Whoever, knowing that an offense against the United States has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment, is an accessory after the fact.
[A]n accessory after the fact shall be imprisoned not more than one-half the maximum term of imprisonment or. . . fined not more than one-half the maximum fine prescribed for the punishment of the principal, or both; or if the principal is punishable by life imprisonment or death, the accessory shall be imprisoned not more than 15 years.
Wednesday, November 30, 2011
Tuesday, March 8, 2011
reflection
censorship seems always to reflect something embarrassing to the censor. subversive advocacy reflects the injustice of capitalist inequality. "obscenity" reflects the sexual, excretory nature of the human animal.
Tuesday, March 1, 2011
clinging
we're in a strange situation - learning all the time how much emptier of meaning our existence is than our ancestors believed.
Saturday, February 26, 2011
skull
rather than the subjugation of students, and filtering in the confident alphas, filtering out the thoughtful introspecters made to feel like perpetual failures, why isn't the point of education to create something new together; students and teachers working together as equals?
spending isn't speaking.
when we spend money we are acting of necessity. we don't take risks with money unless we have so much of it that we can afford to lose it. but we can say whatever we want. a minority with this discretionary spending advantage can control the persuasion industry determining the outcomes of capitalistic democracy. the founders started it, with property requirements for voting, and their beneficieries are today's status quo.
spending isn't speaking, it's force. it's the world's most powerful force, the force of history. it's the ultimate arbitrary source in the non-biological world, i.e. the one under human control.
that's what inequality is about. by the way, i refer to it as "inequality," not "egalitarianism" or whatever. injustice is the way to know justice, so with inequality.
given it's nature as human fabrication, let's give up our alienation to it and retake it, but this time take conscious control of it, exercising moderation and prudence.
spending is a force for power. allow that force to be equally expended by everyone. that is how you achieve democracy.
"democracy" is always aristocracy because there is never equal force.
when we spend money we are acting of necessity. we don't take risks with money unless we have so much of it that we can afford to lose it. but we can say whatever we want. a minority with this discretionary spending advantage can control the persuasion industry determining the outcomes of capitalistic democracy. the founders started it, with property requirements for voting, and their beneficieries are today's status quo.
spending isn't speaking, it's force. it's the world's most powerful force, the force of history. it's the ultimate arbitrary source in the non-biological world, i.e. the one under human control.
that's what inequality is about. by the way, i refer to it as "inequality," not "egalitarianism" or whatever. injustice is the way to know justice, so with inequality.
given it's nature as human fabrication, let's give up our alienation to it and retake it, but this time take conscious control of it, exercising moderation and prudence.
spending is a force for power. allow that force to be equally expended by everyone. that is how you achieve democracy.
"democracy" is always aristocracy because there is never equal force.
Monday, January 31, 2011
you can try to get value out of the thought that we are not just ourselves, but also one of a continuum. a history. but so is the species. what does it have you don't? the ongoing collective human life will come to an end, will die out, like each of ours. so with animal existence, and life itself, and this planet, star, galaxy, universe. the only way to get value is from the insane miracle of our living right now. let's celebrate together.
law and ideals necessarily always used to justify power?
or only contingently?
reason born of unreason, but
the beautiful possibility of true reason, of universal spirit, of
unity
once we have expiated our sins, excavated our past
Nietzschean genealogy a condition of Hegelian self-realization
the possibility of law of love and harmony
trajectory:
1. acknowledge the illegitimacy at the source of law
2. atone for it
3. posit possibility of true legitimacy, of universal law
we're in the midst of phase 2
it's time to start conceiving phase 3, bending toward the light outside the cave: the beautiful presupposition of oneness
or only contingently?
reason born of unreason, but
the beautiful possibility of true reason, of universal spirit, of
unity
once we have expiated our sins, excavated our past
Nietzschean genealogy a condition of Hegelian self-realization
the possibility of law of love and harmony
trajectory:
1. acknowledge the illegitimacy at the source of law
2. atone for it
3. posit possibility of true legitimacy, of universal law
we're in the midst of phase 2
it's time to start conceiving phase 3, bending toward the light outside the cave: the beautiful presupposition of oneness
socrate
the republic
no inequality of social power?
no, we want the best people in charge. the problem is just how to determine who they are. that's where all are problems come from.
no, the problem is the there's no such thing as the best.
you must believe in the best if you believe the statement you just made is true.
on the contrary, i don't claim my statements are true, just that there's a best.
these views amount to the same thing. it is because we can't know what's best that there is no best. the'best' is just a construction of intellect.
but there is a best, a healthiest, a homeostasis, a harmony.
everyone has a different ear.
but there's consensus; many of us share the same loves.
that's just probability: there's a relatively small number of available options, and most of them are lost every year, leaving us only the canon. plus people just like whatever everyone else does.
maybe 'the best' doesn't have to be an imaginary arbitrary standard -- but it is. the problem with inequality is not inequality per se but its historical consequences, which may be contingent. inequality of political power need not result in inequality of freedom and welfare.
welfare, by the way, IS freedom, but freedom in the true sense, which is power. power over oneself for everyone. that is the end.
what would that look like?
what gets in the way?
what can we do about it?
no inequality of social power?
no, we want the best people in charge. the problem is just how to determine who they are. that's where all are problems come from.
no, the problem is the there's no such thing as the best.
you must believe in the best if you believe the statement you just made is true.
on the contrary, i don't claim my statements are true, just that there's a best.
these views amount to the same thing. it is because we can't know what's best that there is no best. the'best' is just a construction of intellect.
but there is a best, a healthiest, a homeostasis, a harmony.
everyone has a different ear.
but there's consensus; many of us share the same loves.
that's just probability: there's a relatively small number of available options, and most of them are lost every year, leaving us only the canon. plus people just like whatever everyone else does.
maybe 'the best' doesn't have to be an imaginary arbitrary standard -- but it is. the problem with inequality is not inequality per se but its historical consequences, which may be contingent. inequality of political power need not result in inequality of freedom and welfare.
welfare, by the way, IS freedom, but freedom in the true sense, which is power. power over oneself for everyone. that is the end.
what would that look like?
what gets in the way?
what can we do about it?
public enemies
why do we enjoy prison breaks in movies? don't we feel the prisoners are justified? we know on an intuitive level that controlling another's body is evil.
"the real world is for people who can't imagine anything better" lisa's friend, the simpsons
equality.
what does that mean?
rights?
conditions?
whether or not it is a part of equality, obviously it would be great if everyone had their basic needs met with a relatively high degree of security. it certainly does seem egregiously unfair that billions of people do not, while a small fraction of people have so much more than anyone needs.
but if i could wave a magic wand that redistributed all the wealth equally, or more equitibly, what would result?
one possibility is that eventually the same disparities, or new and equally unfair ones, would return - especially if by wealth i mean money. what really would have to be distributed more equally is not merely money but true sources of wealth. what are those? what is wealth?
seemingly conflicting ideas of wealth come to mind: material welfare, psychological welfare, self-actualization, power. the first three i think can be collapsed into one, and i could also make an argument for integrating power into the same conception. but i think there is still an ambiguity in our thinking about equality. is equality about power over self, or power over others?
i know that with any seeming dichotomy, the answer is probably both, or perhaps a superposition. perhaps the dichotomy in this question reflects a dichotomous assumption of the non-identity of self and other.
what do i mean by power? and why am i discussing it in the context of equality? that seems obvious: equality is not about anything but power. equality of material condition is nothing without equality of freedom. and equality of freedom is nothing without equality of material condition. equality of power is the true criterion. what is that, and how is it possible, if it is?
equality.
what does that mean?
rights?
conditions?
