[lit-ideas] Re: Griceian Egalitarianism
- From: "Lawrence Helm" <lawrencehelm@xxxxxxxxxxxxxx>
- To: <lit-ideas@xxxxxxxxxxxxx>
- Date: Fri, 13 Jun 2014 09:47:08 -0700
Now, now. One mustn’t forget that there is nothing that can be said, written
or spoken that cannot be misunderstood by someone – often, many someones.
Having said that, I must add that I agreed with Donal’s previous note. I
emphasized earlier “equality of opportunity” but held reservations as I did so.
Since I didn’t have an engineering degree, those who did had opportunities
that were withheld from me until I proved myself in the ongoing engineering
meritocracy (sort of). By the time I retired I had proved myself well enough,
but what if I had ambitions to become the CEO? That opportunity was never open
to me. One needed to have friends or family with important connections in
order to be in the running for that. Attending one of the top universities
(which I did not) would also be useful. There was also my “limitations”
(constellations of predispositions) among which was my having been born into a
blue-collar environment which tended to hold those willing to “compromise”
(think Sinclair Lewis’s Babbitt and Mainstreet) in order to “get ahead” in
contempt.
Moving over to JLS’s comments, I can see his point of view, but having
uncritically accepted Donal’s previous note I must say that I took “law” to
mean “local law,” the “law of the land.” If I am forced to go to court I want
to be judged fairly and not be discriminated against because my opponent is
better connected, wealthier or from a higher social status. I also thought of
recent cases where the President, as well as leaders of other European nations
were deemed not to be “above the law.” Maybe the law is “a moving target”
which I take JLS to be saying, but whatever it happens to be at the time, we
all ought to be judged equally before it.
IMHO,
Lawrence
From: lit-ideas-bounce@xxxxxxxxxxxxx [mailto:lit-ideas-bounce@xxxxxxxxxxxxx] On
Behalf Of Donal McEvoy
Sent: Friday, June 13, 2014 9:12 AM
To: lit-ideas@xxxxxxxxxxxxx
Subject: [lit-ideas] Re: Griceian Egalitarianism
When medication wears off, or too much midday sun hits the head, a simple
phrase like 'equality before the law' can give rise to many observations that
may have something to do with 'law' but little to do with 'equality before it'
and even dengenerate into nonsense about Wittgenstein: JLS provides the
following examples...
>There's the issue of 'international' or 'global' law, for not all laws are
created equal, either.
One can take a simplistic approach, as per Wikipedia,
http://en.wikipedia.org/wiki/International_law
and refer to 'international law' as
the set of rules generally regarded and accepted as binding in relations
between states and between nations.
Because Wittgenstein proved that the idea of a private language (and a
private law, for that matter) is otiose.>
Dnl
Ldn
On Friday, 13 June 2014, 15:06, "dmarc-noreply@xxxxxxxxxxxxx"
<dmarc-noreply@xxxxxxxxxxxxx> wrote:
In a message dated 6/13/2014 9:27:49 A.M. Eastern Daylight Time,
donalmcevoyuk@xxxxxxxxxxx writes:
among the kinds of equality that most would, rightly, support is 'equality
before the law'.
Oddly, 'before' is ambiguous (cfr. H. Paul G. -- 'do not multiply senses
[of 'before'] beyond necessity.
According to Locke (I think) and certainly Rousseau, there is natural law
and the other. The Greeks, on the other hand, OPPOSED 'law' to 'nature'. So
the idea of a 'natural law' would be odd (and incomprehensible).
'Before' means in front of. But if we think of Ruritania, where 'the law's
an ass' (Dickens visited), this would have most supporting equality before
an ass, which should be avoided -- (except if it's before the cart).
----
There's the issue of 'international' or 'global' law, for not all laws are
created equal, either.
One can take a simplistic approach, as per Wikipedia,
http://en.wikipedia.org/wiki/International_law
and refer to 'international law' as
the set of rules generally regarded and accepted as binding in relations
between states and between nations.
Because Wittgenstein proved that the idea of a private language (and a
private law, for that matter) is otiose.
International law (for those countries that have them) serves as a framewo
rk for the practice of stable and organized international relations.
International law differs from state-based legal systems in that it is
primarily applicable to countries rather than to private citizens.
And within 'state-based' we may make further distinguish ("That's a law in
Scotland, not in England.")
National law may become international law when treaties delegate national
jurisdiction to supranational tribunals such as the European Court of Human
Rights or the International Criminal Court.
Treaties such as the Geneva (a city in Switzerland, not to be confused with
Italian for Genoa, Genova) Conventions may require national law to
conform.
Much of international law is consent-based governance.
This means that a state member of the international community is not
obliged to abide by this type of international law, unless it has expressly
consented to a particular course of conduct.
This is an issue of state sovereignty.
However, other aspects of international law are not consent-based but still
are obligatory upon state and non-state actors such as customary
international law and peremptory norms.
This is what Geary calls, in Latin, "jus cogens" ("I find," he adds, "no
English term describes this so finely.")
The term "international law" can refer to three distinct legal disciplines:
Public international law, which governs the relationship between states and
international entities.
It includes these legal fields: treaty law, law of sea, international
criminal law, the laws of war or international humanitarian law and
international human rights law.
Private international law, or conflict of laws, which addresses the
questions of
(1) which jurisdiction may hear a case, and
(2) the law concerning which jurisdiction applies to the issues in the
case.
Supranational law or the law of supranational organizations, which
concerns regional agreements where the laws of nation states may be held
inapplicable when conflicting with a supranational legal system when that
nation has
a treaty obligation to a supranational collective.
The two traditional branches of the field are:
jus gentium – law of nations
jus inter gentes – agreements between nations
International law has existed since the mid-19th century.
