On stability

[Flyingroc Chung]

[quote="Ashcroft Burnham":3hrqgdsw]
I don't think that you understand: it is not even clear what you mean by the UDHR "applying through" the common law. The point was that one would shape the common law in a way that happened to comply with the UDHR. One would not be able to argue in court, "The UDHR says this, therefore I must win", but one would be able to say, "Freedom of speech is desirable (incidentally, look at all the international treaties respecting it); what the other side are arguing is, essentially, for an unjustified restriction on freedom of speech, therefore that particular argument should not succeed". The judge would say, not, "The UDHR says [i:3hrqgdsw]this[/i:3hrqgdsw], therefore I have to give judgment for you", but, "The common law of the CDS values freedom of expression; in this case, what X is arguing is for a restriction on that freedom for which I can see no justification. I therefore find in favour of Y", or, indeed, "The common law of the CDS does indeed value freedom of expression, but, of course, such a freedom is not absolute. In this case, I am satisfied that the law is as Y argues it to be, for [i:3hrqgdsw]these[/i:3hrqgdsw] specific reasons".[/quote:3hrqgdsw]

Thank you, I think this is exactly what people mean when they say you claim the UDHR does not apply to the CDS.

[Ashcroft Burnham]

[quote="Flyingroc Chung":393x225f]Thank you, I think this is exactly what people mean when they say you claim the UDHR does not apply to the CDS.[/quote:393x225f]

How, precisely?

[Flyingroc Chung]

precisely this:

[quote:1znaiqz5]
One would not be able to argue in court, "The UDHR says this, therefore I must win", but one would be able to say, "Freedom of speech is desirable (incidentally, look at all the international treaties respecting it); what the other side are arguing is, essentially, for an unjustified restriction on freedom of speech, therefore that particular argument should not succeed". The judge would say, not, "The UDHR says this, therefore I have to give judgment for you", but, "The common law of the CDS values freedom of expression; in this case, what X is arguing is for a restriction on that freedom for which I can see no justification. I therefore find in favour of Y", or, indeed, "The common law of the CDS does indeed value freedom of expression, but, of course, such a freedom is not absolute. In this case, I am satisfied that the law is as Y argues it to be, for these specific reasons".
[/quote:1znaiqz5]

[Ashcroft Burnham]

[quote="Flyingroc Chung":e4sq5qoy]precisely this:[/quote:e4sq5qoy]

No, what I meant was, as you well know, what is the [i:e4sq5qoy]reasoning[/i:e4sq5qoy] that leads you from the premise of what I wrote to the conclusion that you made in the above post? Or do you consider that people ought accept what you write merely because you write it, and therefore that you need provide no reasons?

[Flyingroc Chung]

[quote="Ashcroft Burnham":3dwaq76o]Or do you consider that people ought accept what you write merely because you write it, and therefore that you need provide no reasons?[/quote:3dwaq76o]

Sheesh. That's no way to start the new year.

I simply provided an opinion ("I [i:3dwaq76o]think[/i:3dwaq76o] this is...") based primarily on an intuitive understanding of what people mean when they say things. And I'm trying to help you make the same leap of intuition.

Everyone is free to disagree with me, of course; I'm pretty used to people not accepting what I write.

[Ashcroft Burnham]

[quote="Flyingroc Chung":3kz3lcln]I simply provided an opinion ("I [i:3kz3lcln]think[/i:3kz3lcln] this is...") based primarily on an intuitive understanding of what people mean when they say things. And I'm trying to help you make the same leap of intuition.[/quote:3kz3lcln]

So you think that you can reach defensible conclusions [i:3kz3lcln]otherwise[/i:3kz3lcln] than by reasoning? That's called irrationality, or sometimes insanity. Do you accept, therefore, that you have no foundation in reason whatsoever for what you claim?

[Beathan]

Ash --

I don't believe that I have failed to respond to any substantive posting you made. I have failed to respond to mere pontification, but that is because I don't need to have the last word. If I have nothing new to say, I see little reason to repeat myself.

