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legal theory hilbay ON PARADIGMS

The Structure of Scientific Revolutions By Thomas Kuhn


Preliminaries: A discussion of Karl Popper as precursor to Thomas Kuhn - Kuhns book was a reaction to the theories advanced by Karl Popper. - Poppers basic contention is that a theory is scientific if it is falsifiable. The test is not verifiability, but its being falsifiable. - Popper says that if an idea has no way of being falsified, then it cannot belong to the scientific enterprise. If a view has no way of being disproved, one entertains the idea that that view is always correct/true. Popper says this is not possible. - Dogmatism, or the belief or adherence to a view by faith, is anathema to science. There is no room for faith or dogma in scientific views. There are theories that claim to be scientific, but are not. These are theories which do not entertain the possibility that they may be wrong. These are what Popper calls pseudo-science. Scientists must be objective and open-minded; they must be open to the view that his theories may be wrong or erroneous. - Popper is of the idea that if a theory is able to explain everything and there is no way for it not to explain something, then that theory is nothing. - For Popper, induction has no use in science. He advances the idea of deductive testing of theories. A theory is scientific if it is falsifiable based on empirical evidence. Scientific testing doesnt start with observation, gathering of observation data, and then making a generalization. For Popper, it starts with a problem -- something that is puzzling -- and then posing a solution in the form of an idea or guess theory. Then this idea or guess theory is validated. It must be tested in order to be validated. The test, as said, is by falsification, the testing of the theory by way of empirical applications of the conclusions which can be derived from it. > The logical comparison of the ideas or conclusions among themselves produces an internal consistency. > An investigation of the logical form of the theory determines whether the theory is empirical, or scientific or tautological, and thus falsifiable. > A comparison with other theories involves the test of whether it will constitute scientific advance. - Our acceptance of theories in science is only provisional, tentative, conjectural. Scientific knowledge is conjectural. Popper doesnt say a theory is conclusively true, but only tentatively true, because we havent found yet anything to disprove it. - On objectivity > Objectivity for Popper is the presence of social conditions that would make possible a consensus in the scientific community. It is not a state of mind but a condition obtained in the sciences. The result of an intersubjective consensus is what is objective in science. > Poppers notion of objectivity is based on the public character of the scientific method. It is a critical tradition, a social aspect of the scientific method. > To achieve objectivity, and thus arrive at an intersubjective consensus: + There must be a scientific community + There must be willingness of scientists in that scientific community to advance falsifiable theories + There must be freedom to criticize those theories advanced. - Popper adheres to critical rationalism, and for him, science is a rational enterprise, and as such there is a method by which we can settle differences in scientific theories.

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It is facts in the world that determine whether a theory is justified or not. Facts and facts alone settle our differences. > Criticism to this view, as advanced by relativism: these sets of facts are not available because it is possible that what is fact or evidence for one theory may not be fact or evidence for the other. - If there is any one characteristic of science that sometimes other disciplines dont have, is growth. Growth of scientific knowledge pertains to expanding knowledge, to knowledge getting nearer to truth. Popper believes that if we adopt a new theory over another, that is superior, meaning it predicts more, it brings us closer to the truth. There is increasing verisimilitude. - For Popper, science is always revolutionary. The scientist, because of the imperative of the method of science, always looks for error or falsifications in his theory, therefore expanding knowledge about the phenomena he is theorizing. Thomas Kuhn - According to Kuhn, intersubjective agreement oftentimes does not happen. For him, the dominant idea is changed by means of a paradigm shift. Differences are not solved by intersubjective consensus but by scientific revolutions, paradigm shifts. - While for Popper, these theories will sooner or later arrive at an intersubjective consensus, Kuhn believes those differences will not be patched up because their differences are fundamental, which refer to a basic idea of a paradigm. The resolution to the conflict is the dominance of one over the other. There are also extra-scientific factors that decide on the differences of scientific theories. - For Kuhn, science is only occasionally revolutionary, and that is when one paradigm replaces another. - On dogmatism > According to Kuhn, scientific enterprise may be objective and open-minded, but the individual scientist is very often not; they are often dogmatic. Dogmatism is not a trait of individuals but of community of scientists. > How is dogmatism manifested? + By preconceptions of the phenomenon they are studying about = i.e. Preconceived ideas, theories, convictions, etc = (later translated as paradigm) + By resistance to novelties and/or innovations > Scientist does not entertain the fact that he may be wrong/erroneous because of strongly held convictions. > Dogmatism has a useful role in science. It is a necessary ingredient in scientific work. > Functions of dogmatism: + Defines/provides the questions and answers to the questions; it determines the agenda for scientific research. + Provides sensitive detector of trouble spots/scientific anomalies from which scientific innovations are educed. > These functions provide a positive role to dogmatism. - According to Kuhn, what demarcates science from non-science is not the principle of verifiability (falsifiability) but the presence or absence of paradigms. - Paradigms are conducted through textbooks, which are written primarily for students. These textbooks have a set way of explaining scientific concepts, how to approach researches and experiments, and what to expect. There is an implied way of doing things, an implied question and answer structure. Initiation to and indoctrination to scientific paradigms happen through scientific education by means of textbooks. - Paradigm, characteristics > A fundamental scientific achievement.

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> Includes a theory and exemplary applications to results of experiment and observation > It is open-ended, one which leaves all sorts of research still to be done > An accepted achievement, i.e. received by a group whose members no longer try to rival it or to create alternates for it > Unprecedented > A model of reality; a pattern, exemplar. - A paradigm of a community of scientists also functions as a worldview that determines how science practices its work which tells the scientists about problems and their permissible solutions. - Pre-paradigm stage period before the advent of a paradigm for a particular thought or field of inquiry. It is the immature stage of science, an infantile stage, and an undeveloped stage. - With the advent of the paradigm, thoughts and ideas became organized, and they subscribed to a common agenda. When scientists already subscribe to one and the same paradigm, there is normal science. - What do scientists in normal science do? > Puzzle-solving activities + The jigsaw puzzle analogy the over-all picture is already pre-formed, one just has to look out for the pieces and find out where they fit in + Concept of paradigm matching as much as possible, scientist tries to fit his pieces in his paradigm. - Are there individual scientists who work outside the paradigms? Kuhn did not entertain this possibility. If you are outside the paradigm, you are not doing science at all. - Scientific revolution: > Process: + if a paradigm is embroiled in anomalies, it results in a crisis. When anomalies multiply, it signifies a crisis. It means a paradigm can no longer account for certain discoveries, facts, etc. + if facts that cannot be accounted for become persistent, it gives rise to abnormal science (revolutionary science) + a new theory that will account for these facts will be presented, and a period of revolutionary science is inaugurated, where an alternative or new paradigm to challenge the existing paradigm is advanced. + The old paradigm is overthrown and replaced by a new one, wherein a new worldview replaces the old, and in this period of a scientific revolution, a new period of normal science is inaugurated. > Kuhn: The history of science is nothing but the history of changing paradigms. - Scientists may be torn between two paradigms (when a new one arises). There arises a problem of paradigm choice. What are the guidelines? For Kuhn, there are no available objective criteria to assess the merits of a paradigm. Facts (as advanced by Popper as a measure of objectivity) are not available because they are determined by the theory you adhere to. Kuhn says that paradigms are incommensurable without common measure. > One cannot compare them using a common set of standards or criteria > There is no conflict between two paradigms; there are no shared facts, no shared evidence to which one can appeal to. > Instead, one appeals to extra-scientific criteria, to extra-evidential considerations. - Kuhn likened paradigm shifts to Gestalt switches. It is not the world that changes, but how you see the world. What dictates is not the world, but you yourself.

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- Criticisms on Kuhns views > If we take into consideration Kuhns view that paradigms are incommensurable, there are a number of implications/consequences: + We are swayed not by evidence but by extra-evidentiary considerations/factors = These extra-evidentiary factors may include values, fame, money, prestige, power, interest, etc. These usually determine/resolve rivalry between two paradigms. = It seems as if it is subjective factors which dictate scientific change + We will be saddled with relativism = There is no consideration that our view is nearer to the truth = What would be its account of scientific progress? Kuhns theory will have a problem dealing with scientific progress. + It seems that choosing a theory is like mob rule ruling paradigm. - Kuhns reply to criticisms (as discussed in his article Objectivity, Value Judgment, and Theory Choice, appended in later editions of his book The Structure of Scientific Revolutions) > Mixture of objective and subjective factors come into play when scientists choose a theory > Kuhns view of subjectivity is judgmental. Being subjective does not mean that the basis of ones judgment is not discussable. In fact, it should be discussable. If it is not discussable, it becomes a matter of taste; it becomes arbitrary and whimsical. > Extra-scientific considerations come into play when choosing a theory. These considerations cannot be inputted to the algorithm of theory choice. Thus, it is still Kuhns view that there is no algorithm of theory choice > In determining which paradigm to choose, Kuhn proposed five criteria, characteristics of a good scientific theory, which may be taken into consideration: + Accuracy + Consistency + Broad scope + Simplicity + Fruitfulness > Unanimity of theory choice does not mean that the criteria used are objective. They remain subjective.

THEORIZING INSTITUTIONAL PRACTICES


The Flunker The Bar Exams and the Construction of the Filipino Lawyer

legal theory hilbay


By Florin Hilbay
In this essay, H presents a set of normative arguments favoring an institutional arrangement for law schools that focuses on two specific proposals for reforming the bar examinations in the country: 1. the abolition of the bar topnotcher tradition; 2. the substantial reduction of bar subjects. The professor argues that while these proposals require no major changes in the way the SC conducts the bar exams, they will transform the quality of teaching and learning in law schools. On Bar Exams While the bar exams naturally have the effect of reducing the number of people qualified to enter the legal profession, they also have collateral effects on many other aspects of law and lawyering. The saliency of the bar exams in the law schools defines what it means to practice law and be a lawyer, to the extent that they condition the law students, the law faculty, and the society at large, to follow expectations that are not only misdescriptive of the very rhetoric employed by the profession to describe its social tasks, but are also ill-adapted for the politics of transformation that progressive problem-solving requires. On SC being the culprit The SC, having authority over the admission to the practice of law, is the dominant constructor of the Filipino legal consciousness. The procedural control they exercise, though superficially operating as a quality control mechanism, effectively dictates the occupation of law teachers in relation to what to teach, how to teach, and how to study the law. 1. The staggering number of bar examinations required by SC has a direct impact on the flexibility of all law schools in matters of curriculum design and on the kinds of law teachers demanded by the system. Because law schools are left with no choice but to comply, their curriculum is reduced to the very same subjects required to pass the bar. The result is that law schools end up tying both the students and the law teacher to the constraints and demands of those examinations. Legal education becomes studying in order to pass the bar. This prevents law schools from using law as a means of problematizing the larger questions law students and teachers face. 2. The crowding out by bar exam subjects of elective courses explains the continuing atheoretical and unempirical nature of legal education in the Philippines. The presence of elective courses is crucial to providing both teachers and students a deeper understanding of fundamental legal issues and processes, insofar as they allow opportunities for the out-of-the-box approach to the study of law. 3. The structure of the bar exams assumes a bias in favor of a specific type kind of competencethe jack of all trade, master of none, doctrinal lawyer. The bar exams are essentially exercises in memory retrieval, and they are also about good and fast handwriting, intelligent test-taking, and massive doses of fortuity. This bias in favor of legal omniscience goes against the grain of specialization. Law is such a diverse field that it is impossible to expect everyone to be well-versed even in just some of the different major areas. Compelling law students to study a wide array of the categories of law prevents them from picking and choosing those areas of law that really interest them. The SCs practice of the topnotcher tradition is responsible for the pervasive public misconception that the bar examination performance is a, if not the, polestar of legal

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excellence. The bar topnotcher is a powerful symbol, serving as a proxy for academic achievement and an indicium of professional success. The products are law schools that are not only compelled to teach bar exams subjects but are also motivated to produce future topnotchers. The consequence is that the teachers outline will be exhaustive, covering all cases and statutes required by the bar exams; classroom interaction will be about re-citations, the regurgitation of decided cases and chanting memorized information. This is nothing less than training for passivity in the face of atrocity. On re-creation of law schools The SC should reduce the number of bar examination subjects by one-half, leaving political law, remedial law, civil law, and ethics as the only bar subjects. It should also limit the scope of these bar examination subjects. The reduction of bar subjects do not necessarily mean easier bar exams. If the Court is truly determined to measure competence through the bar, it could make the reduced bar exams more difficult. In addition, the SC should do away with the practice of announcing bar topnotchers. All the Court needs to do is to publish, without distinctions, the names of those who passed. It may, for purposes of informing every bar examinee of how she fared in the different subjects, send a list of the subjects where she passed, without informing her of the scores she obtained. These minor re-calibrations are bound to alter the ecology of the law school. It will lead to a diversification of the curriculum of the different law schools, because then they would be able to offer different subjects depending on the kinds of advocacy of every law school administration. It would be a chance for the law schools to drop the bar review center paradigm and develop more socially relevant institutional identities. As a consequence of these changes, there will be a radical transformation in the way law is taught and thought about. The needed skills in the new regime will be creativity and the ability to access needed information. The enhanced freedom of law schools means that they will be able to design their curriculum along inter-disciplinary lines, paving the way for the emergence of a legal academy conversant in the language of the social and physical sciences. The students, freed from the task of memorizing, can now immerse themselves in the social projects of the law schools, giving them the chance to theorize the relevance of what they are studying to both the practical and immediate concerns of their community and the larger task of nation-building. They can now participate in a world of law that is grounded, engaging, intellectually fulfilling, and socially relevant.

The Dark Ages By Laura Kalman


This article tells the colorful story of Yale Law School during the 1960s, known as The Dark Ages or The Dark Years. This period was marked by law student power the law students were eager more than ever for a change especially in those times of conflict and disputation. Yale law students worked to unlock the democratic vision of law and social change. They appealed frequently to the sense of the schools special history

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that they shared with the faculty. United in the condemnation of their education as sterile, dissatisfyingh, and needlessly competitive, they sought to eliminate hierarchy and alienation and to achieve community, citizenship, democracy, and relevance. The law students awareness and efforts resulted in the increased enrollment of women and minorities (blacks) to the law school an end to discrimination against students of color and all women, and called attention to the development of student participation in Law School or faculty governance. The disputation between students and faculty was the dominant motif. Students somehow saw their professors as symbols of a sick system and society; and they wondered how, once they became lawyers, they could serve the larger world. Vast quantities of decibels, petitions, graffiti, statements of quasi-nonnegotiable demands, and elaborately orchestrated moral posturings were expended on a bewildering array of issues: [1] the grading system that adopted the credit-fail system for first years in the first semester, and the honors-pass-low pass-fail system thereafter; [2] the admissions system that enabled more blacks and other minorities to enroll at the law school; [3] the disciplinary procedures marked by the famous Clay v Lefoe case, which involved a student (Eric Clay) who allegedly threatened a member of the faculty with violence that resulted in Clays being put on probation by the dean, and not in his dismissal; [4] student participation in faculty decision-making; and, [6] faculty responsibility for (a) police brutality and (b) the Vietnam War. Although the motif of this period was the disputation between students and faculty, their unity was also noted in at least two incidents: First, a suspicious fire broke out late at night in the Yale Law Library. The incident revealed the students commitment to the institution, and the library at its heart. The faculty, represented by the dean, was one with the students in this. More than a hundred students gathered at 2 a.m.to start cleaning up the stacks and maintaining a security from then forward. The dean was exultant to discover that our students were as deeply shocked as we elderly Faculty members were at the mere possibility that anybody could be sick enough to burn books. Second, students and some faculty faced the issue of police brutality in the celebrated Seale Trial by uniting to make sure that the defendant Seale would not be denied a fair hearing or trial as they accommodated protesters and non-violent assemblies in the law school on the issue. On the issue of the Vietnam War, law students continued to protest American policy while some junior faculty argued that the gravity of war outweighed the importance of academic neutrality. But more than these, the progress brought about by this period was that: The great majority of Yale law students had demonstrated their determination to master the law and use it as an instrument to advance the values of the democratic order. The U.S. News and World Report rankings, when first published in 1987, Harvard and Yale tied for first place. But when next they appeared in 1990, Yale was ranked number one, and Harvard number five. This was good news for an institution of legendary selfabsorption. But complacency was not supposed to be the Yale way. Historically, it was its sense of insecurity, indeed its existence in Harvards shadow, that had shaped the schools identity. The Golden Age of the Yale Law School is never now. It was always in the pastand can be again in the future if we only do a few things right. Always close, always striving, never quite there yet except in memory and hope.

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Orientalism By Edward Said


Terms - The Orient signifies a system of representations framed by political forces that brought the Orient into Western learning, Western consciousness, and Western empire. The Orient exists for the West, and is constructed by and in relation to the West. It is a mirror image of what is inferior and alien ("Other") to the West. - Orientalism is "a manner of regularized (or Orientalized) writing, vision, and study, dominated by imperatives, perspectives, and ideological biases ostensibly suited to the Orient." It is the image of the 'Orient' expressed as an entire system of thought and scholarship. - The Oriental is the person represented by such thinking. The man is depicted as feminine, weak, yet strangely dangerous because poses a threat to white, Western women. The woman is both eager to be dominated and strikingly exotic. The Oriental is a single image, a sweeping generalization, a stereotype that crosses countless cultural and national boundaries. - Latent Orientalism is the unconscious, untouchable certainty about what the Orient is. Its basic content is static and unanimous. The Orient is seen as separate, eccentric, backward, silently different, sensual, and passive. It has a tendency towards despotism and away from progress. Its progress and value are judged in terms of, and in comparison to, the West, so it is always the Other, the conquerable, and the inferior. - Manifest Orientalism is what is spoken and acted upon. It includes information and changes in knowledge about the Orient as well as policy decisions founded in Orientalist thinking. It is the expression in words and actions of Latent Orientalism. Earlier Orientalism - The first 'Orientalists' were 19th century scholars who translated the writings of 'the Orient' into English, based on the assumption that a truly effective colonial conquest required knowledge of the conquered peoples. - By knowing the Orient, the West came to own it. The Orient became the studied, the seen, the observed, the object; Orientalist scholars were the students, the seers, the observers, the subject. The Orient was passive; the West was active. - One of the most significant constructions of Orientalist scholars is that of the Orient itself. What is considered the Orient is a vast region, one that spreads across a myriad of cultures and countries. It includes most of Asia as well as the Middle East. - The depiction of this single 'Orient' which can be studied as a cohesive whole is one of the most powerful accomplishments of Orientalist scholars. It essentializes an image of a prototypical Oriental--a biological inferior that is culturally backward, peculiar, and unchanging--to be depicted in dominating and sexual terms. - The discourse and visual imagery of Orientalism is laced with notions of power and superiority, formulated initially to facilitate a colonizing mission on the part of the West and perpetuated through a wide variety of discourses and policies. - The language is critical to the construction. The feminine and weak Orient awaits the dominance of the West; it is a defenseless and unintelligent whole that exists for, and in terms of, its Western counterpart. - The importance of such a construction is that it creates a single subject matter where none existed, a compilation of previously unspoken notions of the Other. Since the notion of the Orient is created by the Orientalist, it exists solely for him or her. Its identity is defined by the scholar who gives it life.

POSTCOLONIALISM

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Saids Orientalism - Chapter 1 outlines Saids argument with several caveats as to how it may be flawed. He states that he fails to include Russian and German Orientalism, which he suggests could be promising future studies. Said also suggests that not all academic discourse in the West has to be Orientalist in its intent but much of it is. He also suggests that all cultures have a view of other cultures that may be exotic and harmless to some extent, but it is not of this view that he argues against and when this view is taken by a militarily and economically dominant culture against another it can lead to disastrous results. - Said argues that Orientalism can be found in current Western depictions of "Arab" cultures. The depictions of "the Arab" as irrational, menacing, untrustworthy, antiWestern, dishonest, and--perhaps most importantly--prototypical, are ideas into which Orientalist scholarship has evolved. These notions are trusted as foundations for both ideologies and policies developed by the Occident. - Said calls into question the underlying assumptions that form the foundation of Orientalist thinking. A rejection of Orientalism entails a rejection of biological generalizations, cultural constructions, and racial and religious prejudices. It is a rejection of greed as a primary motivating factor in intellectual pursuit. It is an erasure of the line between 'the West' and 'the Other.' - Said argues for the use of "narrative" rather than "vision" in interpreting the geographical landscape known as the Orient, meaning that a historian and a scholar would turn not to a panoramic view of half of the globe, but rather to a focused and complex type of history that allows space for the dynamic variety of human experience. - Rejection of Orientalist thinking does not entail a denial of the differences between 'the West' and 'the Orient,' but rather an evaluation of such differences in a more critical and objective fashion. 'The Orient' cannot be studied in a non-Orientalist manner; rather, the scholar is obliged to study more focused and smaller culturally consistent regions. The person who has until now been known as 'the Oriental' must be given a voice. Scholarship from afar and second-hand representation must take a back seat to narrative and self-representation on the part of the 'Oriental.' - Said suggests that all discourse, particularly discourse about other cultures, is inherently ideological. Therefore even regardless of the subject any historical discourse must be situated within a particular framework whose overall structure is necessarily ideological. - What Said attempts to show is that this discourse creates a palpable divide between East and West. It is a divide, in the examples he gives throughout the book, which situates the West as a superior culture to the East. Discourse surrounding these countries is coded, Said says, by a superiority that is not necessarily reflected in the realities of the countries the discourse is talking about. When people in the West attempt to study the East they typically do so within this already coded discourse. - Therefore, Said says, the study of someplace called the "Orient" and of some people known as "Arabs" fails to take into account the reality of the area as being the same place as the West (i.e., part of the Earth). Other countries and other people are not seen as the same within Oriental discourse, however, and therefore a study of these "others" must inherently be one of studying an inferior culture when Oriental discourse is used to describe them.

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- The existence of a Filipino nation is a fact, but the existence of a national consciousness is only a presupposition, if by national consciousness one means that sense of oneness which comes from a community of aspiration, response and action. - For Filipinos, the question of nationality has become one of identity but not of a consciousness of common aspirations and goals. - The growing disparity between identity and consciousness is responsible for the ambiguity of Filipino behavior, for the Filipinos east-west ambivalence, and for his marginal participation in the historic struggles of other colonial peoples. - The Philippines occupies a unique position in Southeast Asias revolutionary tradition: its people were the first in the region to rise in a national revolution against the colonizer. - The process of making a nation was interrupted and later tragically redirected to produce what is now a confused people who in their pathetic search for identity look to an idealized indigenous past and to the Hispanized culture of their colonial forbears and who in their desire to solve the problems of the present, dream of a future anchored on western concepts and values. - To understand the realm of consciousness, three historical influences must be examined: (1) the level of social and economic development attained before colonization, (2) the nature of Spanish rule, (3) the impact of American domination. Pre-Conquest Societies - The inhabitants of the Philippines did not possess a high degree of civilization and social structure during pre-conquest times as did their Southeast Asian brothers. - The population of the Philippines at point of contract with the Spanish conquerors lived in small scattered communities based on kinship ties and relying for sustenance mainly on subsistence agriculture. They did not erect structures of stone or any other hard material. - In these small and primitive communities, the level of organization was such that no surplus was being produced that could enable a ruling class to appropriate labor for luxury and for the construction of temples and palaces for self-glorification. - Pre-Spanish communities were subsistence economies and therefore had no classes in the economic sense. There was no state. The Philippines was subjected to western colonialism before it was influenced by the great cultures of Asia. - Exceptions: Certain Muslim communities in the south which were within the orbit of Islamic proselytization activities exhibited more advanced social formations. Other communities in the islands of Luzon and Visayas which were exposed to an expanding Islam exhibited certain social stratifications doubtless influenced by contact with these seafaring Muslims. - The dominant religion was not Islam. Early writers described certain forms of paganism, the belief in anitos, the absence of places of worship, and even animistic practice of ascribing supernatural power to stones and trees and animals. Islam Aborted - Had the Spaniards not arrived, the rest of the islands would surely have been Islamized and thoroughly exposed to the great Asian Traditions. - The Spaniards found Luzon strategically suited for their purpose. With Luzon as their stronghold and with their settlements in Cebu and Panay, they were now in a position to spread all over the Visayan region. - The Muslim south became a beleaguered fortress, the only segment of indigenous Philippine society that tenaciously resisted Hispanization and colonization and the only area which, because of its consequent isolation, was able to preserve and develop indigenous practices and culture as well as to continue to receive Muslim influences.

Identity and Consciousness By Renato Constantino


Introduction

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- The difference in religion became a basic alienative factor between Christianized indios and Muslim Moros. The Spanish colonialism left a legacy of alienation between Christian and Muslim Pacification and Proselytization - The Spaniards forcibly resettled the small, scattered kinship groups into larger communities for easy administration and proselytization. This forced urbanization had a rapid and deep effect on native consciousness for its subjected every aspect of the natives lives to the close scrutiny and direction of their rulers. - Not having attained a high degree of culture, these communities were virtually a tabula rasa on which Spanish values were inscribed. They had no institutional defenses. - In other colonies, it was initially more feasible to institute a system of indirect rule whereby the colonizers dealt only with chieftains who in turn traditionally controlled communities with relatively high levels of cultural and institutional integration. Social organization int here communities was advanced; state power was already a native apparatus supporting the local ruling class; firmly established traditions and practices endowed the people with a racial memory of ancient glory. These achievements constituted the source of their identity and dignity. They had a cultural basis for confronting their conquerors with dignity. - The early Philippine inhabitants did not confront their conquerors as a single people but as small, scattered, separate communities which therefore required only a small army of occupation to control. - The fact that the people became Catholics made God the powerful ally of their rulers. The friars became the dominant factors in the colonial contingents and the church became the center of peoples life. - The distance from Spain and the frustration of the colonists prospects for enrichment led to the pre-emption of the territory by the friar orders. - Spanish colonization operated more through religion that through force, thus profoundly affecting consciousness. Consciousness in the Philippine Experience - Consciousness is the manner by which a society in its development explains the world and views itself. It is the recognition of the changing nature of social forms, therefore it is an awareness of the necessity for basic and hence revolutionary change. - As a rule, when society advances in its mode of production, consciousness undergoes changes in conformity with the changing social base. But this change comes about so slowly that at a given point it constitutes an impediment to the full development of material forces. - In the Philippine experience the realm of consciousness had become part of the material forces almost from the beginning of colonial life and was responsible for the material backwardness and the spiritual emptiness of the people. Consciousness as impediment in the realm of spirit is compounded by consciousness as a material force. Thus changes in the material base are delayed by the weight of consciousness itself as consciousness is imprisoned by the relatively unchanging base. Thus it is distinguished from identity which may not always connote degrees of politicization which should always accompany national consciousness. - What is considered today as indigenous was largely shaped by Spanish impositions and the response of the natives thereto. As the principal architects of the colonial edifice, the priests fashioned a theocratic society with religion as the core of Spanish cultural control. - Education was a haphazard affair under the supervision of the different parish priests. There was no system of national education until 1863.

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- The friars concentrated their attention on the children. Within a few years, these children grown to adulthood under the new dispensation were so thoroughly brainwashed that they became the foundation stone of a new colonial cultural establishment with the accompanying negative virtues that supported stultification of mind and spirit. Cultural Life - Religious concern seriously limited the literary life of the period. - The Spanish language was not taught except in schools reserved for children of Spaniards. Instead, the friars learned the dialects. This was an effort to screen the people from reading works in Spanish and for maintaining social distance. Dynamics of Ignorance - Ignorance became a material force in the colonial setting. Ignorance includes that state of relative paucity of knowledge (which within the given society may already be regarded as wisdom) arising from a low level of economic and social structures. - This intellectual underdevelopment progressively deepened and acquired new characteristics during the centuries of Spanish colonialism such that even new inputs of information and tolerated cultural activities only nurtured in most educated colonials ideas that actually impeded their escape from their intellectual captivity. - In due time, under a more sophisticated colonialism, the people acquired a distorted picture of their own reality, a warped sense of values and a way of life not consistent with their economic status. They even came to believe that with their westernized tastes they were better educated and generally better off than most of their Asian brothers. - In the Philippines, the development of ignorance, from a state of relative lack of knowledge to the glorification of intellectual accomplishments that did not relate to a deepening perception of their social reality but in the contrary perpetuated peripheral thinking that concealed reality, had its historical origins in the consecration of ignorance as a virtue in a Catholicized Philippines under friar rule was carried to its full flowering under the American occupation. The Spanish legacy of ignorance made it easier for the Americans to carry out their own process of miseducation. The Connecting Thread - Despite the growing hold of the dominant colonial consciousness, the revolutionary instinct of the people manifested itself in a series of actions which conventional observers have viewed as disconnected events although they were in reality assertions and dialectical progressions of the consciousness that was emerging. - Counter-consciousness manifested itself in various forms of resistance only to recede at each instance into the matrix of colonial consciousness because of unripe conditions and other factors, but which nevertheless became part of mass memory and therefore part of the Filipino tradition of struggle. - The history of the Filipino people and hence the growth of their consciousness and the attainment of national awareness is primarily the history of their struggles against colonial oppression. - The emergence of national consciousness during the Revolution was inextricably connected with a series of leaps in the intellectual awareness of political issues engendered not only by common grievances against oppression but also by development of a tradition of struggle stored in the racial memory. - When finally economic development had set in motion its own unifying influence, these forms of limited consciousness which had grown through centuries of accretion were transmuted into a national consciousness the culminating expression of which was the national revolution of 1896 when identity and consciousness became a unity.

legal theory hilbay


Early Response - The earliest resistance of the people to Spanish colonization was characterized by nativism. The underlying causes of the great majority of the early revolts were the tribute with its cruel method of collection, and forced labor. - Because of their low level of consciousness and the theocratic nature of Spanish colonialism, the peoples protest against their material deprivation and physical oppression took a primitive and fantastic form, that of a revival of their old religions. Catholic Foothold - The practice of adopting the tenets and rites of the Catholic religion became more marked in later revolts. - The early nativistic revolts were instinctual mass actions with weak theoretical guide posts. They were localized reactions to particular grievances against the impositions and exactions of the colonizers. Although anti-Spaniard, these revolts were not anticolonial in the sense that there was as yet no awareness of the need to destroy the framework of colonialism itself. Nativism was not and could not be enough of a sustaining force. - The weak organizational structure of native society was no match for the superiority of the Spanish arms and the psychological ascendancy which the friars had over a Catholicized population. - Eventually, economic development would endow the rebellion with greater maturity and at the same time create the means for the experiences of one section of the country to be communicated to others. Elite Participation - Two historical threads that together wove the fabric of a counter-consciousness: (1) the development and transformation of revolts with religious content, (2) the rise and ebb of the participation in the peoples revolts - For the first thread, the goals evolved from rejection of Catholicism to demands for equal status within the Catholic religion due to the growth of the native priesthood. - These demands in the clerical sphere were broadened into elite demands for reforms based on racial equality and justice and finally the latter were transformed into revolutionary demands by the masses for independence. - In the early struggles, whole barangays acted as one. This unity within the barangay would however be slowly undermined by the techniques of colonialism which deepened the stratification within the local communities, thus hastening the formation of classes in colonial society. - The Spaniards assigned to the chiefs certain duties of administration, the most important of which were tribute collection and the organization of forced labor. The colonial power also won over the chiefs by granting them certain privileges. - The Spanish-Dutch wars in the 17th century increased the demands on the material and human resources of the colony. Exploitation was intensified. This provided the chiefs with the occasion to enhance their economic status by taking advantage of the opportunities open to them as minor officials in the colonial administrative structure. Thus, the period of intense exploitation of the native population was also the period of accelerated consolidation of principalia control. - Wealth and growing consciousness of importance led some of the chiefs to nurture ambitions of seizing power for themselves outside the colonial framework. This led to a new pattern of native resistance which involved entire communities without regard to social strata giving way to struggles in which chiefs took advantage of mass unrest to advance their own interests.

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A Revisionist View of Celebrated Revolts - While the masses were gaining more experience and education in struggle, these struggles would now be undermined by the personal motivations of the chiefs. - Since the native elite had acquired through their association with Spanish officials a taste for power, wealth and high titles, revolt meant for them something more than the eradications of Spanish oppression. - Although the people and the principales had common grounds for revolting, the fundamental division between the elite and the people which colonialism had created made it possible for the Spanish governor to subvert the leadership of the uprising. The chiefs had become used to maneuvering between the people and the governing power. The Religious Thread - By the middle of the 18th century, the masses were already becoming acutely aware of their economic exploitation by the religious. - The protest against the friars as economic exploiters later dovetailed with the demands of the native clergy for justice and equality, which found expression first in the fight for the secularization of the parishes and then in the demand for the Filipinization of the clergy - The demand for equal status within the Church became an important part of the general demand for equality and justice because the priesthood was one of the best channels for prestige and economic stability the dearest ambition of most families was to have a son become a priest. Economic Transformation - The changing economic landscape of the period from the mid-18th century up to the revolution of 1896 produced a new type of local elite. Reacting to the new economic and social climate, these new leaders became the articulators of a developing counterconsciousness which incorporated the peoples protests against colonial injustice and exploitation with the elites demand for equality and for those rights which would allow their class to pursue its economic ambitions. - The commercial activities of the British were an important factor in the opening of the Philippines to international trade. Another factor was the modification of Spanish colonial policies. - Because of the changes that were sweeping Europe at that time, there was a rethinking of Spanish economic policy. By the 19th century, the Philippines had entered into the stream of world commerce and the economic life of the people underwent fundamental changes. - It was not the Spaniards who were the prime movers and beneficiaries of the new economic development but the British and the Chinese. In fact, the Philippines was becoming an Anglo-Chinese colony despite the formal title of Spain. - Since agricultural exports had become a thriving activity, agricultural land took on new importance. Government functionaries, the principales, and the Chinese middlemen themselves became interested in acquiring land. Thus began the process of land consolidation. - But the Chinese could not take full advantage of economic developments because of official restrictions and the periodic outbursts of racial persecution to which the Spaniards subjected them and which led to the expulsion of thousands of their number. It was the Chinese mestizos, children of Chinese fathers and native mothers, who inherited the places vacated by the Chinese in the economy. When the Chinese were allowed back, the Chinese mestizos had already established themselves and although they gave up some of their trading activities to the Chinese, this only enabled them to concentrate on the expansion of their landed estates, particularly in Central Luzon.