So, this would mean that 'equal before the international law' would be
inconceivable before the mid-19th century.
Two sophisticated legal systems developed in the Western World:
(a) the codified systems of continental European states (American Civil
Law) and
(b) English common law, upon which the judge-made law of the United States
is primarily based.
There is a controversy as to how much of the English common law is Roman in
nature, but let that pass.
In the 20th century, the two World Wars and the formation of the League of
Nations (and other international organizations such as the International
Labour Organization) all contributed to accelerate this process and
established much of the foundations of modern public international law.
After the failure of the Treaty of Versailles ("a suburb of Paris," as Kim
Kardashian describes it) and World War II, the League of Nations was
replaced by the United Nations, founded under the UN Charter.
The UN has also been the locus for the development of new advisory
(non-binding) standards, such as the Universal Declaration of Human Rights.
Other international norms and laws have been established through
international agreements, including the Geneva (again, not to be confused with
"Genova", Italian for Genoa) Conventions on the conduct of war or armed
conflict, as well as by agreements implemented by other international
organizations
such as the International Labour Organization, the World Health
Organization, the World Intellectual Property Organization, the International
Telecommunication Union, UNESCO, the World Trade Organization, and the
International Monetary Fund.
The development and consolidation of such conventions and agreements has
proven to be of great importance in the realm of international relations.
A source of international law is where an international decision maker or
researcher looks to verify the substantive legal rule governing a legal
dispute or academic discourse.
The sources of international law applied by the community of nations to
find the content of international law are listed under Article 38.1 of the
Statute of the International Court of Justice:
Treaties
international customs, and
general principles
are stated as the three primary sources.
And judicial decisions and scholarly writings are expressly designated as
the subsidiary sources of international law.
Many scholars agree that the fact that the sources are arranged
sequentially in the Article 38 of the ICJ Statute suggests an implicit
hierarchy of
sources.
However, there is no concrete evidence, in the decisions of the
international courts and tribunals, to support such strict hierarchy, at least
when
it is about choosing international customs and treaties.
In addition, unlike the Article 21 of the Rome Statute of the International
Criminal Court, which clearly defines hierarchy of applicable law (or
sources of international law), the language of the Article 38 do not
explicitly
support hierarchy of sources.
The sources have been influenced by a range of political and legal
theories.
During the 20th century, R. M. Hare recognized that a sovereign state
could limit its authority to act by consenting to an agreement according to
the
principle pacta sunt servanda (Only he did not say it in THOSE terms).
This consensual view of international law was reflected in the 1920 Statute
of the Permanent Court of International Justice, which was succeeded by
the United Nations Charter and is preserved in the United Nations Article 7
of the 1946 Statute of the International Court of Justice.
Public international law (or international public law) concerns the treaty
relationships between the nations and persons which are considered the
subjects of international law.
Norms of international law have their source in either:
custom, or customary international law (consistent state practice
accompanied by opinio juris),
globally accepted standards of behavior (peremptory norms known as jus
cogens or ius cogens), or
codifications contained in conventional agreements, generally termed
treaties.
Article 13 of the United Nations Charter obligates the UN General Assembly
to initiate studies and make recommendations which encourage the
progressive development of international law and its codification. Evidence of
consensus or state practice can sometimes be derived from intergovernmental
resolutions or academic and expert legal opinions (sometimes collectively
termed
"soft law" -- "I don't like the term," Geary annotates).
Conflict of laws, often called "private international law" in civil law
jurisdictions, is less international than public international law.
It is distinguished from public international law because it governs
conflicts between private persons, rather than states (or other international
bodies with standing).
It concerns the questions of which jurisdiction should be permitted to hear
a legal dispute between private parties, and which jurisdiction's law
should be applied, therefore raising issues of international law.
Today corporations are increasingly capable of shifting capital and labor
supply chains across borders, as well as trading with overseas corporations.
This increases the number of disputes of an inter-state nature outside a
unified legal framework, and raises issues of the enforceability of standard
practices. Increasing numbers of businesses use commercial arbitration
under the New York Convention 1958.
The Term "International Law" refers to treaty law made in and between
sovereign states.
"Law" is defined as "a rule of conduct or action prescribed or formally
recognized as binding or enforced by a controlling authority," whereas
"Sovereign" is defined as "supreme power or authority."
Given this contradiction, nations have at times abrogated "International
Laws" when they considered doing so in their national interest.
The term "World Law" is the evolution of a system of law at the global
level representing the sovereignty of the whole. Initial steps have been taken
to evolve a system of supra-national laws, but true "World Law" may await
the evolution of a legislative body of, by and for the people of the planet.
There are numerous international bodies created by treaties adjudicating on
legal issues where they may have jurisdiction. The only one claiming
universal jurisdiction is the United Nations Security Council. Others are: the
United Nations International Court of Justice, and the International
Criminal Court (when national systems have totally failed and the Treaty of
Rome
is applicable) and the Court of Arbitration for Sport.
There were ambitions to make the East African Community, consisting of
Kenya, Tanzania, Uganda, Burundi and Rwanda, a political federation with its
own form of binding supranational law but this effort has not been completed.
The Union of South American Nations is for the South American continent.
It intends to establish a framework akin to the European Union by the end
of 2019. It is envisaged to have its own passport and currency, and limit
barriers to trade.
The Andean Community of Nations is the first attempt to integrate the
countries of the Andes Mountains in South America. It started with the
Cartagena
Agreement of 26 May 1969, and currently consists of four countries:
Bolivia, Colombia, Ecuador and Peru.
The Andean Community operates by means of supranational laws, called
Agreements, which are mandatory for these countries.
And so on.
Cheers,
Speranza
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