. Few places exist where the state or an employer can post a No Women Allowed sign. Nonetheless, this way of thought still has contemporary traces. Men often require women who enter traditionally male workplaces to display the attributes of both spheres. If women are not masculine enough to be respected as workers, they will be asked to cover. If they are not feminine enough to be respected as women, they will be asked to reverse cover. Separate-spheres ideology has continued life in the imposition of these two contradictory demands, which theorists variously describe as a Catch-22, a double bind, or a tightrope. - Women can cover along all four axes: appearance (avoiding feminine clothes, hairstyles, or accessories), affiliation (not having children or not mentioning them if they do); activism (refusing the label feminist, laughing along with sexist jokes); or association (avoiding other women). But women who cover too much are pressed back in the opposite direction, because they violate expectations about how women should behave. Recent workstyle manuals for women tell women that they need to be more feminine to get ahead. - Notable cases in which women failed to get legal redress when forced to cover include Wislocki-Goin v. Mears (1987), in which a woman was fired for being too
Because everyone is outside of the mainstream in some way, we all experience pressure to cover. 3 Yoshino reviles this notion of mainstream, deeming it a myth because mainstream is no more then a shifting coalition of indefinite human identities that struggle for selfexpression
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was published about Muslims in New York City. It reads like a covering ethnography. The piece reports that Muslim private schools are telling children to conceal any religious emblems, and that some Muslim leaders are discussing plans for women to change the way they dress, perhaps exchanging headscarves for hats and turtleneck pullovers. It depicts a woman who, a day after the attack, arrived at a New York City Health Department office demanding bureaucrats change her sons surname from Mohammed to Smith. The article also observes that neighborhoods in New York where you were more likely to see Egyptian, Jordanian, or Syrian flags . . . are now covered in American flags, their Middle Eastern flags discreetly hidden for the time being. Finally, it notes that some Middle Easterners have confessed that they would be happy now to be mistaken for either Hispanics or African Americans. - Significant cases in which religious minorities who resisted the covering demand lost in court include Goldman v. Weinberger (1986), which concerned a Jewish Air Force officer and rabbi who was threatened with a court martial for failing to remove his yarmulke, and Employment Division v. Smith (1990), in which members of a Native American Church were denied unemployment benefits because they had smoked peyote for sacramental purposes. DISABILITY-BASED COVERING One of Erving Goffmans core examples of covering was that FDR would hide his wheelchair behind a desk before his Cabinet entered. Roosevelt was not passing, as everyone knew he was disabled. Rather, he was covering, making sure that his disability faded into the background relative to his more conventionally Presidential qualities. - Individuals with motor-function limitations widely report covering strategies. Jenny Morris notes how some people in wheelchairs use able-bodied people as fronts, relating how she takes her daughter shopping with her for this purpose. Others describe pressure to laugh along with jokes about how much room they take up or whether they have a license to drive a dangerous vehicle. Irving Zola writes about refusing a wheelchair for years to appear normal, and the shock at how much relief he got when he finally used one. - Covering is also rife among individuals disabled in other ways, such as those with visual impairments. In her memoir, Sight Unseen, Georgina Kleege describes dressing meticulously, forgoing a cane, and memorizing passages she was expected to read aloud. Steven Kuusisto writes about hiding his telescopic glasses, pretending he was clumsy, and walking quickly. The most famous instance of a blind person who covered while not passing is Helen Keller, who insisted as a youth on being photographed from angles that hid her protruding eye. She later had her eyes replaced with glass, leading unsuspecting journalists to comment on the beauty of her eyes. Covering in this context often requires individuals to forgo the paraphernalia they need to function. As such, it provides a particularly stark instance of how counterproductive conformity can be. These individuals often pay for the appearance of normalcy not just with psychic repression but also with physical pain. A significant instance in which disabled individuals pressured to cover lost their case is Sutton v. American Airlines (1999). In this case, the Court deemed that individuals would not fall under the protections of the Americans with Disabilities Act if they could correct their disabilities. CONCLUSION - The courts have made the same distinction between being and doing - discrimination based on status is immediately disfavored, but the law does not favor nor protect mutable or correctable behaviors concomitant to the status. In other words, court opts to protect being a member of the group, but not doing or engaging things associated