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Intellectual Ferment - An economically dynamic group, the Chinese mestizos began to displace the local principales or linked up with them through intermarriage. As landowners and as creditors, they were influential in their regions and since they identified themselves with the native society they were readily accepted as its leaders. - When liberalism gained ascendancy in the Spanish capital, it instituted new educational policies for the colony: established a system of primary education and opened the doors of higher institutions of learning to many natives. Chinese mestizos and their families sent their sons to study in Manila and even abroad. These young men, the ilustrados, became the disseminators of Spanish culture and liberal ideas and eventually the articulators of political protest. - Ferment sprang from the diverse sectors of the population and was spurred by economic development and the dissemination of liberal ideas. There was discontent of the creoles who resented the preferential treatment given to the peninsulares. Now culturally Hispanized, the ilustrados also resented the superior attitudes of the Spaniards and demanded social equality. - Economic progress and liberalized policies on education had increased the number of native priests. Discrimination sharpened their awareness of their separate national identity, a consciousness which was transmitted to their parishioners. They made common cause with the creole clergymen. Thus the demand for Filipinization of the clergy became one of the rallying cries of the steadily growing sentiment of nationality, with creoles accepting indios as Filipinos - The growth of the concept of nationhood was coterminous with the development of the concept of Filipino. Filipino began to include Chinese mestizos and urbanized natives whose economic ascendancy in the 18th and 19th centuries gave them the opportunity to acquire education and Hispanic culture. Later, through their propaganda work, the ilustrados offspring of the local elite, wrested the term Filipino from the creoles and infused it with national meaning to finally include the entire people. Thus the term Filipino which had begun as a concept with narrow racial application and later developed to delineate an elite group characterized by wealth, and became a means of national identification. From then on the term Filipino would refer to the inhabitants of the Philippine archipelago regardless of racial strain or economic status. - Progress inevitably produced economic dislocations. The fact of progress itself and their exposure to it made for greater discontent among those who saw what higher living standards were like. Economic development produced better communications and a national market, both of which made for greater cohesiveness and had the effect of facilitating the dissemination of protest, thus increasing its scope and intensity. Legacy of Ignorance - With the opening of schools to natives and the education of local priests, ignorance assumed two levels. On the one hand, there was the ignorance of the masses who experienced no great change in their material lives despite the various upheavals. The elite, on the other hand, though they were eventually accorded the privileges of education and Hispanic culture and therefore gained from inputs of information and had vistas of a wider world, still suffered from a thinking that was circumscribed by the values of the colonizer. They saw reality in terms of their Hispanized upbringing. Their earlier goal was one of cultural assimilation. They tended to identify themselves with the Spaniards while at the same time resenting the social condescension with which they were treated. Like the masses, they retained a feeling of inferiority, in their case because they were not wholly Hispanized. They themselves took for granted that they had the right to decide for their country and to speak for the people. Junction of Goals

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- The legacy of ignorance could not prevent the germination of ideas of protest but it seriously undermined their thrust and integrity as later developments would reveal. - Both elite and masses were being pushed by material conditions toward a national revolution. Despite their affinity to Hispanic culture, the elite finally identified themselves with the people in whom they saw their source of support and strength. - The accumulated experiences of past struggles and a growing awareness of national identity brought about primarily by the emergence of a national market made the masses ripe for a leap into a more unified and ideologically consistent movement where their limited consciousness, activated during times of crisis, was transformed into a dynamic revolutionary consciousness. Thus with the articulations of the elite and the instinctual actions of the masses there occurred a convergence of thought and action. For a brief moment, the entire nation stood as one. - Among the rising elite, educational opportunities had activated a counterconsciousness which resulted in the articulation of protest and criticism of oppressive clerical and official policies. This articulation was basically reformist and assimilationist in nature since what the elite wanted primarily was better accommodation within the colonial system to enhance their economic interests and secure their social and cultural aspirations. Their ideas could be considered counter-consciousness in the sense that these demands went beyond the limits of what the colonial power could grant. The limited ends of the elite were encompassed in the broader goals of the people, a fact which gave the impression that they were the prime movers of revolution. - Since their actions were without any theoretical underpinning, the people were in fact resisting particular consequences of the system and not colonialism itself. Thus revolts were fierce but sporadic, disorganized and easily quelled by confrontation with superior force or by some minor and temporary accommodation. The people were in effect fighting fro certain limited or sectoral ends, therefore their consciousness was also partial or limited. The National Revolution - The limited consciousness of both sectorsthe elite and the massesinteracted and politicization of both led to a decisive rejection of reformism in favor of revolution when the lower middle class under the leadership of Andres Bonifacio was able to synthesize the desires of the people into a forthright demand for the abolition of Spanish colonialism. We therefore see the dialectical connection between the instinctual actions of the masses and the reformist articulations of the elite resulting in the negation of the latter by a more politicized action of the people. - The masses saw clearly the correspondence between the formulations of their leaders and their real aspirations. For the first time, they understood the need of a struggle on a national scale. Their partial consciousness was widened and they fought unswervingly against their oppressors. But the ilustrados, though they had been the articulators of national aspirations, ran true to the logic of their class and eventually compromised with the enemy in the Peace of Biak-na-Bato. - Actually, the people were in unceasing struggle, with or without the elite leaders. Enter the Americans - Because of the lack of common leadership for the countrywide movement, the compromises of Biak-na-Bato were able to seize once more the direction of the Revolution. They had the ilustrado prestige which the masses continued to regard with lingering respect, and they had the connections since the Americans were dealing with them.

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- The US connection enhanced the importance of these leaders because they assured the people that the Americans were here to help them get rid of the Spaniards and would guarantee the independence of the country. - By the time the Americans were ready to show their hand, the Filipinos were in control of practically everything except Manila. - The story of Aguinaldos dealings with the Americans seems to be an example of incredible naivete. Lack of experience played a part. There was also they very real prestige which made the Americans appear to be champions of liberty. A particular aspect of Hispanic influence on elite consciousness probably also played its rolethis was the reliance on the palabra de honor of ones social equals or superiors. - The character of the emerging leadership was fundamentally vacillating and compromising. As long as their preeminent position was assured, they were willing to settle for an ersatz independence under the protection of the US. Military setbacks quickly discouraged them and soon their personal interests became paramount once more. The New Confrontation - The Americans now faced a nation in revolution. The people were united and animated by a strong sense of purpose, their aspirations for freedom had been crystallized, their military successes against the Spanish colonizer had given them confidence. Their revolutionary consciousness had reached a peak of politicization and they were ready to do battle against this new invader to guard the freedom that had wrested from Spain - The Americans mounted a war of attrition against the population through suppression campaigns. The resistance involved practically the entire population. The principal tactic for isolating the resistance fighters from the population that supported and shielded them was reconcentration. - Although resistance groups did not have clear political programs, they were all fighting for independence. Because of their largely peasant following, the demand for land became an integral part of their fight for freedom. - Although the colonial government branded the leaders of all these resistance groups as bandits or madmen, the fact is that despite their organizational and ideological weaknesses they could count on the devoted support of thousands of Filipinos. Ultimately, however, the superior might of the aggressor triumphed over a just emerged nation which had found little time for consolidation. - To crush this spirit, or at least to contain any expression of nationalism, the Americans found it necessary to pass the Sedition Law of 1901, the Brigandage Act of 1902 and the Flag Law of 1907. - But it was not only sheer superiority of arms and legal structures that finally subdued the people and made them accept American rule. While the suppression campaigns were going on, the Americans initiated policies calculated to erode the new revolutionary consciousness of the Filipinos. The logical agency to carry out this process of erosion was the Filipino elite and the weapon was public education, or more accurately, miseducation. Defilipinization - There was, therefore, a confrontation between two forms of consciousness at this time: a foreign one, and the newly developed Philippine revolutionary consciousness which wielded the people into one fighting force. - The people now believed passionately in independence. They saw it as the cure-all for the ills that plagued them. However, the people had no clear-cut social and economic

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concepts for the society they would build in freedom beyond the general ideas of brotherhood and equality preached by the Katipunan. - For their part, the ilustrado leaders of the Revolution saw in independence the opportunity to take over from the Spaniards. They believed that control should remain firmly in inlustrado hands. - Thus, when the elite began going over to the American side, there was disillusionment and disapproval but there was also confusion and a feeling of uncertainty among some sectors of the population as to the right course to follow. While the masses did rally to new leaders from their own ranks, there was no general and clear-cut condemnation of the elite who had abandoned them. This facilitated the use of the elite by the Americans to propagate the myths about American benevolence and altruism. - The peoples limited politicization was eventually overcome by the forces of the mind which were the products of centuries of colonialism. The masses gradually settled down to their old quiescence and once again followed their superiors. - The Americans set in motion the process of gradually negating the revolutionary consciousness of the Filipino people, for this evolving consciousness was subversive of colonial rule. - Absorbed into the system, the elite were fairly quickly Americanized through colonial education. Separation of Identity and Consciousness - Filipino identity and consciousness now faced a concerted threat from the new colonizer. The counter-consciousness that animated the struggle for independence had hardly developed into a new consciousness before that consciousness was again being modified to suit the needs of a new colonial system. - It is as this point that one begins to discern a growing separation between identity and consciousness. The counter-consciousness that was the product of struggles against oppression produced a distinct national identity which marked the emergence of a nation committed to a separate destiny and passionately defending its right to independence. American pacification efforts and miseducation redirected the energies of the new nation towards peripheral objectives by imbuing the Filipino with a new colonial consciousness, an Americanized consciousness which caused the dynamic revolutionary consciousness to be diluted and eventually to recede. - Three aspects of educational policy were particularly efficacious in advancing the process of Americanizing the Filipino consciousness: the institution of a nationwide public school system, the use of English as a medium of instruction, and the distortion of the history of the early American occupation in conjunction with the glorification of the American way of life, its heroes and institutions. - Like the Spaniards, the Americans used the Filipino elite as conduits of colonial policy, but unlike the Spaniards, they broadened the base of their influence by including wider sections of the population in the educational process. - Education had been one of the demands of the people under the Spaniards. Granted by the Americans, it gave the new conquerors an image of altruism. Little did the people know that the public school system was initially conceived as a tactic of pacification and worked throughout the American occupation as a subtle technique of control. - With American textbooks, young Filipinos began learning not only a new language but a new culture. Education became miseducation because it began to de-Filipinize the youth, taught them to regard American culture as superior to any other, and American society as the model par excellence for the Philippine society. - Not only was English the medium of instruction, competence in English became the basis for opportunities for employment and promotion in government and in private

legal theory hilbay


firms. Knowledge of the language opened the door to cultural penetration and of course facilitated the transformation of the Filipino into a consumer of American goods. - Unfortunately, the educational system was not geared to produce citizens who could be useful within the context of the economically backward conditions of the country. The few who managed to get this higher education were integrated into the nascent middle class as government employees and other types of white collar workers, as professionals and as small merchants. - This expanding middle class together with sections of the peasantry in periods of quiescence became the storehouse of petty bourgeois values. Consumerism became the obsession of the middle class. - American control of the educational system made possible the distortion or suppression of information regarding Philippine resistance to American rule and the atrocities committed by the American army to crush the resistance. - The Americans were made to appear as accidental visitors who out of a spirit of altruism accepted the burden of educating the Filipinos. The independist goal of the Revolution and of the resistance to American occupation had to be played down, for a new concept was being inculcated into the Filipino consciousnessthat the Filipinos were not ready to govern themselves and therefore had to undergo a period of tutelage in democracy and self-government before they could qualify for an independent existence. - Even the Filipinos admiration of Jose Rizal was used in the molding of the desired colonial consciousness. By exalting Rizal, they were in fact down-grading revolutionary heroes like Andres Bonifacio. - The Americans shrewdly allowed the expression of anti-Spanish, particularly anticlerical, feelings as an outlet for Filipino nationalism. This focus on Spanish abuses and errors made the Americans seem better in the eyes of Filipinos. - Education and cultural domination were subtly instituting a form of thought control in the name of democracy and altruism. As Americanization proceeded to make inroads into the Filipino consciousness, it did so at the cost of de-Filipinization, the erosion of the gains in consciousness achieved during the revolutionary period. A New Awareness - Little by little, the people came to accept the idea of a gradualist path to independence. Like their leaders, they were beguiled by concepts of democratic participation and becoming corrupted by the new politics which thrived on patronage and ignored real issues. - Grinding poverty, high taxes, usury, greater exploitation of tenants by hacenderos eager for higher rates of profit on their agricultural exports to the US, the frustration of the tenants hopes of acquiring plots of their own, dispossession of poor farmers through land-grabbing, fraudulent titling and other legal trickeries employed by the rich and the politically powerfulall these formed the backdrop for an upsurge of peasant unrest in the 1920s. - Colorum groups appeared all over the country from Luzon down to Mindanao. Though organizationally unrelated to one another, they had two characteristics in common: religious fanaticism and a membership recruited from the peasantry and the urban poor. Ideologically confused and poorly organized, these movements were doomed to failure. - In urban areas, more workers joined labor unions. Although the first union was established as early as 1902, it was not until the 1920s that unions began to emerge as a significant and radical force projecting socio-economic goals. They began to perceive with clarity the interconnection between their economic demands and the national goal of independence. They were beginning to see that the fight against exploitation must be combined with the struggle against colonialism.

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- The principles of democracy which the Americans had made the touchstone of their proselytization process were now invoked by the people through their leaders whi had been exposed to progressive thought from abroad, particularly the US. - The depression drove the masses on the one hand to affiliation with radical organizations and on the other to outbursts of desperate and futile violence. Radicalization - The popular movement with the greatest immediate impact was the Sakdal. Its organ, published weekly in Tagalog, became the vehicle for bitter denunciations of the colonial establishment. Sakdal accused the leaders of the ruling political party of being the servants of the Americans and exposed the hypocrisy of the independence missions. It adopted the position that independence is not given but must be taken through united action of the people. They branded the educational system, as colonial and criticized school textbooks for glorifying American culture. They objected to the proposed establishment of American military and naval bases in the country after independence and charged that such bases would benefit only the US. They opposed further American investment and tried to make the people understand that the root cause of their poverty lay in the American stranglehold on the Philippine economy. - Other more radical groups, the Socialist Party and the Communists, provided leadership to many collective protests in the farms and strikes in urban centers. They tried to raise the issue of American imperialism in conjunction with the issues connected with land and employment. - The masses saw only their immediate ruling class and its military arm as their enemies. The same was true through a lesser extent in urban areas. Hence, at this point a class consciousness seemed to be developing faster than an anti-colonial consciousness - Despite the periodic falling back of present consciousness into the old conservatism, there remained oases of struggle principally in Central Luzon. Those who retained memories of past struggles were more easily activated by new sufferings and a new understanding of the causative factors of their oppression. - They demonstrated a higher level of consciousness and organization derived from the accumulated experience of the past, from the sharper economic contradictions of the period, and from the higher ideological level of worker-peasant leadership. Countervailing Forces - A number of factors operated to limit and distort the growth of a militant counterconsciousness. Urban intellectuals had been initially responsible for the infusion of a coherent ideology into the mass movements. But the class which should have spearheaded the struggle should have been the working class sustained by the peasantry. However, the working class was small. - Among both groups, therefore, the more fundamental cause of their oppression American colonialismwas insufficiently exposed. They impeded a deeper understanding of the real cause of their misery and limited the political significance of their collective actions. The growth of a counter-consciousness was hindered at every turn by the weight of miseducation and cultural Americanization. - The hold of colonial consciousness was dramatically demonstrated during the Japanese occupation. The Filipinos fought the Japanese and waited for the return of the Americans to receive from their hands the gift of independence. It did not occur to them to seize freedom for themselves. More Americanization - Cultural penetration received added impetus as Filipinos devoured the American cultural fare they had been deprived of during the Japanese occupation. Ironically,

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Americanization continued to seep down to the barrios through media which they should be vehicles for the propagation of a Filipino identity: the radio, Filipino comics, Filipino movies and the national language. - In many fields, there was very little original thinking. The Filipino had become largely imitative, seldom creative. The standards of education were such that its products were more attuned to the needs of a developed country than their own, hence the brain drain. - Americanization manifested itself most harmfully in the myths that were deeply ingrained in the Filipino consciousness: that the US is the land of opportunity and fair play, that the Americans came not as conquerors but as friends to give the Filipinos democracy, education, roads and sanitation and to train them in self-government so they would deserve independence, that after independence, the so-called special relations with the US have been beneficial to the Philippines. Other subtly inculcated concepts: that American investments are indispensable to economic progress and that free enterprise is the only possible economic framework for democracy. - So deep was cultural Americanization and so little understood were the evils of economic dependence that it was difficult to develop a general counter-consciousness even when the material base for it already existed - Inputs of information and successful adaptation of American values gave the impression of positive development and improvement. In absolute terms, this new cultural level was an improvement in the sense that the people were able to benefit from wider contact with the world of ideas. But in relative terms, the new cultural development only produced in ignorance. - Among those who had more years of schooling, thinking was stunted not only because of the difficulties of learning a foreign language but also because education was not geared to national needs. - Functional illiteracy in English reinforced the belief inculcated by Spanish rule that government policy and administration should be left to the educated upper classes. - The appreciation of civil rights was very meager. The people were too busy fighting for physical survival and, anyhow, they had not had much actual experience with this aspect of democracy. To the Spanish legacy of a sense of superiority over the people was added the selfish individualism characteristic of a free enterprise society. - The Americans produced an ambivalent Filipino mind best illustrated by the consciousness of the middle class, ambivalent between the authoritarian attitudes and hierarchical concepts that were the Spanish legacy and the still insufficiently understood concepts of democracy and freedom. But within the contradiction between authoritarianism and democracy, counter-consciousness continued to germinate, between periods of dormancy it is true, but acquiring with each new stage of development a stronger conceptual framework of nationalism and democracy. - The factor that continually hampered its development was the absence of a visible foe because of the Americanization of consciousness. Miseducation has effectively concealed the contradiction between colonizer and colonized, transforming the relation into that of friends with identical interests. - The emergent national consciousness born during the Philippine revolution did not have a chance to grow as the subsequent actions of the Americans aborted its development and transmuted the consciousness bred by Spanish colonialism into the resultant contemporary crisis of identity. - Salient characteristics of contemporary consciousness: (1) a narrow range of social thought brought about by the educational system which produces men and women trained to accept American values and concepts, (2) a vague loyalty to motherland but limited by concern over the feelings or reactions of the colonial power, (3) a tendency to corruption in many phases of public and private activity, (4) a predisposition among the professional and white collar workers to rely on pull rather than on merit, (5) the

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institutionalization of a culture that is alien in language, in direction and in content, (6) an escapist attitude, (7) a consumer attitude, (8) minimal social concern except in the minor sense of charity and do-gooding. - Counter-consciousness is an indispensable weapon against the foreign influences that warp Philippine society. It can only become the new liberating consciousness when the Filipino once more takes up the struggle towards the completion of his identity. - The Filipino must now discover himself in the realm of consciousnessthat is, a consciousness that articulates its own economic, political and cultural aspirations and contraposes itself to an all-pervading consciousness that seeks to keep the Filipino people permanently integrated in a worldwide system that produces poverty, wars and degradation for the underdeveloped nations of the world.

GLOBAL WARMING
The Revenge of Gaia By James Lovelock
Revenge of Gaia: Why the Earth is Fighting Back - and How we Can Still Save Humanity (2006) a book by James Lovelock, published at a time when the debate on global warming is receiving widespread attention in society. Lovelock believes that it is too late to avoid significant global heating and significant climate change, making much of the Earth's surface much less hospitable for humans. As a result, there will be inevitable, major decline in the human population over the next hundred years. Because this problem is such an overwhelming, cataclysmic threat, he believes that nuclear power is our only short-term solution for the preservation of civilization as we know it. The dangers that many environmentalists see from nuclear power are quite minor with respect to most of Earth's ecologies. Lovelock sees benign alternate energy sources as inadequate and irrelevant at best. Lovelock draws a distinction between his original Gaia hypothesis of the 1970s and current, Gaia theory. He believes that the time will come when the US government takes global heating seriously and responds with immense planet-scale engineering fixes, perhaps space based. While he indicates these may succeed, he is despondent by the prospect that humans will have to deal with extra costs of maintaining an inhabitable surface climate, a task formerly done for us by Gaia. Climate storm forecast Lovelock thinks the time is past for sustainable development, and that we have come to a time when development is no longer sustainable. He proposes that we need sustainable retreat from an impending Climate Storm -- that we must retreat in an orderly fashion from the coming threats to our global habitat, to mitigate adverse impacts on human health and happiness. Table I. Deaths in the energy-producing industries, 1970-92. (p.102) Fatalitie Deaths per terawattFuel Who s year Coal 6400 Workers 342

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Natural Gas Hydro Nuclear 1200 4000 31 Workers public Public Workers and 85 883 8

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other people have written and spoken eloquently about how the Gaia Theory can help us model human activities after the living systems of our planet; the concept offers lessons for the design of economic, energy, social and governmental systems.

Lovelock's arguments do make a lot of sense, but is it really that late to make a positive difference? Must we give up hope of improving things at such a critical time? At least one thing is certain. Whether Lovelock's ideas, not only of the Earth now but also in the future, are correct or not - only time will eventually tell. Global Warming Increase in the global average surface temperature resulting from enhancement of the greenhouse effect, primarily by air pollution. In 2001 the UN Intergovernmental Panel on Climate Change estimated that by 2100 global average surface temperatures would increase 2.5 to 10.4 F (1.4 to 5.8 C), depending on a range of scenarios for greenhouse gas emissions. Many scientists predict that such an increase would cause polar ice caps and mountain glaciers to melt rapidly, significantly raising the levels of coastal waters, and would produce new patterns and extremes of drought and rainfall, seriously disrupting food production in certain regions. Other scientists maintain that such predictions are overstated. The 1992 Earth Summit and the 1997 Kyoto Protocol to the United Nations Framework Convention on Climate Change attempted to address the issue of global warming, but in both cases the efforts were hindered by conflicting national economic agendas and disputes between developed and developing nations over the cost and consequences of reducing emissions of greenhouse gases. Gaia Theory The Gaia Theory posits that the organic and inorganic components of Planet Earth have evolved together as a single living, self-regulating system. It suggests that this living system has automatically controlled global temperature, atmospheric content, ocean salinity, and other factors, that maintains its own habitability. In a phrase, life maintains conditions suitable for its own survival. In this respect, the living system of Earth can be thought of analogous to the workings of any individual organism that regulates body temperature, blood salinity, etc. So, for instance, even though the luminosity of the sun the Earths heat source has increased by about 30 percent since life began almost four billion years ago, the living system has reacted as a whole to maintain temperatures at levels suitable for life. The Gaia theory was developed in the late 1960s by Dr. James Lovelock, a British Scientist and inventor, shortly after his work with NASA in determining that there was probably no life on Mars. His research led to profound new insights about life on Earth. The theory gained an early supporter in Lynn Margulis, a microbiologist at the University of Massachusetts. In the past 15-20 years, many of the mechanisms by which Earth self-regulates have been identified. As one example, it has been shown that cloud formation over the open ocean is almost entirely a function of the metabolism of oceanic algae that emit a large sulfur molecule (as a waste gas) that becomes the condensation nuclei for raindrops. Previously, it was thought that cloud formation over the ocean was a purely chemical/physical phenomenon. The cloud formation not only helps regulate Earths temperature, it is an important mechanism by which sulfur is returned to terrestrial ecosystems. The Gaia Theory has inspired many leading figures of the past 20 years, including Vaclav Havel, John Todd (inventor), Freeman Dyson (physicist), Al Gore, Joseph Campbell (mythology expert), and Elisabet Sahtouris (microbiologist). These and many

EVOLUTION AND LAW


Intelligent Design: The Faith That Dare not Speak its Name By Jerry Coyne
Is Intelligent Design (ID) merely a sophisticated form of biblical creationism, as most biologists claim, or is it a science an alternative to Darwinism that deserves discussion in the science classroom? The leading advocate in ID (William Dembski) himself is not clear as to the real stand of ID. The ambiguity between pure creationism and pure science is deliberate, for ID caters to both the secular and non-secular. For, to be able to teach ID in schools, the theory must be presented as purely scientific in order to satisfy the secular. However, ID is simply biblical creationism updated and disguised to sneak Christianity into the classroom, something IDers admit only to the non-secular. Assuming that ID can indeed be an alternative scientific theory, can this theory actually be superior to Darwinism with regard to explaining the natural world? No. ID is not only inferior to Darwinism, but it does not even fulfill the requirements of a scientific theory. A scientific theory is one that gives a convincing explanatory framework for a body of evidence, makes sense of wide-ranging data that were previously unexplained, and must make testable predictions and vulnerable to falsification. An example of a scientific theory is Einsteins theory of relativity, while an example of a theory not scientific is the Big Bang Theory (where there are no observations we can make to disprove the theory, although it may be true). So, how does Darwinism compare to ID? (The article then presents a discussion of the theory of evolution, its claims and evidence used to support it) Neo-Darwinism The Claims: 1. Evolution occurs (living species are descendants of species that lived in the past) 2. Evolutionary change through gradual genetic transformation over thousands or millions of years 3. New forms of life arise from splitting of a lineage (speciation) producing a tree of life (bottomline, that there is a common ancestor) 4. Much of evolution occurs through natural selection (survival of the fittest) The Evidence: 1. Fossil records the sequence of appearance of organisms evidenced by the fossil records (more simple organisms appeared first before the more complex ones) * Why should divine creation follow such a path, from simple to complex? 2. Curious remnants persisting in the anatomy and development of living species useless parts like the appendix among humans, and tiny wings among flightless animals show that these are remnants of an ancestor who evolved. * These imperfections make sense only if one assumes that evolution occurred.

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3. biogeography (geographical distribution of Earths flora and fauna) distribution of plants and animals make sense only by assuming that species had evolved and split into additional species, supported by the similarities of island flora and fauna to the mainland flora and fauna, and by the uniqueness of the flora and fauna found in islands never connected to a mainland. Every bit of information we have gathered about nature is consonant with the theory of evolution, and there is not one whit of evidence contradicting it. Although Darwin himself relied on logical argument, there have been, since his time, a lot of evidence accumulated to further support his theory. Conclusion: Darwins Theory of Evolution passes the scientific test of being an explanatory framework. It can also make predictions (Darwin predicted that the Erath was very old) and is falsifiable. Recent developments further support the theory. Intelligent Design The Claims: 1. Some features of organisms dont just appear designed but were designed by an intelligent agent 2. These features are irreducibly complex (could not have evolved using a stepwise manner) 3. Other features did evolve by natural selection (organisms are mixtures of natural selection and ID) 4. Nothing is or can be known of the intelligent designer** (There are two forms of ID: weak and strong ID. They only differ in the 4 th claim. The strong ID claims that the Intelligent Designer can be known, and that he is the Christian God.) Do these claims have evidence and support to qualify as a scientific theory? No. That there are irreducibly complex features just mean that anything that is currently not explained is actually designed (thus anything unexplainable is designed). Also, the IDers have not been able to point to anything that cannot be explained, at least by principle, by evolution. Also, the claim that anything that is unexplained is designed, and that nothing can ever be known of the designer only leads to the idea that anything goes when it comes to designing anything in the natural world. With regard to the claim of the strong ID that the intelligent designer is the Christian God, this only furthers the flimsiness of the theory of ID for it bases everything on a supernatural. Ultimately, the claims of the strong (and weak) ID are not scientific claims but are theological suppositions that cannot be tested. There are four additional claims of string ID but these additional claims have already been proved to be wrong. These are: 1. Major groups of organisms originated suddenly, without ancestors (abrupt appearance theory) IDers rely mainly on lack of evidence of a link between a simpler organism to a more complex one, like rabbits and bats (who appeared suddenly on fossil records), but lack of evidence does not mean these creatures just appeared out of nowhere. 2. Evolution by natural selection does occur, but only within kinds of organisms. There are no evolutionary transitions between kinds. IDers claim that evolution between kinds occurs only through supernatural intervention, thereby making it untestable. Also, there is no definition of kinds making it more ambiguous. 3. We do not know if the Earth is young or old obviously, the age of the Earth is now considered to be more or less certain. IDers among themselves cannot even agree as to the age of the planet (some say 6000 years old, some say billions of years old)

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4. Natural selection is not powerful enough to build complex organisms this has already been refuted by a number of scholarly critiques. Also, theoretical work shows that natural selection can evolve complex organisms such as the eye in remarkably short time. Who would want this theory to be taught as science? The first four claims are religious ones, while the latter four have long been falsified. In the end, ID is just a mishmash of Christian dogma and discredited science. Evolution operates by well-known and proved mechanisms, including natural selection. Intelligent Design invokes supernatural processes whose details are never spelled out and thus not subject to scientific investigation (thus cannot have scientific acceptance). IDers are well aware of this deficiency, and have made promises to deliver a program. Nothing has come out so far.

The Good Fight By Leonard Susskind


-The article starts off by saying that there were times in history when both science and religion existed together in harmony. These times though, were very brief. In fact, Susskind goes on to say that whether or not evolution is compatible with faith, science and religion represent two extremely different world views, which, if they coexist at all, do so most uncomfortably. Today, in the US, science and religion are in an angrier struggle then at any time in living memory. -in itself, the intellectual battle of ides is not a bad thing. But what I and many other people find deeply disturbing is the mechanisms that drive the conflict. It seems that both sides are pawns in a bigger game, a game of politics and power. This battle is what he calls the culture battle. -the reason for the recent upsurge for antiscientific sentiment in Susskinds view is the result of the anger, fear, frustration, and humiliation suffered over the years by the losers in the culture wars it also is the consequence of the deep and terrible universal fear of old age and death. The bigger reason though, might be the ease with which these emotions can be cynically manipulated. It is pretty clear that the battle was engineered by provocateurs who may not even have wanted the battles they provoked the provocateurs want to lose the battles and in that way keep the anger and humiliation at fever pitch. This thus keeps the battle torches lit though not flaming. -How should scientists respond to this strategy (of provoking antiscientific sentiment)? One option is to simply ignore the battle. This is the wrong option. As a long-time observer of the science-government-politics triangle, it looks to me as if there is another hidden agenda: to discredit the legitimate science community. A wellrespected scientific community can be a major inconvenience if one is trying to ignore global-warming, or build unworkable missile-defense systems the country pays a price for this ignorance. An example of great consequence is the Iraq disaster that followed when both republicans and democrats ignored the careful analyses of weapons inspectors So allowing ourselves (scientists) to be ignored, discredited and dismissed is not an option. -Susskind then says that in order to develop the right response, it is important to understand the origin of the conflict. And this origin probably involves primitive biological mechanisms. I presume that the primitive biological mechanisms which Susskind refers to are fear and anger (which in turn are that which provocateurs manipulate). In talking of fear, of death in particular, Susskind says that fear of death may be our deepest instinct-as deep or deeper than our urge to reproduce. But there

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are times when fear can cripple us, especially during a fight. This is his segue to the idea of religion (faith or the irrational), saying that there no one today can deny that faith-the belief in the irrational-comforts billions of people aware of their own mortality. This to him is partly why religion-the irrational has a grip on people. -The fundamental dilemma we face according to Susskind is Science-the quest for rational answers-does threaten the comforting beliefs that many people rely on. Conversely, the more scientific-minded find the whole notion of faith-based decision making threatening. Thus, the battle between science and religion. Susskind says this, I suspect is the main reason it is so easy to manipulate the sentiments of both sides of the debate. We are primed for it by our own biological heritage. Certain forces have learned how to use this fragile mechanism. -The right way then to deal with the problem without aggravating it is to defend and protect the integrity and objectivity of science. That means building a broad consensus of religion and science But to achieve this goal, we (scientific community) have to regain the goodwill of the public, pressing that hot-button of that 90 percent (Americans who believe in God) is a no-win game, a game we need to avoid. But it is equally important not to allow our own biological buttons to be pushed. Our overreaction is precisely the goal of the provocateurs. -to demonstrate this, Susskind recalls two accounts wherein his Christian students approached him for a consult regarding his works. The difference between the two accounts was that in the first, he wanted to deliver the message that modern science had provided complete explanations for everything and that furthermore the laws of chemistry, physics, and statistics had completely eliminated the supernatural from the evolution of life. This he recalled, resulted to the students indifference and hostility to science. He also recalled that honestly, he didnt believe that science had all the answers. The second account was a redemption of the mistake committed as a result of the first story. It was about a book he had written involving Intelligent Design. During the course of his conversation with Christian students of his, he again was keen on pushing the idea of the benefits of Darwinian evolution. However he also admitted that there certainly were gaps in the story of evolution, but that the rules of the science game were to attempt to fill in those gaps with natural explanations. He also admitted that there were things that science did not and might never fully understand. The main point of these accounts was to prove that antiscientific sentiments could be prevented by not pushing the hot-buttons of those who believe in the irrational. -His final advice was not to try to convert the hard-core creationists. The real challenge he said was to reach out to the majority, to the sensible people who have been jerked around by conflicting ideologies and dont know what to think.

