Sunday, January 07, 2007

Stream of Consciousness Post - There's an analysis of a legal case, geopolitics and social mores in there somewhere

I've just finished my readings for International Protection of Human Rights and am now in an attempt to wind down and get some sleep. Part of the problem is that the classes I have been taking and the readings that have been assigned have been rather thought provoking, which is not a conducive state of mind in which one may fall asleep.

Take for example, the case of Lochner v NY, one of the most discussed and condemned cases in the whole of the US Supreme Court decisions, ranking just behind Dred Scott, where the court determined that the Mr. Scott was still a slave despite his "master" having brought him into a free state and freed him there. If one accepts the proposition that judges ought merely declare law and not make it, then I submit that the case was in fact rightly decided but the moral repugnance of slavery makes it such that we would rightfully condemn it today.

What I would ask people to keep in mind is that slavery as an institution arose separately and independent across cultures and was often sanctioned by the prevailing religious ideologies, most obviously, the Judeo-Christian faith, which admittedly was eventually at the front of ending that particular evil, which only goes to show that the bible can mean almost anything you want it to. Also implicated is Buddhism and the prevalence of a form of slavery even under the reigns of the Buddhist kings in the South East Asian region.

But back to the case of Lochner, what the US Supreme Court did was to find the "liberty of contract" in the 5th and 14th Amendment and based on a laisse faire doctrine, struck down a law mandating a maximum amount of time that workers in bakeries may work (60h per week and not more than 10h per day) etc. As a mark of how little support this case has, apparently only the libertarians support it. But it is worth noting that the prevailing economic ideology that the Court was using was itself derived from the social ideology of the anti-slavery crusaders who has argued that labour inherently belong to the labourer and that slavery took that and the liberty of contract away from the slave.

The criticisms of this case are many fold, ranging from the the basic that there is not such right in the Constitution, to there is no such implied right in the constitution to there is no such substantive right in the constitution to even if there were, this was a legitimate act on the part of the state (whether as a measure for public health or to correct market failure). So in short, there are many levels of criticism. But nevertheless, I think each of them can be addressed fairly persuasively. I would on balance fall on the side of the dissenters on the basis that this was a legitimate regulation on the part of the state, although I wonder whether this is necessarily true if the state had mandated a maximum of a 40h workweek (sounds familiar?) and this was due to special interest lobbying based on flawed economic analysis and theory.

And that's just one class.

Law and Genetics was fairly scary given that I had not touched science in ages and my only contact with science these past two years has been my daily readings of and other sites dealing with evolutionary biology and the anti creationism and intelligent design movement. Nevertheless, it was fairly painful having to wade through the "genetic primer" and recalling all those facts of Mandellian inheritance and dominant and recessive alleles and things like autosomal recessive inheritance.

Good fun those.

International Protection of Human Rights is an absolute blast and our assigned "textbook" is absolutely smashing. It's Mary Ann Glendon's, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (2001) and it makes for absolutely compelling reading and in particular the personalities that made up the committee that drafted the UDHR. What was absolutely surprising was the importance that a Lebanese Professor of Philosophy turned master diplomat (Charles Malik) and a Chinese Renaissance Man (Chang Pei-Chung) had in the intellectual foundation of the document.

But read it, I'm 142 pages in and it's absolutely great.

Introduction to (Ancient) Roman Law. To forestall the inevitable questions, yes it's still somewhat relevant. Basically there are two legal traditions in the world presently, the first is the Common Law system, having its foundation in England and exported to all its colonies including the earliest one that revolted i.e. USA. The other, encompassing the rest of the world is the Civil Law tradition. That tradition is traced back to Roman Law and in particular the Justinian Digest.

Please don't ask me what the difference is between the two systems. In a group of 8, 4 of us were lawyers who had studied this to varying degrees and even we couldn't give an outright answer seeing that there has been a strong convergence in the two and any differences that we are apt to give is more likely to be misleading than not.

But it's shaping up to be a good quarter. Send me stuff you want shredded! I don't have time to go searching for them anymore!


Labels: ,


Post a Comment

<< Home