whether or not it is a part of equality, obviously it would be great if everyone had their basic needs met with a relatively high degree of security. it certainly does seem egregiously unfair that billions of people do not, while a small fraction of people have so much more than anyone needs.
but if i could wave a magic wand that redistributed all the wealth equally, or more equitibly, what would result?
one possibility is that eventually the same disparities, or new and equally unfair ones, would return - especially if by wealth i mean money. what really would have to be distributed more equally is not merely money but true sources of wealth. what are those? what is wealth?
seemingly conflicting ideas of wealth come to mind: material welfare, psychological welfare, self-actualization, power. the first three i think can be collapsed into one, and i could also make an argument for integrating power into the same conception. but i think there is still an ambiguity in our thinking about equality. is equality about power over self, or power over others?
i know that with any seeming dichotomy, the answer is probably both, or perhaps a superposition. perhaps the dichotomy in this question reflects a dichotomous assumption of the non-identity of self and other.
what do i mean by power? and why am i discussing it in the context of equality? that seems obvious: equality is not about anything but power. equality of material condition is nothing without equality of freedom. and equality of freedom is nothing without equality of material condition. equality of power is the true criterion. what is that, and how is it possible, if it is?
i like 'looking at' rather than 'see' because the preposition draws attention to, signifies, the third element of any experience: relationship between subject and object. the path between the two is not pure, but mediate. 'mediate' is meaty; i like that 'immediate' is expressed in the negative. why do we use it more than 'mediate' as an adjective? perhaps because all is mediated. the *immediate*, this big ugly meaty word means purely, without interuption in time or space, without modification, untouched, untainted. it is more easily explained in negative terms, you see. positive phrases sound vague, like whatever you want them to be: divine, spiritual, transcendent. 'immediately.' the very saying it muddies the listener's experience, stains him with mundane mediacy. we butterflies of faith, on the contrary, we want to flutter in the sunlight, dance amid the petrushent petals. freely fly among concepts and insights, alighting upon flowers and fences in leaps of wisdom. we have metamorphosed into a man. and all becomes muddy and morbid again. the mediate always draws you back down. always there, its heaviness, its ugliness, its beauty. aesthetics--i return. ugliness is a frame, and so is beauty; why not combine them? ugny. back to the desk. an aesthetic way of looking at the object of mediation, the mud. a swirling pool of life, a teeming spawn of earth, the mother.
all is interesting, when i feel confident. i am free because i am powerful, not because i am unemcumbered. the solution is not being out of law school, or finished with this article, or with my girlfriend. the key is efficacy. i CAN write this article. i CAN do law school and love my life everyday. i CAN.
i can do whatever i want with law school.
amazing.
get that? you're in law school.
get that? for a second remember all that i saw in it.
i can do whatever i want with law school.
amazing.
get that? you're in law school.
get that? for a second remember all that i saw in it.
what am i trying to accomplish?
change.
so that the law recognizes that people need help. that the legal political economic structure is getting in the way, or actively preventing, what's only right: that everyone have a fair share of political and economic opportunities.
why?
what do i mean?
what do i want for people?
maybe it's about what i want for myself. the kind of world i want to live in. why give it preference? because that gives my life meaning.
i can structure what i want in such a way that it's based on what i think is best for everyone, not just me.
because i am like all.
that's a useful presupposition. a beautiful one.
consider the possibility that you wil be better off if we are all better off. a rising tide lifts all boats. consider that everything that makes us human and at all proud of our species, at all unique and self-aware, comes from each other. self-awareness itself, which of course is all the self is, the illusion of itself, the beautiful illusion - the essentially human art - is all the creation of not you, but the species as a whole. men are nothing, man everything. [i propose rather than trying to get rid of this use of man, we get rid of the use of man to describe a male person.] collaborative creation is the highest accomplishment of all animals, exhibited at its utmost in humans. dolphins too can create coordinate a series of actions through communication, but what separates humans and dolphins is the having of purposes.
the idea that everyone should look out only for themselves is obviously having disasterous consequences. it stops people from acting as humans.
i can only do that if i have a degree of personal security met.
but if we all did that, we'd meet each other's needs.
they must be simultaneous
it's always physical needs that gets between people.
[why the fuck can't i write like this for a journal article?]
we don't realize what animals we are.
nor how we are different from other animals.
all that distinguishes us from dolphins is the ability to manipulate the earth with our opposable thumbs and our consequent ability to think technologically, (our technological virtue).
but what distinguishes dolphins from other animals is the ability of collaborative creativity. or is it domination? is there a master and slave dolphin? must there always be master and slave in creative human relationships?
they are useful, but limited. we can move beyond them. we do so already in many instances. look to those models.
capitalism has been useful in many ways. but limited. because of this way it conflicts with human nature. it utilizes very well, but ultimately underutilizes our ability to work together (our collaborative virtue).
it has us work for ourselves, think only of the benefit to self. which would be fine if we realized what helps each other helps oneself more than you can do on your own. but there's a cognitive obstacle: as with all public goods, there's resistance to bearing a cost that others may benefit from more than or as much you do.
change.
so that the law recognizes that people need help. that the legal political economic structure is getting in the way, or actively preventing, what's only right: that everyone have a fair share of political and economic opportunities.
why?
what do i mean?
what do i want for people?
maybe it's about what i want for myself. the kind of world i want to live in. why give it preference? because that gives my life meaning.
i can structure what i want in such a way that it's based on what i think is best for everyone, not just me.
because i am like all.
that's a useful presupposition. a beautiful one.
consider the possibility that you wil be better off if we are all better off. a rising tide lifts all boats. consider that everything that makes us human and at all proud of our species, at all unique and self-aware, comes from each other. self-awareness itself, which of course is all the self is, the illusion of itself, the beautiful illusion - the essentially human art - is all the creation of not you, but the species as a whole. men are nothing, man everything. [i propose rather than trying to get rid of this use of man, we get rid of the use of man to describe a male person.] collaborative creation is the highest accomplishment of all animals, exhibited at its utmost in humans. dolphins too can create coordinate a series of actions through communication, but what separates humans and dolphins is the having of purposes.
the idea that everyone should look out only for themselves is obviously having disasterous consequences. it stops people from acting as humans.
i can only do that if i have a degree of personal security met.
but if we all did that, we'd meet each other's needs.
they must be simultaneous
it's always physical needs that gets between people.
[why the fuck can't i write like this for a journal article?]
we don't realize what animals we are.
nor how we are different from other animals.
all that distinguishes us from dolphins is the ability to manipulate the earth with our opposable thumbs and our consequent ability to think technologically, (our technological virtue).
but what distinguishes dolphins from other animals is the ability of collaborative creativity. or is it domination? is there a master and slave dolphin? must there always be master and slave in creative human relationships?
they are useful, but limited. we can move beyond them. we do so already in many instances. look to those models.
capitalism has been useful in many ways. but limited. because of this way it conflicts with human nature. it utilizes very well, but ultimately underutilizes our ability to work together (our collaborative virtue).
it has us work for ourselves, think only of the benefit to self. which would be fine if we realized what helps each other helps oneself more than you can do on your own. but there's a cognitive obstacle: as with all public goods, there's resistance to bearing a cost that others may benefit from more than or as much you do.
it's misleading to talk about public interest or common benefit as distinct from individual interests. what we really mean are the margianlized, the excluded, the exploited. but it is also appropriate, because standing up for them helps everyone. it only "hurts" those who are really meant by individual interest: the wealthy and powerful. so really what's misleading is talking about individual interests.
Thursday, November 18, 2010
Monday, May 10, 2010
pome
not really wealth but relative wealth we care about
and not really money but freedom
freedom not as negative liberty (the trick of the financial interest) but power
power not over others
but ourselves.
eliminating the financial interest how?
1. get money out of politics by getting politics out of money?
great rhetorical persuasiveness, but why would that work?