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him think that in a pluralistic society that is the fairest way to go about education and training people for the future. Evolution is different from the confidence given to physics by people. The fundamental scientific idea of evolution by natural selection is not just mind-boggling; natural selection, by executing God's traditional task of designing and creating all creatures great and small, also seems to deny one of the best reasons we have for believing in God. So there is plenty of motivation for resisting the assurances of the biologists. Some of the methods used to exploit these urges are easy to analyze; others take a little more unpacking. Biology and the Development of the Eye Contemporary biology has demonstrated beyond all reasonable doubt: that natural selection - the process in which reproducing entities must compete for finite resources and thereby engage in a tournament of blind trial and error from which improvements automatically emerge - has the power to generate breathtakingly ingenious designs. Creationists use the development of the eye, which has been one of the favorite challenges. Only an intelligent designer could have created such a brilliant arrangement of a shape-shifting lens, an aperture-adjusting iris, a light-sensitive image surface of exquisite sensitivity, all housed in a sphere that can shift its aim in a hundredth of a second and send megabytes of information to the visual cortex every second for years on end. But as we learn more and more about the history of the genes involved, and how they work - all the way back to their predecessor genes in the sightless bacteria from which multicelled animals evolved more than a half-billion years ago - we can begin to tell the story of how photosensitive spots gradually turned into light-sensitive craters that could detect the rough direction from which light came, and then gradually acquired their lenses, improving their information-gathering capacities all the while. All it takes is a rare accident that gives one lucky animal a mutation that improves its vision over that of its siblings; if this helps it have more offspring than its rivals, this gives evolution an opportunity to raise the bar and ratchet up the design of the eye by one mindless step. And since these lucky improvements accumulate - this was Darwin's insight - eyes can automatically get better and better and better, without any intelligent designer. Brilliant as the design of the eye is, it betrays its origin with a tell-tale flaw: the retina is inside out. The nerve fibers that carry the signals from the eye's rods and cones (which sense light and color) lie on top of them, and have to plunge through a large hole in the retina to get to the brain, creating the blind spot. No intelligent designer would put such a clumsy arrangement in a camcorder, and this is just one of hundreds of accidents frozen in evolutionary history that confirm the mindlessness of the historical process. Evolution is cleverer than you are. Evolutionary biologists are often startled by the power of natural selection to "discover" an "ingenious" solution to a design problem posed in the lab.The designs found in nature are nothing short of brilliant, but the process of design that generates them is utterly lacking in intelligence of its own. Intelligent design advocates, however, exploit the ambiguity between process and product that is built into the word "design." For them, the presence of a finished product (a fully evolved eye, for instance) is evidence of an intelligent design process. Yes, eyes are for seeing, but these and all the other purposes in the natural world can

The Hoax of Intelligent Design and How it was Perpetrated By Daniel Dennett
PRESIDENT BUSH, announced that he was in favor of teaching about "intelligent design" in the schools to expose people to different schools of thought. People like

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be generated by processes that are themselves without purposes and without intelligence. The Creationist Excuse to Stir Controversies The focus on intelligent design has, paradoxically, obscured something else: genuine scientific controversies about evolution that abound. The legitimate way to stir up such a storm is to come up with an alternative theory that makes a prediction that is crisply denied by the reigning theory - but that turns out to be true, or that explains something that has been baffling defenders of the status quo, or that unifies two distant theories at the cost of some element of the currently accepted view. To date, the proponents of intelligent design have not produced anything like that. Instead, the proponents of intelligent design use a ploy that works something like this. First you misuse or misdescribe some scientist's work. Then you get an angry rebuttal. Then, instead of dealing forthrightly with the charges leveled, you cite the rebuttal as evidence that there is a "controversy" to teach. And here is the delicious part: you can often exploit the very technicality of the issues to your own advantage, counting on most of us to miss the point in all the difficult details. In short, no science. But saying, as intelligent design proponents do, "You haven't explained everything yet," is not a competing hypothesis. Evolutionary biology certainly hasn't explained everything that perplexes biologists. But intelligent design hasn't yet tried to explain anything.To formulate a competing hypothesis, you have to get down in the trenches and offer details that have testable implications. No other intelligent-design hypothesis has anything more going for it. In fact, finding some sort of user's manual neatly embedded in the apparently functionless "junk DNA" that makes up most of the human genome would be a Nobel Prize-winning coup for the intelligent design gang, but if they are looking at all, they haven't come up with anything to report. The Discovery Institute, the conservative organization that has helped to put intelligent design on the map, complains that its members face hostility from the established scientific journals. But establishment hostility is not the real hurdle to intelligent design. If intelligent design were a scientific idea whose time had come, young scientists would be dashing around their labs, vying to win the Nobel Prizes that surely are in store for anybody who can overturn any significant proposition of contemporary evolutionary biology. Remember cold fusion? The establishment was incredibly hostile to that hypothesis, but scientists around the world rushed to their labs in the effort to explore the idea, in hopes of sharing in the glory if it turned out to be true. For now, though, the theory they are promoting is exactly what George Gilder, a longtime affiliate of the Discovery Institute, has said it is: "Intelligent design itself does not have any content." Since there is no content, there is no "controversy" to teach about in biology class. But here is a good topic for a high school course on current events and politics: Is intelligent design a hoax? And if so, how was it perpetrated?

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Human Evolution: The Evidence By Tim White

- The article starts off with an account of Whites discovery of a human skeleton (dubbed the Herto Man) in Bouri village in Afar, Africa. White and his team of paleontologist excavated the remains of a Hominid and subjected it to tests and analyses for a period of over five years. Analysis showed the anatomy of the Herto man to lie at the outer limits of the large envelope of skull form among modern humans. From a paleontological perspective, this individuals skull was evidence for evolution, linking living people with their hominid ancestors. The article also describes other discoveries in other regions of Africa such as tools and animals buried under volcanic rock and mud. - Literal interpretation of the biblical accounts hold that humans remained basically unchanged after they were created. This interpretation was tested by the discovery of the Herto man. Here was someone whose anatomy linked him to earlier fossils that were not human. Thus providing evidence for the old debate: who was this and what did he represent? - Among those that contested the scientific discovery were Answers in Genesis, and Progressive Creationists. The former contested the radiometric dating and saw Herto man as a descendant of Adam. The latter accepted the dating but called Herto a nonhuman bipedal primate. The debate proved sterile, but itself constitutes evidence of the degree to which human fossils can upset strongly held religious beliefs. - As of the writing of the article, White and his team has recovered 277 hominid individuals, now under study at Ethiopias National Museum, many of them already published in top science journals. The glimpses are vital to understanding human origins and evolutions, but White claims that there are still many questions left unanswered simply because they dont have enough fossils. But it should be noted that hundred of fossils are anatomically and chronologically intermediate between modern animals and older ancestors. - There is the question of whether modern humans will ever be found alongside Australopithecus in the older sediments at Afar, sort of finding a definite connecting fossil to the missing link. White opines that as scientists, they must leave that possibility open, but realistically it becomes remote each time they find another fossil. - We have traditionally interpreted ourselves as the pinnacle of the evolutionary process. This view of the past is a narrow and misleading rendering of evolutionary history. The present has too often been imposed upon the past, the data of the past too quickly accommodated to preconceptions derived from the present. Out ancient human ancestors were neither humans nor chimpanzeesthey were creatures busy being themselves. Some went extinct. Others became us. - There are now tens of thousands of hominid fossils in museums around the world supporting the current knowledge of human evolution. The pattern that emerges from the vast body of hard evidence is consistent across thousands of investigations. All models, all myths involving the singular, instantaneous creation of modern humans fail in the face of this evidence. - A denial of evolutionhowever motivatedis denial of evidence, a retreat from reason to ignorance. - Today, evolution is the bedrock of biology, from medicine to molecules, from AIDS to zebras. Biologists cant afford to ignore the interconnectedness of living things, much as politicians cant understand people, institutions, or countries without understanding their histories. The implications of human evolution for law, medicine, agriculture and biotechnology are vast. Our very futures are tied to emergent diseases and changing climates. We ignore these realities at our peril. Rather than characterizing evolution as a process designed to create the world

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for ourselves, our studies of evidence lead to understanding evolution as a vast ongoing experiment whose results happen to include us. - The evidence shows that our species is a peculiar creature whose cultural adaptation is currently perturbing the planets ecosystems in drastic ways. Ironically, the worlds lone remaining species of bipedal primate is poised to go down in evolutionary history as the greatest biological eliminator of species diversity that the planet has ever witnessed. (Note: Evidence here refers to the various discoveries of skeletons and hominid ancestors. For a more detailed description of Whites excavations, please see article.)

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ATHEISM
Letters to a Christian Nation By Sam Harris
Note to the Reader - Since the publication of my first book, The End of Faith, thousands have written to tell me that I am wrong not to believe in God. The most hostile of these communications have come from Christians. It is clear that such hatred draws considerable support from the Bible (the most disturbed correspondents always cite chapter and verse) - The Christian I address is in a narrow sense of the term (believes, at a minimum, that the Bible is the inspired word of God and that only those who accept the divinity of Jesus Christ will experience salvation after death.) - Here, I have set out to demolish the intellectual and moral pretensions of Christianity in its most committed forms. Consequently, liberal and moderate Christians will not always recognize themselves in the Christian I address. - Accdg. to the most common interpretation of biblical prophecy, Jesus will return only after things have gone horribly awry here on earth. The fact that nearly half the American population believes this, purely on the basis of religious dogma, should be considered a moral and intellectual emergency. Letter to a Christian Nation - There are many points on which you and I agree if one of us is right, the other is wrong; the Bible is either the word of God, or it isnt; If Christianity is correct, and I persist in my unbelief, then I will suffer the torments of hell. - Consider: every devout Muslim has the same reasons for being a Muslim that you have for being a Christian. And yet you do not find their reasons compelling. The burden is upon them to prove that their beliefs are valid. They have not done this. - Truth is, you know exactly what it is like to be an atheist with respect to the belief of Muslims. That is the way Muslims view Christianity. And that is the way I view all religions. The Wisdom of the Bible - The idea that the Bible is the perfect guide to morality is simply astounding, given the contents of the book: > Whenever children get out of line, beat them with a rod (Proverbs 13:24, 20:30) > If they talk back, we should kill them (Exodus 21:15) - It is true that Jesus said some profound things about love and charity and forgiveness. The Golden Rule is a wonderful precept but numerous teachers offered the same instruction centuries before Jesus (Zoroaster, Buddha, Confucius)

- Take Jainism which teaches utter non-violence. While they believe many improbable things about the universe, they do not believe things that lit the fires of the Inquisition. The Bible is so muddled and self-contradictory that it was possible for Christians to burn heretics alive for five long centuries. - Consult the Bible and you will discover that the creator of the universe clearly expects us to keep slaves Leviticus 25:44-46 The Ten Commandments are also worthy of some reflection. The first four of these injunctions have nothing to do whatsoever with morality. Commandments 5 through 9 address morality but there are obvious biological reasons why people treat their parents well and do think badly of murderers, adulterers, thieves and liars. And to close it, the creator of the universe could think of no human concerns more pressing than the coveting of servants and livestock. Real Morality - You believe that unless the Bible is accepted as the word of God, there can be no universal standard of morality. But we can easily think of more objective sources of moral order that do not require the existence of a lawgiving God. - Everything about human experience suggests that love is more conducive to happiness than hate is. - Religion allows people to imagine that their concerns are moral when they are not. This explains why Christians like yourself expend more moral energy opposing abortion than fighting genocide; why you are more concerned about human embryos than the promises of stem-cell research; why you can preach against condom use (just to prevent premarital sex) while millions die from AIDS each year. - Consider: a 3-day old embryo is a collection of 150 cells called blastocyst. There are, for comparison, more than a 100,000 cells in the brain of a fly. But you cant sacrifice a blastocyst for the sake of a sever burn victim or a child with a deformed spine. And all this is traced to the idea of a soul. Doing Good for God - But what about all the good things done in the name of God? While Christian missionaries do many noble things at great risk to themselves, their dogmatism still spreads ignorance and death. - By contrast, volunteers for secular organizations do not waste time telling the people about the virgin birth of Jesus or that condom use is sinful. - While Mother Teresa was a great force for compassion, this was channeled within the rather steep walls of her religious dogmatism. In one of her speeches, she referred to abortion as the greatest destroyer of peace. This remark is astonishingly misguided. - More than 50% of all human conceptions end in spontaneous abortion. 20% of all recognized pregnancies end in miscarriage. If God exists, He is the most prolific abortionist of all. Are Atheists Evil? - Do members of atheist organizations in the US commit more than their fair share of crimes? - Crowds of thousands gathered throughout the Muslim world-burning European embassies, issuing threats, taking hostages, killing people-in protest over cartoons depicting the Prophet Muhammad first published in a Danish newspaper. Is there a newspaper in earth that would hesitate to print cartoons about atheism in fear of being killed or kidnapped in reprisal? - Consider the Holocaust: the anti-Semitism that built the Nazi camps was a direct inheritance from medieval Christianity. Both Catholic and Protestant churches have a shameful record of complicity with the Nazi genocide.

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- While you believe that ending a religion is an impossible goal, much of the developed world has accomplished it Norway, Iceland, Australia, Canada, Sweden, Japan, etc. Who Puts the Good in the Good Book? - You believe that mortals like ourselves cannot reject the morality of the Bible. We cannot say, for instance, that God was wrong to drown most of humanity in the Genesis, because this is merely the way it seems from our limited point of view. - If a man finds out on his wedding night that his bride is not a virgin, he must stone her to death (Deuteronomy 22:13-21). If we are civilized, we will reject this lunacy. - The choice is simple: we can either have a twenty first century conversation about morality and human well-being or we can confine ourselves to a first century conversation as it is preserved in the Bible. The Goodness of God - Atheism is not a philosophy; it is not even a view of the world; it is simply an admission of the obvious. - It is safe to say that almost every person in New Orleans believed in an omniscient, omnipotent and compassionate God. But what was God doing while Katrina laid waste to their city? Do you have the courage to admit the obvious? These poor people died talking to an imaginary friend. - If God exists, either He can do nothing to stop the most egregious calamities, or He does not care to. You may now be tempted to say that God cant be judged by human standards of morality. But these standards are precisely what you use to establish Gods goodness in the first place. The Power of Prophecy - It is often said that it is reasonable to believe that the Bible is the word of God because many of the events recounted in the New Testament confirm Old Testament prophecy. But how difficult would it have been for Gospel writers to tell the story of Jesus life so as to make it conform to Old Testament prophecy? -Just imagine how breathtaking a book would be if it were actually a product of omniscience. The Clash of Science and Religion - While it is now a moral necessity for scientists to speak honestly about the conflict between science and religion, even the National Academy of Sciences has declared the conflict illusory: science deals with the natural world, it can say nothing about the supernatural or the purpose of existence. - The success of science comes at the expense of religious dogma and vice versa. The Fact of Life - All complex life on earth has developed from simpler life forms over billions of years. This is a fact that no longer admits of intelligent dispute. - Christians who doubt the truth of evolution are apt to say things like: Evolution is just a theory, not a fact. Such statements betray a serious misunderstanding of the term theory is used in scientific discourse. In science, facts must be explained with reference to other facts. These larger explanatory models are theories. - And then theres intelligent design Religion, Violence, and the Future of Civilization - Competing religious doctrines have shattered our world into separate moral communities, and these divisions have become a continual source of human conflict. In response to this, many sensible people advocate something called religious tolerance.

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- Problem is, our fear of provoking religious hatred has rendered unwilling to criticize ideas that are increasingly maladaptive and patently ridiculous. Our competing religious certainties are impeding the emergence of a viable, global civilization. - Faith inspires violence in at least two ways. First, people often kill other human beings because they believe that the creator of the universe wants them to do it. Second, far greater numbers of people fall into conflict with one another because they define their moral community on the basis of their religious affiliation. - The idea that Islam is a peaceful religion hijacked by extremists is fantasy, and it is now a particularly dangerous fantasy for Muslims to indulge. But how can we ever hope to reason with the Muslim world if we are not reasonable ourselves? How can interfaith dialogue, even at the highest level, reconcile worldviews that are fundamentally incompatible and, in principle, immune to revision? The truth is, it really matters what billions of human beings believe and why they believe it. Conclusion - I would be the first to admit that the prospects of eradicating religion in our time do not seem good. Still, the same could have been said about the efforts to abolish slavery at the end of the eighteenth century. The analogy is not perfect, but it is suggestive. - I have no doubt that your acceptance of Christ coincided with some very positive changes in your life. I do not wish to denigrate any of these experiences. I would point out, however, that billions of other human beings have had similar experiences but they had them while thinking about Krishna, or Allah, or the Buddha, while making art or music, or while contemplating the beauty of Nature. - Some researchers have speculated that religion itself may have played an important role in getting groups of prehistoric humans to socially cohere. But that religion may have served some necessary function for us in the past does not preclude the possibility that it is now the greatest impediment to our building a global civilization. - This letter is a product of failure the failure of many brilliant attacks upon religion that preceded it, the failure of our schools to announce the death of God in a way that each generation can understand, the failure of media to criticize the abject religious certainties of our public figures- failures great and small that have kept almost every society on this earth muddling over God and despising those who muddle differently.

NATURAL LAW
Introduction to Jurisprudence Chapter III Natural Law By Dennis Lloyd

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How Natural Law Was and Is Currently Used - At some periods, natural law appealed to the religious and supernatural. In modern times however, it has formed an important weapon in political and legal ideology. - It has afforded a moral justification for existing social order. By arguing what is the law based on a higher law dictated by reason and so is also what the law ought to be, positive law is thought to acquire sanctity that puts it beyond question. - The idea of natural rights similarly had its origin in the conservative forces anxious to sanctify property (symbol of existing order) as the fundamental human right overriding even the right to life itself. Natural Law and Idealism - One of the more obvious characteristics of natural law is its idealism (as opposed to positivism, which tends to concentrate on a description and analysis of social facts, therefore tending to be secular, empirical and relativist). - The idealist approach received its most influential exposition in Platos theory of ideas. This claims that what we know has to be an externally existing object. On this theory of physical phenomena of the world are mere manifestations of an ideal order and should be studied to gain insight into this. Those whose eyes are fixed on the apparent facts of this world are likened to dwellers in a cave studying but the shadows on the wall the real events happening outside. Greek Origins - Plato, by his idealist philosophy laid down the foundations for much of subsequent speculation on natural law themes but he had nothing to say on natural law as such sense in the normative and overriding system of rules. His Republic was based on the substitution for law of the philosopher king, who could attain absolute justice by consulting the mystery locked in his own heart, which partook of the divine wisdom but remained uncommunicable to lesser mortals. - Prior to the Stoics, nature had meant the order of things. With the rise of the Stoics, nature became associated with mans reason. When man lived according to reason, he was living naturally. To them, precepts of reason had universal force. They stressed on the ideas of individual worth, moral duty, and universal brotherhood, and though in the early days theirs was a philosophy of withdrawal enjoining conformity to the universal law upon the select few of wise men alone, in its later development, stress was placed on laying down the law for all men. Jus Gentium1 - Cicero defines natural (true) law as the right reason in agreement with nature. He contended that positive laws, which contravene natural law should be struck down (e.g., law legalizing adultery). - Against the intellectual background of Stoicism, the Romans developed a law of nature dichotomized by its theoretical and practical aspects. Theoretical jus gentium sees natural law as higher law while practical jus gentium referred to pragmatic uses of law. Medieval period - Throughout the Middle Ages, the theology of the Catholic Church set the tone and pattern of all speculative thought.
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- Two principles, which animated medieval thought: (1) unity derived from God, and involving one faith, one church and one empire, and (2) the supremacy of law, not merely man-made. - Thomas Aquinas divides law into four categories. Lex aeterna (divine reason known only to God and the blessed who see God in his essence), Lex Divina (law of God revealed in the Scriptures), Lex naturalis (consists of participation of the eternal law in rational creatures and therefore intuitively known and knowable), Lex humana (positive law, which must be virtuous, necessary, useful, clear and for the common good). The aforementioned categories must be understood, as a unified concept. Renaissance, Reformation and Counter-reformation - The Renaissance led to an emphasis on the individual and free will and hman liberty and rejection of the universal collective society if medieval Europe in favor of independent national states. - Machiavelli examined human institutions without regard for divine prescriptions, and in light of naked expediency. - Natural law though eclipsed was later on revived by Thomism, the principal advocates of which are Vitoria and Suarez. These thinkers contended that our knowledge of the principles of natural justice was said to be wholly independent of any knowledge of revelation. It was not possible to neglect the law of nature since all men from the beginning of creation have in fact been subject to it. - Suarez, in a departure from Aquinas thinking argued that jus gentium differed from natural law and is actually straightforwardly a case of human positive law. It followed that private property justified as part of the law in Thomist theory, had no further basis than the laws men made for themselves. - Locke escaped from Suarez awkward conclusion by arguing that the right to hold property was a right of nature and not a mere privilege from positive law. - The social contract ideologies associated with Hobbes, Locke and Rousseau can also be traced to 16th century Thomist thought. The concept of consent was invoked to explain how it is possible for a free individual to become the subject of a legitimate state. - A question which Counter-Reformation Thomist thinkers addressed was whether the commands of a human sovereign were always binding. Lutherans argued that the commands of an ungodly ruler could never be binding in a court of conscience. The Thomists response was essentially what Bellarmine explained: anyone who sets aside either the natural, the positive, the divine or the human law, must in every case be sinning against the eternal law of God. Grotius and International Law - The secularization of natural law is usually held to begin with Grotius who asserted that natural law would subsist even if God did not exist (etiamsi daremus non esse Deum). - According to Finnis (in his analysis of Grotius), what Grotius was claiming is that what is right or wrong depends on the nature of things, and not on a decree of God, but the normative significance of moral rightness depends fundamentally upon there being a decree expressing Gods will that the right be done. The significance of Grotius thought is in a shift of emphasis towards the natural reason of man. - Grotius main concern was to establish a system of international law to regulate the affairs and warfare of the rising nation-states. The sovereigns of every state according to him were bound by natural law. The linkage with natural law to his discourse is however unclear. Natural law ends up with a subsidiary role as its details are worked out.

Literally means law of nations or some interpret it as law of the world. In the context of natural law, jus gentium is understood as the law that natural reason establishes among all mankind and is followed by all peoples alike.

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Natural Law and the Social Contract - The social contract is a wholly formal and analytic construct that can be used as a means of presenting conflicting political ideals. In Hobbes (or Bodin or Grotius) it is used in defense of absolutism; in Locke in support of limited constitutionalism. - At root, the political theory is that no man can be subjected to the political power of another without his own consent. Obedience to authority is thus legitimated by voluntary submission to those who exercise authority. - Thomas Hobbes (1588-1679) looked at state of nature in which man lived before his Social Contract as a war of every man against every man, a condition of internecine strife in which the life of man was solitary, poor, nasty, brutish and short. Self preservation is the great lesson of natural law and therefore law and government has thus become necessary to promote order and personal security. - John Locke (1632-1704) used the social contract to construct a natural rights doctrine. His state of nature differed from Hobbes in that the state of nature is an idyllic natural condition where the only thing lacking was protection of property. The purpose of government therefore is to protect mans entitlements. - Jean Jacques Rousseau (1712-1778) conceived the state of nature closer to Lockes than Hobbes though without emphasis on the sanctity of property. To Rousseau, the social contract is a mystical contract by which the individual emerges into the community and becomes part of the general will. Law is the register of the general will. Government can only be tolerated so long as it accurately reflects the general will. He who refuses to obey the general will shall be compelled to do so by the whole body. His concept of general will has come almost to replace the higher law standard that natural law presented. The Eighteenth Century - The 18th century is called the Age of Reason as the era attacked natural law with increased demand for secularism and rationalism. - Vico attacked natural law by arguing that the world of civil society has certainly been made by men. - Montesquieu believed that mankind was influenced by a variety of factors: climate, religion, laws, maxims of government, morals and customs. The individual is merely an instrument of historical change, a passive element within a system conceived as the ceaseless interaction of moral and physical forces. - Hume (1711-1776) developed a modern theory of natural law, which attempted to make a science of morality and law which had no need of a religious hypothesis. Justice was an invention of a naturally inventive species and from that point of view natural, the spontaneous product of life in society, and like that, as old as the species. - Burke (1729-1797) used natural law to shore up capitalist institutions and practices. He identified the laws of commerce as laws of nature and consequently laws of God. He saw a competitive, self-regulating market economy as a necessary part of the natural order of the universe. Nineteenth Century - Hegel deified that state as a higher reality implicit in the laws of history and the conscious ness of the people, whose individual wills only attain full realization in this form. The state was an end-in-itself and absolutely sovereign, a product of the laws of history but not otherwise subject to an external natural law. - The rise of Darwinism led to an attempt to see the law of evolution and natural selection as a sociological phenomenon automatically regulating mans relations in society.

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- The positivist movement sought to relegate natural law to the sphere of morals and religion and to segregate manmade law as a distinct phenomenon whose validity did not rest on divine or supernatural sanctions. Twentieth century - The decline in social and economic stability, the expansion of governmental activity, as well as the growth of weapons of destruction and policies of genocide coupled with reviving doubts as to the method of empirical sciences, have led to a resurgence in favor of natural law thinking. - In the US, the existence of fundamental rights in the Constitution has given more scope for the natural lawyer and the Universal Declaration of Human Rights and the European Convention on Human Rights are essentially natural law documents. - Lon Fuller (1902-1978), in his secular view of natural law, sees the affirmation of the reason in legal ordering as the most fundamental tenet of natural law. The process of moral discovery is a social one, and that there is something akin to a collaborative articulation of shared purposes by which men come to understand better their own ends and to discern more clearly the means for achieving them. The connection between law and morality is a necessary one. - H.L.A. Harts arguments show the coming together of positivism and natural law. While Hart is viewed as the leader of contemporary positivism, his views actually restate a natural law position form a semi-sociological point of view. He places emphasis on an assumption of survival as a principal human goal. He points out that there are substantive rules which are essential if human beings are to live continuously together in close proximity. In light of the inevitable features of human condition (such as human vulnerability, approximate equality, limited altruism, limited resources, limited understanding and strength of will), there follows a natural necessity for certain minimum forms of protection for persons, property and promises. - Finnis believes that natural law is the set of principles of practical reasonableness in ordering human life and human community. Drawing on Aristotle and Aquinas, Finnis sets up the proposition that there are certain basic goods for human beings. The basic principles of natural law are pre-moral. These basic goods are objective values in the sense that every reasonable person must assent to their value as objects of human striving. Finnis lists seven basic goods: (1) life, (2) knowledge, (3) play, (4) aesthetic experience, (5) sociability and friendship, (6) practical reasonableness, (7) religion. Liberty and Human Rights - An emphasis on individual liberty and freedom has been a distinctive feature of the western political and legal philosophy since the 17th century, associated particularly with the doctrine of natural rights. - The doctrine of natural rights resulted in the widespread acceptance of the existence of fundamental rights built into the constitutional framework as a bill of rights, as well as receiving recognition internationally by means of Covenants of Human Rights agreed upon between States.

Liberty and Civil Disobedience - There are two kinds of freedom: positive and negative. - Positive freedom is a spiritual concept concerned in its social context with attaining an order of society which allows the fullest possible development of the powers of selfrealization of every human being.

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- Negative freedom has the more limited goal of achieving a society where as large a sphere of individual autonomy is left as is compatible with public welfare. Restraints and limitations on individual freedoms are thus recognized as inevitable but these are to be minimized in the interests of free choice. - Writers like MacGuigan have put the case for civil disobedience on moral grounds. Thus they argue that it may be justified if it takes the form of a public non-violent act of illegality performed for a moral purpose, and even violence may be justifiable (like self-defense) if it is proportionate response to serious injustice; though MacGuigan doubts whether a coercive element can ever be apt reaction to an unjust law within a framework of democratic government. Conclusion - The search for natural law will continue as long as there is perceived injustice in the world. Positivists remain as unconvinced as Hume that one can logically derive an ought from an is. The assertion that there are certain objective moral values however is easier to assert than rationally justify. A challenge for natural lawyers is to finally answer the question of when is something a law and when it is not.

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POSITIVISM
Introduction to Jurisprudence Chapter VI Positive Law By Dennis Lloyd
I. Introduction - the chapter concentrates on the outstanding figures of contemporary jurisprudence; Hart, Dworkin, Rawls and Nozick, and thus tries to throw light on the concept of law (as depicted by Hart), justice (as seen through Rawls magisterial book), rights (the emphasis being on the rights thesis of Dworkin) and libertarianism (the focus being on Nozicks minimal state). - includes a critical legal studies of the economic analysis of law which, together with critical legal studies, is dominating American intellectual legal life - a short section is given to a discussion of Hohfelds classic on fundamental legal conceptions - an extract from MacCormick appears in this chapter- some characteristics of contemporary legal philo to which he draws attention, in particular the rediscovery of practical reason, notably in the writings of Raz. One result of Razs pursuit of reasons for action is to direct our attention, when looking at a concept like obligation to act. In his article the Problem About the Nature of Law he shows that there is a difference between there being some sound reasons for conduct being legally obligatory and its actually being so. - the search for what it is that separates law from other normative phenomena continues amongst positivists. It is a feature of contemporary jurisprudence that this search has taken jurists into newer terrains - Dworkin was concerned, and rightly so, with the inadequacies of positivistic explanations of how disputes were determined when, as is so often the case, we run out of rules. He has attempted to construct a theory of law out of a theory of adjudication. He shows that judges use, and must use, moral considerations in addition to rules found in legislation and case law. He argues that these moral considerations are integral to the moral theory justifying the enacted and case law binding on the judges. But, surely not all the considerations a judge uses in his deliberations and

reasoning constitute the law? Dworkin seems to assume they do, though he offers no explanation as to why that should be so. - Contemporary analytical jurisprudence owes much to Hart. It was he shook English jurisprudence out of its lethargy in the 1950s. It was he who placed theorizing about law back into the mainstream of philo. The significance of Harts contribution also lies in his application of philo to substantive legal issues, such as causation, to practices like punishment and to questions of moral philo such as the legitimacy of legal intervention into private immorality. Hart demonstrated the need for those interested in the concept of law to appreciate the insights of analytical, particularly linguistic, philo. - Dworkin has placed the issues of jurisprudence back- where they were in the days of Bentham- in the realm of moral and political philo. His contributions to jurisprudence are matched by his contributions to the devt of a liberal political theory. It is his view that the right to equal concern and respect is the fundamental principle of moral theory, and that utilitarianism is no sub for a theory committed to taking rights seriously. - One of Dworkins sharpest critics is Hart. It is the brunt of Harts argument that if someones liberty is restricted he is not being treated as an equal. Dworkin does not think that this usually happens and that it occurs only when a persons convictions and values are condemned by others. - as a critic of utilitarianism Dworkin is naturally sceptical of a contemporary variant, the economic analysis of law. He is of the view that judges should decide civil cases, wherever possible, so as to maximize the aggregate wealth of society. Wealth maximization is a proxy for the max. of utility and Dworkin rejects both. - jurisprudence is currently experiencing a period of intellectual ferment; the scope and scale of contemporary concerns include rights, privacy, abortion, nuclear deterrence, equality, freedom of speech, paternalism, discrimination, exploitation. II. Harts Concept of Law - he turns his back on a tradition which seemed to believe that definitions could solve the difficulties to which the words embodying the concepts gave rise - he believed that a more fruitful approach would be to elucidate the conditions to which true statements are made in legal contexts about rights, corporations, etc. - Hart, in the preface of Concept quotes JL Austins remarks that we may use a sharpened awareness of words to sharpen our awareness of phenomena. This is the goal of the The Concept od Law. The book is offered as an essay in descriptive sociology, but this description is as likely to mislead as to guide. It is rather an essay in analytical jurisprudence, in conceptual analysis which, for all its faults, remains the most significant post-war text in jurisprudence. A. An outline of Harts Jurisprudence - for Hart the legal system is a system of social rules. The rules are social in 2 senses: first in that they regulate the conduct of members of societies; secondly, in that they derive from human social practices. Like rules of morality, laws are concerned with obligations: they make certain conduct obligatory. But unlike rules of morality they have, what MacCormick calls, a systematic quality which hinges on the interrelationship of 2 types of rules, called by Hart primary rules and secondary rules. - he objected to Austins command theory in the grounds that it failed to encompass the variety of laws. His theory distinguishes between primary duty-imposing rules, and secondary power-conferring rules or which lay down rules governing the composition and powers of courts, kegislatures and other official bodies. These

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secondary rules relate in various ways to the primary ones: it is in this kind of relp that the systematic quality of law is to be found - according to him there are 3 kinds of secondary rule: 1)rules of adjudication- rules which confer competence on officials to pass judgment in cases of alleged wrongs and also enforce the law; 2)rules of change- rules which regulate the process of change by conferring the power to enact legislation in accordance with specified procedures. They confer on ordinary individuals the power to produce changes in the legal relp they have with others; 3)rule of recognition- it determines the criteria which govern the validity of the rules of the system. It is one of the more puzzling and troublesome features of Harts jurisprudence - There are, according to Hart, 2 minimum conditions necessary and sufficient for the existence of a legal system. These are that those rules of behavior which are valid according to the systems ultimate criteria of validity must be generally obeyed, and...its rules of change and adjudication must be effectively accepted as common public standards of official behavior by its officials -- the first condition has to be satisfied by private citizens and they may obey for any reason -- the second condition must also be satisfied by the officials of the system and they must regard the secondary rules as common standards of official behavior and appraise critically their own and each others deviations and lapses. - a system of rules which is in this sense effectively in force in a territory is the central case of a legal system. There are primitive forms of human social community where a common set of primary standards is observed but where power-conferring secondary rules have not developed. Hart attempts to show how the shortcomings suffered by such a community are cured by the devt of 2ndary power-conferring rules. - Austin regarded neither primitive nor international law as law. Hart does not agree he draws a distinction between a set of rules and a system; the most significant diff is in the simpler form of society we must wait and see whether a rule gets accepted as a rule or not; in a system with a basic rule of recognition we can say before a rule is actually made that it will be valid if it conforms to the requirements of the rule of recognition - Hart detects similarities of form and structure, as well. Both primitive societies and the international order contain among their primary rules elementary restrictions on violence, theft, breach of promise, etc. He said given survival as an aim, law and morals should include a specific content - another aspect of what Hart conceives to be part of legal orderhe sees a core of good sense in natural law. The legal orderings of human social communities must naturally embody a certain number of basic prohibitions, what he calls a minimum content of natural law. - 4 cardinal features of morality, each of which distinguish those principles, rules and standards of conduct which are most commonly accounted moral from law: importance; immunity from deliberate change; the voluntary character of moral offenses; and the form of moral pressure. - Hart, being a positivist, does not believe that law is derived form morality, for, whatever the historical influence may be in the given case, there is no higher order to which law looks to take its authority - he does not say that there is any necessary conceptual link between the legal and the moral, but that the ultimate basis for preferring the positivist thesis, which insists on clear differentiation of law and morals, is itself a moral one. - a concept of law which allows the invalidity of law to be distinguished from its immorality, enables us to see the complexity and variety of issues such as those that confront persons called upon to obey evil laws.

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B. The Internal Aspect of Law - this constitutes a radical break with the thought of his positivist predecessors Austin and Bentham and also sharply differentiates Harts thinking from that of Kelsen. For Kelsen there is a separate category of human thought (the ought) radically distinct from the is and, therefore, from human psychology. - Harts view is that normativity hinges on human attitudes to human action. Law depends not only on the external social pressures which are brought to bear on human beings, but also on the inner point of view that such beings take towards rules conceived as imposing obligations. In other words, in primitive societies an internal point of view on the part of its members is necessary for the preservation of group cohesion and solidarity. In legal systems, however, certainly in stable, mature ones, it is not necessary for citizens to possess an internal point of view. - Harts explanation of social rules is thus dependent on a hermeneutic approach. This approach is concerned with understanding the significance of human actions of others; Hart introduces the internal aspect of rules to distinguish rules from habitswhat he is denying is the possibility of explaining rules solely by reference to external patterns of behavior. - Hart says that what is necessary is there should be a critical reflective attitude to certain patterns of behavior as a common standard, and that this should display itself in criticism, demands for conformity, and in acknowledgments that such criticisms and demands are justified, all of which find their characteristic expression in the normative terminology of ought, must and should, right and wrong. - But what comes first: criticism or attitude? Criticism is said to depend on the attitude but attitude is explained by reference to criticism and its justification. There is circularity here which requires, but does not receive, further attention and explanation MacCormick suggests that what is missing is an elucidation of what is denoted by rules being generally accepted, supported by criticism, supported by pressure for conformity and so on; he believes that such an elucidation must be by reference to a volitional element: a wish or will that the pattern be upheld, a preference for conforming to non-conforming conduct. On what are these wishes based? In part the answer may be feelings that the individuals have, feelings of being bound, so that they want others to experience these same feelings; Hart, in believing that the internal aspect is often misrepresented as a mere matter of feelings, may himself have underestimated the importance of the emotional. C. The Rule of Recognition - Harts criticisms of the Austinian view of sovereigntyhe points out that a mere habit of obedience cannot explain the continuity of law, that is to say, the fact that obedience is rendered not merely to the initial ruler, but to his successor upon the demise of that ruler; first, because habits are not normative and second, because habits of obedience to one individual cannot, though accepted rules can, refer to a class of future successive legislators as well as the current one, or render obedience to them likely= as Hart puts it, habitual obedience to one legislator neither affords grounds for the statement that he is likely to be obeyed - there is also the problem of accounting for the persistence of law: why are Acts of Parliament passed in the 19th century still law today? The concept of habitual obedience cannot explain why the citizens of today cannot be said habitually to obey a sovereign long since dead. - Theres also the problem of legal limitations on the sovereign. Austins theory could not accommodate these: sovereignty subject to legal limitations was for him the contradiction in terms. Hart points out that it is a misconception to view legal limitations as legal duties. They are rather legal disabilities. Limits here implies not the presence of duty but the absence of legal power.