Ash writes [quote:39lulhij]That will come in time, although I notice that there are many posts of mine that you have failed to answer, too, such as the one in which I point out that building up rights through the common law rather than relying on a pre-written document is exactly what you advocated in relation to procedures on another thread, or the post in which I pointed out, when you were championing "testing" different procedures by having no clearly written rules of procedure was incapable of giving any of the procedures so tested a fair test.[/quote:39lulhij]

I see, and have articulated, a critical difference between substantive law and procedures. Rights -- at least the rights that really matter (speech, property, association, freedom from arbitrary restrictions or punishments) are substantive. They can be equally reached through a wide range of procedures, provided that we keep them in mind as our goal.

What I opposed in regard to the Juduciary Act was not the common law -- but the procedural orientation of the project. As was clear from Ash's post on harassment, Ash is interested in setting up elaborate procedures, but leaving the substantive matters to be decided by the judges under common law. I think that this is misguided in both respects. First, the elaborate procedures don't get us anything that simple procedures won't get. Further, if we don't have clear substantive goals, elaborate procedures will obscure the fact that we are not getting anywhere and are not getting what we want. It is hamster-wheel, treadmill justice -- and it is an awful prospect.

Give me clear rights and a handful of simple procudural rules to follow to protect and preserve those rights. Don't fail to give me rights and then keep me too busy with procedures to notice what I have lost.

Ash's short-changing of the UDHR shows clearly that his procedural project is exactly this denial of rights through a veil of procedural obfuscation. It is very harmful to the value of each and every CDS citizen as a person worthy of respect as such. The UDHR is an originating statement of principles for the CDS. Therefore, it already acts as our bill of rights. It should act in our courts just as Ash does not allow. We should be able to argue -- this right is guaranteed by the UDHR, it has been denied me in this instance, give me relief; and if the Court agrees that the right was guaranteed by the UDHR (interpretation of law) and was denied (finding of fact), then relief should be given on that basis. However, that means that the UDHR would have the force of law.

Beathan

[Flyingroc Chung]

[quote="Ashcroft Burnham":16r6aig4]
So you think that you can reach defensible conclusions [i:16r6aig4]otherwise[/i:16r6aig4] than by reasoning? That's called irrationality, or sometimes insanity. Do you accept, therefore, that you have no foundation in reason whatsoever for what you claim?[/quote:16r6aig4]

We reach many conclusions every day other than by reasoning. There is, for example, aesthetic conclusions. We can say, for example, that music sounds good; that food is excellent; that wine is mediocre. (which, incidentally, describes my new year's eve -- good music, excellent food, mediocre wine. And of course, wonderful company).

And then, there are also times when we can make a claim based on intuition; or if you will, our shared human experience. While there might be foundation in reason, some things are better addressed by appealing to gut feel rather than labored "reasoning" using, for example, first-order logic.

An example is in mathematics, which, barring computer programming, is the endeavor which uses logic the most. When a proof is explained by a professor to studnets, the professor usually starts out with an explanation that appeals to our intuitive understanding; our shared knowledge of how mathematics works before going on to the formal proof. In a sense, the formal proof is just verification of what we know all along.

Take the 4-color theorem. Since the time of Aristotle, people knew that the 4-color theorem was correct. They knew it in their hearts. Nobody could prove it, though, until the 70's when a group of mathematicians used a computer program to prove it. The same is true for Goldbach's conjecture now. Most people believe Goldbach's conjecture is correct, even if nobody can prove it yet. Until somebody can prove it though, in mathematical terms, it remains a conjecture.

My statement is similar, it *is* conjecture. The conjecture, however, is based on some understanding of how people think. It is the result of talking to CDSers in world, of reading the forums, of general life experience. I do not think it is a baseless irrational, insane claim. At this point I believe it is correct, though I could be wrong, of course. After all we're only human.

[Ashcroft Burnham]

[quote="Beathan":2j16p6ti]I don't believe that I have failed to respond to any substantive posting you made. I have failed to respond to mere pontification, but that is because I don't need to have the last work. If I have nothing new to say, I see little reason to repeat myself.[/quote:2j16p6ti]

Why do you consider my point about a fair test to be mere pontification?