2. eliminate money
reactionary. rather,
3. change how we relate to money
i.e. how we value.
the connection to nietzsche is obvious.
what of law?
not to eliminate it, but change our relationship to it too. from both we are alienated.
we do not take responsibility for our collective violence. our murderous species.
we are alienated from our evil nature. each of us.
and not really money but freedom
freedom not as negative liberty (the trick of the financial interest) but power
power not over others
but ourselves.
eliminating the financial interest how?
1. get money out of politics by getting politics out of money?
great rhetorical persuasiveness, but why would that work?
2. eliminate money
reactionary. rather,
3. change how we relate to money
i.e. how we value.
the connection to nietzsche is obvious.
what of law?
not to eliminate it, but change our relationship to it too. from both we are alienated.
we do not take responsibility for our collective violence. our murderous species.
we are alienated from our evil nature. each of us.
Wednesday, March 3, 2010
on the subject of honesty...
"The law isn’t neutral. To argue in favor of ‘well-settled precedent’ is a choice that’s furthering an agenda.... It’s a much more rational, realistic place to start by acknowledging that both sides of the coin are really pushing an agenda."
Alina Das, NYU Law Forum, Feb. 24, "Lessons for Activists: What Law School Didn't Teach Me (Or I Didn't Stop to Learn)"
Alina Das, NYU Law Forum, Feb. 24, "Lessons for Activists: What Law School Didn't Teach Me (Or I Didn't Stop to Learn)"
commitment
seeing both sides... the virtue of perspectivism or the sickness of ambivalence?
what a relief when i feel one-sided on an issue, when passion blinds me to the point of dogmatism.
what a relief when i feel one-sided on an issue, when passion blinds me to the point of dogmatism.
Friday, February 26, 2010
Let's be honest
economics: no one knows.
judges: use the law as rhetoric not principle (and maybe that's ok).
legislatures: not really the will of the people.
judges: use the law as rhetoric not principle (and maybe that's ok).
legislatures: not really the will of the people.
Tuesday, February 23, 2010
Unity, not uniformity
Unity, not uniformity, must be our aim. We obtain unity only through variety. Differences must be integrated, not annihilated, nor absorbed.
Mary Parker Follett
the republic
no inequality of social power?
no, we want the best people in charge. the problem is just how to determine who they are. that's where all are problems come from.
no, the problem is the there's no such thing as the best.
you must believe in the best if you believe the statement you just made is true.
on the contrary, i don't claim my statements are true, just that there's a best.
these views amount to the same thing. it is because we can't know what's best that there is no best.the'best' is just o construction of intellect.
but there is a best, a healthiest, a homeostasis, a harmony.
everyone has a different ear.
but there's consensus; many of us share the same loves.
that's just porbability: there's a relatively small number of available options, and most of them are lost every year, leaving us only the canon. plus people just like whatever everyone else does, as in that study cited in nudge.
maybe 'the best' doesn't have to be an imaginary arbitrary standard -- but it is. the problem with inequality is not inequality per se but its historical consequences, which may be contingent. inequality of political power need not result in inequality of freedom and welfare.
welfare by the way IS freedom, but freedom in the true sense, which is power. power over oneself for everyone. that is the end.
what would that look like?
what gets in the way?
what can we do about it?
no, we want the best people in charge. the problem is just how to determine who they are. that's where all are problems come from.
no, the problem is the there's no such thing as the best.
you must believe in the best if you believe the statement you just made is true.
on the contrary, i don't claim my statements are true, just that there's a best.
these views amount to the same thing. it is because we can't know what's best that there is no best.the'best' is just o construction of intellect.
but there is a best, a healthiest, a homeostasis, a harmony.
everyone has a different ear.
but there's consensus; many of us share the same loves.
that's just porbability: there's a relatively small number of available options, and most of them are lost every year, leaving us only the canon. plus people just like whatever everyone else does, as in that study cited in nudge.
maybe 'the best' doesn't have to be an imaginary arbitrary standard -- but it is. the problem with inequality is not inequality per se but its historical consequences, which may be contingent. inequality of political power need not result in inequality of freedom and welfare.
welfare by the way IS freedom, but freedom in the true sense, which is power. power over oneself for everyone. that is the end.
what would that look like?
what gets in the way?
what can we do about it?
equality
what does that mean? rights? conditions?
whether or not it is a part of equality, obviously it would be great if everyone had their basic needs met with a relatively high degree of security. it certainly does seem egregiously unfair that billions of people do not, while a small fraction of people have so much more than anyone needs.
but if i could wave a magic wand that redistributed all the wealth equally, or more equitibly, what would result?
one possibility is that eventually the same disparities, or new and equally unfair ones, would return - especially if by wealth i mean money. what really would have to be distributed more equally is not merely money but true sources of wealth. what are those? what is wealth?
seemingly conflicting ideas of wealth come to mind: material welfare, psychological welfare, self-actualization, power. the first three i think can be collapsed into one, and i could also make an argument for integrating power into the same conception. but i think there is still an ambiguity in our thinking about equality. is equality about power over self, or power over others?
i know that with any seeming dichotomy, the answer is probably both, or perhaps a superposition. perhaps the dichotomy in this question reflects a dichotomous assumption of the non-identity of self and other.
what do i mean by power? and why am i discussing it in the context of equality? that seems obvious: equality is not about anything but power. equality of material condition is nothing without equality of freedom. and equality of freedom is nothing without equality of material condition. equality of power is the true criterion. what is that, and how is it possible, if it is?
whether or not it is a part of equality, obviously it would be great if everyone had their basic needs met with a relatively high degree of security. it certainly does seem egregiously unfair that billions of people do not, while a small fraction of people have so much more than anyone needs.
but if i could wave a magic wand that redistributed all the wealth equally, or more equitibly, what would result?
one possibility is that eventually the same disparities, or new and equally unfair ones, would return - especially if by wealth i mean money. what really would have to be distributed more equally is not merely money but true sources of wealth. what are those? what is wealth?
seemingly conflicting ideas of wealth come to mind: material welfare, psychological welfare, self-actualization, power. the first three i think can be collapsed into one, and i could also make an argument for integrating power into the same conception. but i think there is still an ambiguity in our thinking about equality. is equality about power over self, or power over others?
i know that with any seeming dichotomy, the answer is probably both, or perhaps a superposition. perhaps the dichotomy in this question reflects a dichotomous assumption of the non-identity of self and other.
what do i mean by power? and why am i discussing it in the context of equality? that seems obvious: equality is not about anything but power. equality of material condition is nothing without equality of freedom. and equality of freedom is nothing without equality of material condition. equality of power is the true criterion. what is that, and how is it possible, if it is?