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- This leads us to consider the rule of recognition. The rule provides authoritative criteria for identifying valid law within a particular legal system. Hart points out that such a rule is often not expressly stated, but can be shown by the way in which particular rules are identified by the courts and other legal officials. It is a form of social practice. --First problem: as a practice it is presumable, but what could we be expected to observe in a court. Even if external behavior were observable we must not forget that the rule also has an internal aspect. - Whatever its juridical status, Hart tells us that the rule of recognition is ultimate and as an ultimate rule, it can neither be valid nor invalid. For him, the only point is whether the rule of recognition is accepted as such by those who operate the system. - As a secondary rule, the rule of recognition ought to be power-conferring but it does not confer a power as such on anyone. Hart suggests that it may be a secondary rule in a weaker sense of being about primary rules. But if its function is identification, then it is unnecessarily restrictive for it would need to be about other secondary rules as well. This has led him to suggest that the rule of recognition is in reality dutyimposing. - But should we be referring to the rule or rules of recognition? Hart seems to take two positions. Sometimes he makes it apparent that there is indeed one rule of recognition. Hart also takes another position. He describes the rule of recognition as specifying various criteria of validity and granting them order of precedence. The rule of recognition is identified with the ranking of criteria. He notes that where there are several criteria ranked in order of relative subordination and primacy, one of them is supreme. Sometimes, Hart seems to suggest that it embodies nothing but a ranking of criteria: at other times, he indicates that other elements are included as well, such as rules of change. He sees the rule of recognition as a luxury found in advanced social systems rather than a necessity. He thus rejects the idea of Kelsen that a basic norm is an essential presupposition of all legal systems. Hart says there is no reason at all why we should insist that there should be a basic norm in the international legal order. The insistence on the need for a basic norm often leads to the rather empty repetition of the mere fact that society thus observe certain standards as obligatory. He does not believe that there is a basic rule providing general criteria of validity for the rules of international law. D. Is Law a System of Rules? - Harts description of a legal system in terms of a union of primary and secondary rules provides a tool of analysis for much that has puzzled both jurist and political theorist. He writes: so long as the laws which are valid by the systems tests of validity are obeyed by the bulk of the population this surely is all the evidence we need in order to establish that a given legal system exists. He concedes that there is more to a legal system than a union of rules. He stresses the open texture of rules as well as the distinctive relationship of law to morality and justice. - Harts leading critic is Dworkin. He has criticized Hart for representing law as a system of rules and for suggesting that the judges use their discretion and play a legislative role. He argues that a conception of law as a system of rules fails to take account of principles. He also maintains that judges do not have strong discretion, believing that even in hard cases there is one right answer; principles differ from rules in the character of the discretion they give for, while rules are applicable in an all-ornothing fashion, principles state that a reason that argues in one direction but do not necessitate a particular decision. Further, principles have a dimension of weight or importance that rules lack. Rules, by contrast, are functionally important. A further difference is that the force of a principle may become attenuated over a period of time. Not so with rules; he argues that positivist models of the judicial process cannot accommodate principles and that it is this which makes them employ the concept of

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discretion. The rule of recognition gives us the capacity to identify a law and principles are standards which are to be considered as inclining in one direction or another. But there is no reason why an ultimate test should not be formulated by which rules and principles could be identified; it would seem that Dworkin himself comes close to accepting something like a master rule, because he distinguishes between settled law in which principles are embedded from unsettled law which provides the hard cases which are to be decided by the principle so derived. - It is perfectly possible to construct a positive theory of law and adjudication which incorporates principles. It is MacCormicks view that principles do belong within the genus law and interact with the rules, underpin them, hedge them in, qualify them, and justify the enunciation of new rulings as tested out by consequentialist arguments. He disagrees with Dworkin who believes that the law is gapless. He denies that judges may exercise what Dworkin calls, Strong discretion. There are considerable constraints on what judges may do. He does not agree with Dworkin that the limited discretion that judges have are characterized as weak, with all that that implies. There is a residual area of pure practical disagreement. - Harts Concept does not purport to provide a theory of adjudication. What MacCormicks Legal Reasoning and Legal Theory makes clear is that a positivist theory like Harts is capable of addressing itself to the problems Dworkin rightly uncovered in Harts model of positivism. III. Rawls and Distributive Justice - some of the earliest thinking about justice is found in Aristotle Nichomachean Ethics goods should be distributed to individuals on the basis of their relative claims this is a framework for examining diff. conceptions of justice; thus, goods might be distributed according to needs or desert or moral virtue, etc. - On of the most interesting recent attempts to defend principles of justice is found in John Rawls A Theory of Justice. - Rawls conception of justice demands: > maximization of liberty, subject only to such constraints as are essential for the protection of liberty itself > equality for all > fair equality of opportunity and the elimination of all inequalities of opportunity based on earth or wealth - Rawls rejects basic structures which incorporate arbitrary inequalities but he does not espouse egalitarianism. What he defends may be described as a qualified egalitarianism. - Rawls theory differs utilitarianism in 3 significant ways: 1. Utilitarians can accept inequalities and social arrangements wherein some benefit at the expense of others, provided that the benefits exceed the costs so that the outcome is the maximization of overall welfare level (the greatest happiness of the greatest number) 2. while utilitarians defend liberty and political rights, they have no objection to limiting liberty or restricting political rights, provided doing so would promote greater welfare. On the other hand, Rawls first principle (Equal maximum liberty principle) means that there are some rights like freedom of speech and association, right to vote, which may not be sacrificed just to increase the aggregate welfare level. 3. Rawls conception of benefits is different from utilitarianism. The latter is concerned with welfare; Rawls defines benefits in terms of primary goods, liberty and opportunity, income and wealth and the bases of self-respect.

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- Rawls does not stipulate how primary goods should be used by individuals: he implies that they may use them as they choose, provided in doing so they do not undermine just institutions. - His principles are those that free and rational persons concerned to further their own interests would accept in an initial position of equality as defining the terms of their association. - What he sets out to show is that certain moral principles are binding upon us because they would be accepted by rational beings like us in the original position - The idea of justice as fairness - What Rawls hunts out are mutually acceptable ground rules. - Rawls view of humans is that they are by nature free and rational beings; for example, persons in the original position will agree that there should be freedom of thought. - Rawls difference principle has provoked a lively debate; it represents an agreement to regard the distribution of natural talents as a common asset and to share in the benefits of this distribution whatever it turns out to be. He sees the the distribution of natural talents as a collective asset with the result that the more fortunate are to benefit only in ways that help those who have lost out. - The priority which Rawls gives to liberty also merits consideration. He says that a person in the original position will choose the basic liberties in priority to any distribution of income, wealth and power because he knows that by doing so, he will have the best chance of obtaining for himself the primary goods and of pursuing whatever other ends fit within his life-plans. - Those in the original position will refuse to allow liberty to be traded off for other social goods - On the compatibility if the first principle demand for equal liberty and the second principle of justification for inequalities, in wealth and liberty is it not the case that inequalities in wealth and power always produce inequalities in basic liberty? our historical experience as Rawls acknowledges us that they do. He tries to circumvent this problem by introducing a distinction bet. Liberty and worth of liberty. - Liberty represented by the complete system of the liberties of equal citizenship continues to be distributed in accordance with the first principle; but the new social good, the worth of liberty to persons or groups is proportioned to their capacity to advance their ends within the framework the system defines, that is in accordance with the second principle. In this way, Rawls is able to argue that unequal wealth does not cause inequality of liberties, only inequality of the worth of liberty :Some have greater authority and wealth and therefore greater means to achieve their aims. - What Rawls is doing is arbitrarily excluding economic factors from the category of constraints defining liberty. IV. Nozick and the Minimal State - In Anarchy, State and Utopia Robert Nozick revives the claim long associated with John Locke and Herbert Spencer, that a minimal state a limited to the narrow functions of protection against force, theft, fraud, enforcement of contracts, and so on, is justified; and that the minimal state is inspiring as well as right. - Entitlement theory: economic goods arise already encumbered with rightful claims to their ownership. Nozicks treatise extols the virtues of eighteenth-century individualism and nineteenth-century laissez-faire capitalism. - Individual anarchist: when the state monopolizes the use of force in a territory and punishes others who violate its monopoly, and when the state provides protection for everyone by forcing some to purchase protection to others, it violates moral side constraints on how individuals may be treated, thus concluding the state itself is intrinsically immoral.

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- The state grows by an invisible-hand process and by morally permissible means, without anyones rights being violated. - Against the argument that the state is necessary (or is the best instrument) to achieve distributive justice, Nozick puts forward his entitlement theory of justice (a persons holdings are just if acquired through just original acquisition or just transfer or through the rectification of injustices in the first two senses). If each persons holdings are just, then the total set of distribution of holdings is just. - Nozick concludes that no state is justified in applying a principle or principles which aim at some end-result and specify some patterned distribution. In addition, the state should confine itself to enforcing contracts, prohibiting thefts and taking such other measures to secure holding to those entitled to them. - The minimal state treats us as inviolate individuals who may not be used in certain ways by others as means of tools or instruments or resources: it treats us as persons having individual rights with the dignity that this constitutes...It allows us, individually or with whom we choose, to choose our life and realize our ends. - The main contribution of Nozick is to challenge the concept of distribution. He forces us to ask not how can distribution be other than equal but why should there be distribution at all. - Nozicks objection to tax is rooted in his belief in the absolutely inviolable character of property rights. Judith Jarvis Thomson however provides a convincing case that such cannot be defended. - Thomson: Property claims are to be sustained when in addition to having acquired title to an object in suitable ways, we value that object highly: such claims may be overridden when a life will be lost in the absence of an infringement of rights. Rights are derivative from human interests and needs; constraints are not as inflexible as Nozicks conception of them. - First part of Nozicks Book: Justifies the minimal night-watchman state against anarchists. Nozick does not provide any independent epistemic criteria for assessing the procedures of the emergent dominant agency. - Second part: Nozick adduces arguments against the extensive state. It is this aspect that is most controversial, containing Nozicks defense of libertarian capitalism. - Nozicks principal argument against distributionist theories of justice rests on their failure to cohere with his ideal of individual liberty. The right to property is an expression of the right to liberty. For Nozick the right to liberty is defined by reference to the right to property. - The central flaw in Nozicks arguments is the abstractness of the individualism they presuppose. Nozick assumes that it is possible to isolate people in this way, whereas in reality people are constituted by the societies into which they are socialized and live. - Lukes: Abstract individualism is a distorting lens which satisfies the intellect while simplifying the world. V. The Economic Analysis of Law - the economic analysis of law is an attempt to offer a sophisticated, scientific alternative to utilitarianism. One of the problems with utilitarianism is the lack of a method for calculating the effect of a decision or policy on the total happiness of the relevant population: it offers no reliable technique for measuring change in the level of satisfaction of one individual relative to a change in the level of satisfaction of another. - the concept of value employed by economists is a truism: a thing has value (utility) for a person when that person values it. How much value a thing has for a given person is said to be measured by the maximum that person would be willing to pay for it or the minimum the person would be willing to take to give it up. Economists support this by two arguments: The first depends on the dominant guiding principle of minimizing

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costs. The second argument concerns alternative transactions (that is, the ways in which people deal with resources used for the production of goods). - economic arguments turn on concepts like efficiency, superiority, optimality, allocation and distribution. > the most basic notion in the economic analysis of law is efficiency or Pareto optimality. A situation is said to be Pareto-optimal if it is impossible to change it without making at least one person believe he is worse off than before the change. The definitions of optimality and superiority do not depend on objective assessments of good, but on subjective ones. Whether persons believe that they will be better off, worse off or the same under a proposed change, and how much, or to agree to it only of they are paid for it, and how much. - The Pareto superiority standard applies only where there are no losers. But most social policies and most rules produce both winners and losers. Therefore, the Pareto test is not of much value when applied to the sort of questions likely to concern the policy-oriented lawyer. - The Kaldor-Hicks Test is an attempt to get round this problem and extend the usefulness of Pareto rankings. It requires that the increase in value be sufficiently large that the losers can be fully compensated. It enables us to evaluate social policies and legal rules that produce winners and losers. The difference between Pareto superiority and Kaldor-Hicks efficiency is just the difference between actual and hypothetical compensation. - The question must be asked as to why compensation is not paid, if it could be. The reasons given are two-fold: first, some losers deserve to lose. Secondly, it may be very costly to compensate losers. - A number of limitations may be noted to the Kaldor-Hicks approach. First, unlike Pareto efficiency, there is no sense of voluntarism the efficient solution is coercively imposed after some thirtd party determination of costs and benefits. Secondly, because losers of efficient legal reforms go uncompensated for their losses, the criterion is capable of generating quite drastic, capricious and inequitable redistributions of wealth. Thirdly, this approach obviates the need to make interpersonal comparisons of utility. - A concept so far missing from this discussion is justice. The omission is one reflecting the absence of thinking about distributive justice in the writings of economists. There is frequently a conflict between utilitarian concerns and justice. The distribution of wealth determines in part both the economic value and optimal allocation of resources in an economy. If the wealth in society were redistributed there would be a different Pareto efficient allocation of resources. This means that there are an infinite number of allocatively efficient outcomes that differ only with respect to the distribution of welfare among individuals in society. There is no rearrangement of societys productive activity or allocation of goods and services that will improve the economic welfare of society given the distribution of wealth upon which market transactions are based. What this amounts to is a recognition that allocative efficiency in itself is not capable of generating any social welfare function. > normative economics needs a theory of distributive justice which will enable the analyst to rank efficient outcomes in terms of their ethical attractiveness. > economists have been reluctant to commit themselves to this type of thinking: for them justice is a notion that defies scientific analysis and also there is the problem of setting up a social welfare function which is consistent with the efficiency assumptions which are central to their thinking. - This leads to one of the commonest criticisms of the economic analysis of law: the linchpin of the analysis is that what is efficient depends on what people are willing to pay but this is in turn dependent on what they are capable of paying. The more wealth one has the more one is likely to increase it. The economic analysis is attacked not just

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because it lends itself to this pattern of distribution, but because it is that economic analysis requires and sanctions such patterns of distribution under the guise of pursuing the presumably desirable goal of efficiency. - Coleman: > if rights are assigned in this way, the richer not only get richer, but because their newly acquired entitlements increase their wealth further, they are in an even better position to increase their wealth again by securing more rights on the grounds that their doing so is required by efficiency. Thus, efficiency not only depends on prior wealth inequities; pursuing efficiency leads inevitably to further inequities. + It can however, be argued that this inequality is a facet of the market and not just merely of the economic analysis of law. In these terms, the ideology argument is no more of an objection to economic analysis of law than it is of markets generally. > Coleman makes the point that there is nothing in economic analysis ruling out the making of compensatory lump-sum payments by those who gain entitlements to the losers. So, the gain in efficiency need not create a snowball effect in favor of those who obtain rights on efficiency grounds. He is thus led to the conclusion that there is no bias favoring one economic group in the economic analysis of law. + This may be a logical conclusion but how to close to the realities of the world is it? What is envisaged is an abstract economic man. People in the real world are not always able to assess what is in their rational self-interest and then act upon it. In the real world, peoples needs change. There is also altruism, a concern for the community, an interest in the environment. -Leff: > he argued that the basic intellectual technique of the economic analysis of law is the substitution of definitions for both normative and empirical propositions. He saw the move to the economic analysis of law as an attempt to get over, or at least get by, the complexity thrust upon us by the realists. > his point is that the economic analysis of law is a gross over-simplification > his view is that the basic propositions in the economic analysis of law are not empirical propositions at all. They are all generated by reflection on an assumption about choice under scarcity and rational maximization. -Posner: In his Economic Analysis of Law, he detected a book in which it is apparently plausible to declare it may be possible to deduce the basic formal characteristics of law itself from economic theory. And his comment, rather sarcastically was, what bliss. -What the economic analysis of law is doing is expressing normative propositions in descriptive form, slipping in ought propositions almost surreptitiously. - Contemporary American jurisprudence is characterized by two movements: the economic analysis of law is one, the critical legal studies movement the other. The latter is not a reaction to the former though its exponents are critical of it. But it is an heir to the realist movement and it has in the economic analysis of law a successor to the formalism against which the first realists revolted. VI. Rights - A key concept in contemporary political, moral and legal philosophy is that of rights. What marks out contemporary explorations is their moral and analytical sophistication and their scope. The most striking of contemporary debates in legal philosophy is between those who espouse rights-based theories and those who put forward goalbased theories. - Distinction between them is easy enough to statea requirement is right-based when generated by a concern for some individual interest and goal-based when propagated

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by the desire to further something taken to be of interest to the community as a whole. The rights-based approach is not denying that the interest of a particular individual is not also shared by others in the community but it would claim that the interest of each individual qua individual is sufficient to generate the requirement. - Many of the ideas with which we associate rights are dependent upon, indeed may be instituted by, the existence of maintenance of certain inherent public goods. - It is part of the philosophy of those who espouse right-based theories to insist on the importance, indeed the pre-eminence, of rights. Rights are important moral coinage. But how much weight should be given to rights, are there any situations and, if so, which, in which rights may be trumped? And what happens when rights conflict? - Answers to these questions depend upon how the strengths, the urgency, the preeminence of rights is perceived. The simplest model has a conception of rights as a very important interest. But it can be knocked off its pedestal by a goal of special urgency. A second model postulates that rights have lexical priority. This means that they are to be promoted above all other considerations and clearly prevail over considerations of utility. It also accepts that the rights may conflict with each other, in which case the preferred solution is one which maximizes the fulfillment of rights and minimizes their violations. A third approach is more problematical. It defends the notion of absolute rights. It sees rights as the reason for constraints on action by others. - Most contemporary right-based theories are not committed to this form of absolutism, and may be seen as examples of one of the first two modes. For Dworkin, rights are best understood as trumps over some background justification for political decisions that state a goal for the community as a whole. Nevertheless, he is prepared to concede that interference in the life of an individual, where there would be otherwise a right, is justified where special grounds can be found. - But what is meant by saying that the public interest generally is not advanced by recognising a particular individuals rights? There are, Dworkin notes, two distinct senses in which a community may be said to be better off as a whole despite the fact that certain of its members are distinctly worse off. It may be better off in a utilitarian sense (the average or collective level of welfare in the community is improved even though the welfare of some falls) or in an ideal sense (because it is more just, or in some other way closer to an ideal society, whether or not average welfare is improved). We cannot determine whether a right may be overridden until we see how it is justified. We should look not to its formulation but to the values which underlie it; Rights, Dworkin says, are not gifts form God. Their institution is a complex and troublesome practice that makes the Governments job of securing the general benefit more difficult and more expensive, and it would be a frivolous and wrongful practice unless it served some point.; anyone who professes to take rights seriously must accept the ideas of human dignity and political equality; he argues in favor of a fundamental right to equal concern and respect and against any general right to liberty; The advantage of his so doing is that the right to equal concern and respect is a final and not merely a prima facie right in the sense that one persons possession or enjoyment of it does not conflict with anothers. But will it serve as the foundation of a right-based moral theory? Dworkin puts it forward as a fundamental political right: governments must treat citizens with equal concern and respect; Why does Dworkin reject a general right to liberty? -- two reasons: first, he believes it cannot explain or justify the discriminations we would want to make between legitimate and illegitimate restrictions of freedom; and, secondly, because the right is commonly used to support a right to the free use of property;-- But, as Mackie says, we can discriminate in terms of how closely a certain freedom is bound up with a persons vital central interests. Political liberties are important as providing means for the defense of more central

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freedoms. Their importance is thus, morally speaking, derivative, and is contingent and relative to circumstances. - Dworkins other reason for rejecting the general right to liberty is that the right to property would be qualified and restricted by the consideration of how its acquisition and use affect the interests of those other than the owner. - This still leaves open the question as to where rights come from. In legal contexts, whether we have a certain right may be answered by consulting the authoritative sources of law. In moral matters there are no books, so that looking up the answer is not an available option. - So, what is there when there are rights? As Narveson expresses it: there must be certain features or properties of those who have them such that we have good reason to acknowledge the obligation to refrain form interfering with, or possibly to sometimes help their bearers to do the things they are said to have the right to do, or have those things they are said to have a right to have. Rights are dependent, then, on reasoned argument. - What sort of reasoned argument do we find in a right-based moral theory? -Dworkins argument again: > He identifies the existence of a moral right against the state when for some reason the state would do wrong to treat a person in a certain way, even though it would be in the general interest to do so. It is clear that what is wrong for the state to do is what the state has a duty not to do; he seems to be defining rights in terms of duties > But why is it wrong for the state to act in a particular way? Is it because the individual has a right on which state action of a particular sort would illegitimately trample? If this is what Dworkin is saying, his argument is inherently circular. > In addition, he offers a substantive explanation of the values underlying certain rights. He sees rights as safeguards, inserted into political and legal morality to prevent the corruption of the egalitarian character of welfarist calculations by the introduction of external preferences.-- But this does not even attempt to explain why rights should prevail over non-welfarist social goals. Even with a utilitarian framework, the explanation works only on the assumption of a fundamental right to equality underlying both the utilitarian considerations and the aprticular claims of right that trump them. - We have been contrasting right-based moral theories with consequentialist theories, of which utilitarianism is the paradigm. But we have been counting without the view, now propagated by Hare amongst others, that a mature theory of social utility can indeed accommodate the protection of certain key rights of individuals. A discovery that it could might well run counter to our intuitions, if no our experience, where the social interest often determines what rights individuals have. But Hare is rather surprised that critics of utilitarianism who lay great weight on the right to equal concern and respect, should object when utilitarians show equal concern by giving equal weight to the equal interests of everybody, a precept which leads straight to Benthams formula and to utilitarianism itself. The problem with this view is that although there may well be utilitarian reasons for respecting justified legal rights, these reasons are not the same as the moral force of such rights, because they neither exclude direct utilitarian arguments against exercising rights nor those for interfering with them. --This view is not uncontentious: Greenawalt and Hare have already responded to it. What the debate shows is the resilience of utilitarianism and that the conclusive inability of utilitarianism to accommodate rights has not yet been shown. Even if it could be shown that utilitarianism could generate rights, it would, of course, by no means follow that these rights would have the same content as those upheld within the liberal tradition.

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- If the weakness of utilitarian theories lies in their readiness to sacrifice individual rights on the altar of maximizing happiness, that of right-based moral theories is in the great difficulties they experience in producing arguments for the existence of rights.-But Waldron draws attention to arguments which attempt to show that the denial of rights or the overriding of them in certain cases is rationally self-defeating, because the denial or the overriding themselves involves an implicit recognition of the force of human rights. Of these arguments the most sophisticated is Gewirths. He summarizes his argument in this way: first, every agent holds that the purposes for which he acts are good on whatever criterion enters into his purposes. Second, every actual or prospective agent logically must therefore hold or accept that freedom and well-being are necessary goods for him because they are the necessary conditions of his acting for any of his purposes; hence, he holds that he must have them. Third, he logically must therefore hold or accept that he has rights to freedom and well-being; for, if he were to deny this, he would have to accept that other persons may remove or interfere with his freedom and well-being, so that he may not have them; but his would contradict his belief that he must have them. Fourth, the sufficient reason on the basis of which each agent must claim these rights is that he is a prospective purposive agent, so that he logically must accept that conclusion that all prospective purposive agents, equally and as such, have rights to freedom and well-being. - The force of Gewirths logic cannot be gainsaid. We must surely accept that when we wish to deny someone a right in the name of a greater social goal or higher moral ideal that we must justify our actions to him. But how is he to understand our reasoning if we deny him those interests he requires to be able to appreciate the force of our arguments, at the very least freedom of thought and expression? A. The Nature of Rights - Two competing theories as to the nature of rights: 1) the will or choice theory- view the purpose of law as being to grant the widest possible means of selfexpression to the individual, the maximum degree of individual self-assertion - related to idea of sovereignty- only way of reconciling conflicting wills is by postulating a superior will which can overcome all opposition. - Related to ideas of individualism- identifies the right-bearer by virtue of the power that he has over the duty in question. Individual discretion is the single most distinctive feature of the concept of rights. Difficulty/weakness with this view > It would seemingly allow all rights to be waived (depends on the discretion of the individual) ex. Our duties not to kill or torture cannot be set aside by our potential victim releasing us from our duty. > Procedural difficulty- the substantive right is one thing, having the right to claim it is another. Ex. Children can only sue through their next friend what if that person refuses to do so? 2) the interest or benefit theory - argues that the purpose of rights is not to protect individual assertion but certain interests. Rights are said to be benefits secured for persons by rules regulating relationships. - One version says that X has a right whenever he stands to benefit from the performance of a duty. - Another version says that X can have a right whenever the protection or the advancement of an interest of his is recognized as a reason for imposing obligations, whether they are actually imposed or not. - The advantage is enabling us to talk of rights in advance of determining exactly who has the duty or needing to spell out in detail what is comprised in the duty.

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- Strength of this theory is that it covers all types of rights and all types of rightsbearers Difficulty/weakness with this view > It does not explain why rights should be tied to benefits in the first place ex. Can Xs parents be advanced by a rule without the rule conferring on him rights? A parents interests may be advanced by the rule limiting the contracts that a minor child of his may make, but no rights are conferred on him by that that rule. B. Hohfelds Analysis of Rights - Noted the ambiguity with which sentences using the concept of right were fraught. - The sentence X has a right to R is different from X has a book. The first is normative, the second is descriptive. - The problem is that the truth of normative statements may only be established by reference to rules. But X has a right to R may, Hohfeld showed, be used to depict a number of different ideas which in everyday discourse, include legal discourse, were easily confused. - He shows that the sentence X has a right to R may mean that Y (or anyone) has a duty to let X do R, so that X has a claim against Y. - The sentence usually means that X is free to do or refrain from doing something. It is not a question of what Y must do but of what X may do. Hohfeld called this right a privilege, others call it liberty. - privilege confers a special position and accurately captures some privileges. Ex. The rule that a judge does no legal wrong in speaking slander in his judicial privilege. - right is also sometimes used where what is meant is power. Powers are usually parasitic on claim-rights and privileges. However powers may also exist independently of other sorts of rights. - The term right is sometimes used to describe the absence of a power-immunity. - Problems with Hohfelds Analysis > He purports to analyze fundamental legal concepts (such as rights, duties) but he has no concept of law nor does he attempt to define what it is that gives his conceptions their legal character. > While Hohfeld is correct to state that every right in a strict sense implies the existence of a correlative duty, not every duty implies a correlative right. > By his failure to analyze duty Hohfeld misses the point hat duties are not all of one type. > Other concepts are explained inadequately. ex. power is described in terms of control but control itself is not further discussed: right in the strict sense is described in terms of claim but claiming itself is far from an uncontentious or unambiguous activity.

LIBERTARIAN THEORIES OF JUSTICE


Liberty, Equality and Merit By F. A. Hayek
- Equality of the general rules of law and conduct is the only kind of equality conducive to liberty and which can be secured without destroying liberty. Liberty has nothing to do with any other sort of equality and it is even bound to produce inequality in many

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respects. Individuals are very different but this is not enough justification for government to treat them differently. Importance of Individual Differences - There is a wide range of differences in individual capacities and potentialities. If the differences are not very important, then freedom is not very important and the idea of individual worth is not very important. - However important the influence of environment may be, it must not be overlooked that individuals are very different from the outset. It just is not true that all men are born equal. This may be used to express the ideal that legally and morally all men ought to be treated alike, but we should free ourselves from the belief in factual equality. - Equality before the law which freedom requires leads to material inequality. Our argument will be that, though where the state must use coercion for other reasons, it should treat all people alike, the desire of making people more alike in their condition cannot be accepted in a free society as a justification for further and discriminatory coercion. - We do not object to equality; our objection is against all attempts to impress upon society a deliberately chosen pattern of distribution, whether it be an order of equality or inequality. If we wish to preserve a free society, it is essential that we recognize that the desirability of a particular object is not sufficient justification for the use of coercion. There is also no reason why these preferences should not guide policy making. Nature and Nurture - Proposition 1: No man or group of men possess the capacity to determine conclusively the potentialities of other human beings and we should certainly never trust anyone invariably to exercise such a capacity. - Proposition 2: Acquisition by any member of the community of additional capacities to do things which may be valuable must always be regarded as a gain for that community. - Egalitarians generally regard differently those differences in individual capacities which are inborn and those which are due to the influences of environment; neither has anything to do with moral merit. - The important question is whether there is a case for so changing our institutions as to eliminate as much as possible those advantages due to environment. Are we to agree that all inequalities that rest on birth and inherited property ought to be abolished and none remain unless it is an effect of superior talent and industry? - Three factors whose effects are most commonly impugned: (1) family, (2) inheritance, (3) education - Family. There are parts of the cultural heritage of a society that are more effectively transmitted through the family. This then recognizes the fact that belonging to a particular family is part of the individual personality, that society is made up of as much families as of individuals, and that transmission of heritage of civilization within the family is as important as heredity of beneficial physical attributes. - Inheritance. Our concern here is whether the fact that it confers unmerited benefits on some is a valid argument against the institution. Once we agree that it is desirable to harness the natural instincts of parents to equip the new generation as well as they can, there seems no sensible ground for limiting this to nonmaterial benefits. Equality of Opportunity - Egalitarian agitation now tends to concentrate on unequal advantages due to differences in education.

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- Whatever we might do, there is no way of preventing those advantages which only some can have, and which it is desirable that some should have, from going to people who neither individually merit them nor will make as good a use of them as some other person might have done. This cannot be solved by the coercive powers of the State. - La carriere ouverte aux talents: (during the classical liberal movement) people demand that all manmade obstacles to the rise of some should be removed, that all privileges of individuals should be abolished. The duty of the govt was not to ensure that everybody had the same prospect of reaching a given position but merely to make available to all on equal terms those facilities which in their nature depended on govt action. - This all should be allowed to try concept has been replaced with the concept of all must be assured an equal start & same prospects. Deliberate adaptation of opportunities to individual aims and capacities would then be the opposite of freedom. Conflict Between Merit and Value - Much that appears as a demand for greater equality is in fact a demand for a more just distribution of the good things of this world (not just envy, but also creditable motives). - Most people object to the fact that differences in reward do not correspond to any recognizable differences in merits of those who receive them. Wrong answer: A free society on the whole achieves this kind of justice. Proper answer: It is an essential characteristic of a free society that an individuals position should not necessarily depend on views that his fellows hold about the merit he has acquired. - Use of Merit in the article to describe attributes of conduct that make it deserving of praise; the moral character of the action and not the value of the achievement - Reward according to merit must in practice mean reward according to assessable merit (merit that other people can recognize and agree upon). Merit is not a matter of the objective outcome but of subjective effort. - The possibility of a true judgment of merit thus depends on the presence of precisely those conditions whose general absence is the main argument for liberty. It is because we want people to use knowledge which we do not possess that we let them decide for themselves. But insofar as we want them to be free to use such capacities which we do not have, we are not in a position to judge the merit of their achievements. Principle of Remuneration and Freedom of Choice - The incompatibility of reward according to merit with freedom to choose ones pursuit is most evident in those areas where the uncertainty of the outcome is great and our individual estimates of the chance of various kinds of effort very different (i.e. research, econ activities of speculation); yet, this risk also holds true for any chosen object we decide to pursue. - If the choice is to be as wise as it is humanly possible to make it, the alternative results anticipated must be labeled according to their value. If the remuneration did not correspond to the value, then he would have no basis for deciding whether it is worth the risk and effort. Of course, what we want is for people to achieve a maximum of usefulness at a minimum of pain and sacrifice, therefore a minimum of merit. - The prizes that a free society offers for the result serve to tell those who strive for them how much effort they are worth. However, the same prizes will go to all those who produce the same result, regardless of effort. Consequences of Distribution According to Merit - Nobody should be rewarded more than he deserves for his pain and effort. It presumes what the argument for liberty specifically rejects: that we can and do know

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all that guides a persons action. There is then no human being who is competent to reward all efforts according to merit. - Though moral value or merit is a species of value, not all value is moral value, and most of our judgments of value are not moral judgments. We do not necessarily admire all activities whose products we value; and when we value what we get, most of the time, we are in no position to assess the merit of those who have provided it for us. - In attempting to make rewards correspond to merit instead of value, we would then be destroying the incentives which enable people to decide for themselves what they should do. It would probably contribute more to human happiness if we just made clearer how uncertain the connection is between value & merit. - Society produces institutions in which a mans advancement depends on the judgment of some superior or of the majority of his fellows. So as not to be incompatible with freedom (and to extend range of choice open to individuals), it is important that: (1) a single comprehensive scale of merit is not imposed upon the whole society; (2) a multiplicity of organizations compete with one another in offering different prospects. Freedom and Distributive Justice - Justice requires that those conditions of peoples lives that are determined by govt be provided equally for all. But equality of those conditions must lead to inequality of results. - Reward for merit is reward for obeying the wishes of others in what we do, not compensation for the benefits we have conferred upon them by doing what we thought best. - The principle of distributive justice, once introduced, would not be fulfilled until the whole of society was organized in accordance with it. This would produce a kind of society in which authority decided what the individual was to do and how he was to do it (the very opposite of a free society)

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paycheck every week to pay for the operas we want to see. But if I have the right to force him to pay for my pet projects, hasnt he equally the right to force me to help pay for his? Perhaps he in turn wants the government to subsidize rock-androll. Other cases similar to the opera lovers: - The Great Pyramids [someones utopian vision but it was the fruit of the lives and labors of other men] - Free medical care. [nothing is really free because this benefit would have to be taken from someone else who will have to work longer to pay for it] - Rent control laws, subsidies, etc. 3. No human being should be a nonvoluntary mortgage on the life of another. The wealth that some men have produced should not be fair game for looting by government. Hospers contends that the right to property is the most misunderstood and unappreciated of human rights, and it is one most commonly violated by governments. It is consistently underplayed by intellectuals today, sometimes even frowned upon, as if we should feel guilty for upholding such a right in view of all the poverty in the world. Actually, the right to life would be illusory without the right to property since depriving people of property is depriving them of the means by which to live. Indeed, it is second only to the right to life. Even the freedom of speech is limited by considerations of property. Does a person have a right to agitate and scream in your house without your consent? Your property rights is prior to the persons wish to scream or expectorate or write graffiti on your building. [Remember the person who shouted fire! in a crowded theater?] But why have individual property rights? Why not have lands and houses owned by everybody together? If everybody owns everything, then everyone has an equal right to go everywhere, do what he pleases, take what he likes, destroy if he wishes, grow crops or burn them, trample them under, and so on. Every itinerant hippie could come in and take over, sleeping in your beds and eating in your kitchen and not bothering to replace the food supply or clean up the mess. Since no one would be responsible for anything, the property would soon be destroyed. Beginning as a house that one family could use, it would end up as a house that no one could use. And if the principle continued to be adopted, no one would build houses anymore or anything else. What about property you inherit? Do you have a right to that? You have no right to it until someone decides to give it to you. Consider the man who willed it to you; it was his, he had the right to use and dispose of it as he saw fit; and if he decided to give it to you, this is a windfall for you, but it was only the exercise of his right. Had the property been seized by the government at the mans death, or distributed among numerous other people designated by the government, it would have been a violation of his rights: for he, who worked to earn and sustain it, would not have been able to dispose of it according to his own judgment.