[quote:2j16p6ti]I see, and have articulated, a critical difference between substantive law and procedures. Rights -- at least the rights that really matter (speech, property, association, freedom from arbitrary restrictions or punishments) are substantive. They can be equally reached through a wide range of procedures, provided that we keep them in mind as our goal.[/quote:2j16p6ti]

Rights are worthless unless they are adequately protected by legal process. That can only be achieved through fair and rigorous procedures. Vague procedures simply do not succeed adequately in protecting rights.

[quote:2j16p6ti]What I opposed in regard to the Juduciary Act was not the common law -- but the procedural orientation of the project. As was clear from Ash's post on harassment, Ash is interested in setting up elaborate procedures, but leaving the substantive matters to be decided by the judges under common law.[/quote:2j16p6ti]

That was clear from my very early posts, from long before the Judiciary Act was passed. If we had at least clear procedures, then we have a good mechanism for the rights (and duties and liabilities and privileges and immunities and so forth) being built up through the common law. As I have stated many times before (and you even appear to have acknowledged), having clear, precise procedures makes it easier, not harder, to deal with cases and accumulate common law precedents. One can focus on the substantive and not worry about having to work out from nothing every time what the procedures should be. If the goal is to have procedures about which one does not have to think very much, then that goal is only met by prescribing in detail what one has to do.

[quote:2j16p6ti]I think that this is misguided in both respects. First, the elaborate procedures don't get us anything that simple procedures won't get. [/quote:2j16p6ti]

I have addressed this argument at length elsewhere, and even you seemed to acknowledge that it is easier when the procedures are clear and precise, but claimed that it is better to have the more difficult, vaguer procedures because we should "experiment" with new procedures in our frontier justice system.

[quote:2j16p6ti]Further, if we don't have clear substantive goals, elaborate procedures will obscure the fact that we are not getting anywhere and are not getting what we want. It is hamster-wheel, treadmill justice -- and it is an awful prospect.[/quote:2j16p6ti]

When have I ever proposed not having clear substantive goals?

[quote:2j16p6ti]Give me clear rights and a handful of simple procudural rules to follow to protect and preserve those rights. Don't fail to give me rights and then keep me too busy with procedures to notice what I have lost.[/quote:2j16p6ti]

This is another straw man argument: I was never suggesting that people should have good procedures [i:2j16p6ti]instead[/i:2j16p6ti] of rights: my point always has been that rights (and duties and powers and liabilities and privileges and immunities and the rest of the Hohfeldian set) are only obtainable reliably precisely by being enforceable through clear and predictable court procedures.

[quote:2j16p6ti]Ash's short-changing of the UDHR shows clearly that his procedural project is exactly this denial of rights through a veil of procedural obfuscation. It is very harmful to the value of each and every CDS citizen as a person worthy of respect as such. The UDHR is an originating statement of principles for the CDS. Therefore, it already acts as our bill of rights.[/quote:2j16p6ti]

That is a non-sequitor. A "statement of principles" is not the same as a source of law. As I have stated elsewhere, and you have ignored, there is no reason to treat it as a source of law, as opposed to a statement of policy intent. It was, after all, never [i:2j16p6ti]designed[/i:2j16p6ti] to be used as a source of law.

As the late Professor Harris pointed out in his celebrated essay, [i:2j16p6ti]Human Rights and Mythical Beasts[/i:2j16p6ti] [2004] 120 L. Q. R. 428 the word "right" denotes a multitude of different concepts, only one of which is the legal right of the sort explained by [url=http://en.wikipedia.org/wiki/Wesley_New ... d:2j16p6ti]Hohfeld[/url:2j16p6ti]. As Harris pointed out, human rights are a different kind of right, at least as important as legal rights, but inherently different in analytic character. That one has a human right X does not entail that one has a legal right X, since X might not be the kind of thing that is conceptually capable of counting as a legal right (one may not be able to identify specific people who have a correlative duty, for instance). Your analysis assumes that human rights are exactly the same as legal rights (or can readily be made directly into legal rights), which does not make sense. In order for the law to give effect to human rights (and the law is most certainly not the only mechanism for doing so), it has to do something more specific than merely to treat human rights treaties or declarations as sources of law, and assume (often impossibly) that human rights [i:2j16p6ti]are[/i:2j16p6ti] legal rights.