Thursday, January 28, 2010
laws of course are presuppositions. are they beautiful? some. but most are fearful. a beautiful law would presuppose equality, abundance, harmony, not -- inferiority, scarcity, strife.
only by presupposing things are a way can you avoid the oppression upon the future by trying to make things a fixed way. instead, you are governed by hopeful expectations.
the myth of legal infallibility has devastating consequences. if a legislature makes a mistake in drafting a law, for example by declaring all murderers shall be given the death penalty, the unintended and monstrous result of a literal interpretation would require punishing the executor or self-defender. congress surely must make mistakes, and so we must have a check. such a mistake may not be a mere oversight, as in a failure to specify exceptions, but could be an error of judgment. legislatures are not only technically fallible but morally fallible, so the legislature itself cannot be trusted to correct mistakes. hence the judiciary. and hence the judiciary must be able to legislate. but judicial legislation, perhaps more so than legislative legislation at least as it applies to the case, must make sense with the preexisting whole, else it would be unjust to subject litigants to a law they had no reason to expect. a further check on judicial legislation is the distinction of dicta. a decision only makes a law on the narrowest rule necessary for the holding in this particular case, and so applies to the future only insofar as future cases involve similar events. the suppleness of stare decisis is another constraint. the rule of precedent is strongly preferred, but not absolute.
only by presupposing things are a way can you avoid the oppression upon the future by trying to make things a fixed way. instead, you are governed by hopeful expectations.
the myth of legal infallibility has devastating consequences. if a legislature makes a mistake in drafting a law, for example by declaring all murderers shall be given the death penalty, the unintended and monstrous result of a literal interpretation would require punishing the executor or self-defender. congress surely must make mistakes, and so we must have a check. such a mistake may not be a mere oversight, as in a failure to specify exceptions, but could be an error of judgment. legislatures are not only technically fallible but morally fallible, so the legislature itself cannot be trusted to correct mistakes. hence the judiciary. and hence the judiciary must be able to legislate. but judicial legislation, perhaps more so than legislative legislation at least as it applies to the case, must make sense with the preexisting whole, else it would be unjust to subject litigants to a law they had no reason to expect. a further check on judicial legislation is the distinction of dicta. a decision only makes a law on the narrowest rule necessary for the holding in this particular case, and so applies to the future only insofar as future cases involve similar events. the suppleness of stare decisis is another constraint. the rule of precedent is strongly preferred, but not absolute.
Friday, January 15, 2010
Is the foundation of law the knowledge of our Oneness?
Or is it precisely the unattainment of this stage?
If the latter, is law an aspiration to awareness of Oneness, or a resignation to its impossibility?
The former seems unlikely, because wouldn't such knowledge make law unnecessary?
As for the question posed by the latter, remember: perspective creates reality.
Or is it precisely the unattainment of this stage?
If the latter, is law an aspiration to awareness of Oneness, or a resignation to its impossibility?
The former seems unlikely, because wouldn't such knowledge make law unnecessary?
As for the question posed by the latter, remember: perspective creates reality.
Another myth
That statutes passed by legislatures are democratic, reflections of the will of the people, unlike decisions made by judges and juries. But how mediated is the process of going from the wills of persons to the promulgation of laws!
Rule of law
A common argument against certain practices, e.g. jury nullification or overturning judicial precedents, is that they undermine the rule of law. But this claim reflects the same viewpoint as of a teacher who refuses to admit that he is wrong because doing so would undermine his credibility. On the contrary, acknowledging one's mistakes engenders respect and confidence. The credibility of science depends on the revisability of its claims, whereas the dogmatism prevalent in orthodox religion undermines its credibility. In what kind of rule do you have more confidence, one in which laws can be questioned or one in which laws must be blindly accepted regardless of the injustice resulting from such acceptance?
Moreover, what is more important, the "rule of law" in this narrow sense of unthinking consistency and predictability, or justice? And by justice, I mean what is sometimes called individualized justice, which is the only kind of justice, for what is justice if it does not apply to the individual? Is not the true rule of law for the sake of justice? One might say the rule of law is for order, not justice. But what is order? What do we want order for if not for justice? (For economics, perhaps.)
Moreover, what is more important, the "rule of law" in this narrow sense of unthinking consistency and predictability, or justice? And by justice, I mean what is sometimes called individualized justice, which is the only kind of justice, for what is justice if it does not apply to the individual? Is not the true rule of law for the sake of justice? One might say the rule of law is for order, not justice. But what is order? What do we want order for if not for justice? (For economics, perhaps.)
Monday, January 11, 2010
a genealogical mission
[T]he civilizing mission is inherent... in the principal concepts and categories that govern our existence: ideas of modernity, progress, development, emancipation, and rights. The enormous task of identifying these biases and ridding the discipline of them continues, as does the related task of constructing an international law that fulfils its promise of advancing the cause of justice.
Anthony Anghie, Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century International Law, 40 Harv. Intl. L.J. 1, 1999. (Quoted in International Law: Norms, Actors, Process, Dunoff, Ratner, Wippman.)
Thursday, December 31, 2009
Shifting perspective can affect how you perceive reality. Depending on your viewpoint, you may see “6” or “9,” although the object has not changed. Shifting perspective can also transform reality. Imagine you walk on an unfamiliar street at night and a stranger approaches. You may fear him and veer away. You may trust and greet him. Unless he has unshakeable good or bad intentions, the actions arising from your perspective determine how he relates to you. Avoid him and he will avoid you. Engage him in communication and he will respond in kind. The stranger is the same person, yet shifting your perspective transforms him into a friend or foe.
I propose an analogy in law. The perspective from which laws are made can transform society. For example, from the perspective that people seek domination, we make laws to deter exploitation, such as exclusive rights to creators of intellectual property. This view has survival value but carries limitations: preoccupied with avoiding domination, we may not embrace collaboration. Shifting to the perspective that people seek collaboration, we make laws that provide new opportunities for creating together. Copyleft licensing, for example, enables anyone to adapt someone’s intellectual property and distribute modified versions. Like trust among strangers, copyleft licensing is not advisable in all cases, but has opened unprecedented possibilities of collaborative creation, especially on the internet. A perspective embracing affinity and collaboration, whether on the street or in the field of law, can transform people from potential thieves to potential partners.
I propose an analogy in law. The perspective from which laws are made can transform society. For example, from the perspective that people seek domination, we make laws to deter exploitation, such as exclusive rights to creators of intellectual property. This view has survival value but carries limitations: preoccupied with avoiding domination, we may not embrace collaboration. Shifting to the perspective that people seek collaboration, we make laws that provide new opportunities for creating together. Copyleft licensing, for example, enables anyone to adapt someone’s intellectual property and distribute modified versions. Like trust among strangers, copyleft licensing is not advisable in all cases, but has opened unprecedented possibilities of collaborative creation, especially on the internet. A perspective embracing affinity and collaboration, whether on the street or in the field of law, can transform people from potential thieves to potential partners.
Precautionary approaches to approving new technology are irrational, he said, because they demand that we know whether something is safe before we can do the very tests that would demonstrate its safety or dangerousness. Furthermore, precaution eliminates the benefits of new technology along with the harms. He advocated enhancing society's capacity to cope with and adapt to the unexpected, rather than trying to prevent all catastrophes in advance.
http://en.wikipedia.org/wiki/Aaron_Wildavsky
http://en.wikipedia.org/wiki/Aaron_Wildavsky
Interpretation--I am in control of my experience. And therefore of the world.
Blind presuppositions: my power, my value.
More importantly: our identity, the world as one.
One might say borders must disappear--national boundaries and property rights. (Or one might say instead borders must be respected: the sovereignty of a nation must not be infringed upon by another nation, and property must not be thieved by government.)
The state is a beautiful presupposition, an idea empowered to real effects by our belief in it. As such the state is a tool -- the conceptual equivalent of technology -- and is used for ill or for good, according to the intentions and limitations of people, all those along the spectrum of control, from those who directly determine, decide, or enforce laws, to those who listen to, express views about, and vote for members of the former class -- and everyone in between.
So the question becomes how best to implement this tool.
Blind presuppositions: my power, my value.
More importantly: our identity, the world as one.
One might say borders must disappear--national boundaries and property rights. (Or one might say instead borders must be respected: the sovereignty of a nation must not be infringed upon by another nation, and property must not be thieved by government.)
The state is a beautiful presupposition, an idea empowered to real effects by our belief in it. As such the state is a tool -- the conceptual equivalent of technology -- and is used for ill or for good, according to the intentions and limitations of people, all those along the spectrum of control, from those who directly determine, decide, or enforce laws, to those who listen to, express views about, and vote for members of the former class -- and everyone in between.
So the question becomes how best to implement this tool.