The Libertarian Manifesto By John Hospers


LIBERTARIANISM The political philosophy that is called Libertarianism [from the Latin libertas] is the doctrine that every person is the owner of his own life, and that no one is the owner of anyone elses life: and that consequently every human being has the right to act in accordance with his own choices, unless those actions infringe on the equal liberty of other human beings to act in accordance with their choices. Other ways of stating the same libertarian thesis: 1. No one is anyone elses master, and no one is anyone elses slave. Political theories past and present have traditionally been concerned with who should be the master and who should be the slaves, and what the extent of the slavery should be. Libertarianism holds that no one has the right to use force to enslave the life of another, or any portion of that life. 2. Other mens lives are not yours to dispose of. [Libertarianism rejects the idea that the government is justified in taking from one and spending it for the benefit of another.] Case in point: - Opera lovers would say that the state should subsidize opera so that we can all see it. They cant pay for the productions themselves, and yet they want to see the opera so what they are saying in effect is, Get the money through legalized force [Hospers: this is legalized plunder]. Take a little bit more from the workers

GOVERNMENT Government is the most dangerous institution known to man. Throughout history it has violated the rights of men more than any individual or groups of individuals could do. The bumper sticker signs are chillingly accurate: Beware: the government is armed and dangerous. For libertarians, the only proper role of government is that of the protector of the citizen against aggression by other individuals [see Type 2 below].

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The government, of course, should never initiate aggression; its proper role is as the embodiment of the retaliatory use of force against anyone who initiates its use. The function of government is the protection of human rights. 1. The right to life: libertarians support all beings against the use of force by others. 2. The right to liberty: there should be no laws compromising in any way the freedom of speech, of the press, and peaceable assembly. There should be no censorship of ideas, books, films, or of anything else by government. 3. The right to property: libertarians support legislation that protects the property rights of individuals against confiscation, nationalization, eminent domain, robbery, trespass, fraud and misrepresentation, patent and copyright, libel and slander. Laws may be classified into three types: 1. Laws protecting individuals against themselves. Ex: laws against fornication, alcohol, & drugs 2. Laws protecting individuals against aggressions by other individuals. Ex: law against murder 3. Laws requiring people to help one another; Ex: laws which rob Peter to pay Paul, such as welfare. Libertarians reject the first class of laws totally. Behavior which harms no one else is strictly the individuals own affair. Thus, there should be no laws against becoming intoxicated [Type 1] but there should be laws against driving while intoxicated [Type 2] since the drunken driver is a threat to every other motorist in the highway. [To see his argument on why prohibited drugs should be legalized, please see original - quite interesting. Its only 11 pages long.] Libertarians also reject the third class of laws totally: no one should be forced by law to help others, not even to tell them the time of day if requested, and certainly not to give them a portion of ones weekly paycheck. Governments in the guise of humanitarianism, have given to some by taking from others (charging a handling fee in the process, which, because of the governments waste and inefficiency, sometimes is several hundred percent). And in so doing they have decreased incentive, violated the rights of individuals and lowered the standard of living of almost everyone. All such laws constitute what libertarians call moral cannibalism. A moral cannibal is one who believes he has a right to live off the spirit of other human beings who believes that he has a moral claim on the productive capacity, time, and effort expended by others. It has become fashionable to claim virtually everything that one needs or desires as ones right. Thus, many people claim that they have a right to a job, free medical care, free food and clothing, to a decent home, and so on. If you have a right to a job, who is to supply it? Must an employer supply it even if he doesnt want to hire you? If you have a right to free medical care, then, since medical care doesnt exist in nature as wild apples do, some people will have to supply it to you for free: that is, they will have to spend their time and money and energy taking care of you whether they want it or not. Whatever happened to their right to conduct their lives as they see fit? All those who demand this or that as free service are consciously or unconsciously evading the fact that there is in reality no such thing as free services. All man-made goods and services are the result of human expenditure of time and effort. If they voluntary choose to do this, there is no problem; but if you demand that they be forced to do it, you are interfering with their right not to do it if they so choose. To expect

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something for free is to expect it to be paid for by others whether they choose to or not. Should government have a role in assisting the needy, in providing social security, in legislating minimum wages, in fixing prices and putting a ceiling on rents, in curbing monopolies. In erecting tariffs, in guaranteeing jobs, in managing the money supply? To these and all similar questions, libertarians answer with an equivocal no. Libertarians insist that with restrictions removed, the economy would flourish like never before. With controls taken off business, existing enterprises would expand and new ones would spring into existence satisfying more and more consumer needs; millions more people would be gainfully employed instead of subsisting on welfare, and all kinds of research and production, released from the stranglehold of government, would proliferate, fulfilling mans needs and desires as never before. It has always been so whenever government has permitted men to be free traders on a free market.

From Liberty to Welfare By John Sterba


- Libertarians are divided as to whether or not a night watchman state can be morally justified. - Robert Nozick a night watchman state would tend to arise by an invisible hand process if people generally respected each others Lockean rights. - a state may not use its coercive apparatus for the purpose of getting some citizens to aid others - Murray Rothbard even the free and informed consent of all the members of society would not justify such a state. - the libertarian position calls for the complete abolition of governmental welfare and reliance on private charitable aid - Sterba argues that this libertarian opposition to welfare rights and a welfare state is ill-founded. Welfare rights can be given a libertarian justification and once this is recognized, a libertarian argument for a welfare state, unlike libertarian arguments for the night watchman state is both straightforward and compelling. - Libertarian followers of Herbert Spencer: 1) define liberty as he absence of constraints 2) taken a right to liberty to be the ultimate political ideal 3) derived all other rights from this right to liberty * The principal difficulty with this approach is that unless one arbitrarily restricts what is to count as an interference, conflicting liberties will abound, particularly in all areas of social life. - Libertarian followers of John Locke: 1) taken a set of rights including typically a right to life or self-ownership and a right to property, to be the ultimate political ideal 2) define liberty as the absence of constraints in the exercise of these fundamental rights 3) derived all other rights including a right to liberty from these fundamental rights * The principal difficulty with this approach is that as long as a persons rights have not been violated, her liberty would not have been restricted either, even if she were kept in prison for the rest of her days. SPENCERIAN LIBERTARIANISM - WANT conception of liberty: Liberty is being unconstrained by other persons from doing what one wants. This limits the scope of liberty in two ways:

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a. Not all constraints whatever their source count as restriction of liberty. The constraints must come from other persons. Eg. People who are constrained by natural forces from getting to the top of Mt. Everest do not lack liberty. Constraints that have their source in other persons, but that do not run counter to an individuals wants, constrain without restricting that individuals liberty. Eg. For people who do not want to hear Beethovens Fifth Symphony, the act that others have effectively proscribed its performance does not restrict their liberty even though it does constraint what they are able to do. - ABILITY conception of liberty: Liberty is being unconstrained by other persons from doing what one is able to do. Eg. Peoples liberty to hear Beethovens Fifth Symphony would be restricted even if they did not want to hear it since other people would still be constraining them from doing what they are able to do. - The problem with this conception is with regards to what can count as a constraint. > Libertarians like to limit constraints to positive acts. > Liberal democrats and socialists would like to interpret constraints to include negative acts that prevent people from doing what they are otherwise able to do. - Assuming that constraints be interpreted to only include positive acts, Sterba considers the rift between rich and poor. - The rich have more than enough resources to satisfy their basic needs whereas the poor lack the resources to meet their most basic nutritional needs even though they have tried all the means available to them that libertarians regard a legitimate for acquiring such resources. - Libertarians usually maintain that the rich should have the liberty to use their resources to satisfy their luxury needs if they so wish. Libertarians think that the right to liberty has priority over other political ideals. They assume that the liberty of the poor is not at stake in such conflict situations, it is easy for them to conclude that the rich should not be required to sacrifice their liberty so that the basic nutritional needs of the poor may be met. - But the fact is that the liberty of the poor is at stake in such conflict situations. What is at stake is the liberty of the poor to take from the surplus possessions of the rich what is necessary to satisfy their basic nutritional needs. - What needs to be determined is which liberty is morally preferable: the liberty of the rich or the liberty of the poor. - Sterba submits that the liberty of the poor, which is the liberty to take from the surplus resources of others what is required to meet ones basic nutritional needs is morally preferable to the liberty of the rich, which is the liberty to use ones surplus resources for luxury resources. - Ought implies can principle people are not morally required to do what they lack the power to do or what would involve so great a sacrifice that it would be unreasonable to ask them to perform such an action. - In this case, the poor have it within their power to willingly relinquish such an important liberty as the liberty to take from the rich what they require to meet their basic nutritional needs. Nevertheless it would be unreasonable to require them to make such a great sacrifice. -By contrast, it would not be unreasonable to require the rich to sacrifice the liberty to meet some of their luxury needs so that the poor can have the liberty to meet their basic nutritional needs. - The right to liberty endorsed by liberarians actually favors the liberty of the poor over the liberty of the rich. b.

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- As long as libertarians think of themselves as putting forth such a moral ideal, they cannot allow that it would be unreasonable both to require the rich to sacrifice the liberty to meet some of their luxury needs in order to benefit the poor and to require the poor to sacrifice the liberty to meet their basic nutritional needs in order to benefit the rich. If one of these is to be adjudged reasonable, it must be the requirement that the rich sacrifice the liberty to meet some of their luxury needs so that the poor can have the liberty to meet their basic nutritional needs. - If a right to liberty is taken to be the ultimate political ideal, then, contrary to what libertarians claim, not only would a system of welfare rights be morally required, but also such a system would clearly benefit the poor. LOCKEAN LIBERTARIANISM - Rights conception of liberty: Liberty is being unconstrained by other persons from doing what one has a right to do. - A right to life understood as a right not to be killed unjustly and a right to property understood as a right to acquire goods and resource either by initial acquisition or voluntary agreement. - A right to life understood as a right not to be killed unjustly would not be violated by defensive measures designed to protect ones person from life-threatening attacks. Yet would this right be violated when the rich prevent the poor from taking what they require to satisfy their basic nutritional needs? - Libertarians would want to argue that such killing is simply a consequence of the legitimate exercise of property rights and, hence, not unjust. Applying the ought implies can principle, there can be the assessment of two opposing accounts of property rights: a) a right to property is not conditional upon whether other persons have sufficient opportunities and resources to satisfy their basic needs. b) initial acquisition and voluntary agreement can confer title of property on all goods and resources except those surplus goods and resources of the rich that are required to satisfy the basic needs of those poor who through no fault of their own lack opportunities and resources to satisfy their own basic needs. - A persons action welfare rights (welfare rights established by libertarians) can be violated only when other people through acts of commission interfere with a persons exercise of that right, whereas a persons action and recipient welfare rights (welfare rights established by libertarian democrats) can be violated by such acts of commission and by acts of omission as well. - Libertarians will tend to favor two morally legitimate ways of preventing the exercise action welfare rights: a) Libertarians can provide the poor with mutually beneficial job opportunities. b) Libertarians can institute adequate recipient welfare rights that would take precedence over the poors action welfare rights. - Once a system of welfare rights is seen to follow irrespective of whether one takes a right to liberty or rights to life and property as the ultimate political ideal, the justification for a welfare state becomes straightforward and compelling. LIBERTARIAN OBJECTIONS - Tibor Machan criticizes the preceding argument that a libertarian ideal of liberty leads to a right to welfare, accepting its theoretical thrust but denying its practical significance. - He says that people normally do not lack the opportunities and resources to satisfy their basic needs. - The poors right to welfare is not claimed to be unconditional. Rather it is said to be conditionally principally upon the poor doing all that they need legitimately can to

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meet their own basic needs. Only when the poor lack the sufficient opportunity to satisfy their own basic needs would their right to welfare have any practical moral force. - Douglas Rasmussen poor lack the opportunity to satisfy their basic needs - Two ways for this to occur: a. Only a few of the poor lack the opportunity to satisfy their basic needs. - Libertarian property rights still apply even though the poor who are in need morally ought to take from the surplus property of the rich what they need for survival. - The poor who do take from the rich can be arrested and tried for their actions but their punishment should be left up to the judges to decide. b. Many of the poor lack the opportunity to satisfy their basic needs that Rasmussen claims that libertarian property rights no longer apply. - Morality require that the poor should take what they need for survival from the legal property of the rich and that the rich should not refuse assistance. - The poor have no right to assistance in this case nor the rich presumably any corresponding obligation to help the poor because the situation cannot be judged in social and political terms. - Both Machans and Rasmussens objections to grounding a right to welfare on libertarian premises have been answered. - Machans attempt to grant the theoretical validity of a libertarian right to welfare, but then deny its practical validity, fails once we recognize that there are many poor who lack the opportunity to satisfy their basic needs. - Rasmussens attempt to grant that there are poor who lack the opportunity to meet their basic needs, but then deny that the poor have any right to welfare, fails once we recognize that the moral directives that Rasmussen grants apply to the rich and the poor in severe conflict of interest cases provide ample justification for a right to welfare.

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The Nonexistence of Basic Welfare Rights By Tibor Marcham


- According to Sterba, we all have the right to receive the goods and resources necessary for preserving ourselves. Machan says that the right we have is actually that not to be killed, attacked, and deprived of property. - His hypothesis: since Lockean libertarianism is true, and since the rights to welfare and equal opportunity require their violation, no one has these latter rights. - According to Sterba, libertarians are philosophically unable to escape the welfarestatist implication of their commitment to negative liberty. He holds that the basic negative rights imply basic positive rights. - To Lockean libertarians, the ideal of liberty means that we all, individually, have the right not to be constrained against our consent within our realm of authority our belongings and ourselves. - Sterbas claims: Liberty is being unconstrained by persons from doing what one has a right to do. And that for Lockean libertarians, a right to life is a right not to initial acquisition of goods and resources either by initial acquisition or voluntary agreement. - The problem of Lockean libertarianism is that political justice for natural-rights theorists presupposes individual rights. To posses any basic right to receive the goods and resources necessary for preserving ones life conflicts with possessing the right not to be killed, assaulted or stolen from. It appears that the former right would often require the violation of the latter.

- The goal of a theory of rights would be defeated if rights were typically in conflict. It is applying moral institutions on numerous institutions when rights claims would conflict. - Most critics of libertarianism assume some doctrine of basic needs which they invoke to show that whenever basic needs are not satisfied for some people, while others have resources which are not basic needs for them, the former have just claims against the latter. - Problems of this doctrine: > It lacks foundation for the needs of some persons must be claims upon the lives of others. > To what ends are these needs, and whose ends are these? - Without guaranteeing welfare and equal opportunity rights, Lockean libertarianism violates the most basic tenets of any morality, that what one ought to do, that which one is free to do, that one is morally responsible only for those acts that one had the power to either to choose to engage in or to choose not to engage in. It presupposes that one has the capacity and option to do or not to do what he should. - If Sterba were correct about Lockean libertarianism, typically contradicting ought implies can, his argument would be decisive. He observes that ought implies can is violated when the rich prevented the poor form taking what they require to satisfy their basic needs even though they have tried all means available to them that libertarians regard as legitimate for acquiring such resources. - When people defend their property, they are protecting themselves against intrusive acts of some other person, acts that would normally deprive them of something to which they have a right, and the other has no right. - The typical conflict situation in society involves people who wish to take shortcuts to earning their living by attacking others so as to reach the same goal. - The integrity of the law would be seriously endangered if the government entered areas that required it to make very particular judgments and depart from serving the interests of the public as such. - The Lockean libertarian argues that private property rights are morally justified in part because they are the concrete requirement for delineating the sphere of jurisdiction of each persons moral authority, where ones own judgment is decisive. - Normally, persons do not lack the opportunities and resources to satisfy their own basic needs. Even if we grant that some helpless, crippled, retarded, or destitute persons could offer nothing to anyone that would merit wages enabling them to carry on with their lives and perhaps even flourish, there is still the other possibility of seeking help. - The destitute typically have options other than to violate the rights of the well-off. Ought implies can is satisfiable by the moral imperative that the poor ought to seek help, not loot. There is then no injustice in the rich preventing the poor from seeking such loot by violating the right to private property. Ought implies can is fully satisfied if the poor can take the kind of action that could gain them the satisfaction of their basic needs, and this action could well be asking for help. - The bulk of poverty in the world is not caused by natural disaster or disease. Rather it is political oppression, whereby people are not legally permitted to look out for themselves in production and trade. The famines and poverty are not the result of charity but of oppression. It is the kind that those who have the protection of even a seriously compromised document and system protecting individual negative rights, do not experience. To ameliorate such hardship, it is necessary to be free of others oppression, not to be free to take other peoples belongings. - Charity or generosity is not a categorical imperative.

WELFARE LIBERAL JUSTICE

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The Contractual Basis for a Just Society By Immanuel Kant
Among all the contracts by which a large group of men unite to form a society, the contract establishing a civil constitution is exceptional. All social contracts are unions of many individuals for some common end, but a union as an end in itself and which is an absolute and primary duty in all external relationships among human beings is only found in a society insofar as it constitutes a civil state, i.e. a commonwealth. The civil state is based on the following a priori principles, which are not so much laws given by an already established state as laws by which a state can alone be established in accordance with the principles of external human right.: 1. the freedom of every member of society as a human being as a principle for the constitution of a commonwealth, it can be expressed in the following formula: No one can compel me to be happy in accordance with his conception of the welfare of others, for each may seek his happiness in whatever way he sees fit, so long as he does not infringe upon the freedom of others to pursue a similar end which can be reconciled with the freedom of everyone else with a workable general law. A paternal government, whose subjects are obliged to behave purely passively and rely upon the judgment of the head of state as how they ought to be happy, and upon his kindness in willing their happiness at all, is the greatest conceivable despotism. The only conceivable government for men who are capable of possessing rights is a patriotic government, where everyone in the state regards the land as the paternal ground from which he sprang and which he must leave to his descendants as a treasured pledge. Each regards himself as authorized to protect the rights of the commonwealth by laws of the general will, but not to submit it to his personal use at his absolute pleasure. 2. the equality of each with all the others as a subject All subjects of the state are subject to law, except for a single person (in either the physical or moral sense of the word), the head of state. He alone is not a member, but the creator or preserver of the commonwealth, authorized to coerce others without being subject to any coercive law. Through him alone can the rightful coercion of all others be exercised. If he too could be coerced, the hierarchy of subordination would ascend indefinitely; and if two persons could be exempt from coercive laws, neither could do to the other anything contrary to right, which is impossible. The uniform equality of human beings as subjects of a state is perfectly consistent with the inequality of the mass in the degree of its possessions, whether in the form of physical or mental superiority over others, or of external property and particular rights. They are all equal as subjects before the law, which can only be single in form and which concerns the form of right and not the material or object in relation to which the right is possessed. Every member of the commonwealth must be entitled to reach any degree of rank which he can earn through his talent, industry or good fortune, and his fellow subjects may not stand in his way by hereditary prerogatives or privileges of rank and thereby hold him and his descendants back indefinitely. A civil state is characterized by equality in the effects of freely willed actions which limit one another with the general law of freedom. The birthright of each individual is absolutely equal as regards his authority to coerce others to use their freedom in a way which harmonizes with his. Since birth is not an act on the part of the one who is born, it cannot create any inequality in his legal position. Thus no member of the commonwealth can have a hereditary privilege against his fellow subjects; and no one can hand down to his descendants the privileges attached to the rank he occupies in the commonwealth, nor forcibly prevent

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others from reaching the higher levels of the hierarchy through their own merit. No one can forfeit this equality other than through some crime of his own, for no legal transaction can make him cease to be his own master. He can be considered happy in any condition so long as he is aware that, if he does not reach the same level as others, the fault lies either with himself, or with circumstances for which he cannot blame others. 3. the independence of each member of a commonwealth as a citizen in the question of actual legislation, all are free and equal under existing public laws, but not as regards the right to make these laws. Those who are not entitled to this right are nonetheless obliged to comply with these laws, and likewise enjoy their protection, for all right depends on laws. A public law is the act of a public will, from which all right proceeds, and which must itself be unable to do injustice to anyone. This requires the will of the entire people (since all men decide for all men and each decides for himself), for one can never act unjustly toward oneself. The basic law, which can only come from the general, united will of the people, is called the original contract. The only qualification required by a citizen is that he must be his own master, and must have some property (which can include any skill, trade, fine art or science) to support himself. If he must earn his living from others, he must earn it by selling that which is his, and not by allowing others to make use of him; for he must serve no one but the commonwealth. In this respect, artisans and large or small landowners are equal, and each is entitled to one vote only. The number of those entitled to vote on matters of legislation must be calculated purely from the number of property owners, not from the size of their properties. Those who possess the right to vote must agree unanimously to the law of public justice. An entire people, however, cannot be expected to reach unanimity, but only to show a majority of votes (and not even of direct votes, but simply the votes of those delegated in a large nation to represent the people). Thus the actual principle of being content with majority decisions must be accepted unanimously and embodied in a contract; and this itself must be the ultimate basis on which a civil constitution is established. Conclusion We need not assume that this contract actually exists as a fact, for it cannot possibly be so. It is merely an idea of reason, which nonetheless has undoubted practical reality; for it can oblige every legislator to frame his laws in such a way that they could have been produced by the united will of a whole nation, and to regard each subject as if he had consented within the general will. This is the test of the rightfulness of every public law. If the law is such that a whole people could not possibly agree to it, it is unjust; but if it is at least possible that a people could agree to it, it is our duty to consider the law as just. If a people, under some existing legislation, were asked to make a judgment which in all probability would prejudice its happiness, they can do nothing but obey. No generally valid principle of legislation can be based on happiness. The doctrine that salus publica suprema civitatis lex est retains its authority, but the public welfare which demands first consideration lies in the legal constitution which guarantees everyone his freedom within the law, so that each remains free to seek his happiness in whatever way he thinks best, so long as he does not violate the freedom and rights of his fellow subjects.

Justice as Rational Choice Behind a Veil of Ignorance By John Rawls

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Justice as Fairness - The guiding idea is that the principles of justice for the basic structure of society are the object of the original agreement. - They are the principles that free and rational persons concerned to further their own interests would accept in an initial position of equality as defining the fundamental terms of their association. - Those who engage in social cooperation choose together, in one join act, the principles, which are to assign basic rights and duties and to determine the division of social benefits. - The choice which rational men would make in the hypothetical situation of equal liberty determines the principles of justice. - In justice as fairness the original position of equality corresponds to the state of nature in the traditional theory of the social contract. - Among the essential features of the situation is that no one knows his place in society, his class position or civil status, now does any one know his fortune in the distribution of natural assets and abilities, his intelligence, strength and the like. The principles of justice are chosen behind a veil of ignorance. - Justice as fairness begins with one of the most general of all choices which persons might make together, namely, with the choice of the first principles of a conception of justice which is to regulate all subsequent criticism and reform of institution. - Then, having chosen a conception of justice, we can suppose that they are to choose a constitution and a legislature to enact laws, and so on, all in accordance with the principles of justice initially agreed upon. - One feature of justice is to think of the parties in the initial situation as rational and mutually disinterested. - In working out the conception of justice as fairness one main task is to determine which principles of justice would be chosen in the original position. - The persons in the initial situation would choose two rather different principles: > The first requires equality in he assignment of basic rights and duties > The second holds that social and economic inequalities are just only if they result in compensating benefits for everyone, and in particular for the least advantaged members of the society. - Justice as fairness, like other contract views, consists of two parts: > An interpretation of the initial situation and of the problem of choice posed there > A set of principles which, it is argued, would be agreed to. The Original Position and Justification - The original position is the appropriate initial status quo which insures that the fundamental agreements reached in it are fair. - The question of justification is settled by working out a problem of deliberation: we have to ascertain which principles it would be rational to adopt given the contractual situation. - It seems reasonable and generally acceptable that no one should be advantaged or disadvantaged by natural fortune or social circumstances in the choice of principles. - It should also be impossible to tailor principles to the circumstances of ones own case. - It seems reasonable to suppose that the parties in the original position are equal. - Together with the veil of ignorance, these conditions define the principles of justice as those which rational persons concerned would consent to as equals when none are known to be advantaged or disadvantaged by social and natural contingencies.

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- Another side of justifying a particular description of the original position is to see if the principles which would be chosen match the considered convictions of justice or extend them in an acceptable way. - Reflective Equilibrium > A description of the initial situation that both expresses reasonable conditions and yields principles which match considered judgments duly pruned and adjusted. > It is an equilibrium because at lat principles and judgments coincide; and it is reflective since it is known what principles judgments conform and the premises of their derivation. > But this equilibrium is not necessarily stable. It is liable to be upset by further examination of the conditions which should be imposed on the contractual situation and by particular cases which may lead us to raise judgments. Two Principles of Justice - The 2 principles of justice that would be chosen in the original position: 1. Each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others. 2. social and economic inequalities are to be arranged so that they are both a. reasonably expected to be to everyones advantage b. attached to positions and offices open to all - The 2 principles are a special case of a more general conception of justice that can be expressed as follows: > All social values liberty and opportunity, income and wealth, and the bases of self-respect are to be distributed equally unless an unequal distribution of any, or all, these values is to everyones advantage. - Injustice is simply inequalities that are not to the benefit of all. - The 2 principles are at least plausible conception of justice. The question is how one is to argue for them more systematically. - One can work out their consequences for institutions and note their implications for fundamental social policy. - One cal also try to find arguments in their favor that are decisive from the standpoint of the original position. It is useful as a heuristic device to think of the 2 principles as the maximin solution to the problem of social justice. - There is an analogy between the 2 principles and the maximin rule for choice under uncertainty. - This is evident from the fact that the 2 principles are those a person would choose for the design of a society in which his enemy is to assign him his place. - The maximin rule tells us to rank alternatives by their worst possible outcomes: we are to adopt the alternative worst outcome of which is superior to the worst outcomes of the others. - The term maximin means maximum minimorum; and the rules directs our attention to the worst that can happen under proposed course of action and to decide in the light of that. The Final Formulation of the Principles of Justice First Principle - Each person is to havean euqal right tot eh most extensive total system of equal basic liberties compatible with similar system of liberty for all. Second Principle - Social and economic inequalities are to be arranged so that they are both:

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a) b) To the greatest benefit of the least advantaged, consistent with the just savings principle, and Attached to offices and positions open to all under conditions of fair equality of opportunity.

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First Priority Rule (The Priority of Liberty) - The principles of justice are to be ranked in lexical order and therefore liberty can be restricted only for the sake of liberty. There are two cases: a) A less extensive liberty must strengthen the total system of liberty shared by all; b) A less than equal liberty must be acceptable to those with the lesser liberty. Second Priority Rule (The Priority of Justice over Efficiency and Welfare) - The second principle of justice is lexically prior to the principle of efficiency and to that of maximizing the sum of advantages; and fair opportunity is prior to the difference principle. There are two cases: a) An inequality of opportunity must enhance the opportunities of those with the lesser opportunity; b) An excessive rate of saving must on balance mitigate the burden of those bearing this hardship. General Conception - All social primary goods liberty and opportunity, income and wealth, and the bases of self-respect are to be distributed equally unless an unequal distribution of any or all of these goods is to the advantaged of the least favored.

use to develop principles that favor his or her own particular circumstances, in other words the knowledge that makes for and sustains prejudices, the principles chosen from such a perspective are necessarily fair. For example, if one does not know whether one is female or male in the society for which one must choose basic principles of justice, it makes no sense, from the point of view of self-interested rationality, to endorse a principle that favors one sex at the expense of another, since, once the veil of ignorance is lifted, one might find oneself on the losing end of such a principle. Hence Rawls describes his theory as justice as fairness. Because the conditions under which the principles of justice are discovered are basically fair, justice proceeds out of fairness. In such a position, behind such a veil, everyone is in the same situation, and everyone is presumed to be equally rational. Since everyone adopts the same method for choosing the basic principles for society, everyone will occupy the same standpoint: that of the disembodied, rational, universal human. Therefore all who consider justice from the point of view of the original position would agree upon the same principles of justice generated out of such a thought experiment. Any one person would reach the same conclusion as any other person concerning the most basic principles that must regulate a just society. The principles that persons in the Original Position, behind the Veil of Ignorance, would choose to regulate a society at the most basic level (i.e., prior even to a Constitution) are called by Rawls, aptly enough, the Two Principles of Justice. These two principles determine the distribution of both civil liberties and social and economic goods. The first principle states that each person in a society is to have as much basic liberty as possible, as long as everyone is granted the same liberties. That is, there is to be as much civil liberty as possible as long as these goods are distributed equally. (This would, for example, preclude a scenario under which there was a greater aggregate of civil liberties than under an alternative scenario, but under which such liberties were not distributed equally amongst citizens.) The second principle states that while social and economic inequalities can be just, they must be available to everyone equally (i.e., no one is to be on principle denied access to greater economic advantage) and such inequalities must be to the advantage of everyone. This means that economic inequalities are only justified when the least advantaged member of society is nonetheless better off than she would be under alternative arrangements. So, only if a rising tide truly does carry all boats upward, can economic inequalities be allowed for in a just society. The method of the original position supports this second principle, referred to as the Difference Principle, because when we are behind the veil of ignorance, and therefore do not know what our situation in society will be once the veil of ignorance is lifted, we will only accept principles that will be to our advantage even if we end up in the least advantaged position in society. These two principles are related to each other by a specific order. The first principle, distributing civil liberties as widely as possible consistent with equality, is prior to the second principle, which distributes social and economic goods. In other words, we cannot decide to forgo some of our civil liberties in favor of greater economic advantage. Rather, we must satisfy the demands of the first principle, before we move on to the second. From Rawls' point of view, this serial ordering of the principles expresses a basic rational preference for certain kinds of goods, i.e., those embodied in civil liberties, over other kinds of goods, i.e., economic advantage. Having argued that any rational person inhabiting the original position and placing him or herself behind the veil of ignorance can discover the two principles of justice, Rawls

Hypothetical Contracts and Rights By Ronald Dworkin


John Rawls' A Theory of Justice: In 1972, the publication of John Rawls' extremely influential A Theory of Justice brought moral and political philosophy back from what had been a long hiatus of philosophical consideration. Rawls theory relies on a Kantian understanding of persons and their capacities. For Rawls, as for Kant, persons have the capacity to reason from a universal point of view, which in turn means that they have the particular moral capacity of judging principles from an impartial standpoint. In A Theory of Justice, Rawls argues that the moral and political point of view is discovered via impartiality. (It is important to note that this view, delineated in A Theory of Justice, has undergone substantial revisions by Rawls, and that he described his later view as "political liberalism".) He invokes this point of view (the general view that Thomas Nagel describes as the view from nowhere) by imagining persons in a hypothetical situation, the Original Position, which is characterized by the epistemological limitation of the Veil of Ignorance. Rawls original position is his highly abstracted version of the State of Nature. It is the position from which we can discover the nature of justice and what it requires of us as individual persons and of the social institutions through which we will live together cooperatively. In the original position, behind the veil of ignorance, one is denied any particular knowledge of ones circumstances, such as ones gender, race, particular talents or disabilities, ones age, social status, ones particular conception of what makes for a good life, or the particular state of the society in which one lives. Persons are also assumed to be rational and disinterested in one anothers well-being. These are the conditions under which, Rawls argues, one can choose principles for a just society which are themselves chosen from initial conditions that are inherently fair. Because no one has any of the particular knowledge he or she could

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has constructed what is perhaps the most abstract version of a social contract theory. It is highly abstract because rather than demonstrating that we would or even have signed to a contract to establish society, it instead shows us what we must be willing to accept as rational persons in order to be constrained by justice and therefore capable of living in a well ordered society. The principles of justice are more fundamental than the social contract as it has traditionally been conceived. Rather, the principles of justice constrain that contract, and set out the limits of how we can construct society in the first place. If we consider, for example, a constitution as the concrete expression of the social contract, Rawls' two principles of justice delineate what such a constitution can and cannot require of us. Rawls theory of justice constitutes, then, the Kantian limits upon the forms of political and social organization that are permissible within a just society. Ronald Dworkin on Hypothetical Contracts and Rights: Contemporary contract theory is, characteristically, doubly hypothetical. Certainly, no prominent theorist thinks that questions of legitimacy and obligation are settled by an actual survey of attitudes towards existing social arrangements, and are not settled until such a survey has been carried out. The question, then, is not "Are these arrangements the object of an actual agreement amongst stakeholders?" (If this were the question, the answer would typically be "No".) The question, rather, is "Would these arrangements be the object of an agreement if stakeholders were surveyed?" Although both of the questions are, in some sense, susceptible to an empirical reading, only the latter is in play in present-day theorizing. The contract nowadays is always hypothetical in at least this first sense. There is a reading of the (first-order) hypothetical question "Would the arrangements be the object of agreement if___" which, as indicated, is still resolutely empirical in some sense. This is the reading where what's required of the theorist is that s/he try to determine what an actual survey of actual stakeholders would reveal about their actual attitudes towards their system of social arrangements. (We don't really perform the survey, but we do perform it in imagination.) But there is another reading that is more widely accepted in the contemporary context. On this reading, the question, really, is no longer a hypothetical question about actual reactions; it is, rather, a hypothetical question about hypothetical reactions -- it is, as I have said, doubly hypothetical. Framing the question is the first hypothetical element: "Would it be the object of agreement if they were surveyed?" Framed by this question is the second hypothetical element, one which involves the so-called stakeholders, who are no longer treated empirically, i.e. taken as given, but are, instead, themselves considered from a hypothetical point of view -- as they would be if (typically) they were better informed or more impartial, etc. The question for most contemporary contract theorists, then, is, roughly, this. "If we surveyed the idealized surrogates of the actual stakeholders in this polity, would current social arrangements be the object of an agreement for them?" A "Yes" answer confers legitimacy and imposes obligations; a "No" answer signals illegitimacy and relieves us of, or shows the purely historical status of, obligations that we might now submit to. Of course, questions arise -- and have been raised most notably by Ronald Dworkin -about how a (doubly) hypothetical agreement can bind any actual person. The point of second-stage hypotheticalizing is, inter alia, that, as I actually am, I might not agree to be bound by some system of social arrangements S. Suppose that it could be shown, however, that my surrogate (a better informed, more impartial version of me) would agree to be bound by S. What has that to do with me? Where this second-stage

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hypotheticalization is employed, it seems to be proposed that I can be bound by agreements that others, different from me, would have made. It is like saying that I ought to be bound to respect S on account of your having agreed to be bound by S. While it might (though it needn't) be reasonable to suppose that I can be bound by agreements that I would myself have entered into if given the opportunity, it is just crazy to think that I can be bound by agreements that, demonstrably, I wouldn't have made even if I had been asked. Rawls's solution to this problem reflects the complexity of his original position argumentation and the idea of reflective equilibrium which it depends on. In effect, Rawls identifies two contracts, one framing the other. The first contract is one that, as we actually are, each of us makes with the surrogate who is to represent us in secondstage contractual reasoning. As I am, I agree that the question is NOT "Do I agree as I actually am to S?" but, instead, "Would I agree if I were ___ to S?", or, in other words, "Will I be bound by agreements that will be made in respect of S by my idealized surrogate (or better self)?" Once I have answered "Yes" (of course hypothetically; there is no actual survey) to the first, framing question, I will be bound to the demands of S so long as my idealized surrogate -- the subject of the second, framed (and still hypothetical) contractual question -- says "Yes" to the system S of social arrangements. (This is what Rawls meant when he characterized the parties to the original position as trustees for the interests of you and me.) Crudely, the reasoning runs as follows. I agree to be represented by X for certain purposes; X agrees that the system S is a legitimate one; hence I am bound by this system, for my trustee has agreed to it on my behalf -- this is one of the purposes for which s/he was to represent me. As Rawls said (1999, p.514): "Finally, we may remind ourselves that the hypothetical nature of the original position invites the question: why should we take any interest in it, moral or otherwise. Recall the answer: the conditions embodied in the description of this situation are ones that we do in fact accept. Outline PART I the theory of justice: the aim Aim of the theory is to find principles of justice. The principles are to apply to the 'basic structure' - the institutions and processes - that form the basis of society. The principles are to provide 'a way of assigning rights and duties in the basic institutions of society and they define the appropriate distribution of the benefits and burdens of social cooperation.' - Rawls the 'original position' Rawls argues that the principles that should govern the basic structure of society are those that would be chosen in an imaginary 'original position'. In this position, rational agents choose principles behind a 'veil of ignorance'. The 'original position' thus looks like a hypothetical contract. the principles 1 [Liberty principle] 'Each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all.' 2 'Social and economic inequalities are to be arranged so that they are both:(a) [Difference principle] to the greatest benefit of the least advantaged, consistent with the just savings principle, and (b) [Opportunity principle] attached to offices and positions open to all under conditions of fair equality of opportunity.'

