Post Hoc, Ergo Propter Hoc

2010-09-07T08:09:00.000-07:00

It has become fairly evident that this particular blog has faded away.

The reason is unfortunately quite simple. It is 11 pm and I am still in the office with no particular end in sight. My life revolves entirely of the business of law and the only things that would motivate me sufficiently to write about are legal issues that I am involved in.

That, however, is a big no no.

Since I am massively skeptical that anyone is about to want to read about my personal life, I fear this will have to serve as my final post.

2008-11-10T03:33:00.000-08:00

Mucking about with Epistemology

I really should be focusing on my revisions but this letter caught my eye for engaging in one of the most sleight of hand use of equivocation I've seen in some time. And for having drawn the wrong conclusions but I'm sure she would say the same about me.

Sex education: Letter writer was not neutral
by Yeo Su' An (Ms)

Oh wow, that's utterly shocking. But more problematically, she's redefining the meaning of neutral as we understand it. And ironically, she uses the sort of moral relativism that she accuses the letter writer of engaging in when in reality there's a real difference between descriptive moral relativism and prescriptive moral relativism.

I REFER Mr Ho Chi Sam's letter, 'Polycentric approach to sex education'. He argues that 'various institutions and organisations should not teach sex education and pass their brand of education as universal, but be upfront about their subjectivity'. He seems to be implicitly adopting a relativistic framework which posits that all viewpoints are subjective, and to make a claim to correctness and objectivity is undemocratic and unacceptable in a diverse society. However, this framework is arguably unsustainable as, if all viewpoints are inherently subjective, this necessarily includes the very perspective on sex education which he is putting forth. The very fact that he is arguing for polycentric sex education demonstrates that he believes that encouraging youth to have safe sex is normatively better than encouraging abstinence. It thus follows that he himself is not neutral, but instead is taking a position along the moral framework.

In one sense, the moral relativist viewpoint is self-defeating as the writer rightly points out BUT the problem is that descriptive moral relativism is inherently true i.e. all norms are subjectively valid to the adherents of that particular ethos. Making a claim for universalism is actually hard when people don't buy into your subjective norms. There's a reason for the diversity of opinion and political views after all, no one thinks that their views are wrong for that reason.

The problem comes after that part about descriptive moral relativism i.e. what next? One could go from there to prescriptive moral relativism i.e. their ways are not ours, we may not agree with what they believe but there are no more wrong than we are right hence we do nothing. The other way would be to say, fine, but if we're all going to live together, what system do we use to get along with one another. In other words, how do we best "respect" (or at least tolerate) differing worldviews while permitting each their subjectively normative worldview?

The problem with the writer's critique is that it ascribes neutrality (a position) with affirmation which is frankly a little disingenuous because she's trying to draw more of a normative value from the original writer's support of polycentric sex-education than is actually warranted. To claim that "[t]he very fact that he is arguing for polycentric sex education demonstrates that he believes that encouraging youth to have safe sex is normatively better than encouraging abstinence" is accordingly fallacious because a) abstinence is part of a comprehensive sex education policy and b) his "belief" that it is normatively better may have more to do with a normative belief that one should be exposed to as many viewpoints as it may be that abstinence only policies don't actually work.

This point is critical as it is not merely theoretical but has real practical implications. By hiding behind the veil of plurality and neutrality, Mr Ho conveniently sidesteps the controversial nature of the polycentric sex education he advocates. Such 'diversity' sex education, as conducted in schools in Britain and the United States begins even at the primary school level, covering topics such as the use of contraceptives and how to engage in safe sex, diverse types of sex including heterosexual, homosexual and bisexual, and alternative family structures such as cohabitation and same-sex partnerships. The controversial nature of such polycentric sex education is underscored by the heated nature of the recent debates in California, about the approach to be adopted with regard to the content of sex education concerning homosexual family structures. Strong opinions on both sides of the debate demonstrate that it is illusory to speak as if a consensus exists and polycentric sex education is a settled, widely accepted issue.

Oh gee...where have I heard that before? Just click on the tag below to see the same arguments brought up (and dealt with) before.

But separately, maybe it might be the editing but this whole paragraph simply does not make sense even from the internal logic of the writer? One could easily make the argument that it is precisely because it is controversial that one should adopt a comprehensive sex education policy. It's a fact that such family structures exist and it's a fact that some of these structures are no worse (if not actually better) than your so-called traditional family structure.

To understand how this paragraph is a fallacious appeal to emotions, just change the terms to mixed-race couples and you could have a paragraph emerging from the 1960s Civil Rights Movement.

Furthermore, let's be clear about the issue here. We COULD simply be taking about a comprehensive sex education policy focusing not on family structures but on safer sex including the risks involved in other sexual activities not limited to vaginal intercourse.