International norms
The very question, and its difficulty, reveals what we'd rather not admit. The question is whether there can be legitimate international norms. The difficulty of the question derives from the prefix "inter-," for we already know there are many legitimate national nomrs, i.e., laws. The question of the validity of laws is of course all the more treacherous, and will have to be confronted for both national and international nomrs. By "valid," as distinct from "legitimate," I means omething like "morally right" as distinct from simply "politically enforceable." Perhaps the very basis of validity is invalid--and then the question arises, does taht leave us only with legitimacy based on power, not truth? Might power be truth, or truth be power? The latter may be a hope for us: the hegemony of truth in the form of freely and widely shared beliefs. But might this dream of Reason not be more yrannical than the rule of force, which at least has the virtue of intellectual honesty? Now I have gone from questioning the possibility of international norms to doubting h e preferability o even national norms.
Generally, perhaps even absolutely, the choice posed as an either/or is a false dichotomy, and the answer is the dialectical synthesis: both. Let us then, for the moment, presuppose as much. First I shall re-pose the question, the more fundamental question: Are there conditions of rule over people that make that rule just, or at least preferable to other instances of rule operating under different conditions?
One standard by which to evaluate answers to this question suggested by my past questionings is freedom: the measure of a rule's affirmability is the degree to which citizens have power to create and fulfill possibilities in their lives. One might suppose the more power citizens have, the less power the state has, and so the standards i am setting forth affirms a rule to the extent it does not rule. But such a conclusion is not necessarily warranted, a point to which I will return.
Another possible standard (or perhaps another way of expressing the same standard?) is affirmation: the degree to which citizens affirm their relationship to the state. (Am I talking about their relationship to the state in the present configuration of that state or the state as an ideal behind and underlying itse present configuration?)
Again, might the answer be a synthesis of these alternatives? One might propose a correlation between the two: the more freedom citizens have, the more they affirm their relationship to the state. But aren't there repressive states with great affirmation by their citizens, e.g. Singapore? This question is difficult to answer because of the difficulty of measuring freedom or affirmation. In Singapore, for example, there is relatively little freedom to question the correctness of government policy, but perhaps this freedom is not a condition of affirmation for most Singaporeans. But the absence of this freedom makes any appearance of affirmation suspect, so the example is a bad test case, proving too much. A better example would be... better addressed later.
Distinctions must be made: by freedom I do not necessarily mean what is commonly understood as freedom in the U.S. and by affirmation I do not necessarily mean what is commonly considered patriotism. Perhaps a better word choice for the former to distinguish my meaning from the connotations of "freedom," and to parallel my use of the term "affirmation" instead of "patriotism," is creativity: the power of positing new possibilities and, to some albeit imperfect extent, actualizing such possibilities in the world. By affirmation I mean a relationship of positive evaluation, a saying "Yes, this is good and right," or at least beautiful -- in a word, love.
These standards appear to be in tension: creativity by its nature alters the reality (unless reality includes all possibilities, perhaps as features of tis essence) that affirmation affirms. But one can also say that creativity creates that which affirmation affirms, and that creativity can only create on a bsis of afffirmation -- for you cannot chanage somethigne except superficialy unless you truly, deeply apprehend and respect it at its core. So creativity and affirmation are indeed in tension -- and they are locked in a synthesis of tension; they are not mutually exclusive but mutually dependent.
Aggh, I've paved a path of increasing abstraction from the concrete questions with which I started, like a road that leads to a bridge to nowhere -- just ends at its apex, teetering over an abyss of meaninglessness. And that is the path of the law.
Law in its origin is the most visceral, all too real force of physical power -- a fist, a club, a whip a gang, an army. With words this power is reinforced and stories create legitimacy; words abstract from the imposition of brute power to the proposition of norms. The vengeance against taking a woman becomes the prohibition of adultery, which retrospectively prerequires the assertion of property (marriage). A retrospective, compensatory, penal act is translated into a prospective, preemptive, deterrent declaration. The case-specific is reformulated as a universal. "I want this woman back" becomes "Any man who takes the wife of another man shall be killed."
The path of the law did not tarry at this way-station of abstraction, but proceeded over even less certain ground -- from the smooth plane of absolutism grounded on the solid firmament of arbitrary power -- physical power -- to the precipitous arcing of moral value, the proposition of norms that upholds the bridge to nowhere. Norms purport to replace the original ground of law -- "because I said so and I have the power to physically compel obedience so you'd best just do it yourself" -- with a supposed higher ground "because it is right."
There is nothing new, at least since Nietzsche if not long before, in doubting the common understanding that there is a universal/objective right, good, value, norm. Of course, Nietzsche's inquiry was deeper than that, his question no the validity of values but of value -- What is the value of values? His concern was no particular value or system of values, but the clash of values and valuelessness, the worth of values at all. And his answer was no simple yes or no, but a necessity becoming dangerously scare -- and, hopefully, less necessary.
So with law. We know law is law because we have said so, not because it must be so. Just as values are born invalidly, so laws are bastards, the consummation of force and chance, hastily concealed through the matrimonial ceremony of legitimacy sanctioned by norms.
So far we have only established international norms in tow ways: physical force and economic inducement. (The same may be true of national norms, but here a greater case may be made for cultural values, though this may turn on the above.) In the first category falls the UN Declaration of Human Rights, which represents the assertion of normative power by the victors of the World Wars over the rest of the world (the American abstention from agreement only confirms its status as the sovereign who imposes these norms while itself enjoying a state of exception from them.) in the latter category falls the widespread respect for property rights across borders, facilitating trade and economic development. This form is no more benign, as it also relies originally in acts of conquest, taking possession, and asserting normative rights.
What third way do I envision? A purer form of the third way already proposed, and supposed to be in existence in many constitutional democracies. To a great extent these putative examples of freedom are so many layers of justificatory bullshit over a base of might makes right and history told by the victors. But just as science begins with the illusion of truth and becomes the truth of illusion, so perhaps does law begin with assertion of right and becomes the right of assertion. What do I mean? Science and religion were once indistinguishable -- the positing of a causal connection between merely adjacent events. Science distinguished itself from religion through its buit-in evolutionary mechanisms. Science never rest at truth, whereas religion clings to it like a capital criminal to life. Science's falsifiability principle attest to its own illusoriness and in its acknowledgement and affirmation of illusion it draws nearer and nearer -- though asymptopically - toward truth. Religion on the other hand, at least in its dogmatic forms, remains trapped in the illusion of truth. (Philosophy is the consummate synthesis of the two,a nd all three are but forms of art.)
Law at its most dictatorial is analgous to religion, and at its most democratic is like science. What we seek is their consummation, the philosophy of law -- and evantually that too will pass onto pure art, i.e. love -- not for wisdom but for living.
Science = creativity = democracy? Religion = affirmation = autocracy? Philosophy = ___ = ___? Art = ___ = ___?
Ok, what am I writing? Why? (How?!)
I am seeking -- seeking by writing.
No one could interpret this book as a guide
but it may be a book to live by
Precisely because you cannot follow it algorithmically
Its application is an invention, a performing.
Philosophy is the leaping from rock to rock in the river of becoming. Splashing in the water on occasion and sometimes plunging right in, but never tarrying on the firm ground of righteousness. Philosophy consists in critical-creative insights, bolts of intuition. It usurps the form of religion, intuition, and mixes it with the content of science, which is nothing. It usurps the major premise of science -- falsifiability -- and the minor hymn of religion: inspiration. It experiments with the indifferent, democratic abandon of knowledge, and yet with the discerning, despotic solemnity of faith.
I want to ask this question about international normative laws, but I can't even establish the basis of any law or norm.