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common cause. This is the desire for authenticity, our common human wish to express ourselves without being impeded by unreasoning demands for conformity
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institutional constraints that fetter judges and lawyers views of the law. Sometimes the most incisive view of the law is not available to those on the inside of the practice. In this regard, the radical perspectivism of postmodernism might prove useful in fostering new perspectives on the legal system (i.e. by seeing the system from the perspective of criminals, clients, or jurors). THE SHAPING OF LEGAL DISCOURSE AND THE UNSAYABLE - A cardinal virtue of postmodernism-sensitivity to language and its insistence that the individual is shaped by the discourse in which he or she is immersed. -In the context of the legal system, this means that one must ask questions like, Who has the right to set the parameters of legal discourse? Who sets the moves of the legal system? Who decides what can be said and what must be left unsaid? - In The Archeology of Knowledge Foucault explains that social practices (such as law) are perpetuates by a special group of insiders authorized to speak and play specific roles within the practice. - Within the pracice of the law, the players are licensed professionals, law school graduates who have passed the bar exam and been admitted to the bar-they come from a particular stratum (propertied, white, male), though this is changing. - The law as a social and discursive practice has a very rigid set of boundaries which establish what can be said and what is beyond the sayable. The establishment of a private language (so-called legalese) helps to keep the majority of people alienated from the law. Lawyers are restricted in what they can say and do by the rules of the discursive practice of the law, yet they customarily work within this practice and do not stand outside of it. An additional element of restriction-stare decisis - The lack of simplified system makes us question why the present system is too complex for ordinary citizens to seek redress in a court of law. - Postmodernism makes us sensitive to the way in which power relations regulate the production of legal discourse and practice TWO BIG PROBLEMS: EXTERNALITY AND LINGERING FOUNDATIONALISM two limitations of postmodern theory-EXTERNALITY and LINGERING FOUNDATIONALISM - Externality-looking at law from the outside not using its language games - problem is that we will not come up with positive jurisprudence. All negative jurisprudence will make the legal system collapse altogether - we should also attack from the inside of the system - LINGERING FOUNDATIONALISM-When the postmodern critique of these legal foundations turns into a full-blown rejection, a vacuum is created which makes it look like postmodernism will slide into relativism and nihilism
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- Lessig argues that behavior on the Internet is regulated by these four constraints aforementioned. These separate constraints obviously dont simply exist as givens in a social life. They are neither found in nature nor fixed by God. Each can be changed, though the mechanics of changing them is complex. And the government and its law can have a significant role in this mechanics. - To illustrate this, the market is regulated by law. The law uses taxes to increase in the markets constraints on certain behaviors and subsidies to reduce its constraints on others. Law can also change the regulation of architecture. The Americans with Disabilities Act requires the builders to change the design of the buildings in such a way that it is accessible to disabled. Law can also change social norms. Education is the most obvious example. PART III: LATENT AMBIGUITIES - In this part, Lessig considered three contexts in which changing technology would render ambiguous our commitment to fundamental values. This he called latent ambiguity. How we protect intellectual property, privacy, or free speech will depend upon fundamental choices framers didnt make. Intellectual Property - The issue here is whether or not intellectual property should be protected and if yes, up to what extent and through what means. - Lessig believes that intellectual property should be protected. However, IP should not be treated the way we treat real and personal property because they are different. Shared ideas are non-rivalous goods. No technology (that we know of) will erase an idea from ones head as it passes into others head. By knowing what one knows does not lessen others knowing the same thing. Unlike apples, and unlike houses, once shared, ideas are something one can take from you without diminishing what you have. - But it does not mean that IP ought not to be protected because complete absence of legal protection will not create sufficient incentive to produce it. Instead, it means that intellectual property law should strike a balance between the protection granted the author and the public use or access granted every one else. - The next question to ask is what means would bring about the most efficient set of protections for property interests in cyberspace? Two sorts of protection are possible. One is the traditional protection of law the law defines a space where others should not enter and punishes people who enter nonetheless. The other protection is a fence, a technological device (a bit of a code) that blocks the unwanted from entering. As to Lessig, code can, and increasingly will, displace law as the primary defense of intellectual property in cyberspace. Private fences, not public law. Privacy - Lessig identified two distinct threats to the values of privacy that the Internet will create. The first is the threat from digital surveillance the growing capacity of the government to spy on ones activities in public. From internet access, to email, to telephone calls, to walking on the street, digital technology is opening up the opportunity for increasingly perfect burdenless searches. - The second threat comes from the increasing aggregation of data by private entities. These data are gathered not so much to spy as to facilitate commerce. Some of the commerce exploits the source of data (targeted ads). - In view of this, Lessig argued that privacy is an important social value that deserves much protection. In essence, he is saying that privacy is different from property contemplated in the Intellectual Property Rights. He is saying that there should be less
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PART V: RESPONSES - Lessigs response is summarized as follows: Governments should intervene, at a minimum, when private action has negative public consequences; when shortsighted actions threaten to cause long term harm; when failure to intervene undermines significant constitutional values and important individual rights; when a form of life emerges that may threaten values we believe to be fundamental; and when we can see that failing to intervene on the side of right will simply strengthen the interventions on the side of wrong. Such intervention must be limited; it must be engaged with all the awareness about the failures of government that right thinking sorts can muster. But action defending right should not be stopped merely because some goes wrong. When those who believe in the liberty of cyberspace, and the values that liberty promotes, refuse to engage with government about how best to preserve those liberties, that weakens liberty. Do nothingism is not an answer; something can and should be done.
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(Main point: under a free marriage system, both parties can bargain for a mutually acceptable solution to psychological incapacity, and can opt for more rational choices which leaves both parties in a better position compared to that offered by Article 36) Chin Ming Tsoi with Liability Rules and Costless Transaction. The policymaker (taking into consideration the ruling in said case) has two choices: to assign the liability to the husband or the wife. If he assigns the liability to the husband, this would dissolve the marriage, leaving the incapacitated husband to internalize his psychological incapacity. To assign the liability to the wife by believing the statement of the husband that it was the wife who refused to consummate the marriage with him, the policymaker would have reversed the situation between the spouses. (Main point: the first choice will leave BOTH parties better off) Chi Ming Tsoi with Liability Rules and Transaction Costs. The transaction costs associated with prosecuting an Article 36 petition substantially alters the net distribution of felicity, depending on the ability to pay the lawyers and other fees, the ability of opposing counsel, the availability of witnesses, the aggressiveness of the Solicitor General in defending the interests of the government, and most importantly, the temperament of the judge. Procedurally, an Article 36 petitioner will have to win at least onceeither at the RTC or at the CAto have a fighting chance before the Supreme Court. IV. Transaction Costs and Rent-Seeking ASSUMPTIONS: 1. That litigants, as rational maximizers of their individual felicity, will not care whether or not they break the law. what they do care about is knowing the price they have to pay for getting what they want and determining whether its worth it. If the risk involved in breaking the law is high or if the probability of sanction is real, then they will follow it; otherwise, they will not. 2. That judges, while aware of the need to comply with the Molina Rules, will themselves engage in cost-benefit analysis, that is, they will also analyze whether compliance with the Molina Rules is worth it. 3. That the Solicitor General and the public prosecutor also care about the Molina Rules but would be open to case-by-case analysis of the situation, applying the same risk analysis employed by the litigants. (Main point: in reality THEY DO NOT CARE, various bogus petitions have been filed, and will be filed, clogging the judiciary with senseless ARTICLE 36 petitions where only dishonest public officials will benefit from) Conclusion: Article 36 is a mess. The jurisprudence surrounding it is nothing less than blindness to the realities of married life and the institutional practice it has engendered. The Molina Rules are a compromise only rent-seeking public officials would enjoy. The practice of dishonesty is driven by the bottleneck created by the Court itself. Normative theory presented: if the costs of transacting are not high, the legal rules will be irrelevant; whereas, if the costs of transacting are considerable, only those who can afford that transaction costs will contract. In either case, transactions will occur.
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