Lastly, the "debate" is not settled in the US because of the influence of the conservative religious right whose opposition is based on their notion of morality. They are entitled to their moral views, unfortunately, their moral views lead to real harm. The experts i.e. the medical people actually working in the field and doing research have consistently maintained that abstinence-only policies do not work.

Finally, Mr Ho argues that 'our youth should be exposed to this range of sex education, so they can make an informed decision and follow which material they deem to best suit themselves'. With respect, this argument rests on the flawed assumption that children and youth are rational, wise and ever judicious in their decision-making. As philosopher Herbert Hart pointed out in his critique of John Stuart Mill, this assumption cannot stand when viewed in the light of factual reality: Children and youth do not possess relatively stable wants and desires, and are impressionable and open to experimentation. Contrary to Mr Ho's assertion, making children aware of the health risks of promiscuous sex is no mere 'scare fest' to be peremptorily dismissed: It is an objective fact that teenagers who engage in promiscuous sex are at a much higher risk of contracting sexually transmitted diseases than teenagers who abstain from sex until marriage. It follows that it would harm, not help, children to hide such scientific realities from them.

Wasn't it Dawkin's who said religious labeling (and possibility education) was akin to child abuse? That's the danger of making this argument, because it gives carte blanc to the people in charge that they are entitled to indocrinate those who simply do not know better. Secondly, gross overgeneralisation much? It's one thing to expose children to objectively erroneous facts (Intelligent Design/Creationism as a scientific theory), another to expose them to different value systems. Recall descriptive moral relativism, unless you can demonstrate that an abstinence-only education is objectively better (by whatever criteria you may choose), then it becomes another viewpoint but now we're pushing it as the numero uno supremo value for problematic reasons.

I think it is precisely for this reason that the writer tries of course to talk about "scientific realities" and the fact she mentions is not wrong, ceteris peribus. The more important point is whether a) abstinence-only education actually reduces sexual promiscuity and b) whether it reduces STDs and unwanted pregnancies. And the answer is simply no, and no, no, no.

2008-09-08T13:10:00.000-07:00

Academic Mentions

With my penchant for word play on ambiguous meanings (blame it on law school), here's a quick update for the one person who might still be reading this blog.

1. This blog has been mentioned in the following academic paper, "Is the Singapore Socio-Political Blogosphere a Hambermasian Public Sphere?". But unfortunately (or fortunately), because I did not comment on the particular issue that author was concerned about, all I got was a mention on the list of 51 blogs he used.

2. I'm in the midst of my Practical Legal Course (PLC) right now, which is one of the two requirements before I get called to the bar. Or as I am more fond of putting it, get inducted into the world of soulsuckers. The other part involves pupilage i.e. pupiling with a pupil-master. So I currently occupy the position of lackey. Come next May, I will get promoted to minion. And with time, I will rise to the august position of Minion of Darkness. To preempt any questions, I'm doing my pupilage at "a small sole proprietor". For those who are aware of where I'm pupiling, yes I am aware that it is highly misleading, but that's how I describe it right now.

3. My Boss has very graciously allowed me to be co-author for a paper I was assisting him on. So I now have a publication to "my" name. (I'm well aware that I'm riding on his coat-tails but I did quite some work on the paper. And technically I have published some years back but that was honestly shite. I blame it on my youth.).

I'm not entirely certain how long I'll keep up blogging. I can honestly say that this is the first time I have been free since graduation/starting work. And the stupidity in the press seems to have died down somewhat so there's not much material to get riled up about and fisk.

I might be retooling this blog to focus on legal journalism instead. I have personally found that the quality of legal reporting in the local press has ranged from excellent (BT and ST's coverage of the legal issues in en-bloc sales are pretty good) to abysmal (totally messing up the Jonathan Lock case reporting. I mean if a whole bunch of lawyers and law students cannot understand your article despite specialist knowledge, something is seriously wrong. And they also messed up reporting of the Philippines Marcos bank account case. Admittedly that was really complicated).

It's not apparent to the public but our Court of Appeal has made some rather big shifts in the law but it has been piecemeal. I appreciate that we're not as politicised as the US Supreme Court BUT that's not to say that the tenor of the decisions has remained still since Chan CJ took over and Phang JA got allevated to the Court of Appeal. It's a very frighteningly intellectual and brilliant bench (and maybe somewhat academic but.......yeah....) now, and it shows in their decisions.

But it's really all in the pipelines right now. There's a lull in the course which will not last. And work always beckons round the corner.

Peace

2008-04-20T02:25:00.000-07:00

Law ruins your life

Another day, another newspaper headline that automatically kicks in a legal response rather than anything else.