It is ludicrous to claim that I intend to deny anybody their human rights because I realise that human rights are not identical to legal rights, and that human rights treaties should not be treated as a source of law (as they were never designed to be).

[quote:2j16p6ti]It should act in our courts just as Ash does not allow. We should be able to argue -- this right is guaranteed by the UDHR, it has been denied me in this instance, give me relief; and if the Court agrees that the right was guaranteed by the UDHR (interpretation of law) and was denied (finding of fact), then relief should be given on that basis. However, that means that the UDHR would have the force of law.[/quote:2j16p6ti]

This is precisely the muddled conflation of human rights and legal rights that Harris seeks to guard against in his celebrated essay.

[Gwyneth Llewelyn]

Let me ask something else entirely, then. In the [i:nzadu18z]absence[/i:nzadu18z] of a document (law, charter, Constitution, whatever) specifically correlating a basic human right into a legal right, how should a Judge proceed when judging a case where the issue is a violation of a human right?

I think that the answer to that question will settle this issue once and for all

Remember that the question is "loaded". We already had a pre-JA answer for that. Now we need to question if the post-JA Constitution did, in fact, provide us with a different answer.

[Beathan]

Well -- I think that the failure of any person in government to act in a way that protects, preserves and respects basic human rights, whether or not specifically codified in law or expressly imposed under common law, is a violation of those human rights. Intentional violations of human rights are crimes against humanity. It is no defense to assert, "I was following the law" or "I was following orders." The proper remedy for any such violation is to try the governmental actor or judge for crimes against humanity. Such crimes should be capital. In our context, such crimes should be banishable offenses.

Beathan

[Gwyneth Llewelyn]

Well, at the very least, they'll be grounds for impeachment based on an unwillingness to uphold the founding documents.

Actually, I agree with Ashcroft (and his Professor Harris) that human rights are "not equal" than legal rights. They are [i:28pv95we]more important[/i:28pv95we] than legal rights. That was the whole point of including the UDHR and allowing the former SC to be able to pronounce things as violations of human rights, even if these were not codified in some way. The spirit of the Constitution — another "unwritten" thing, which has no "literal" interpretation — placed human rights and values [i:28pv95we]above[/i:28pv95we] the law, in the sense that no law could be passed that violated human rights, and no citizen could hold an office in the CDS by ignoring/overriding human rights. In fact, they were mandated to hold their offices by [i:28pv95we]upholding[/i:28pv95we] (among others) human rights and values, as well as principles, intentions, and spirit.

We might have been a bit too demanding for the literalists among us, but at least the issue was quite clear in the olden days. The concept of unalienable human rights was far more important than "literal interpretations" of the law. In fact, one could even argue that the Old CDS would easily dismiss any public official in its zeal to protect human rights if it did, in fact, go against a literal interpretation of a law, and preferred to apply a "more higher" principle instead. We used to think that this was a better approach — in other words, we did probably have a lousy legal system, but at least we had sound values and principles That was thought to be more important than anything else... but, alas, the times change.

[Aliasi Stonebender]

[quote="Gwyneth Llewelyn":3fccakw4] In fact, one could even argue that the Old CDS would easily dismiss any public official in its zeal to protect human rights if it did, in fact, go against a literal interpretation of a law, and preferred to apply a "more higher" principle instead. We used to think that this was a better approach — in other words, we did probably have a lousy legal system, but at least we had sound values and principles That was thought to be more important than anything else... but, alas, the times change.[/quote:3fccakw4]

I'd like to think some of that spirit still remains - certainly, I'd like to think I have it. Written rules are good because everyone is 'on the same page', but they are worthless without a moral basis.