Generally, perhaps even absolutely, the choice posed as an either/or is a false dichotomy, and the answer is the dialectical synthesis: both. Let us then, for the moment, presuppose as much. First I shall re-pose the question, the more fundamental question: Are there conditions of rule over people that make that rule just, or at least preferable to other instances of rule operating under different conditions?
One standard by which to evaluate answers to this question suggested by my past questionings is freedom: the measure of a rule's affirmability is the degree to which citizens have power to create and fulfill possibilities in their lives. One might suppose the more power citizens have, the less power the state has, and so the standards i am setting forth affirms a rule to the extent it does not rule. But such a conclusion is not necessarily warranted, a point to which I will return.
Another possible standard (or perhaps another way of expressing the same standard?) is affirmation: the degree to which citizens affirm their relationship to the state. (Am I talking about their relationship to the state in the present configuration of that state or the state as an ideal behind and underlying itse present configuration?)
Again, might the answer be a synthesis of these alternatives? One might propose a correlation between the two: the more freedom citizens have, the more they affirm their relationship to the state. But aren't there repressive states with great affirmation by their citizens, e.g. Singapore? This question is difficult to answer because of the difficulty of measuring freedom or affirmation. In Singapore, for example, there is relatively little freedom to question the correctness of government policy, but perhaps this freedom is not a condition of affirmation for most Singaporeans. But the absence of this freedom makes any appearance of affirmation suspect, so the example is a bad test case, proving too much. A better example would be... better addressed later.
Distinctions must be made: by freedom I do not necessarily mean what is commonly understood as freedom in the U.S. and by affirmation I do not necessarily mean what is commonly considered patriotism. Perhaps a better word choice for the former to distinguish my meaning from the connotations of "freedom," and to parallel my use of the term "affirmation" instead of "patriotism," is creativity: the power of positing new possibilities and, to some albeit imperfect extent, actualizing such possibilities in the world. By affirmation I mean a relationship of positive evaluation, a saying "Yes, this is good and right," or at least beautiful -- in a word, love.
These standards appear to be in tension: creativity by its nature alters the reality (unless reality includes all possibilities, perhaps as features of tis essence) that affirmation affirms. But one can also say that creativity creates that which affirmation affirms, and that creativity can only create on a bsis of afffirmation -- for you cannot chanage somethigne except superficialy unless you truly, deeply apprehend and respect it at its core. So creativity and affirmation are indeed in tension -- and they are locked in a synthesis of tension; they are not mutually exclusive but mutually dependent.
Aggh, I've paved a path of increasing abstraction from the concrete questions with which I started, like a road that leads to a bridge to nowhere -- just ends at its apex, teetering over an abyss of meaninglessness. And that is the path of the law.
Law in its origin is the most visceral, all too real force of physical power -- a fist, a club, a whip a gang, an army. With words this power is reinforced and stories create legitimacy; words abstract from the imposition of brute power to the proposition of norms. The vengeance against taking a woman becomes the prohibition of adultery, which retrospectively prerequires the assertion of property (marriage). A retrospective, compensatory, penal act is translated into a prospective, preemptive, deterrent declaration. The case-specific is reformulated as a universal. "I want this woman back" becomes "Any man who takes the wife of another man shall be killed."
The path of the law did not tarry at this way-station of abstraction, but proceeded over even less certain ground -- from the smooth plane of absolutism grounded on the solid firmament of arbitrary power -- physical power -- to the precipitous arcing of moral value, the proposition of norms that upholds the bridge to nowhere. Norms purport to replace the original ground of law -- "because I said so and I have the power to physically compel obedience so you'd best just do it yourself" -- with a supposed higher ground "because it is right."
There is nothing new, at least since Nietzsche if not long before, in doubting the common understanding that there is a universal/objective right, good, value, norm. Of course, Nietzsche's inquiry was deeper than that, his question no the validity of values but of value -- What is the value of values? His concern was no particular value or system of values, but the clash of values and valuelessness, the worth of values at all. And his answer was no simple yes or no, but a necessity becoming dangerously scare -- and, hopefully, less necessary.
So with law. We know law is law because we have said so, not because it must be so. Just as values are born invalidly, so laws are bastards, the consummation of force and chance, hastily concealed through the matrimonial ceremony of legitimacy sanctioned by norms.
So far we have only established international norms in tow ways: physical force and economic inducement. (The same may be true of national norms, but here a greater case may be made for cultural values, though this may turn on the above.) In the first category falls the UN Declaration of Human Rights, which represents the assertion of normative power by the victors of the World Wars over the rest of the world (the American abstention from agreement only confirms its status as the sovereign who imposes these norms while itself enjoying a state of exception from them.) in the latter category falls the widespread respect for property rights across borders, facilitating trade and economic development. This form is no more benign, as it also relies originally in acts of conquest, taking possession, and asserting normative rights.
What third way do I envision? A purer form of the third way already proposed, and supposed to be in existence in many constitutional democracies. To a great extent these putative examples of freedom are so many layers of justificatory bullshit over a base of might makes right and history told by the victors. But just as science begins with the illusion of truth and becomes the truth of illusion, so perhaps does law begin with assertion of right and becomes the right of assertion. What do I mean? Science and religion were once indistinguishable -- the positing of a causal connection between merely adjacent events. Science distinguished itself from religion through its buit-in evolutionary mechanisms. Science never rest at truth, whereas religion clings to it like a capital criminal to life. Science's falsifiability principle attest to its own illusoriness and in its acknowledgement and affirmation of illusion it draws nearer and nearer -- though asymptopically - toward truth. Religion on the other hand, at least in its dogmatic forms, remains trapped in the illusion of truth. (Philosophy is the consummate synthesis of the two,a nd all three are but forms of art.)
Law at its most dictatorial is analgous to religion, and at its most democratic is like science. What we seek is their consummation, the philosophy of law -- and evantually that too will pass onto pure art, i.e. love -- not for wisdom but for living.
Science = creativity = democracy? Religion = affirmation = autocracy? Philosophy = ___ = ___? Art = ___ = ___?
Ok, what am I writing? Why? (How?!)
I am seeking -- seeking by writing.
No one could interpret this book as a guide
but it may be a book to live by
Precisely because you cannot follow it algorithmically
Its application is an invention, a performing.
Philosophy is the leaping from rock to rock in the river of becoming. Splashing in the water on occasion and sometimes plunging right in, but never tarrying on the firm ground of righteousness. Philosophy consists in critical-creative insights, bolts of intuition. It usurps the form of religion, intuition, and mixes it with the content of science, which is nothing. It usurps the major premise of science -- falsifiability -- and the minor hymn of religion: inspiration. It experiments with the indifferent, democratic abandon of knowledge, and yet with the discerning, despotic solemnity of faith.
I want to ask this question about international normative laws, but I can't even establish the basis of any law or norm.
Monday, December 21, 2009
What advantage do philosophers have?
"If all the laws are repealed, we shall live as we do now."
Aristippus (Lives and Opinions of Eminent Philosophers by Diogenes Laertiius)
Aristippus (Lives and Opinions of Eminent Philosophers by Diogenes Laertiius)
Tuesday, December 15, 2009
Monday, December 14, 2009
story of the law
judge who talks about his past when he resisted the law, thought he could reshape it. then his resignation to its power. now his affirmation of its goodness.
lawyer who could interpret the law anyway he wished and persuade everyone else it must be right, or at least they cannot say why it's wrong. then the meaning of the law grew hard and obdurate over the years. it wouldn't budge. it grew thicker and stronger as he became weaker, paler, skin of his neck hanging, hair receding.
student who is not sure whether she can learn the law, but really wants to understand. and she wants to help others understand. first the law intrigued her, beckoning her into its mysterious coiffures. then the indifference and cruelty of the law frightened her, and she cowered in fear. soon, however, she could look it in the eye again, and she looked hard. she stared, inspected, questioned, prodded, examined, doubted, interrogated the law, and she learned much in her investigation. finally she understood. there was no law. it had never been there at all.
lawyer who could interpret the law anyway he wished and persuade everyone else it must be right, or at least they cannot say why it's wrong. then the meaning of the law grew hard and obdurate over the years. it wouldn't budge. it grew thicker and stronger as he became weaker, paler, skin of his neck hanging, hair receding.
student who is not sure whether she can learn the law, but really wants to understand. and she wants to help others understand. first the law intrigued her, beckoning her into its mysterious coiffures. then the indifference and cruelty of the law frightened her, and she cowered in fear. soon, however, she could look it in the eye again, and she looked hard. she stared, inspected, questioned, prodded, examined, doubted, interrogated the law, and she learned much in her investigation. finally she understood. there was no law. it had never been there at all.