So our beloved tabloid (layout) The New Paper has as their headlines something about how a mother had changed (presumably unilaterally) her daughter's, age 9, surname to her own from her husband. The upset father is now suing all and sundry including the school and MOE. Now mind you, I have not read this report so the following analysis might be entirely wrong but I figure it shouldn't be too difficult to cover most conceivable (and probable) bases so it should be fairly accurate. In fact, the set of facts that shall be covered in the case below is so much more clearcut than the one listed in TNP that if that hadn't, there is nearly no possibility of there being a different outcome this time round.

As an aside, the reason law ruins your life is not only do you view this as a legal issue but specifically through the prism of family law (there are some rather fascinating constitutional issues about surnames but that tends to be in Japan and South Korea for various cultural reasons) as opposed to simply being a human-interest story.

The case that we are primarily interested in is a decade old case of L v. L, [1997] 1 SLR 222 (don't worry about the citation it's for the lawyers who can actually be bothered and have the access to look up the case). The proposition/legal rule that can be derived from this case is that a parent cannot unilaterally change the surname of the child i.e. without the consent of the other parent. This is because for various reasons, the change of a surname is held to be a "serious matter", as serious and important as taking the child out of Singapore for more than a month without the consent of the other parent (parental kidnapping). Anyway, the facts of the case were that the parents were divorced, the mother had sole custody and decided to change the surname of her daughter to the man she was about to marry. The father claimed that this act was unlawful and wanted a reversal of the change to be mandated by the court. Without g0ing into the decision of the Family Court and the High Court, the important part is that the Court of Appeal agreed, held that this was actually actionable and that a remedy would be granted.

Two thing of significance: 1. the mother actually had sole custody, which technically means she has sole authority (this has been strongly militated by judicial decisions) and there was absolutely no statutory prohibition against sole guardian changing name of the charge/ward. 2. the court found that the father was a caring father who was interested and concerned as to his child's well-being.

The second point is of relevance because of this later case of Khor Bee Imm v. Wong Tee Kee, [2002] 1 SLR 101 which also involved mother unilaterally changing surname of child, except that in this case, there was no court order for the reversal of the change. The reason simply was that it was not in the best interest of the child in this case to change his surname back. The father in this case was not as intimately involved nor as concerned with the well-being of the child. Furthermore, the child was not a young girl but a young man of 17 who had been with the changed surname for a good number of years, was known as such, had no desire to change it back, and comfortable with it. Furthermore he told he judge that he had no relationship with the biological father seeking the reversal.

So to iterate, you need the other parent's consent or you need a fairly exceptional set of facts and time to create some form of quasi-estoppel i.e. you are prevented from essentially going back on your "consent" to the surname change. It is quasi because legal estoppel can actually be enforced i.e. whereas this is merely a consideration that the judge will probably take into account.

And Now You Know (go google it). Peace

2008-03-04T07:07:00.000-08:00

So Long and Thanks for all the fish

It is with quite some regret that I have decided this will be my last post in the foreseeable future if not forever. The reason simply is that time moved on and things happened and for various reasons, I neither have the inclination nor the reasons to blog.

I don't regret the stuff that I have written and in today's world, what I have written cannot be deleted and can always be retrieved. I at best regretted my early support for the 2nd Iraq War and that I never really made a retraction. And my early stupidity on climate change, having adopted a "skeptical" view towards anthropic warming.

But anyway, peace ja?

2007-11-14T00:15:00.000-08:00

ST Letter Rejected (Thankfully?)

Well, to be fair I didn't expect the letter to be accepted and it (the spoof) probably wouldn't have made sense if one did not actually bother to go dig out the letter to which it was responding to.

Further, while I appreciate the poor journalist/editor has to plough through all of the letters that he/she receives daily and that a standard-form response is the most efficient way of doing so, nonetheless, the following brought an ironic smile to my face.

If your letter relates to a matter under the purview of a government department, you may want to visit
www.sgdi.gov.sg for a list of officials to contact.

After all my letter was meant to be extreme and over-the-top and the thought that it be submitted to a public official and possibly taken seriously sends chills down my spine. After all I really don't see the sentiments expressed being too far removed from what the original letter writer was expressing.

Anyway for anyone wanting a more exhaustive debunking of Mr Nelson Quah's letter, go check this out. It's yummy civil libertarianism without all the annoying legal technicalities and jargon that would have bogged my analysis down!

Oh and it's a good blog too.

2007-11-12T23:01:00.000-08:00

I'm not certain what to make of this. Is this a good or a bad thing?