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the principles simply 1 Liberty principle: first, guarantee a substantial and equally distributed set of basic liberties. 2 Opportunity principle: second, ensure genuine equal opportunity. 3 Difference principle: third, distribute 'primary goods' such as income and wealth to the greatest benefit of the least advantaged. PART II The original position Parties in the original position are to decide unanimously on principles of justice. They each hold 'the same rights in the procedure for choosing principles; each can make proposals, submit reasons for their acceptance, and so on. Rawls imposes 5 very important constraints on the parties in the original position. Five Constraints a) The circumstances of justice The circumstances of justice obtain: i) Moderate scarcity: Not such superabundance of goods that anyone can get whatever they want, nor so much scarcity that society could not exist. ii) People mutually disinterested: People have differing aims and purposes in life, plus differing philosophical and political ideals and differing religious beliefs. b) Formal constraints The principles chosen must meet 'the formal constraints of the concept of right': They must be general: cannot single out particular people for special treatment. They must be universal, applying to everyone. They must be able to order conflicting claims. They are the final court of appeal. They are capable of being made public: ultimately they must be known and understood by all. c) The veil of ignorance Parties choose principles behind the 'veil of ignorance'. Parties don't know: Their wealth, role or class. Their natural assets, such as intelligence, strength, creativity and so on. Their generation. Their idea of the good life, such as religious beliefs or political ideals. 'The aim [of the veil of ignorance] is to rule out those principles that it would be rational to propose for acceptance, however little the chance of success, only if one knew certain things that are irrelevant from the standpoint of justice. For example, if a man knew that he was wealthy, he might find it rational to advance the principle that various taxes for welfare measures be counted unjust; if he knew that he was poor, he would most likely propose the contrary principle.' - Rawls d) Rationality Each tries to advance his or her own interests, and seeks the most efficient way to do so. They accept an account of the 'primary goods', such as rights, liberties, power opportunities, income, wealth, health, vigour, intelligence, imagination, self-respect. They are not envious. They do not mind someone else being better off than them, provided they are as well off as they can possibly expect. e) Restricted choice The parties are restricted to choosing principles from a list of alternatives, which Rawls says comes from the history of human reasoning about such things.

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List p122 includes classical utilitarianism, maximising average utility, various perfectionist principles and some mixed ones. List omits distribution according to need or to desert, and libertarianism. Rawls discusses libertarianism Original position central to Rawls's theory The specification of the OP choice situation is such that whatever principles are chosen from the OP choice situation must be just principles. Rawls writes: 'We want to define the original position so that we get the desired solution. If a knowledge of particulars is allowed, then the outcome is biased by arbitrary contingencies'. PART III The role of the original position Epistemological - Imagining what would be chosen in the OP a useful way to discover what justice requires. Justificatory - Just as Hobbes and Locke's contract theories try to justify our obligations to government, the OP justifies the two principles of justice using a hypothetical contract. Explicatory - Maybe just useful demonstrative tool allowing Rawls to lay out neatly the assumptions underlying his principles of justice. The hypothetical contract Not like a real contract. Real contract: actual people sit down to discussion, complete with interests and life plans and prejudices and various failures of rationality. Each person signs up to such a contract because overall, given interests and life plans and so on, he or she thinks the contract will benefit him or her. Rawls' hypothetical contract Doesn't really happen, so hypothetical. Contractors are idealised in terms of rationality and lack of certain knowledge. Choice from OP unanimous. He writes: 'we can view the choice in the original position from the standpoint of one person selected at random. If anyone after due reflection prefers a conception of justice to another, then they all do, and a unanimous agreement can be reached.' Problem - Does the hypothetical choice of the two principles in the OP show us that we owe any allegiance to the two principles? - Problem whether the original position justifies the acceptance of the two principles of justice. - Remember our worries about hypothetical contracts last week. Objections to the OP 1. Veil of ignorance. Some people think the point of political bargaining is to use what you have - talent, money and so on - to bargain for what you can get. 2. Envy. People in the OP are not envious. Real people are, of course, they don't like others having more than they do. Defense of Rawls

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1. Veil. Forces you to disregard things that are 'arbitrary from a moral point of view'. Arguably true that such things should be disregarded. 2. Envy. An unadmirable human characteristic. Rawls admits people are envious, but thinks inadmissible reason to frame principles of justice. Rawls on the OP: contract - Independent argument for two principles. Says this not strictly count, since only argument for the principles comes from the original position. - Sustains alternative arguments, such as the argument from reflective equilibrium. Says the two principles must satisfy reflective equilibrium. Rawls on the OP: more to say 'The idea here is simply to make vivid to ourselves the restrictions that it seems reasonable to impose on arguments for principles of justice, and therefore on these principles themselves.' 'To say that a certain conception of justice would be chosen in the original position is equivalent to saying that rational deliberation satisfying certain conditions and restrictions would reach a certain conclusion.' Role of the Original Position Epistemological: captures the imagination and so a good way to approach thinking about the principles of justice. Explicatory: explains neatly Rawls's thinking. Justificatory: is if you accept the assumptions embodied in the OP, and the need for some sort of contract. Dworkin's view - Dworkin argues that the fundamental root of Rawls's theory is equal concern and respect. - Dworkin thinks this explains why Rawls tries to use a contract at all, AND why Rawls shapes the OP as he does. Dworkin's classification - Three types of political theory: Goal-based: identifies an overriding goal and structures society to pursue that goal. Duty-based: identifies a duty or duties and structures society in pursuit of that/those. Rights-based: identifies a right or rights and structures society to respect that/those rights. Dworkin on Rawls - Rawls's theory must be rights-based: - Need unanimous agreement in OP: everyone must be consulted, and has a veto, so can protect themselves. - Explains the veil. Some considerations relevant to principles, because protected by rights. Some irrelevant, because not appropriately protected by rights. Equal concern and respect - Dworkin says Rawls's most basic commitment, embodied in the OP, is basic concern and respect. - In the OP, parties are perfectly equal. - Principles of justice turn out to be what would be chosen by people when perfectly equal, and unable to bring undue influences to bear behind the veil.

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By Rickard Miller
*basically the article is a critique of Rawls difference principle

prof. florin

OVERVIEW - certain aspects of Marxism would preclude the requisite agreement to uphold the difference principle throughout different circumstances of justice - the contractual commitment would not be made if some societies in the circumstances of justice display the following three features: 1. no social arrangement that is acceptable to the best-off class is acceptable to the worst off class - According to Marx, there is no social contract that the best-off class and the worst-off class will agree in. - This reflects the peoples rational pursuit of self-interests. Moreover, improvements of the relative position of the worst-off class cannot be brought about by any appeals to he universal sense of justice. 2. the best-off class is a ruling class (one whose interests are served by the majorpolitical and ideological institutions) - 2 aspects of this rule, the repressive and the ideological - official instruments of coercion are employed , in almost all crucial instances of class conflict, in favor of the best-off class. - Ideological institutions help to maintain the special status of the best-off class. 3. the need for power and wealth typical of the best-off class is much more acute than that of the rest of society - the need for power and wealth of a typical member of the best-off classis sufficiently great that such a person would be miserable if his society were transformed to accord with the egalitarian demands of the difference principle. ON THE DERIVATION OF THE DIFFERENCE PRINCIPLE - marxists would claim that the best-off people in an exploitative society cannot be made to gie up their privileges except by force. If the Marxist theory is right, someone in the original position would foresee that the difference principle may be intolerable to him, if he turn out to be a typical member of the ruling class. - Rawls: difference principle is a principle of mutual benefit > Such reasoning is inadequate when the best-off class is a ruling class in an exploitative society. A ruling class can, for centuries, maintain as much cooperation as it needs, because ideological institutions serves its interests, while restraining most who do not cooperate and dissuading most of who are tempted not to, y employing the coercive status of the state. Thus, if the best-off are sometimes the ruling class, someone in the riginal position would foresee that if he turns out to be one of the best-off, his interests may not lie in the realization of Rawls standard of social justice - If the exploitive ruling class Marx describes existed, the reasoning about the strains of commitment that Rawls uses against utilitarianism would also count against a commitment to help realize the difference principle immediately or as soon as the veil of ignorance is lifted. - It might still seem possible that that the argument from the strains of commitment might persuade one to help maintain some gradual course of development toward full realization. But if the exploitive ruling class existed, an argument from the strains of commitment would not in fact support a gradualist commitment to the difference principle. Any rate of change is either too fast for the best-off or too slow for the worstoff. The best-off would not accept an advance toward equality beyond a certain limit.

Rawls and Marxism

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On the other hand, there are definite lower limits which the worst-off would find acceptable. However, these two ranges of tolerability do not intersect. - 2nd objection to gradualist version of Rawls tolerability argument: Assuming that the upper class needs do not change as athe gap between the best-off and worst-off narrows, the question of tolerability is simple postponed, since the cumulative results of change will eventually become intolerable from the standpoint of the best-off. - One further objection to Millers arguments on tolerability concerns supposed strains of pursuing something less than justice. He assumed that the ruling class wold oppose changes to the difference principle even they had the sense of justice Rawls principles defined. It might be felt that this would produce a considerable burden of self-hared or deception which is so great that one may be amenable to accept the consequences of the difference principle. The answer to this is that while the ruling class does, in a sense, practice a considerable self-deception, this self-deception is of peculiarl unburdensome kind. - Marx: the long-term nonmoral interests a typical member of the ruling class often sharply conflict with moral principles which he puts forward without conscious hypocrisy, and when this conflict obtains, no reasoning from those moral principles can dissuade an exploiter from doing wha this non moral interests demand. > Ex. Decision to speed up pace of work w/o installing safety equipment at the cost of hundreds of workers lives. A capitalist will make a decision which will serve his needs for profit, in spite f an appeal to common principles of justice. - Thus, if one speaks of self-deception like the one describes, it is not the sort which will impose such strains as to make it preferable for the exploitive ruling class to accept the objective fulfillment of his sense of justice.

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CRITICAL LEGAL STUDIES


Some Realism about Critical Legal Studies By Richard Michael Fischl
In this essay, Fischl attempts to explain why critics feel threatened by Critical Legal Studies (CLS), and to assure readers why we shouldnt feel quite so threatened. - Fischl explains people in general hold 2 contradictory images of the institution of law: The idealized image: Good judging consists of the rote, almost robot-like application of legal rules to the facts of cases. Central premise: a meaningful distinction exists between what a legislature does when it makes laws, and what a judge does when she applies them-- a distinction between politics and law. - The skeptics view: recognizes the judicial process as overtly political and highly discretionary. the view is often accompanied by the sincere belief that the idealized image of judging would work, if only judges did their job right. - Fischl then explains how we reached this ambivalent state of affairs. Our conflicted understanding of law reflects an earlier battle about its nature, between Scientific Jurisprudence and Legal Realism, that took place 60 years ago: - Scientific Jurisprudence: viewed legal reasoning as a species of science. A claim that this characteristic sharply distinguished law-application from the legislatures making law. Closely related to idealized image: by appearing to show there was a single, correct answer to every legal question, and that a competent judge could always find that answer, it provided a solution to the problem of squaring judicial power with democratic ideals.

- Legal Realism: Realists claimed to do science better and contended that the judicial method embraced by Scientific Jurisprudence was legal magic and word-jugglery. Argued that law is indeterminate. Legal reasoning can rarely be said to require a particular result in a given case. This is the indeterminacy argument. Related to the skeptics view of law. > much of the attack on CLS is based on the movements embrace of the indeterminacy argument. - Indeterminacy Argument: a claim that for virtually every rule there is a counterrule, some lawyerly gambit available to put the legal question at issue in equipoise. > If legal cases maybe plausibly argued either way on the basis of legal rules, then how can the judge choose between the competing claims of the parties? : - Realists: embrace the view that legal questions are social policy questions, even if the judges and lawyers are unaware of such fact. They would decide those questions based on their psychological, sociological, economic assumptions, and rationalize their decisions by invoking legal rules and principles. Realists conclude that judges should consciously and frankly engage in sophisticated and fact-sensitive social science so they can make better policy. - Response to the Realist critique: Legal academia and the establishment bare were threatened by a school of thought that viewed judging as mere policy-making, rather than the analytic reasoning that Scientific Jurisprudence had envisioned. - Fischl makes 2 points, regarding the Realists legacy in mainstream legal thought, and the Realists continuing influence on modern legal theory: 1. Principal legacy of Legal Realism for mainstream legal thought is the introduction of social policy analysis as an indispensable element of sophisticated legal reasoning and argument, but in a form the bears precious little resemblance to the far subtler version the Realists had in mind. Policy analysis as we practice it today is every bit as indeterminate as the legal rules it would supplement. 2. The Realist critique has served as the starting point for most serious legal theory in the latter half of the century. The argument that legal rules cannot, of themselves, decide cases, is well accepted. But so is the blief that there is still something special about the nature of legal reasoning, something makes it neutral and objectivem distinct from politics and ideology. As a result, most legal theorists outside of CLSbelieve law is different from politics but disagree as to any plausible basis for that belief. - CLS Explained: Where does CLS fit in all of this? It combines a progressive political critique with a skeptical jurisprudence. The skeptical jurisprudence rejects altogether the possibility of neutral judicial decision making. The very nature of legal discourse is connected to human experience and interaction. > whenever a judge is called upon to construe the meaning of a text or a private agreement between citizens, she will have to make a value judgment about the merits of the dispute that brings the parties to court. The only question is whether she will do so consciously and openly. - Another difficulty with the image of the law as neutral and apolitical, aside from the problem of interpretation: What we think of as natural forms of human association are often simply a reflection of unexamined social conventions that are embodied in and reinforced by the law. > the current situation is a choice, not a natural or necessary phenomenon. It only seems natural because of our habits. A major aim of CLS is to open up such subjects to democratic examination and debate. 2 challenges to CLS:

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1. If legal reasoning is so indeterminate, how is it that competent lawyers are usually able to give their clients sound advice? 2. If legal reasoning is so indeterminate, how can the movement contend that law ever reflects a particular set of political choices or assumptions in any systematic way? These questions reflect a misunderstanding of the concept of indeterminacy that CLS embraces. CLS rejects the view that judicial decision making is altogether unconstrained. It holds that legal reasoning forms an important part of the professional culture that shapes judicial decision making in ways that are often not self-evident. Cultural constraints may lie in the structure of legal argument. Legal professions customs and conventions, the judges common sense, her fears of reversal by a higher court or the legislature, her fears of criticism from the bar and the academic community, and probably her personal ideological commitments--- they are all constraints that account for our experience that law is predictable, to the extent that it is predictable.

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The issue of nihilism is really a dispute over this fundamental premise: that reason can adjudicate value conflicts and that it is both possible and necessary to justify legal rules and institutions on the basis of determinate and objective decision procedures. Internal Critique Critical Legal Scholars claim- law or rights or legal theory is indeterminate. Legal theory is infinitely manipulable. (An empirical claim and an internal critique that uses the premises of traditional legal theory against itself). - Questions: If legal reasoning does not determine the outcomes, what does? And if that something else determines outcomes, why isn't that just legal reasoning by another name? - Indeterminacy is a claim about legal doctrine. Doctrine is an ambiguous term that includes both legal rules and arguments. Rules - principles used to justify the result directly. Arguments - they support more specific rules or standards which are said to determine the result. - A legal theory or a legal rule is determinate if it tells us what to do. A completely determinate theory or rule will leave us no choice; a relatively determinate theory or rule will constrain our choices, more or less narrowly, within boundaries. The claim that a legal doctrine is indeterminate means that the doctrine allows choice rather than constraining or compelling it. - Current way of thinking about law: we have to draw lines between principles and counter- principles, determine the scope of existing rules, and decide whether to change the rules. - Determinacy - necessary to the ideology of the rule of law. It is the only way judges can appear to apply the law rather than make it. - Determinate rules and arguments are desirable because they restrain arbitrary judicial power. At the same time, determinacy is threatening. Completely determinate set of rules would require judges to apply existing rules mechanically even in unforeseen circumstances where the policy underlying the rule might not apply. Adopting a completely determinate set of rules would therefore substitute one form of arbitrariness (over-and under-inclusiveness of rules) for another (over- broad discretionl). - Indeterminacy, like determinacy, is both desirable and threatening. It is desirable because it allows judges, in generating or applying rules, and juries) in applying flexible standards like due care, to appeal directly to their intuition and fit the law to particular situations. At the some time, indeterminacy is threatening because it appears to allow judges and juries too much discretion. - Legal theories and sets of rules incorporate both determinacy and indeterminacy. Legal doctrine-rules and theories-incorporates both rigid rules and flexible standards, general principles and particular principles. - Traditional legal theory requires a relatively large amount of determinacy as a fundamental premise of the rule of law. Our legal system, however, has never satisfied this goal. - Critique by certain CLS: Theorists and judges are almost always mistaken when they claim that they have discovered a set of arguments that, by itself, provides the requisite amount of determinacy for the legal system. Legal doctrine is far more indeterminate than traditional theorists realize it is. If traditional legal theorists are correct about the importance of determinacy to the rule of law, then by their own criteria, the rule of law has never existed anywhere. Why Legal Doctrine Does Not Compel Our Choices Legal theory or set of legal rules are completely determinate if: comprehensive, consistent, directive and self-revising.

The Player and the Cards: Nihilism and Legal Theory By Joseph William Singer
Nihilism is a philosophy that answers the question What shall we do and how shall we live? with it does not matter just anything goes. - John Irving: nihilism is a religion vastly lacking in seriousness - Nihilism is a central issue of contemporary legal theory - As used in this article, nihilism has both an epistemological and a moral component Epistemological (i.e., theory of knowledge): it is impossible to say anything true about the world; it is impossible or fruitless to describe the world; all possible description are equally invalid because we cannot be sure that any description is reliable Moral (i.e., theory of morality): there is no meaningful way to decide how to live a good life; any action may be described as right or wrong, good or bad; since we cannot know what to do, it does not matter what we do The issues raised by the Critical Legal Studies (CLS) movement have brought nihilism to center stage. - CLS: law is not apolitical and objective; the ideology of legal reasoning is used to make our institutions appear natural and our rules appear neutral - CLS: focuses on three topics: (i) law varies according to time and place; (ii) legal reasoning is indeterminate and contradictory; and (iii) law is not neutral (it legitimizes configurations of economic and political power) - CLS: legal reasoning is a way of simultaneously articulating and masking political and moral commitment Traditional legal theorys (TLT) critique of CLS: CLS embraces nihilism If it is true that legal reasoning is indeterminate or incoherent and that its claims to objectivity are false, two problems arise: (i) on an individual level, the question is how can we know what we should do and how we should live?; what makes one persons values better than anyone elses values?; and (ii) on a social level, the question is whether it is possible to set up a legal system based on the rule of law.

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1. Comprehensive - if it covers all fact situations. Legal theories may be incomplete in several ways. First, a theory or set of rules may have limited scope. Second, the legal rules in force may contain gaps. There are cases that appear to be so different from any decided cases that they are not covered by any existing rule, and no precedent exists in the jurisdiction that is to decide the issue. Third, arguments addressed to specific issues may not decide other issues. 2. Consistent - if legal theories and rules are internally contradictory or inconsistent, they cannot determine our choices. Nonetheless, contradiction is a common characteristic of legal doctrine. First, all of us accept certain arguments in some situations and reject those some arguments in other situations. Second, rules may be indeterminate because of conflicts. Third, rules at varying levels of generality cause indeterminacy. Use of the general principle to nullify the specific rule would represent a plausible, although unconventional, legal justification for the result. 3. Directive. Principles or theories are non-directive if they do not help us choose among alternative possible rules; rules or standards are non-directive if they do not help us determine the outcome of a particular legal dispute. Principles and rules may be non-directive for several reasons. First, legal doctrines are non-directive if they are ambiguous. Second, principles are indeterminate if they are circular. Tautological statements do not guide us in deciding what to do. Example, the principle that like cases should be treated alike does not help us decide what to do, since no two cases are alike or unalike in every respect. Third, rules are indeterminate because they generally do not determine the scope of their own application. Fourth, legal theories or rules may narrow choice within specified boundaries but not tell us what to do within those boundaries. 4. Self-revising. - must provide for the possibility of its own revision; it must tell us when to follow precedent and when to reverse or overrule the precedent in the interest of fairness or policy or social welfare. If it does not do this, we are free to choose whether or not to follow the precedent; it therefore cannot determine the outcome. Why Legal Doctrine Is Predictable - If we can predict the outcome of a case, then it appears that the legal system or rights or legal theory or something has determined the result in a way that is coherent and understandable. - Distinguishing between indeterminacy and arbitrariness. This distinction will clarify why the claim that legal reasoning is indeterminate does not convict with the insight that legal results may be predictable. - Indeterminacy does not mean that the choices that are made by those individuals are arbitrary or capricious. - It is perfectly possible for there to be predictable patterns of behavior and decisionmaking even though the arguments advanced to justify the choices do not determine the outcomes. - That decision-making is both indeterminate and nonarbitrary simply means that we can explain judicial decisions only by reference to criteria outside the scope of the judge's formal justifications. - Decisions can be arbitrary in two ways: First, they can be made in an unconsidered manner. Example, one can decide to vote for someone by flipping a coin.

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Second, because they are based on relatively controversial values about which we do not expect unanimity. Those decisions are arbitrary'' not because they are unconsidered, but because they vary depending on the decisionmaker's beliefs. nd - The 2 kind of arbitrariness does not, by itself, make prediction impossible. Decisions that are not determined by a coherent theory, but which are considered, may be predictable if we know enough about the context in which the decision is made. - This CONTEXT includes the institutional setting, the customs of the community, the role of the decisionmaker, and the ideology of the decisionmaker. (Ex. How are issues on sex education and contraception dealt with in the Philippines, considering the highly religious context?)Legal doctrine is a part of this context, and both influences and is influenced by it. - Several reasons why an understanding of the legal context may enable us to predict legal results: First, an existing structure of legal argumentation orients thought according to a predictable scheme. Example: as long as we think of the separation of powers as governing solely the relations among the judiciary, the legislature, and the executive, we are unlikely to view corporations as repositories of sovereign power and include them in considerations of how to balance power among governmental institutions. Second, that orientation of thought limits the number and variety of perceived ways to resolve conflicts. Example: as long as we think of labor law as a set of rules and institutions to govern collective bargaining between unions and employers, we are unlikely to consider the remedy of employee ownership of large enterprises. Third, the choices made by judges or legal theorists are often predictable because these decisionmakers share a legal culture. Judges more likely to fit cases within the rule than the exception. - Legal doctrines are always potentially indeterminate. Judges can move the line between rules and exceptions, or create new exceptions. Ultimately, judges always have the power to revise the rules. That judges may do these things, however, does not mean they will do them. Because judges participate in a legal culture that suggests how they are to act as judges, we can often predict how they will act. - The legal culture shared by judges and theorists encompasses shared understandings of proper institutional roles and the extent to which the status quo should be maintained or altered. This culture includes common sense'' understandings of what rules mean as well as conventions (the identification of rules and exceptions) and politics (the differentiation between liberal and conservative judgesl. - To the extent legal decisions are predictable, they can be explained by legal culture. This does not mean that legal decisions are completely predictable. On many issues, no conventions are available. Many other issues are outside mainstream political controversy and therefore we cannot predict what individual judges will think about them. It is precisely because of these uncertainties as well as gaps in the legal rules, and because legal reasoning is indeterminate and manipulable, that judges often surprise us by using existing arguments to justify results that we did not expect. - For a legal theory to appear to determine results, one of two tricks must be used. First, the theorist can define criteria for rule choice or can define a rule that is sufficiently specific that there will be little or no disagreement about the result it suggests. Second, the theorist can make a series of limiting assumptions that so narrow the field of choice as to make a principle appear to determine outcomes.

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OBJECTIVITY - The Author rejects the view that morality, legal rules and political institutions can be judged and legitimated by objective standards is the view that morality is a matter of knowledge rather than conviction. - The attempts to provide a rational foundation for legal theory have been incoherent. Theories are incoherent'' when they set impossible tasks for themselves: They purport to give us guidance in deciding what to believe and what to do, yet they are either so vague or ambiguous as to give us no real help, or they are internally contradictory, telling us to do opposite things. - The question of what we should do, or of which rules and institutions we should create, is not a matter of truth or falsity. Rather, our views of what we should do are the result of experience, emotion, and conversation. This conversation occurs in a social and historical context, and will continue as long as human beings live in a society that permits them to talk freely with each other. And as long as the conversation continues, we will reconsider and sometimes revise our beliefs. - Issue of objectivity is related to, but different from, the issue of determinacy. Determinacy asks: Do our theories determine our rules and institutions and do those rules determine outcomes? Objectivity asks: Even if those theories determine results, what makes those institutions and doctrines legitimate? Related because indeterminate theories leave us free to choose, and if we are free to choose, we have no assurance that our choices accord with the good. Separate because determinate theories may or may not be legitimate, and legitimate rules and institutions may or may not be supported by determinate theories. - The critique of objectivity is for the most part an external critique - it is a dispute about what the fundamental premises of law and legal reasoning should be. - The project of creating criteria for legal theory assumes that it is possible to ground the legal system on a rational foundation. This assumption means that the first principles from which we derive the legal rules should have some kind of inherent validity independent of our individual beliefs. Legal doctrine has a substantive foundation if it accurately reflects some external source that is asserted to be foundational. Legal doctrine has a procedural foundation if, regardless of its specific content, it is reached through a decision procedure that is theoretically capable of producing agreement. (The traditional nineteenth-century substantive foundations of the legal system were positivist and natural law. Both substantive theories assume that a method exists to determine, more or less accurately, what rights are and how they can be applied.) - Traditional theorists have offered two methods: rights analysis and utilitarianism. They share one fundamental premise: The assumption that it is at least theoretically possible to achieve a rational consensus among interlocutors that will tell us, once and for all, how we should go about deciding moral and legal questions. This premise must be taken apart because it is at once the heart of traditional legal theory and its Achilles heel. Substantive Foundations 1. Are moral values true? Two camps of 19th-century contemporary legal theorists: positivists and rights thinkers. - H.L.A. Hart - legal rights as commands of the sovereign. Tend to equate law with canonical texts (constitutions, statutes, regulations, judicial opinions, court rules,

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legislative reports, executive orders) that have been promulgated by some authoritative governmental source, and with unwritten rules that are accepted by the sovereign as having coercive power. - Ronald Dworkin (modern rights thinkers) tend to equate law with rights that individuals simply have, regardless of whether the state has promulgated any authoritative expression of those rights. - Concept of Accurate Representation assumes that law is a matter of knowledge rather than judgment. Law is something that can be perceived; it does not have to be created. *The Author rejects the view that legal rules are legitimate if they accurately represent some external source. It is wrong to turn discretionary normative decisions into non-discretionary descriptions. Such theories mystify us by obscuring important facts. To figure out how we should act and live together, we must make moral choices. 2. Accurate representation and the problem of method. - Legal theories that purport to provide a substantive foundation for legal rules assume that we can know what the legal rules should be by describing such things as the Constitution or rights. Positivists point to the Constitution, meaning both the text of the authoritative document and the unwritten rules that judges recognize as having coercive powering. Rights theorists point to nature or reality or consensus or reason or some combination of those. The problem is that both the Constitution and rights are too general to describe accurately without saying much more about them. Legal theorists who rely on the metaphor of accurate representation therefore become obsessed with the problem of method. This preoccupation with polishing makes substantive theories resemble theories that are based solely on method. Rhetorically, substantive theories of law are quite different from purely procedural theories. Substantive theories: The goal of substantive theories is to represent accurately substantive rules that exist somewhere. The substantive theory assumes that right rules exist and that we can find them. Procedural theories: Theories that are based solely on identifying an objective decision procedure do not assume that any particular right answer exists. A procedural theory assumes that no rule is right apart from a method; the right method yields the right rule.

Decision Procedures 3. Legal reasoning. When legal scholars claim that legal reasoning is justified only if it is objective, they have at least two points in mind: First, they distinguish between subjective, personal preference, and objective, interpersonal validity. The subjective/objective dichotomy assumes that a basic distinction exists between opinions that are merely a matter of personal preference about which we do not expect agreement, and opinions that are intersubjectively valid and about which, as a result, we do expect intelligent persons of good will to be able to agree. Moral views are intersubjectively valid if they are views that everyone who thought about moral issues from a legitimate common perspective. Proponents of procedural objectivity expect agreement not

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about the particular substantive outcomes (the legal rules and standards) but about the method of reaching outcomes (legal reasoning). Second, theories of procedural objectivity seek to separate individual intuition from rational technique. The underlying assumption is that we should not trust our intuitions about how the rules should be set. Legal reasoning therefore appears as a decision procedure that is removed from those intuitions. - Appearance of objectivity - generated by combining two assumptions: intersubjectivity and logical technique. Both the first principles and the decision procedure appear to be removed from the specific outcomes and unrelated to them in any obvious, direct way. To assume that this method justifies legal rules is therefore to assume that our intuitions have no independent validity. - Roe v. Wade typifies this method. Justice Blaclrmun acknowledged at the very start that the abortion issue was highly controversial. Nonetheless, legal reasoning would answer the constitutional question perfectly free from such controversial considerations. This obscures what is really going on and is wrong. - It is obvious that a decision on the constitutional legitimacy of laws limiting access to abortions must reflect controversial judgments. Thus any intimation that the decision could be made in a logical manner is ridiculous. Nonetheless, Justice Blackman made the traditional claim that he possessed a method of constitutional analysis-of legal reasoning-that avoided the necessity of moral choice. - It is understandable that the more controversial and politicized the decision, the more a court will want to appear above controversy. Such false appeals to neutrality are, nonetheless, illegitimate. When judges write opinions justifying their disposition of cases and their choices of rule, they should feel free honestly to express what they really were thinking about when they decided the case. These revelations will clarify the moral and political views at stake in legal controversies. Judges should also explicitly discuss the social context surrounding the legal dispute. *Precedent for this form of expression: in State v. Shackles the Supreme Court of New Jersey held that a property owner could not exclude legal services and health workers from visiting migrant Caseworkers on his property. Chief Justice Weintraub described the values at stake in the controversy and the social context surrounding 'the legal relationships. He argued rightly that migrant Caseworkers were powerless in relation to many others in society, that they provided needed services to the economy, and that they themselves were in great need of communal assistance. He discussed the interests at stake on both sides, and, referring to other situations in which property owners were under a legal duty to allow others access to their property, stated that property owners' rights to exclude others were not unlimited. - Further, Justice Weintraub acknowledged that the law is not static,'' and that vast changes had occurred in the legal rules governing legal relations among persons with respect to the use of land. Finally, he asserted: We see no profit in trying to decide upon a conventional category and then forcing the present subject into it. 4. Commensuration and normal discourse. Two concepts, commensuration and normal discourse, describe two different ways of viewing the objectivity of legal reasoning. - The first possible meaning of objectivity is commensuration: Legal reasoning is objective if it accords with an innate, antecedently existing thinking process common to all people or, at the very least, to everyone in our culture. The commonality of this thinking process is what makes it objective rather than subjective. And if people do not agree, someone is thinking incorrectly. - The Author does not accept the proposition that all discourse about law can be rendered commensurable. Not all discourse about law can be crammed into a single

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decision procedure, and human beings simply do not have an innate thinking process that unites us all in a common framework of inquiry. - The second possible meaning of objectivity is normal discourse. Normal discourse is that which is conducted within an agreed-upon set of conventions about what counts as a relevant contribution, what counts as answering a question, what counts as having a good argument for that answer or a good criticism of it. Abnormal discourse is what happens when someone joins in the discourse who is ignorant of these conventions or who sets them aside. - Under this view, the word objective'' is an empty compliment we confer on principles with which we agree. The compliment is empty because it is circular: People accept a legal rule if it is based on objective principles; objective principles are principles those people accept; people therefore accept the legal rule because they agree with it. - To escape this circle, it is necessary to believe that human beings possess an overeating and antecedently existing rational method that tells us how to decide legal or moral questions. This is the belief that reason can adjudicate value conflicts. But we have no antecedently existing rational method to determine whether people are justified in accepting the criteria they accept. We can judge the criteria that others accept only by whatever criteria we accept. If they do not accept our criteria, there is no way to prove that they are wrong. 5. Rational consensus - Rational consensus assumes not only that if reasonable people talk long enough they will agree on the criteria for determining the legal rules but that reason will generate an accurate picture of our society's rational consensus. - This procedure combines the metaphor of accurate representation and the metaphor of a decision procedure. We are trying to generate an accurate picture of the considered judgment of the community; at the same time, we are trying to figure out what the considered view of others would be if everyone thought in a sufficiently rational way. - It repeats, rather than resolves, the subjective/objective dichotomy. - Rational agreement appears both objective and subjective because it combines two competing foundations for legal theory: consensus and reason. These are the two-and the only two-foundations that have been proposed by traditional legal theorists to provide the objective procedure for legal reasoning. - Consensus is a necessary basis for the liberal society because governments derive their just powers from the consent of the governed. The laws governing us therefore cannot be legitimate unless we somehow agree to them, either through custom or legislation. - Consensus theorists acknowledge, however, that consensus alone is an insufficient basis for government and law. Everyone could agree to some- thing horrible, like slavery. * Rousseau's version, a participant in the social con- tract seeks the good of everyone, not just herself. This ensures the proper limits to individual selfassertion. * Rawls' version, a participant in the social contract seeks her individual goals under certain conditions that will ensure an enlightened outcome. - Consensus theories incorporate the second foundation for legal theory - reason. The social contract never took place; it is an intellectual construct designed to help us determine, not what other people around us think, but what reasonable people of adequate experience would think if they followed a rational decision procedure. - We must be able accurately to describe rational consensus if it is to provide an objective basis for our moral or political views, or for legal rights. If we cannot

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accurately describe it, then rational consensus cannot provide a determinate answer to our question of what the legal rules should be. - Critique: Rational consensus cannot form an objective foundation to legal reasoning because it cannot, by itself, generate determinate answers; it cannot do this because it founders on its internal contradictions. Because the idea of rational consensus is internally contradictory, it cannot determine our conclusions, nor can it function as the source of those conclusions or as a procedure for generating objective results. It is therefore impossible to describe rational consensus accurately. It is never clear whether one is describing what people actually believe or what they should believe if they thought about it rationally. A Parable The point is that morality is not a matter of truth or logical demonstration. It is a matter of conviction based on experience, emotion and conversation. When I say that legal reasoning is not objective, I am merely emphasizing that I observe substantial political and moral controversy about what we should allow people to do with themselves and each other. Since legal reasoning includes and systematizes all of the conflicting arguments that people find plausible, there is no reason to expect it to provide a basis for decisionmaking that transcends these ordinary value conflicts. NEUTRALITY Political Vision - Traditional theorists law should be neutral. - Neutrality encompasses two quite different claims. The first claim, is that individuals should be allowed the freedom to have different conceptions of the good life and should be permitted to pursue their particular ideas of happiness. The second claim, is that the limits to individual freedom of action set by the legal system should be based on independent principles of justice that do not themselves presuppose any particular conception of the good. - These two claims together represent a political vision. This vision is associated with a series of dichotomies that purport to divide the world between non-controversial values and relatively controversial values. These dichotomies repeat over and over the basic message of neutrality. - It is squarely opposed to political visions that do not recognize the legitimacy of individual pursuit of happiness or of conflicting notions of the good likely; Yet it is powerful and persuasive to those who accept it precisely because it appears to be value-neutral as between individuals with different views of how to live. 1. The private realm and the pursuit of happiness - The Declaration of Independence states that individuals have the natural right to pursue happiness; it does not define what it means to be happy, and it does not tell individuals what they should do. They are free, within legal limits, to do what they like. In the private realm, individuals are free to pursue their subjective desires. - Legal theory cannot tell us what to value, but it can help us make choices by helping us to articulate what we value. - In figuring out what to do and how to live, we should recognize not only our active role in shaping both our thoughts and actions, but also the social and ideological context in which we operate. People make their own history Marx tells us, but they do not make it just as they please; they do not make it under circumstances chosen by themselves, but under circumstances directly found, given and transmitted from the past. We should be comfortable viewing both rationality and social life as historically and culturally situated.'''