Sunday, December 6, 2009
Thursday, December 3, 2009
Hypothesis: all law is fundamentally commercial law. I.e. defense of possession underlies the original assertion of law. The first law: "Mine, not yours."
Evidence:
Robbery and adultery (i.e. trespass on man's property) were capital crimes, along with murder and rape, in the oldest surviving legal code, that of Ur-Nammu.
The origin of law coincides with the advent of agriculture.
The Peace of Westphalia, ending the Thirty Years War in 1648 and establishing the modern principle of state sovereignty, was "a great property settlement for Europe, a quieting of title across the continent." (Janis, International Law)
Evidence:
Robbery and adultery (i.e. trespass on man's property) were capital crimes, along with murder and rape, in the oldest surviving legal code, that of Ur-Nammu.
The origin of law coincides with the advent of agriculture.
The Peace of Westphalia, ending the Thirty Years War in 1648 and establishing the modern principle of state sovereignty, was "a great property settlement for Europe, a quieting of title across the continent." (Janis, International Law)
Tuesday, December 1, 2009
The river as plaintiff speaks
Mr. Justice Douglas, dissenting.
The critical question of "standing" would be simplified and also put neatly in focus if we fashioned a federal rule that allowed environmental issues to be litigated before federal agencies or federal courts in the name of the inanimate object about to be despoiled, defaced, or invaded by roads and bulldozers and where injury is the subject of public outrage. Contemporary public concern for protecting nature's ecological equilibrium should lead to the conferral of standing upon environmental objects to sue for their own preservation. See Stone, Should Trees Have Standing? -- Toward Legal Rights for Natural Objects, 45 S. Cal. L. Rev. 450 (1972). This suit would therefore be more properly labeled as Mineral King v. Morton.
Inanimate objects are sometimes parties in litigation. A ship has a legal personality, a fiction found useful for maritime purposes.... The ordinary corporation is a "person" for purposes of the adjudicatory processes, whether it represents proprietary, spiritual, aesthetic, or charitable causes.
So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life. The river, for example, is the living symbol of all the life it sustains or nourishes -- fish, aquatic insects, water ouzels, otter, fisher, deer, elk, bear, and all other animals, including man, who are dependent on it or who enjoy it for its sight, its sound, or its life. The river as plaintiff speaks for the ecological unit of life that is part of it. Those people who have a meaningful relation to that body of water -- whether it be a fisherman, a canoeist, a zoologist, or a logger -- must be able to speak for the values which the river represents and which are threatened with destruction.
Mineral King is doubtless like other wonders of the Sierra Nevada such as Tuolumne Meadows and the John Muir Trail. Those who hike it, fish it, hunt it, camp in it, frequent it, or visit it merely to sit in solitude and wonderment are legitimate spokesmen for it, whether they may be few or many. Those who have that intimate relation with the inanimate object about to be injured, polluted, or otherwise despoiled are its legitimate spokesmen.
Sierra Club v. Morton, Secretary of the Interior, 405 U.S. 727, 1972
The critical question of "standing" would be simplified and also put neatly in focus if we fashioned a federal rule that allowed environmental issues to be litigated before federal agencies or federal courts in the name of the inanimate object about to be despoiled, defaced, or invaded by roads and bulldozers and where injury is the subject of public outrage. Contemporary public concern for protecting nature's ecological equilibrium should lead to the conferral of standing upon environmental objects to sue for their own preservation. See Stone, Should Trees Have Standing? -- Toward Legal Rights for Natural Objects, 45 S. Cal. L. Rev. 450 (1972). This suit would therefore be more properly labeled as Mineral King v. Morton.
Inanimate objects are sometimes parties in litigation. A ship has a legal personality, a fiction found useful for maritime purposes.... The ordinary corporation is a "person" for purposes of the adjudicatory processes, whether it represents proprietary, spiritual, aesthetic, or charitable causes.
So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life. The river, for example, is the living symbol of all the life it sustains or nourishes -- fish, aquatic insects, water ouzels, otter, fisher, deer, elk, bear, and all other animals, including man, who are dependent on it or who enjoy it for its sight, its sound, or its life. The river as plaintiff speaks for the ecological unit of life that is part of it. Those people who have a meaningful relation to that body of water -- whether it be a fisherman, a canoeist, a zoologist, or a logger -- must be able to speak for the values which the river represents and which are threatened with destruction.
Mineral King is doubtless like other wonders of the Sierra Nevada such as Tuolumne Meadows and the John Muir Trail. Those who hike it, fish it, hunt it, camp in it, frequent it, or visit it merely to sit in solitude and wonderment are legitimate spokesmen for it, whether they may be few or many. Those who have that intimate relation with the inanimate object about to be injured, polluted, or otherwise despoiled are its legitimate spokesmen.
Sierra Club v. Morton, Secretary of the Interior, 405 U.S. 727, 1972
Sunday, November 29, 2009
Tuesday, November 24, 2009
law and ideals necessarily always used to justify power?
or only contingently?
reason born of unreason, but
the beautiful possibility of true reason, of universal spirit, of
unity
once we have expiated our sins, excavated our past
Nietzschean genealogy a condition of Hegelian self-realization
the possibility of law of love and harmony
trajectory:
1. acknowledge the illegitimacy at the source of law
2. atone for it
3. posit possibility of true legitimacy, of universal law
we're in the midst of phase 2
it's time to start conceiving phase 3, bending toward the light outside the cave: the beautiful presupposition of oneness
from Hinduism: the illusion of separateness is the source of fear, which is the source of war
genealogical exposure of arbitrariness reveals the "other" as just like us
as us
or only contingently?
reason born of unreason, but
the beautiful possibility of true reason, of universal spirit, of
unity
once we have expiated our sins, excavated our past
Nietzschean genealogy a condition of Hegelian self-realization
the possibility of law of love and harmony
trajectory:
1. acknowledge the illegitimacy at the source of law
2. atone for it
3. posit possibility of true legitimacy, of universal law
we're in the midst of phase 2
it's time to start conceiving phase 3, bending toward the light outside the cave: the beautiful presupposition of oneness
from Hinduism: the illusion of separateness is the source of fear, which is the source of war
genealogical exposure of arbitrariness reveals the "other" as just like us
as us
Tuesday, November 17, 2009
Monday, November 16, 2009
Thursday, November 12, 2009
Tuesday, November 3, 2009
magnified will kill
There is an accuracy that defeats itself by the overemphasis of details. I often say that one must permit oneself... a certain margin of misstatement. Of course, one must take heed that the margin is not exceeded, just as the physician must be cautious in administering the poisonous ingredient which magnified will kill, but in tiny quantities will cure. On the other hand, the sentence may be so overloaded with all its possible qualifications that it will tumble down of its own weight. 'To philosophize,' says Holmes in one of his opinions--I am quoting him from uncertain and perhaps inaccurate recollection--"to philosophize is to generalize, but to generalize is to omit." The picture cannot be painted if the significant and the insignificant are given equal prominence. One must know how to select.
