Saturday, September 25, 2010

Rule of law - or law of 'arbitrary' rules

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The argument is often made that 'No one is above the law'. Such arguments are often made in defense of civil peace. The problem is that this assertion is false. The 'rule of law' is a maxim that holds that no one is immune from judgement. This is true enough. We are all judged. The issue I am concerned about is not the capacity of people to be judged, whether by a court or anyone else, but the legitimacy of the person and system which judges. This raises a plethora of questions:
1. The philosophical basis for our legal system
2. The legitimacy of the institutions which enact and enforce the law
3. The consequences which we pay for what I would consider to be a very poor legal system.

So what exactly is my objection?
The problem with the law is that its not as it is supposed to be - an objective standard of justice. The original intention of the legal system was not achieved because the 'Founding Fathers' did not have sufficient integrity, such that they could not develop a system which resolved the problems they needed to resolve. They developed a 'flexible system' which developed in an incoherent way because the politicians who they empowered did not have moral standing. They merely had power to extort, and the pretense of legitimacy that comes from representing the people.
So why isn't the legal system objective?
The legal system was developed initially on the basis of common law. This tradition was not perfect, but it offered some basis for sound judgements, even if the premise of precedence is not entirely well-founded. Statutory law took the enactment of law in an entirely new philosophical direction. It made law arbitrary. Arbitrary in the sense that parliament did not convey a power to persuade because people did not have the power to think. If you cannot persuade people, then people tend to accept 'numbers' (i.e. the majority) as the basis for establishing truth. This is not a basis for objectivity, but a basis for extortion by middlemen and lobbyists. There is no integrity to such a system. It has resulted in the breakdown and marginalisation of sensible 'principled' law, and the ascension of arbitrary or 'specific' law. The problem with such law is that people do not know where they stand because it is not commonsensical. It weighs on a balance of contradictions, and the desire to make them practical by some wonderful feat of 'arbitrary' amendment. The parliament was never a tool for justice; but rather a tool for legitimatising the illegitimate power of politicians. It was conceived to be the only way to secure the freedom of people, but critical reflection would highlight the fact that a tyranny of the majority is no greater protection that the tyranny of a minority. In fact, if you observe how little representation you have, you might conclude that you are living with a 'tyranny of the minority'. The difference is that you accept a pretense of rights. You think the Senate protects you? You think human rights protect you? They do not because there is no requirement upon government to finance them, and government has the arbitrary right to revise them. Look at how sovereign governments give little consideration to international developments in human rights. Consider how little you care about such developments.
The justice system is the most rudimentary basis for a civilised society. Before you can have a legitimate justice system, society needs a system for recognising healthy, objective values explicitly. Reason has to be the standard of value. That is not the basis of our current society. Our judicial systems are bogged down in dogmatic tradition and 'procedural justice' divorced from its proper principles and context. It is an underfunded system, and it is overwhelmed because a bad political system actually penalises 'virtue', so we are destined to be left with more acts of illegitimacy. People are however not inclined to damn the system, but reflect poorly on their fellow man; never questioning the validity of their philosophical code which underpins all these mishaps.
Andrew Sheldon

ConvinceMe.Net - Anyone up for a debate?