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- Viewing legal theory in this way will allow us to exorcise the wrongful expectation that some politically neutral, apostolical method can generate answers to questions about what the legal rules should be. - Moreover, we cannot respond adequately to problems faced in life by generating abstract moral categories. Discussion of moral and legal choices must focus on the rich context in which those problems occur. - As Robert Gordon argues, we need into unfreeze the world as it appears to common sense as a bunch of more or less objectively determined social relations and to make it appear as (we believe) it really is: people acting, imagining, rationalizing, justifying. It may indeed be useful to develop general models to describe social life. - But when it comes time to make decisions, we should recognize that we are making decisions rather than discovering ourselves. In making those decisions, it is right to focus on the particular social context, to decide whether our descriptive model actually applies in that case and whether we are allowing the model to turn our attention away from facts that we would otherwise consider to be important. 2. Law and politics. a. Private Realm versus Public Realm. - Differing value systems cause political and moral disagreement, but disagreement in law is explained by the claim that one or the other party to the controversy has made a mistake, not by reference to conflicting values. - It is now possible to outline the relationships among the concepts of determinacy, objectivity, and neutrality. Traditional theorists think of neutrality as the allowance of arbitrary freedom of action (legal liberty) within state-imposed limits (legal rights and duties). The limits on free actions are legitimate because they are both determined by and based on objective criteria. - This simple picture breaks down, however. Both the concept of determinacy and the concept of objectivity repeat within themselves the subjective/objective dichotomy that characterizes the concept of neutrality. - The subjective element of neutrality is the idea of legal liberty: Individuals should be allowed to pursue their own conceptions of happiness, whatever they are. The objective element of neutrality is the idea of legal rights or duties: Principles about which everyone should be able to agree impose limits to freedom of action. In this view, both determinacy and objectivity appear to be objective''. However, prevalent notions of what determinacy and objectivity mean contain potentially contradictory qualities. - Therefore, the notions of determinacy and objectivity both support and undermine the central premise of the liberal social contract view of the state, the notion of neutrality. All three concepts can be subdivided into components that non be characterized as either objective or subjective: neutrality (pursuit of happiness v. rational legal rules); objectivity (reason v. consensus); determinacy (rigid rules v. flexible standards). All three notions repeat within themselves the contradictions they were intended to resolve. b. Transcending the Dichotomies. While there is no way to prove that the distinctions between reason and desire, and between law and politics, are false, it is possible to argue that those dichotomies no longer serve a useful function. They are no longer useful because they obscure important facts. First, those distinctions obscure the extent to which views of the appropriate area of freedom determine what limits on freedom of action are allowable. The notion of the right to pursue happiness obscures the fact that it includes within itself contradictory principles: freedom and control.

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Second, the general distinctions between law and politics, between law and morality, and between the good and the right obscure the extent to which the particular dichotomies reappear within the legal system and recur within categories that are subsidiary to the general distinctions. The fact that the various dichotomies and contradictory categories occur again and again within the realm of law means that no rational decision procedure based on such distinctions is possible. NIHILISM A. Reason and Tyranny - The crux of the argument is that both the good life and just government require a rational foundation. Without a rational method to adjudicate value conflicts, nothing is certain. Everything is up for grabs. We do not know what to do because we are left free to choose. And freedom of choice, according to this view, is dangerous in two potentially contradictory ways. First, there is the danger of uncertainty. Uncertainty will affect morality, private law, and public law. Uncertainty will affect morality because we will not know how to live a good life. If reason cannot adjudicate value conflicts, we will not know what to do. Without reason, we cannot figure out which of our preferences are good and which are bad; we are left free to do what we like. Perhaps more important, we do not know what other people are going to do. Without reason, we are relegated to passion or desire. This creates an uncomfortable level of insecurity. The judge has to determine which person will be allowed to be happy: the one who wants freedom to act or the one who wants security from harm. Second, there is the danger of predatory conduct. In an alternative view of liberalism, it is not true that individuals have diverse ways of pursuing happiness. Everyone wants the some things: wealth, power, and prestige. And all of these things can be obtained only at the expense of others. While it is true that some people are content with less wealth, power, and prestige than others, there are enough people who want them in such great amounts that if we let these people do what they wanted, they would grab everything from us. Giving up reason as a basis for morality will lead not to uncertainty, but rather to unrestrained competition for wealth and power. - The upshot of all this is that traditional legal theorists assume that if we do not believe that reason can adjudicate value conflicts and determine the legitimacy of governmental actions, we are relegated to arbitrariness, insecurity, physical and emotional harm, and tyranny. - These cause traditional legal theorists to attack Critical Legal Studies as nihilistic. They assume that we face a simple choice: We can believe in an objective, determinate, and neutral decision procedure for moral and legal questions, or we can resign ourselves to shouting matches. Shouting matches lead to shoving matches, and shoving matches lead to calamity. B. Conversation and Responsibility 1. Moral confidence. Legal reasoning, as I understand it, consists of conversation. Legal reasoning is not an accurate representation of natural rights or sovereign commands. Traditional legal theorists assume that if legal reasoning is neither accurate representation nor an intersubjective decision procedure, then we are left intolerably free to say anything. This fear is not surprising. Conversations are often free-wheeling. They can take unexpected and dangerous turns.

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- Nonetheless, rejection of the metaphors of accurate representation and decision procedures does not logically require us to become agnostic about all our moral and political values. Adoption of the metaphor of conversation does not logically commit us to anything in particular. It does, however, allow us consciously to assume responsibility for what we do. 2. The substance of nihilism. As a normative theory, nihilism is not contentious. Nihilism as a moral theory is not simply a negation of every other theory; it is, instead, the view that it does not matter what we believe, and that no one is entitled to say that anyone else is wrong. Traditional legal theorists fear that adopting the metaphor of conversation as a description of legs reasoning logically requires the moral vacuum of nihilism. But that metaphor hardly requires such a substantive result; it also does not require the various consequences commonly assumed to flow from it-indifference, personal imposition, majority rule, totalitarianism, or doing just what you like. 3. Incoherence. The idea that our moral beliefs are neither grounded in nature or reason nor logically derived from general principles does not force us to adopt nihilism; we are not required to believe that we should have no beliefs or that it does not matter what we believe. People can hold moral beliefs deeply without believing that they are true'' or ungrounded in reasons: Our legal and philosophical discourse has confused the issue of whether a belief is justified with the issue of whether it is trueness Many fear that if we give up the idea of rational decision procedures, nothing will be left. But the metaphor of conversation does not require us to become indifferent to what happens around us. It could require indifference only if morality required decision procedures. But morality cannot require anything because it is an abstraction, and abstractions are what we make them. Virtue may not be knowledge, but it certainly is not callous indifference. Why? Because I assert it to be so. What we do and believe matters. It does not matter that I cannot prove this to be so; what matters is the human assertion of responsibility. 4. Personal imposition. Giving up the metaphor of rational decision procedures also does not mean that judges will impose their personal views of the good life on others. It is true, however, that judges impose their personal views of law. It could hardly be otherwise. Judges do not all agree on what the legal rules should be. Enough dissents are written to demonstrate this. Under the traditional view, disagreement is evidence of mistake on one side or the other. In my view, disagreement is evidence of disagreement about what the rules should be, and nothing more. 5. Majority rule. Majority rule possesses no privileged position in a moral skeptic's universe. The fear of judicial tyranny is that, in the absence of objective and principled limits on what judges do, judges will interfere too much with the legislature. The lack of a principle-moral skepticism-cannot logically require acceptance of the principle of deference to the majority. The answer to this conundrum is for judges to resort to ad hoc, contextualized judgments about the division of power between judges and legislators. Sometimes judges should defer to the expressed will of the legislature; at other times they should overrule it. Sometimes judges should fail to provide remedies for injured plaintiffs in the absence of any legislative direction; at other times, they should provide remedies without waiting for legislative action. Judges have to make judgments about the proper exercise of their power in specific cases. 6. Totalitarianism. Giving up the idea that reason can adjudicate value conflicts does not require us logic-ally to support either unlimited governmental power or unlimited legislative power. It simply requires us to make judgments about the legitimacy of various exercises of govern- mental power. 7. Doing just what you like. The horror of people doing just what they like is based on two ideas. The first is that what people really like is doing horrible things to each other. If we let them do just what they like, they will all choose to be awful to each

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other. But people do not want just to be beastly to each other. People want freedom to pursue happiness. But they also want not to harm others or be harmed themselves. The evidence is all around us that people are often caring, supportive, loving, and altruistic, both in their family lives and in their relations with strangers. The second idea is that thrust what you like'' will not correspond to the good''. - Doing just what you like is acting randomly or on the basis of feeling rather than knowledge. People should not do what they want to do. They should follow their reason, which will tell them accurately what is and is not good. The problem with this view is that there is no idea of the good'' out there, waiting to be discovered. - Legal and moral questions as matters to be answered by experience, emotion, introspection, and conversation, rather than by logical proof. The question then becomes how we are supposed to make up our minds and whether my view leaves anything at all for legal theory to do. LEGAL THEORY A. Edification - We should abandon the idea that what we are supposed to be doing is applying or articulating a rational method that will tell us once and for all what we are supposed to believe and how we are supposed to live. - If morality and law are matters of conviction rather than logic, we have no reason to be ashamed that our deeply felt beliefs have no basis that can be demonstrated through a rational decision procedure or that we cannot prove them to be true' or right. - Rorty has distinguished between two broad types of theory: systematic and edifying. Systematic philosophers build systems of thought that they claim explain large bodies of material, guide theoretical development, and generate answers to difficult questions. Systematizers can be either normal or revolutionary philosophers. The normal systematizing work within established tradition; the revolutionary systematizing seek to replace the established paradigm with a new, better, or truer paradigm of thought. Both try to establish a framework that will set bounds on the legitimate content of discourse. Edifying philosophers, on the other hand, seek to shake the rug out from under existing normal or abnormal systems of thought. They seek to make us doubt the necessity and coherence of our views. Edifying philosophers do not seek to induce people to give up their moral views. They strive to make us realize that our views are matters of commitment rather than knowledge. - The greatest service that legal theorists can provide is active criticism of the legal system. Criticism is initially reactive and destructive, rather than constructive. But our mistaken belief that our current ways of doing things are somehow natural or necessary hinders us from envisioning radical alternatives to what exists. By systematically and constantly criticizing the rationalizations of traditional legal reasoning, we can demonstrate, again and again, that a wider range of alternatives is available to us. - I therefore advocate the persistent demonstration in all doctrinal melds that both the legal rules in force and the arguments that are presented to justify and criticize them are incoherent because they are constructed in ways that make it impossible for them to satisfy their own claims to determinacy, objectivity and neutrality. - Such criticism reminds us that legal theory cannot answer the question of how we are going to live together. We are going to have to answer that question ourselves. B. Reconstruction

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- We are not destined to live in a world in which we must choose between believing in some ultimate permanent foundation for law and morality (rationalism) or believing that all views are as good as all others and it does not matter what we believe or do (nihilism). We need to get over the feeling that a view is either one that all persons should accept because it is grounded in reality or it is just your opinions. The fact that contemporary legal theory is internally contradictory is not, by itself, something to bemoan. - The contradictory principles in legal reasoning accurately reflect the fact that we have conflicting goals and we are not at all sure how to reconcile them. Traditional legal theory is objectionable, not because it is contradictory, but because it claims to give us determinate, objective, and neutral decision procedures to resolve the contradictions. - None of these things is true: Legal theory is far more indeterminate and open-ended than its adherents claim, and it expresses controversial political and moral commitments rather than universal principles grounded in human rationality. - We redraw a line between competing principles and then create a theory to describe where we chose to place the line. But the theory does not itself reconcile those values or tell us where to draw the line. To think otherwise is to reify theory, to remove it from human control and to pretend that it is telling us what to do. But it cannot tell us what to do-we created it. As I argued earlier, it can structure our thinking in a way that limits our perception of the available alternatives. But it is important to remember that this is because we structured if to do this. We told ourselves what to do. Criticism cannot magically generate answers. - Internal criticism - criticism that uses a paradigm's criteria against the paradigm itself - merely shows that a certain theory does not do what it purports to do. - On the other hand, external criticism - criticism that challenges the fundamental assumptions of a mode of discourse - also cannot generate answers. Any alternative premises that might be the basis of a new paradigm have already been assumed before the critique began. Thus, the external critique of the old paradigm does not give us anything new except a striking contrast with the new paradigm we have already invented. - Traditional legal theorists have assumed that the goal of theory is to generate answers. It is possible to caricature this view of theory as the belief that important questions about life can be answered by use of a formula, a mechanical decision procedure. - However, the sophisticated versions of this view of normative theory are not mechanical at all: They explicitly account for the active role of the theorist in decisionmaking. They even combine in ingenious ways elements of both determinacy and indeterminacy, objectivity and subjectivity, to give us the sense that theory constrains our choices only to the extent constraint is desirable and allows innovative judgment and flexibility only to the extent those qualities are desirable. But in the end, all the sophisticated versions of theory that seek to describe it as a decision procedure based on a sure foundation are supremely unconvincing; they cannot convince precisely because they are so sophisticated. - The dilemma comes down to this: For a theory to generate answers, it must be mechanical, yet no mechanical theory can render an adequate account of our experience of legitimate moral choice. We cannot even escape the dilemma by trying to make some of our choices mechanical and some open- ended. - Expressive theory emphasizes the active role of the theorist in deciding how to characterize situations, and in deliberating, conversing, introspecting, and judging. It also emphasizes the communal nature of theory and its complex relations with social life. The kernel of truth in the idea of rational consensus is that all ideas and actions involve relations among people.

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- Like law, consensus must be made, not found. Emphasis on the creative, communal nature of common understanding creates an appropriate relationship between thought and action. The process of generating values is something we do with others in the context of relationships that continue over time. - Democratic politics is an encounter among people with differing interests, perspectives, and opinions-an encounter in which they reconsider and mutually revise opinions and interests. It happens always in a context of conflict, imperfect knowledge, and uncertainty. What matters is not unanimity but discourse. The substantive common interest is only discovered or created in democratic political struggle, and it remains contested as much as shared. Far from being inimical to democracy, conflicthandled in democratic ways, truth openness and persuasion-is what makes democracy work, what makes for the mutual revision of opinions and interest. Legal theory can help create communal ties and shared values by freeing us from the sense that current practices and doctrines are natural and necessary and by suggesting new forms of expression to replace outworn ones. - When we give up the idea that the legal system has a foundation, we are not left with nothing. We are left with ourselves, and we are not nothing. As It is not a matter of finding a foundation on which to stand, or of finding the truth. It is a matter of conviction. We cannot answer our question of how to live together by applying a noncontroversial rational method. We will have to take responsibility for making up our minds. IMAGINATION The absence of secure foundations or decision procedures for belief should be experienced not as a void but as an opportunity. - I thought I would end this Article by telling you some of the things that I believe about what we should do and how we should live. Right now, people are being dragged from their homes, in darkness, and even in broad daylight. It is someone's daughter, someone's son, someone's husband. They are tortured and raped and made to endure cruel games. Then they are killed in gruesome and inventive ways. - In some instances, the American government subsidizes the people who commit these arts. The government reprimands the people, sternly. Whatever else a government does, it should not do these things. And our government, should not aid, financially or militarily, public or private organizations that routinely inflict such unbelievable cruelty. - There are people in my community, the community where I live, where I work, who are hungry, cold, sick, home- less. I think people should have adequate and not merely minimal allotments of food, clothing, medical care, shelter. They should have these things outright, whether they are industrious or lazy, working or unemployed, old or young, smart or dumb. - We should democratize illegitimate hierarchies. Too many people have nothing to say, nothing at all, about what happens to them, day in and day out. They take orders. The organization of daily life into a series of hierarchies prevents us from developing genuine social connections - we are led to see each other not as people trying to live together but as functionaries occupying ranks within organizations, with some ranked higher than others. This situation is further worsened by the current fairly rigid separation of work and family life, a separation that primarily disadvantages women but that also impoverishes men. - We need to increase the Amount of collective participation in all sorts of decisions and settings in our economic lives. The absence of such collective processes stultifies us in our daily lives and reduces our potentially rich and varied relationships with others to role-playing.

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- We should alter the social conditions that cause loneliness. Loneliness as a quality is a bit tricky, a bit hard to define. In another mood, I would call it alienation. But loneliness has a sharper bite to it; it is more evocative. We have separated our lives into the public realms of the market and politics, in which we wage Hobbes' war of all against all, and the private realms of family, friendship and religion, in which we practice cooperation and community. On a small, local scale, our public lives should some- how come to resemble our private lives more closely. I do not know how we can accomplish this. But the loneliness of the world of the market is wrong.

QUEER THEORY
The Trouble with Normal By Michael Warner
THE ETHICS OF SEXUAL SHAME - Almost everyone fails to control his/her sex life. - Theres also the urge to control someone elses sex life through harmful or coercive sex, etc. We do this through prohibition or regulation. - Sex is a disgrace. Shame is never out of the picture. Diogenes thought that the sense of shame was hypocrisy, a denial of our nature. He masturbated in the marketplace. - An ethical response to shame should not require us to pretend that shame doesnt exist. - Sex: most people dont like it because in sex, they lose control, they merge ones consciousness with the lower orders of animal desire and sensation. - Moralists paint a pastoral picture of sex when they pretend that sex is or should be only about love and intimacy. It is futile to deny the ordinary power of sexual shame. - How do we get rid of sexual shame? Get rid of sex. But this is not the question. Rather, what do we do with our shame? Pin it on someone else. - Although nearly everyone is embarrassed about sex, some stand at greater risk than others. Theyre stigmatized as deviants or criminals. - For most people, the ethical response to sexual shame seems to be more shame. - Pronouncements about what kind of sex is or isnt good for others are by no means a thing of the past. Religion still invokes biblical authority over alleged sex offenders. Secular arguments persist as well. HIERARCHIES OF SHAME - The politics of shame distorts everything. The official gay movement has lost sight of that politics becoming more and more enthralled by respectability. Instead of broadening campaign against sexual stigma beyond sexual orientation, it has narrowed its scope to issues of sexual orientation that have least to do with sex. It has turned into an instrument for normalizing gay men and lesbians. - Sex has a politics. Hierarchies of sex sometimes serve no real purpose except to prevent sexual variance. - Criminalization of innocuous behaviors as homosexuality is rationalized by portraying them as menaces to health. - Rubin said people sort good sex from bad sex by hierarchies. (eg: heterosexual is good, homosexual is bad, married is good, unmarried is bad, monogamous is good, promiscuous is bad, etc.)

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- If you are on the wrong side of the hierarchy you will be stigmatized. THE GAY AND LESBIAN MOVEMENT AND THE AMBIVALENCE OF IDENTITY - The gay and lesbian movement is Americas longest-running sex scandal. Many of its leaders continue to be defensive about sex and sexual variance. They are hounded by the indignity of sex. - One leader declared that homosexuals will gain equality only by integrating. - Sex and sexuality are disavowed as irrelevant in attempt to fight stigma. But the disavowal itself expresses the same stigma. It is hard to claim that homosexuality is irrelevant as long as you feel the need to make the claim. If sex is an indignity, then the less relevant it might be to anything, the better. - People are encouraged to believe that heterosexual desire are not only valuable to themselves, but the bedrock on which every other value in the world rests. Nonstandard sex has none of this normative richness, this connection to the meaningful life. - Loathing for queer sex remains powerful. The movement has never been able to escape some basic questions. - Often, the response in gay and lesbian politics has been defensive and apologetic. Gays are not so bad. Its just a few extremists giving a bad name to ordinary decent folk. - By national standards, sex scandals remain extraordinary. For gays and lesbians, they are the norm. On one side, the movement must appeal to its constituency. On the other side, that movement attempts to win recognition. The tension between these 2 standards (internal and external) defines gay and lesbian politics. Even those who want respect with that their peers in shame would be a little less queer. - Like most stigmatized groups, gays and lesbians were always tempted to believe that the way to overcome stigma was to win acceptance by the dominant culture, rather than to change the self-understanding of that culture. - AIDS gave new life to the ancient assumption that sex, especially queer sex, had to be unethical. - Ethical AIDS activism needed to confront pseudo-ethics which was willing to stigmatize those who had sex, to blame them for the virus that was killing them, to use sex as excuse to let them die, etc. AIDS activists learned that effective prevention cannot be based on shame it requires collective efforts at honest discussion. - Every new wave of queer youth picks up something from its predecessors but also invents itself from scratch. They are told that a principled defense of nonnormative sex is just a relic of bygone liberationism. BEYOND GAY MARRIAGE - To see gay marriage as demeaning is a way of seeing traditional marriage as more significant. - Marriage sanctifies some couples at the expense of others. It is selective legitimacy. Marriage discriminates. - No one was more surprised by the rise of gay marriage issue than many veterans of earlier forms of gay activism. To them, marriage seems both less urgent and less agreed upon than items such as HIV, etc. Gay activists abroad are baffled by the focus on marriage in the US. - States are codifying restrictions on marriage that had merely been tacit custom before, making new obstacles to marriage reform. Powerful antigay forces have been mobilized. MARRIAGE WHY NOT? - Jack Baker said that marriage was used by the legal system as distribution

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mechanism for many rights and privileges. As long as culture considered marriage a right, it was necessary to demand it. - Despite this, gay and lesbian groups didnt pursue marriage as central part of their strategy over the next 20 yrs. - Queer thought both before and after Stonewall rested on ff principles: - Marriage is idealized by mythology. - Diversity of sexual and intimate relations is worthy of respect and protection. - Resist attempt to make norms of straight the standards by w/c queer life should be measured. - Resist notion that state should be allowed to accord legitimacy to some kinds of consensual sex but not others - Morality, respectability, decorum, was a way of regulating sexual pleasures and relations. - It made itself alert to institutions like marriage designed to both reward those inside it and discipline those outside it. - We must consider the unrecognized dignity of these outcasts. - The greatest beneficiaries of gay marriage would be the next generations of homosexual youth because they would have more open role models. MARRIAGE WITHOUT COST - Marriage is an impt personal choice and a basic human right. Whether gays decide to get married or not, it shld be our choice. The issue is not the desirability of marriage, but the desirability of the right to marry. - Marriage has become the central legitimating institution by w/c state regulates and permeates peoples most intimate lives - Dunlaps argument: Whoever gets state support first wins. You are free to pursue other avenues but of course dont blame us if you find yourself stigmatized. Just dont bother us with talk about social justice for the unmarried, because that would deprive married couples right to diversity. - Many gays and lesbians think that marriage is a relationship between 2 people who love each other end of story. But a lawyer knows that love isnt necessary for legally sanction marriage and vice versa. One can be married without love, one can love w/o marrying. Nor is the purpose of legal marriage to make a public statement. You can make a public statement w/o any kind of ceremony. A legal marriage, on the other hand, might be private. - Marriage is a state-conferred legal partnership status. But many gays and lesbians who want marriage seem to focus on the way it confers respectability. They dont even mention the extensive slate of legally enforceable benefits. They assimilate it to the model of coming out. It is driven by expressive need. - The culture of marriage, in fact, thrives on stories of revolt against it. - Wolfson argues we have no right to question lesbians and gays who want marriage. Their desires must be valid because they are just desires. Wolfson is right to reject the idea that gays & lesbians who want to marry are simply imitating straights. But there is also naivete in the implication that false consciousness cannot exist. Wolfson assumes that whatever passes as common sense must be right. - People might marry for all kinds of reason. - Because marriage is one of the constraints on life, to judge its worthiness is not to condemn people in it. Its a public institution, not a private relation. Its ramifications reach as far as the legal force and cultural normativity. - Restriction of marriage to heterosexuals is discrimination, but to combat that inequality requires us to think beyond mere inclusion of gay couples. - Wolfsons view of marriage as personal choice is inadequate to evaluate strategy of pursuing legal marriage because it neglects marriages legal and cultural

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consequences for others those who resist marriage, as well as those who are drawn to it for a mix of reasons not of their own making. WHAT IS MARRIAGE? - It is never a private contract between 2 persons. It involves a 3rd party entitlements when the 3rd party is the state, and status when the 3rd party is others. - Marriage is defined partly by the bundling of various privileges. The argument for gay marriage no doubt appeals to many because it equalizes practical social advantages. But the unmodulated demand for same-sex marriage fails to challenge the bundling of privileges that have no necessary connection to one another or to marriage. - Chambers shows gay couples benefits fr spousal status. It doesnt follow that those benefits shld be restricted to spouses or that they be bundled together or that their acquisition would be beneficial or neutral to unmarried queers, but it does not show that same-sex marriage would be the appropriate solution to all the exclusions he documents. Rather, it shows that such areas of law need far more sweeping reforms than same-sex marriage. - People reckon family and descent through households, affinity, and blood rather than through symbolic exchanges of ritual marriage. Mohr says in a common-law arrangement, marriage is at some point, culturally and legally acknowledged in retrospect as having existed all along. - But drive for gay marriage threatens to reverse the trend. Gay couples dont just want households, benefits and recognition. They want marriage licenses. They want the stipulative language of law rewritten and enforced. IS MARRIAGE A STEP IN THE RIGHT DIRECTION? - Wolfson argues that the question of strategy or priority isnt impt same-sex marriage will be followed by beneficial change, anyone disadvantaged in short term by expansion of marriage will nonetheless be included in the step it represents toward full equal rights. - Mohr asserts that entry of gay into marriage would loosen the knot of monogamy. Gays know that sexual exclusiveness doesnt have necessary relation to commitment or love. Rotello and Rauch predict the reverse: marriage would curtail gay mens sexual lives. - Gay marriage ceremonies may have a cultural impact similar to that of coming out. At the same time, taking part in them is safer than coming out. Coming out exposes you as being defined by desire. Marrying makes your desire private. Coming out implies impropriety. Marrying embraces propriety. - Gays long for intimacy but are equally reluctant to achieve it reluctance bred by our wounded self-esteem as homosexuals and general inculturation as men. - If you need legal marriage to give you self-esteem, you arent getting it. Youre getting a privilege conferred by another. The need for official validation, not to mention the conformity that official validation rewards, is the opposite of self-esteem. - When gay people give up the perverse notion that they are perverse, they will discover that they have been normal all along. - Sullivan sees gays as intrinsically normal but deluded into pathological queerness. Butler sees all people as intrinsically resistant to normal. - For Sullivan, gays and lesbians are virtually normal. For Butler, straights and gays are virtually queer. - For Sullivan, marriage brings about perfect normalization. For Butler, people have all along resisted the norms that form them.

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Covering By Kenji Yoshino


ASSIMILATION - The U.S. has touted assimilation as the way Americans of different backgrounds would be "melted into a new race of men." Only with the civil rights movement of the 1960s was this ideal challenged in any systematic way, with calls to move "beyond the melting pot" and to "celebrate diversity." And notwithstanding that challenge as the country grows more pluralistic, we have seen a renaissance of the melting pot ideal. - Whats wrong with trying to fit into the mainstream (i.e. assimilation)? A: Oftentimes, nothing. Some forms of assimilation are and always will be necessary. But assimilation has a dark side as well, because it can exact immense psychic costs from people. People who refused to cover, and who instead honestly or proudly expressed their identities, were severely punished. Latino workers were fired for lapsing into Spanish in English-only workplaces, women who didnt mute the fact that they were mothers suffered demotions, Sikhs who refused to remove their turbans after 9/11 were the victims of hate crimes, and gay people who engaged in displays of same-sex affection with their partners lost custody of their children. - What Yoshino deplores are legal rulings that sanction requirements to assimilate without any exploration of why the mainstream is demanding assimilation. What he urges here is that we approach the renaissance of assimilation critically. - Covering has enjoyed such a robust and stubborn life because it is a form of assimilation and has swaddled itself in its benign language. THREE PHASES OF ASSIMILATION Three historical and individual stages of dealing with disfavored identity towards acceptance into the mainstream: a. Conversion (wanting to be anything but gay), in which the individual and/or society try to transform an identity to render it more acceptable (for example, attempts to convert homosexuals into heterosexuals); b. Passing ("don't ask, don't tell"), in which the individual hides the undesirable identity to a greater or lesser extent depending on circumstances; c. and Covering (out, but not flaunting), in which the individual openly acknowledges the undesirable identity but suppresses behavioral aspects of the identity that could draw unwelcome attention (for example, a gay male publicly holding hands with or kissing another gay male) - In the conversion phase, he tried to make himself straight. Then, in the passing phase, he allowed others to believe that he was straight. Finally, in the covering phase, Yoshino could come out to people, but he avoided flaunting his homosexuality. COVERING DEFINED - Covering is sociologist Erving Goffmans term for how we try to tone down stigmatized identities, even when those identities are known to the world. Covering may mean that a woman, in order to get a job, never mentions being a mother. Or that a black woman straightens her hair instead of braiding it. These concessions sound trivial but, in Yoshino's argument, they deprive people of their right to be happy, and to be happy with themselves. - The problem is the cultural pressure, where individuals are protected in being different, but not in acting different. Minorities are required to cover their cultural differences in order to maintain their position in the public sphere, keep their jobs, avoid violence, gain social acceptance, or avoid conflict in day-to-day activities.