-- Cardozo, Benjamin. Law and Literature. (From "MacPherson v. Buick Motor Co.: Simplifying the Facts While Reshaping the Law," James A. Henderson, Jr. Torts Stories. Robert Rabin, Stephen Sugarman, eds.)
Monday, October 19, 2009
being in law school
last night you should have read every every word assigned
understood
critiqued
analyzed
briefed
and today you should
remember every detail, thought, question
while
listening to every word of your professor
and classmates
typing or hand-writing
some notes
but not too many because
you must
listen,
then talk with classmates
socialize
discuss
network
debate
collaborate
have fun above all
drink drink
and
don't forget to
help the needy
test your skills
really learn
go abroad
research
--what about journals?
moot court?
internships?
clinics definitely
oh and
of course make time for
your personal life
friends
family
exercise
religion
leisure
New York City!
oh tomorrow,
amen.
last night you should have read every every word assigned
understood
critiqued
analyzed
briefed
and today you should
remember every detail, thought, question
while
listening to every word of your professor
and classmates
typing or hand-writing
some notes
but not too many because
you must
listen,
then talk with classmates
socialize
discuss
network
debate
collaborate
have fun above all
drink drink
and
don't forget to
help the needy
test your skills
really learn
go abroad
research
--what about journals?
moot court?
internships?
clinics definitely
oh and
of course make time for
your personal life
friends
family
exercise
religion
leisure
New York City!
oh tomorrow,
amen.
Saturday, October 3, 2009
Max and I were playing basketball in the park when it started raining. Soon we were told to leave because the park was closed. "Must be a liability thing," I said. "They don't want to be sued by someone who slips and falls."
"I hate this liability stuff," Max said.
"Yeah," I agreed. "I guess the theory is if people can sue, there's incentive to make it safe."
"They should make dangerous parks, like what Virilio calls oblique architecture."
Tort law makes for too much of two good things: safety and fairness. We need risk and tough luck as much, if not more, than their opposites.
"I hate this liability stuff," Max said.
"Yeah," I agreed. "I guess the theory is if people can sue, there's incentive to make it safe."
"They should make dangerous parks, like what Virilio calls oblique architecture."
Tort law makes for too much of two good things: safety and fairness. We need risk and tough luck as much, if not more, than their opposites.
Sunday, September 27, 2009
Here the event around which the circumstance of our universe pivoted was the terrorist attack of September 11, 2001. We live in a time of great concentrations of people and resources, and ever enhancing means of destruction. But we also have at our disposal ever improving means of preventing or mitigating destruction.
The law is a way of providing ourselves constraints that are overcome, demanding the employment of our cleverness. The constraint we want to impose upon ourselves is the same in its essence: our major commercial and public buildings and institutions shall be safe from attack or any kind of calamitous intrusion, such as crime, natural disaster, or accident. But the constraint must be honed anew for the 21st century. Not only because we are more vulnerable but because we are more capable.
Hurricane Katrina: more people died in the aftermath, in the failed relief efforts, and because of the failing infrastructure. We hear that our infrastructure is aging. This case is about our infrastructure and our disaster planning.
The law is a way of providing ourselves constraints that are overcome, demanding the employment of our cleverness. The constraint we want to impose upon ourselves is the same in its essence: our major commercial and public buildings and institutions shall be safe from attack or any kind of calamitous intrusion, such as crime, natural disaster, or accident. But the constraint must be honed anew for the 21st century. Not only because we are more vulnerable but because we are more capable.
Hurricane Katrina: more people died in the aftermath, in the failed relief efforts, and because of the failing infrastructure. We hear that our infrastructure is aging. This case is about our infrastructure and our disaster planning.
A circumstance has changed, and so you must rule this way and not some way of the past. Steady state, trouble state, resolution: the narrative theory is Nietzschean, Hegelian. Or steady state, trouble state, redress: that too is Nietzschean, because you cannot always transform. Sometimes precedent is still necessary; we are not quite ready to move beyond it, we cannot yet discern the clear path to the future toward which precedent is propelling us.
Nietzsche talks about how we have to posit identity where there is only difference, being where there is only becoming, in order to think and act. Similarly, on an ethical level, we have to posit values out of nothing, but because there really are no stable identities or good, we must not only be able to posit values but also continually revaluate, i.e. destroy values and posit new ones. It's the same with law: we have to posit identities between cases and posit rules, but we cannot let ourselves be stuck by them. The law must be allowed to evolve over time and in new context. The task of the judge and of the lawyer is to participate in this process of evolution that constantly balances between preserving the law that is and creating the law that will be.
Before the Law
Before the law sits a gatekeeper. To this gatekeeper comes a man from the country who asks to gain entry into the law. But the gatekeeper says that he cannot grant him entry at the moment. The man thinks about it and then asks if he will be allowed to come in sometime later on. “It is possible,” says the gatekeeper, “but not now.” The gate to the law stands open, as always, and the gatekeeper walks to the side, so the man bends over in order to see through the gate into the inside. When the gatekeeper notices that, he laughs and says: “If it tempts you so much, try going inside in spite of my prohibition. But take note. I am powerful. And I am only the most lowly gatekeeper. But from room to room stand gatekeepers, each more powerful than the other. I cannot endure even one glimpse of the third.” The man from the country has not expected such difficulties: the law should always be accessible for everyone, he thinks, but as he now looks more closely at the gatekeeper in his fur coat, at his large pointed nose and his long, thin, black Tartar’s beard, he decides that it would be better to wait until he gets permission to go inside. The gatekeeper gives him a stool and allows him to sit down at the side in front of the gate. There he sits for days and years. He makes many attempts to be let in, and he wears the gatekeeper out with his requests. The gatekeeper often interrogates him briefly, questioning him about his homeland and many other things, but they are indifferent questions, the kind great men put, and at the end he always tells him once more that he cannot let him inside yet. The man, who has equipped himself with many things for his journey, spends everything, no matter how valuable, to win over the gatekeeper. The latter takes it all but, as he does so, says, “I am taking this only so that you do not think you have failed to do anything.” During the many years the man observes the gatekeeper almost continuously. He forgets the other gatekeepers, and this first one seems to him the only obstacle for entry into the law. He curses the unlucky circumstance, in the first years thoughtlessly and out loud; later, as he grows old, he only mumbles to himself. He becomes childish and, since in the long years studying the gatekeeper he has also come to know the fleas in his fur collar, he even asks the fleas to help him persuade the gatekeeper. Finally his eyesight grows weak, and he does not know whether things are really darker around him or whether his eyes are merely deceiving him. But he recognizes now in the darkness an illumination which breaks inextinguishably out of the gateway to the law. Now he no longer has much time to live. Before his death he gathers in his head all his experiences of the entire time up into one question which he has not yet put to the gatekeeper. He waves to him, since he can no longer lift up his stiffening body. The gatekeeper has to bend way down to him, for the great difference has changed things considerably to the disadvantage of the man. “What do you still want to know now?” asks the gatekeeper. “You are insatiable.” “Everyone strives after the law,” says the man, “so how is that in these many years no one except me has requested entry?” The gatekeeper sees that the man is already dying and, in order to reach his diminishing sense of hearing, he shouts at him, “Here no one else can gain entry, since this entrance was assigned only to you. I’m going now to close it.”
Franz Kafka, translated by Ian Johnston
Franz Kafka, translated by Ian Johnston
Ironic amendment
Before passing a new law, legislatures must determine whether repealing or reducing preexisting legislation would accomplish the objective of new legislation at least as well as would proposed new law.
What law would one repeal before making this amendment?
Every one.
What law would one repeal before making this amendment?
Every one.
Friday, August 14, 2009
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