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- Everyone covers.2 To cover is to downplay a disfavored trait so as to blend into the mainstream3. Because all of us possess stigmatized attributes, we all encounter pressure to cover in our daily lives. Given its pervasiveness, we may experience this pressure to be a simple fact of social life. - Against that conventional understanding, Kenji Yoshino argues that the demand to cover can pose a hidden threat to our civil rights. - Though we have come to some consensus against penalizing people for differences based on race, sex, sexual orientation, religion, and disability, we still routinely deny equal treatment to people who refuse to downplay differences along these lines. - The four axes along which everyone covers are appearance, affiliation, activism and association. a. Appearance concerns how an individual physically presents himself to the world. b. Affiliation concerns his cultural identifications. c. Activism concerns how much he politicizes his identity. d. Association concerns his choice of fellow travelers -- spouses, friends, colleagues - We see a gay community divided by the issue of covering, where status within the community and vis-a-vis the dominant culture are measured in the ability or desire to cover ones sexuality. The normals are the pro-covering crowd, those who want to downplay or eliminate gay cultural difference in embracing the politics of assimilation; and the queers those who want to emphasize their differences, those who denounce to measure the worth of life by mainstream standards. Both sides are openly gay, but have a different orientation to assimilation. Yoshino argues ultimately that what matters isnt an individual gay persons personal choice regarding covering, but rather the context of their making that decision. Covering becomes bad when it is coerced and not chosen, when it is imposed rather than a personal decision of preference for cultural style. The problem comes from the structural coercion toward covering - Yoshino favors the authenticity of self that can only be achieved with an individuals commitment to autonomy: the freedom to elaborate ones true self rather than to some rigid notion of what constitutes an authentic (gay) identity. This autonomy claim is probably the origin of the schism that divides normals and the queers - There are two generations of discrimination. In the old generation, discrimination targeted groups as a whole -- excluding all racial minorities, women, gays, religious minorities, and individuals with disabilities. The triumph of modern civil rights is that such group-based exclusions are now relatively rare. But now a new generation of discrimination has risen to take its place, targeting not the group as a whole, but the part of the group that refuses to fit into mainstream norms. This new generation of discrimination punishes people who fail to cover. Q: Does the law protect us from this new generation of discrimination? A: For the most part, no. Our current civil rights laws protect being a person with a particular identity much more than doing things associated with that identity. So if a woman gets fired from her workplace for being African-American, she will win her suit in a hot second. But if she gets fired for a cultural trait associated with that identity, like wearing cornrows, she will lose. - Cases: Shahar v. Bowers , which upheld the firing of a lesbian attorney not because she was homosexual but because she held a religious ceremony that "married" her to another woman; Rogers v. American Airlines , which upheld the dismissal of an
2

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employee not because she was African American but for wearing cornrows, a hairstyle strongly associated with African Americans; and Jespersen v. Harrah's, in which an appellate court upheld the firing of a casino bartender not because she was a woman but because she refused to wear makeup - Covering, Yoshino posits, is "the dark side of assimilation." While he recognizes that assimilation "is often necessary to fluid social interaction, to peaceful coexistence," when it becomes a demand for covering, it becomes a "hidden assault on our civil rights." Within "traditional civil rights classifications like race, sex, orientation, religion, and disability," racial minorities are pressured to "act white," women to act more like men, homosexuals to not "flaunt," the religious to hide their beliefs, and the disabled to keep their impairments out of sight. Note: The specific types of covering that follow arent really all that important. You may skip to the conclusion if you want. RACIAL COVERING - Racial covering occurs when non-whites act white by modulating their behaviors. - Sometimes individuals resist pressure to cover their race, ethnicity, or national origin by bringing lawsuits alleging discrimination. They routinely lose. Examples of such cases include Rogers v. American Airlines (1981), in which an African-American woman was forbidden to wear cornrows, Hernandez v. New York (1991), in which a Latino potential juror was struck for proficiency in Spanish, and several cases which national origin minorities were fired for lapsing into their native tongues in English-only workplaces. The burden should be on the state to demonstrate a compelling reason to foreclose a cultural practice, rather than on the individual to demonstrate that their practice is immutably part of their identity. SEX-BASED COVERING - Discrimination against women has taken a different form from discrimination against other groups. Men have historically cherished women, so long as they conformed to the domestic role. The mind-set through which men limit women in the name of loving them is known as separate spheres -- an ideology under which men inhabit the public sphere of work, culture, and politics, while women inhabit the private sphere of hearth and home. - Today, the most obvious forms of separate-spheres ideology have been abolished. Few places exist where the state or an employer can post a No Women Allowed sign. Nonetheless, this way of thought still has contemporary traces. Men often require women who enter traditionally male workplaces to display the attributes of both spheres. If women are not masculine enough to be respected as workers, they will be asked to cover. If they are not feminine enough to be respected as women, they will be asked to reverse cover. Separate-spheres ideology has continued life in the imposition of these two contradictory demands, which theorists variously describe as a Catch-22, a double bind, or a tightrope. - Women can cover along all four axes: appearance (avoiding feminine clothes, hairstyles, or accessories), affiliation (not having children or not mentioning them if they do); activism (refusing the label feminist, laughing along with sexist jokes); or association (avoiding other women). But women who cover too much are pressed back in the opposite direction, because they violate expectations about how women should behave. Recent workstyle manuals for women tell women that they need to be more feminine to get ahead. - Notable cases in which women failed to get legal redress when forced to cover include Wislocki-Goin v. Mears (1987), in which a woman was fired for being too

Because everyone is outside of the mainstream in some way, we all experience pressure to cover. 3 Yoshino reviles this notion of mainstream, deeming it a myth because mainstream is no more then a shifting coalition of indefinite human identities that struggle for selfexpression

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feminine, and Piantanida v. Wyman Center (1997), in which a woman was discharged for becoming a new mom. GAY COVERING - Unlike most racial minorities, women, and individuals with disabilities, most gays have (in fact or in the imagination of others) a panoply of options for assimilation. These forms of assimilation include conversion, passing, and covering. The history of gay rights can be retold as a history of resistance to these three kinds for assimilation. - Through the middle of the twentieth century, gays were routinely asked to convert to heterosexuality, whether through lobotomies, electroshock therapy, or psychoanalysis. As the gay rights movement gained strength, the demand to convert gradually ceded to the demand to pass. This shift can be seen in the militarys adoption in 1993 of the Dont ask, dont tell policy, under which gays are permitted to serve so long as they agree to pass. Finally, at millenniums turn, the demand to pass is giving way to the demand to cover -- gays are increasingly permitted to be gay and out so long as they do not flaunt their identities. The contemporary resistance to gay marriage can be understood as a covering demand: Fine, be gay, but dont shove it in our faces. - Gays routinely cover along all four axes: appearance (acting straight); affiliation (not making references to gay culture); activism (avoiding the charge of being militant or strident about gay rights); and association (eschewing public displays of same-sex affection). - Notable instances in which gays who resisted the demand to cover lost their cases include Shahar v. Bowers (1997), in which a lesbian attorney was fired for engaging in a private same-sex commitment ceremony, and Lundin v. Lundin (1990), in which a gay couple was denied custody of a child because they engaged in displays of affection. RELIGIOUS COVERING - Although they are often pitted against each other, religionists and gays share a special bond. Like gays, religious minorities have been subjected to all three demands for assimilation -- conversion, passing, and covering. When Mormons led the charge against same-sex marriage in Hawaii in the 1990s, I was struck by how I could retell the history of Mormonism as I have retold the history of gays -- as a movement from coerced conversion, through passing, toward covering. In the nineteenth century, Mormons were forced to convert their religion by repudiating the practice of polygamy. Those who refused -- self-described Mormon fundamentalists cast off by the Mormon church -- went underground, practicing plural marriage in a form of Dont ask, dont tell. More recently, authorities have turned a blind eye to polygamists who cover, reserving prosecutions for flaunters. - In the new millennium, many religious minorities are entering their covering phase. For many American Jews, the question has shifted from whether they should convert or pass to whether they are Too Jewish? -- the title of a museum exhibit that traveled the nation in 1997. Riv-Ellen Prell describes women who straighten their noses or hair to achieve a Queen Elizabeth exterior while retaining a Jewish heart. Abraham Korman recounts how Jewish men in corporate settings must give up many of the symbolic behaviors that tie them to their Jewish heritage, with the yarmulke having particular significance as a symbol to be avoided. Academics like Phyllis Chesler describe how Jews are sanctioned for writing on Jewish topics. And journalism professor Samuel Freedman notes in his book Jew vs. Jew that American Jews are increasingly breaking apart based on whether their primary associations are with gentiles or other Jews. - In the United States today, Muslims are the most visible targets of the religious covering demand. Soon after the terrorist attacks on the World Trade Center, an article

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was published about Muslims in New York City. It reads like a covering ethnography. The piece reports that Muslim private schools are telling children to conceal any religious emblems, and that some Muslim leaders are discussing plans for women to change the way they dress, perhaps exchanging headscarves for hats and turtleneck pullovers. It depicts a woman who, a day after the attack, arrived at a New York City Health Department office demanding bureaucrats change her sons surname from Mohammed to Smith. The article also observes that neighborhoods in New York where you were more likely to see Egyptian, Jordanian, or Syrian flags . . . are now covered in American flags, their Middle Eastern flags discreetly hidden for the time being. Finally, it notes that some Middle Easterners have confessed that they would be happy now to be mistaken for either Hispanics or African Americans. - Significant cases in which religious minorities who resisted the covering demand lost in court include Goldman v. Weinberger (1986), which concerned a Jewish Air Force officer and rabbi who was threatened with a court martial for failing to remove his yarmulke, and Employment Division v. Smith (1990), in which members of a Native American Church were denied unemployment benefits because they had smoked peyote for sacramental purposes. DISABILITY-BASED COVERING One of Erving Goffmans core examples of covering was that FDR would hide his wheelchair behind a desk before his Cabinet entered. Roosevelt was not passing, as everyone knew he was disabled. Rather, he was covering, making sure that his disability faded into the background relative to his more conventionally Presidential qualities. - Individuals with motor-function limitations widely report covering strategies. Jenny Morris notes how some people in wheelchairs use able-bodied people as fronts, relating how she takes her daughter shopping with her for this purpose. Others describe pressure to laugh along with jokes about how much room they take up or whether they have a license to drive a dangerous vehicle. Irving Zola writes about refusing a wheelchair for years to appear normal, and the shock at how much relief he got when he finally used one. - Covering is also rife among individuals disabled in other ways, such as those with visual impairments. In her memoir, Sight Unseen, Georgina Kleege describes dressing meticulously, forgoing a cane, and memorizing passages she was expected to read aloud. Steven Kuusisto writes about hiding his telescopic glasses, pretending he was clumsy, and walking quickly. The most famous instance of a blind person who covered while not passing is Helen Keller, who insisted as a youth on being photographed from angles that hid her protruding eye. She later had her eyes replaced with glass, leading unsuspecting journalists to comment on the beauty of her eyes. Covering in this context often requires individuals to forgo the paraphernalia they need to function. As such, it provides a particularly stark instance of how counterproductive conformity can be. These individuals often pay for the appearance of normalcy not just with psychic repression but also with physical pain. A significant instance in which disabled individuals pressured to cover lost their case is Sutton v. American Airlines (1999). In this case, the Court deemed that individuals would not fall under the protections of the Americans with Disabilities Act if they could correct their disabilities. CONCLUSION - The courts have made the same distinction between being and doing - discrimination based on status is immediately disfavored, but the law does not favor nor protect mutable or correctable behaviors concomitant to the status. In other words, court opts to protect being a member of the group, but not doing or engaging things associated

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with the group. Under this assimilation paradigm, court protects skin colors but not language, chromosomes but not pregnancy, homosexuality but not homogenital acts, and same-sex desire but not same-sex marriage. The tug of war between being and doing, and status vs. conduct have become the ultimate battleground for lifting civil rights into a more reason-forced, humane register demanding an equality not staked on conformity a new paradigm based on our desire for authenticity. - Yoshino ultimately channels Martin Luther King Jr. and Malcolm X, who called for a transition from a civil rights paradigm, which polarizes in its inherent focus on specific groups, to a human rights model that champions common humanity. The more diverse people become in America, the more exhausted they grow of multiculturalism and the more evident the shared humanity. - The unequal treatment of minority groups made people realize what our liberties actually are. The right to keep law out of the bedroom has developed only because certain groupsfirst unmarried people, then interracial couples, now gays and lesbians have been stigmatized for what they have done there. The recent Lawrence v. Texas decision overturning sodomy laws is a prime example: The rationale for the court decision was not that gay men should be protected in their practices as a group, but rather that all individual adults in America should have an expectation of privacy regarding their consensual intimate sexual acts and choices. He also sites Tennessee v. Lane, wherein a wheelchair-bound woman sued the state of Tennessee because she couldnt get into court buildings and perform her job. The court ruled that all Americans have a reasonable expectation of the ability to enter into public buildings, especially courts, and ruled in her favor This is a universalization of the rights argument, where when an issue of covering or passing comes before the court, the court rules based on human rights of the individual rather than on protected group status - This paradigm would allow individuals to live "authentically" and in good psychological health. Yoshino invokes the concept of health proposed by theorist, D. W. Winnicott: living according to one's "True Self" while the "False Self" "is reduced to a 'polite and mannered social attitude,' a tool available to the fully realized True Self" - Yoshino's ultimate goal is to bypass the courts by creating a cultural consensus. Gay people should have conversations with straight people to show them that covering is painful at worst and dulling at best. When gay people are asked to assimilate, they should ask why, and the straight people who make those requests should have to present their reasons. Yoshino's main argument is that we cannot rely on the law to do the work of the town square. - Yoshino has put the law aside. He argues that we should leave behind equality doctrine for a new, radical focus on personal liberties that the Supreme Court may be unlikely to pursue beyond Lawrence. He argues for the urgency to adopt a new convention that is rooted in rationality focused not on peoples capacity to assimilate, but on the legitimacy of the social demands made on them; that law generally should take a backseat to cultural change. Litigation should give way to conversation. - The freedom to perform our identity gives us the power to define its meaning. But that freedom cannot be achieved by simply changing individual behavior or attitudes, which are merely symptoms of a greater social disease that afflicts our culture, its traditions and structures. Resisting this institutional pressure to perform distorted versions of ourselves has to be a collective struggle waged in courtrooms, schools, workplaces and in the media. It is only then that we can be both equal and different, together *Instead of the old-fashioned group-based identity politics. We must build a new civil rights paradigm on what draws us together rather than on what drives us apart. Because covering applies to us all, it provides an issue around which we can make

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common cause. This is the desire for authenticity, our common human wish to express ourselves without being impeded by unreasoning demands for conformity

POSTMODERN LEGAL THEORY


Postmodern Philosophy & Law By Douglas Litowitz
4 general categories of insights generated by postmodern legal theory: (1) the importance of genealogy and an awareness of contingency; (2) an understanding of incommensurability and marginalization, (3) the deconstruction of supposedly neutral doctrines, and (4) and awareness of language and discourse in the law. GENEALOGY AND THE AWARENESS OF CONTINGENCY genealogy-genealogical analysis, then, is not useful of one is looking for a large-scale metatheory to provide a foundation for legal decisions from within the current arrangement. - as one Critical Legal Studies Theorist put it, The dominant system of values has been declared value-free: it then follows that all others suffer from bias and can be thoughtlessly dismissed. By way of illustration, many people think that private property is inevitable or that it would be absurd for there to be a constitutional right to shelter, just as they find it unthinkable that we might tolerate lifestyle experiments by, say, permitting gay marriages. Long ago Marx correctly pointed out that people tend to replicate the social order of which they are a part. As a result, they cannot see any outside to the current arrangement, such that every call for radical change seems unreasonable, reactive, an affront to common sense. The genealogical approach offered by Nietzsche and Foucault counters this tendency by showing that the current arrangement is no more natural than the order which it replaced. This does not provide a game plan for creating a new legal system, but it does give us a certain critical distance or irony toward our practices, thereby allowing for new approaches and ideas. AWARENESS OF INCOMMENSURABILITY AND MARGINALIZATION - A second valuable insights of postmodern theory comes from Lyotards notion that any legal system will give rise to differends, that is, to claims which cannot be adjudicated for lack of a netural arbiter. - related to Deridas deconstructive claim that we must focus on the margins as well as the text; and related to Foucaults statement that to find out what our society means by sanity, perhaps we should investigate what is happening in the field of insanity. - the postmodern message here is that legal systems necessarily exclude certain people from receiving a hearing by virtue of the ground rules of the system. As Lyotard shows, the marginalized discourse is silenced by the language-game of the presiding court. - Tellingly, there is a specific legal term for the grievance which cannot be recognized under the legal system, namely, failure to state a claim. Upon motion by the defendant, the court will refuse to hear any claim that does not satisfy the elements of an established cause of action. - Whether a claim is legal and can find recognition in a court of law. For example, a homeless man may rightly feel that any country which can send half a million soldiers to Iraq to fight in the Gulf War and can send astronauts to the moon should guarantee

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minimal housing to people who have tried to secure work but cannot find a job that guarantees a living wage. Despite the homeless mans sense that his country should provide him with housing, this feeling does not mean the homeless man has a right to housing. The project here is to change the ground rules or boundaries by which the legal system operates, to work at the margins. - As Catherine MacKinnon explains, It became possible to do something about sexual harassment because some women took womens experience of violations seriously enough to design a law around itSexual harassment, the legal claimthe idea that the law should see it the way its victims see itis definitely a feminist invention. - legal system should recognize the harm as something which ought to be remedied under the law. A good example of this would be spousal rape. Eventually the legal rule was changes to give a voice to this harm. Another example is whether there should be a tort action or injunctive relief for group slander. Minority groups are challenging the prevailing legal rule that freedom of speech protects racial insults. - this orientation forces a rethinking of the boundary which separates the legal from that which is marginalized as nonlegal. Postmodernism is especially useful in this regard because it would have us stand outside of our practices to examine the boundaries and parameters which presently constitute those practices. DECONSTRUCTION OF SUPPOSEDLY NEUTRAL DOCTRINES - Derridas philosophy puts forth a theory of justice which is foundational, and hence inconsistent with his earlier, more deconstructive writings. The method of deconstruction can be used to interrogate and question some key legal concepts. - goal here is to use Derridas method of reading texts-artificial status of binary and hierarchical structures that have been set up by the author. Deconstruction is concerned with breaking down the distinctions between part/whole, text/margin, inside/outside, public/private, and individual/collective-once hierarchy is exposed as arbitrary or groundless, the text allegedly collapses in on itself and deconstructs. - Some legal thinkers have succeeded in using Derridas method of deconstruction to examine specific doctrines in the law, and I think that this is an area where postmodernism can have a positive influence. - Daltons deconstructive reading uncovers a hidden layer of what might be called sexual reasoning in which ideological notions of femininity are glossed over by legal terms such as contract, consideration, - one can find hidden ideological forces at work in the judicial process-a value choice between different conceptions - The law is not a set of neutral principles existing autonomously and distinct from political commitments but is itself a mirror of deep political conflicts. Judges, then, are political actors whether or not they choose to see themselves as such. In addition to making value judgments about which doctrines to apply judges must choose whether to use bright-line rules (a person over the age of 18 can consent to a contract) versus amorphous standards (consent must be determined on a case-by-case basis, such that a 17 may be liable on a contract while a 20 year old may lack the capacity to consent.) This choice between rules and standards is also a political choice because a rules-based approach favors a formal society with clear rules of personal interaction, while standards-based approach favors a more collectivist vision. - ever since the era of the Legal Realists (such as Jerome Frank and Karl Liewellyn), lawyers have been aware that legal outcomes are somewhat indeterminate and unpredictable; perhaps deconstruction can help to uncover the forces which drive this indeterminacy - One reason that postmodernism can undertake a deconstructive reading of legal doctrine is that it assumes a fundamentally external perspective on the legal system. A useful aspect of postmodern legal philosophy is precisely its freedom from the

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institutional constraints that fetter judges and lawyers views of the law. Sometimes the most incisive view of the law is not available to those on the inside of the practice. In this regard, the radical perspectivism of postmodernism might prove useful in fostering new perspectives on the legal system (i.e. by seeing the system from the perspective of criminals, clients, or jurors). THE SHAPING OF LEGAL DISCOURSE AND THE UNSAYABLE - A cardinal virtue of postmodernism-sensitivity to language and its insistence that the individual is shaped by the discourse in which he or she is immersed. -In the context of the legal system, this means that one must ask questions like, Who has the right to set the parameters of legal discourse? Who sets the moves of the legal system? Who decides what can be said and what must be left unsaid? - In The Archeology of Knowledge Foucault explains that social practices (such as law) are perpetuates by a special group of insiders authorized to speak and play specific roles within the practice. - Within the pracice of the law, the players are licensed professionals, law school graduates who have passed the bar exam and been admitted to the bar-they come from a particular stratum (propertied, white, male), though this is changing. - The law as a social and discursive practice has a very rigid set of boundaries which establish what can be said and what is beyond the sayable. The establishment of a private language (so-called legalese) helps to keep the majority of people alienated from the law. Lawyers are restricted in what they can say and do by the rules of the discursive practice of the law, yet they customarily work within this practice and do not stand outside of it. An additional element of restriction-stare decisis - The lack of simplified system makes us question why the present system is too complex for ordinary citizens to seek redress in a court of law. - Postmodernism makes us sensitive to the way in which power relations regulate the production of legal discourse and practice TWO BIG PROBLEMS: EXTERNALITY AND LINGERING FOUNDATIONALISM two limitations of postmodern theory-EXTERNALITY and LINGERING FOUNDATIONALISM - Externality-looking at law from the outside not using its language games - problem is that we will not come up with positive jurisprudence. All negative jurisprudence will make the legal system collapse altogether - we should also attack from the inside of the system - LINGERING FOUNDATIONALISM-When the postmodern critique of these legal foundations turns into a full-blown rejection, a vacuum is created which makes it look like postmodernism will slide into relativism and nihilism

THE NETWORKED INFORMATION ECONOMY


Code V.2 By Lawrence Lessig
Thesis Statement: The cyberspace can be regulated depending on its codes (architectures). Some architecture will be regulable, others would not. Leaving the regulation of cyberspace to code-writers is dangerous and could pose thrreats to social and political values of the society. Because of these, the government should take steps to transform an architecture from unregulable to regulable, both indirectly (by

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making behavior more traceable) and directly (by using code to directly effect the control the government wants). PART I: REGULABILITY - The cyberspace seems, at first glance, a place without rules and government, a beautiful, anarchic free-for-all beyond the bounds of government interference. However, Lessig argues that in fact, the Internet is as hidebound and rulebound as most anything else. Internet can be regulated from without and within. - Lessig addresses the two forms of code that dominate the Internet: the legal code (law) and machine code. The first is the code that Congress enacts (as in the tax code or the U.S. Code) It is also called East Coast Code (Washington DC imposed statutes). The other is the code that code writers enact the instructions imbedded in the software and hardware that make cyberspace work, also referred to as West Coast Code (Silicon Valley created software). - Lessig points out that the law, as currently written, is ill-equipped to deal with the new frontiers of cyberspace. He warns that deciding legal and regulatory issues in cyberspace according to the system on which our other laws are based is fraught with danger. - According to him, regulation of cyberspace is imposed as well by code itself (i.e. on a purely technical level), by how programs run and how data is exchanged and how access is restricted or made available. Regulation by code is possible because code has become the product of companies. So when commerce writes code, then code can be controlled, because commercial entities can be controlled. The interaction between commerce and government change the effective architecture of the Internet. That change will increase the regulability of behavior in the Internet. PART II: REGULATION BY CODE - In this part, the question is not how the architecture of the Net will make it easier for traditional regulation to happen. The issue is how the architecture of the Net or its code itself becomes a regulator. - In this context, the rule applied to an individual does not find its force from the threat of consequences enforced by the lawfines, jail, or even shame. Instead, the rule is applied to an individual through a kind of physics. A locked door is not a command do not enter backed up with the threat of punishment by the state. A locked door is a physical constraint on the liberty of someone to enter some space. - Codes constitute cyberspaces; spaces enable and disable individuals and groups. These selection about code are therefore in part a selection about who, what, and most important what ways of life will be enabled and disabled. Code is law! Take the America On Line (AOL) as an example. AOL is not just written rules; it is not just custom; it is not just the supply and demand of a knowing consuming public. What makes AOL is in large part the structure of the space. You enter AOL and you find it to be a certain universe. This space is constituted by its code. You can resist this code you can resist how you find it, just as you can resist cold weather by putting on a sweater. But you are not going to change how it is. You do not have the power to change AOLs code, and there is no place where you could rally AOL members to force AOL to change the code. You live life in AOL subject to its terms; if you do not like them, you go elsewhere. AOL can deal with certain types of problems by changing its code. Because the universe that AOL members know (while in AOL) is defined by this code, AOL can use the code to regulate its members. - In principle, then, AOL must choose. Every time AOL decides that it wants to regulate a certain kind of behavior, it must select from among at least four modalitiesrules, norms, market (prices), or architecture.

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- Lessig argues that behavior on the Internet is regulated by these four constraints aforementioned. These separate constraints obviously dont simply exist as givens in a social life. They are neither found in nature nor fixed by God. Each can be changed, though the mechanics of changing them is complex. And the government and its law can have a significant role in this mechanics. - To illustrate this, the market is regulated by law. The law uses taxes to increase in the markets constraints on certain behaviors and subsidies to reduce its constraints on others. Law can also change the regulation of architecture. The Americans with Disabilities Act requires the builders to change the design of the buildings in such a way that it is accessible to disabled. Law can also change social norms. Education is the most obvious example. PART III: LATENT AMBIGUITIES - In this part, Lessig considered three contexts in which changing technology would render ambiguous our commitment to fundamental values. This he called latent ambiguity. How we protect intellectual property, privacy, or free speech will depend upon fundamental choices framers didnt make. Intellectual Property - The issue here is whether or not intellectual property should be protected and if yes, up to what extent and through what means. - Lessig believes that intellectual property should be protected. However, IP should not be treated the way we treat real and personal property because they are different. Shared ideas are non-rivalous goods. No technology (that we know of) will erase an idea from ones head as it passes into others head. By knowing what one knows does not lessen others knowing the same thing. Unlike apples, and unlike houses, once shared, ideas are something one can take from you without diminishing what you have. - But it does not mean that IP ought not to be protected because complete absence of legal protection will not create sufficient incentive to produce it. Instead, it means that intellectual property law should strike a balance between the protection granted the author and the public use or access granted every one else. - The next question to ask is what means would bring about the most efficient set of protections for property interests in cyberspace? Two sorts of protection are possible. One is the traditional protection of law the law defines a space where others should not enter and punishes people who enter nonetheless. The other protection is a fence, a technological device (a bit of a code) that blocks the unwanted from entering. As to Lessig, code can, and increasingly will, displace law as the primary defense of intellectual property in cyberspace. Private fences, not public law. Privacy - Lessig identified two distinct threats to the values of privacy that the Internet will create. The first is the threat from digital surveillance the growing capacity of the government to spy on ones activities in public. From internet access, to email, to telephone calls, to walking on the street, digital technology is opening up the opportunity for increasingly perfect burdenless searches. - The second threat comes from the increasing aggregation of data by private entities. These data are gathered not so much to spy as to facilitate commerce. Some of the commerce exploits the source of data (targeted ads). - In view of this, Lessig argued that privacy is an important social value that deserves much protection. In essence, he is saying that privacy is different from property contemplated in the Intellectual Property Rights. He is saying that there should be less

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regulation on IPR, meaning free culture must flourish but not to the detriment of personal privacy. - Intellectual property, once created, is non diminishable. The more people who use it, the more society benefits. The bias in intellectual property is thus, properly, towards sharing and freedom. Privacy on the other hand, is diminishable. The more people are given license to tread on a persons privacy, the less privacy exists. In this way, privacy is more like real property than it is like intellectual property. No single trespass may destroy it, but each incremental trespass diminishes its value by some amount. - What is the solution to this? We must build into the architecture a capacity to enable choice not choice by humans but by machines. The architecture must enable machine to machine negotiations about privacy so that individuals can instruct their machines about the privacy they want to protect. (For example, a parent can choose to block his childs computer access to porn materials available in the Net) - But how will we get there? How can this architecture be erected? Individuals may want cyberspace to protect their privacy but what would push cyberspace to build in the necessary architectures? The answer definitely not the market but the politics. Free Speech - The issue here is whether or not cyberspace should lead to favoring a speech regulation system or should it ban filters? - Lessigs view is that we should not opt for perfect filtering. Nor should we opt for perfect filtering. If there is speech the government has an interest in controlling, then let that control be obvious to the users. A political response is possible only when regulation is transparent. Interlude - How much control should we allow over information, and by whom should this control be exercised? There is a battle between code that protects intellectual property and fair use; there is a battle between code that might make a market for privacy and the right to report facts about individuals regardless of that market; there is a battle between code that enables perfect filtering of speech and architectures that ensure some messiness about who gets what. Each case calls for a balance of control. - With respect to intellectual property, Lessig argues against code that tracks reading and in favor of code that guarantees a large space for an intellectual commons. In the context of privacy, he argues in favor of code that enables individual choiceboth to encrypt and to express preferences about what personal data is collected by others. - Code would enable that choice; law could inspire that code. In the context of free speech, however, he argues against code that would perfectly filter speechit is too dangerous, I claim, to allow perfect choice there. Better choice, of course, is better, so code that would empower better systems of reputation is good, as is code that would widen the legitimate range of broadcasting. PART IV: COMPETING SOVEREIGNS - In this part, Lessig argued that we should understand the code in cyberspace to be its own sort of regulatory regime, and that this code can sometimes be in competition with the laws regulatory regime. For example, we saw how copyright law could be inconsistent with the regulatory regime of trusted systems. His argument is that we should understand these to be two regulatory regimes in competition with each other. We need a way to CHOOSE between them. We need a way to DECIDE which shall prevail.

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PART V: RESPONSES - Lessigs response is summarized as follows: Governments should intervene, at a minimum, when private action has negative public consequences; when shortsighted actions threaten to cause long term harm; when failure to intervene undermines significant constitutional values and important individual rights; when a form of life emerges that may threaten values we believe to be fundamental; and when we can see that failing to intervene on the side of right will simply strengthen the interventions on the side of wrong. Such intervention must be limited; it must be engaged with all the awareness about the failures of government that right thinking sorts can muster. But action defending right should not be stopped merely because some goes wrong. When those who believe in the liberty of cyberspace, and the values that liberty promotes, refuse to engage with government about how best to preserve those liberties, that weakens liberty. Do nothingism is not an answer; something can and should be done.

LAW AND ECONOMICS


Chi Ming Choices (Art. 36: A Coasean Analogue) By Florin Hilbay
Introduction The Constitution recognizes the family as a basic unit of community organization. It also declares marriage as an inviolable institution, the foundation of the family, and subject to protection by the State. However, this declaration is misleading in that, if one will look at marriage in our country, it nothing more than a symbolic and confirmatory legal institution which is not indispensable to having a social organization such as the family. The paper will examine the Article 36 of the Family Code as an exit mechanism to marriage. It will look into the statutory and judicial legislation pertaining to psychological incapacity as a ground to sever marital ties and how the judiciary has produces a sub-culture of divorce of which the social cost is too high, through their interpretation of said article. I. The Psychology of the Incapacitated The proposal of the Civil Code Revision Committee (CCRC) of the University of the Philippines Law Center for what now stands as Article 36 of the Family Code appears to be a compromise between the CCRCs original intention of proposing a no-fault divorce regime and the demands of pragmatism. Absolute divorce was decided against by the CCRC, realizing the strong opposition that any provision such as that would encounter from the Catholic Church. They, thus, patterned Article 36 on the grounds available in the Canon Law. Inherent in the inclusion of the provision on psychological incapacity was the understanding that every petition for declaration of nullity based on it should be treated on a case-to-case basis; hence, the absence of a definition and an enumeration of what constitutes psychological incapacity. Moreover, the Committee feared that the giving of examples would limit the applicability of the provision under the principle of ejusdem generic. This intention of the Code Committee has now produced the problems associated with the divorce culture we now experience.

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In the case of Santos v. Court of Appeals, Vitug in his attempt to contain the meaning of the text, held that psychological incapacity should refer to no less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage which, as so expressed by Art.68 of the Family Code, include their mutual obligations to live together, observe love, respect and fidelity and render help and support. Psychological incapacity was meant to refer to the most serious cases of personality disorders. And this psychologic condition must exist at the time the marriage is celebrated. This description did not significantly provide a meaningful standard for a lower court judge to follow. Thus, a lower court faced with an Article 36 petition is directed to impose the highest threshold possible by granting only those that involved the most serious cases of personality disorders where there is an utter insensitivity or inability to give meaning and significance to the marriagein reality, a command to deny all nullification petitions. In Republic v. Court of Appeals, through Justice Panganiban, conservative guidelines in handling Article 36 petitions were set. What these cases indicate is that the term psychological incapacity is not only opentextured; it is also, and more importantly, deliberately made to be so (Main point: Article 36 is a pathetic attempt of the Code Committee to provide for a remedy for those who want out of their marriages in that it provides for a reasonable ground but the lack of definition and description re psychological incapacity makes it rather impossible to have a marriage nullified.) II. The Coase Theorem Two propositions of Ronald Coases theorem: if there are zero transaction costs, the efficient outcome will occur regardless of the choice of legal rule; if there are positive transaction costs, the efficient outcome may not occur under every legal rule. In these circumstances, the preferred legal rule is the rule that minimizes the effects of transaction costs. These effects include actually incurring transaction costs as well as the inefficient choices induced by a desire to avoid transaction costs. (huh?!) The question Coase tried to provide a solution for was whether or not the assignment of a liability ruleone that makes a party liablecould lead to the same efficient outcome. III. The Costs of Art.36 It is possible to analogize a marital relationship as a binding transaction between two economic agents, both of whom are trying to maximize their utility from the marriage while at the same time retaining their individuality. Chi Ming Tsoi, being the only case to date where the Supreme Court allowed a claim of psychological incapacity on the part of one of the contracting parties, it may be likened to an instance where the actions of one party causes a felicity reduction on the part of the other party. His actions therefore, amount to what economists refer to as a negative externality. Because the damage caused by this externality, one could expect the victim to be incentivized into reacting, in such a way as to lessen or eliminate the externality and thus increase her felicity.

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(Main point: under a free marriage system, both parties can bargain for a mutually acceptable solution to psychological incapacity, and can opt for more rational choices which leaves both parties in a better position compared to that offered by Article 36) Chin Ming Tsoi with Liability Rules and Costless Transaction. The policymaker (taking into consideration the ruling in said case) has two choices: to assign the liability to the husband or the wife. If he assigns the liability to the husband, this would dissolve the marriage, leaving the incapacitated husband to internalize his psychological incapacity. To assign the liability to the wife by believing the statement of the husband that it was the wife who refused to consummate the marriage with him, the policymaker would have reversed the situation between the spouses. (Main point: the first choice will leave BOTH parties better off) Chi Ming Tsoi with Liability Rules and Transaction Costs. The transaction costs associated with prosecuting an Article 36 petition substantially alters the net distribution of felicity, depending on the ability to pay the lawyers and other fees, the ability of opposing counsel, the availability of witnesses, the aggressiveness of the Solicitor General in defending the interests of the government, and most importantly, the temperament of the judge. Procedurally, an Article 36 petitioner will have to win at least onceeither at the RTC or at the CAto have a fighting chance before the Supreme Court. IV. Transaction Costs and Rent-Seeking ASSUMPTIONS: 1. That litigants, as rational maximizers of their individual felicity, will not care whether or not they break the law. what they do care about is knowing the price they have to pay for getting what they want and determining whether its worth it. If the risk involved in breaking the law is high or if the probability of sanction is real, then they will follow it; otherwise, they will not. 2. That judges, while aware of the need to comply with the Molina Rules, will themselves engage in cost-benefit analysis, that is, they will also analyze whether compliance with the Molina Rules is worth it. 3. That the Solicitor General and the public prosecutor also care about the Molina Rules but would be open to case-by-case analysis of the situation, applying the same risk analysis employed by the litigants. (Main point: in reality THEY DO NOT CARE, various bogus petitions have been filed, and will be filed, clogging the judiciary with senseless ARTICLE 36 petitions where only dishonest public officials will benefit from) Conclusion: Article 36 is a mess. The jurisprudence surrounding it is nothing less than blindness to the realities of married life and the institutional practice it has engendered. The Molina Rules are a compromise only rent-seeking public officials would enjoy. The practice of dishonesty is driven by the bottleneck created by the Court itself. Normative theory presented: if the costs of transacting are not high, the legal rules will be irrelevant; whereas, if the costs of transacting are considerable, only those who can afford that transaction costs will contract. In either case, transactions will occur.

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Therefore, regulators should lower the transaction costs, most of which are converted to rent profits anyway. (In short, nullification petitions should be made easier for petitioners to give provide equal leeway to those who can afford to go through the process, and to those who cannot. Yes, Hs last attempt at abolishing marriage.)

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