2007-11-12T08:20:00.000-08:00

We should consider having our own Anti-social Behaviour Act to deal with ugly S'poreans

THE Scottish Parliament passed the Anti-social Behaviour Act (ABA) in 2004 with the original intention of curbing noise nuisance.
This Act, which empowers authorised officers and the police to take summary action against an offender by imposing a fine and even confiscating the offending equipment, is effective in curtailing the noise problem.
We should have a similar Act in Singapore modified and expanded in scope to deal with the various anti-social behaviour problems here.
Here are some anti-social behaviour problems which can be corrected by this Act.
>>On MRT trains and public buses, it can be used to catch and fine those who fail to give up the designated seats for the pregnant, disabled and elderly. It can also be used to nab those who assault bus drivers when asked to produce their passes for identification.
>>On the road, it can be used to punish those who grab the oncoming taxi without consideration that another person is there earlier waiting for it. The cabby can be reminded that if he picks up the queue-jumper, he will be reported to the police for action to be taken against him under this Act.
>>In crowded car parks, it can be used to fine inconsiderate and discourteous drivers who go against the directional sign to occupy the empty lot, ignoring those who were there earlier.
>>At various places, it can discipline people who display anti-social and repugnant behaviours such as queue-jumping and spitting.
>>On the Internet, it can be used to punish and discipline irresponsible bloggers who are quick to insult a person by their libellous remarks or foul language. The police can fine the errant bloggers who usually operate under the cloak of anonymity and ask them to apologise and reveal their true identities including their photographs on their blogs.
This Act is all-embracing and can be applied in some way to eradicate any anti-social behaviour displayed by the ugly Singaporeans. Should there be any future anti-social behaviours, the ambit of the Act can be enlarged to deal with these new problems.
The ugly Singaporeans are a bane to society as they destroy our efforts in building a gracious society. They also tarnish our image as a First World country by their Third World behaviours.
National campaigns in the past have not yielded much results and we should not discontinue these ongoing programmes aimed at changing their values, attitudes and behaviours.
We should also seriously consider having our own ABA to reform those hard-core anti-social elements who cannot be changed by the persuasive approach of national campaigns.

An excellent suggestion! In fact I propose how the ambit should in fact be broader than the letter's author suggests!

On MRT trains and public buses, it can be used to catch and fine those who fail to control their children who run amok. It can also be used to nab those who assault our senses with their horrible taste in fashion and music.
On the road, it can be used to punish those who do not slow down at zebra-crossings without consideration that another person is there waiting. The driver can be reminded that if he does not slow down, he will be reported to the police for action to be taken against him under this Act
In crowded food courts, it can be used to fine inconsiderate and discourteous persons who go against the accepted etiquette to occupy the empty seats, ignoring those who were there earlier.
At various places, it can discipline people who display anti-social and repugnant behaviours such as speaking loudy or with improper English grammatical syntax.
On the Internet or print media, it can be used to punish and discipline irresponsible letter writers who are quick to use faulty logic without due consideration of constitutional liberties to advocate improper social engineering measures. The police can fine the errant letter writer who usually operate under constitutional protection of free expression and ask them to apologise and reveal their true identities including their photographs in print.

Because I have plumbed the depths of the internets (including reading fstdt.com), I realise that sarcasm and irony is dead so just to ensure you that I haven't taken leave of my sense and that this was a spoof letter.

For a while I wasn't quite sure if this letter wasn't a spoof itself ala the Sokal Hoax but a quick google search shows that the writer has made similar arguments before so it's likely he was serious.

That scares me....

2007-10-20T09:37:00.000-07:00

Saint Augustine on Science and Scripture

Usually, even a non-Christian knows something about the earth, the heavens, and the other elements of this world, about the motion and orbit of the stars and even their size and relative positions, about the predictable eclipses of the sun and moon, the cycles of the years and the seasons, about the kinds of animals, shrubs, stones, and so forth, and this knowledge he hold to as being certain from reason and experience. Now, it is a disgraceful and dangerous thing for an infidel to hear a Christian, presumably giving the meaning of Holy Scripture, talking nonsense on these topics; and we should take all means to prevent such an embarrassing situation, in which people show up vast ignorance in a Christian and laugh it to scorn. The shame is not so much that an ignorant individual is derided, but that people outside the household of faith think our sacred writers held such opinions, and, to the great loss of those for whose salvation we toil, the writers of our Scripture are criticized and rejected as unlearned men. If they find a Christian mistaken in a field which they themselves know well and hear him maintaining his foolish opinions about our books, how are they going to believe those books in matters concerning the resurrection of the dead, the hope of eternal life, and the kingdom of heaven, when they think their pages are full of falsehoods and on facts which they themselves have learnt from experience and the light of reason? Reckless and incompetent expounders of Holy Scripture bring untold trouble and sorrow on their wiser brethren when they are caught in one of their mischievous false opinions and are taken to task by those who are not bound by the authority of our sacred books. For then, to defend their utterly foolish and obviously untrue statements, they will try to call upon Holy Scripture for proof and even recite from memory many passages which they think support their position, although they understand neither what they say nor the things about which they make assertion. [1 Timothy 1.7]

Context: I passed by St Andrews Cathedral's Visitor's Center which had an anti-evolution poster (or an evolution denier one quoting how Man being made in God's image being somehow incompatible with a common ancestry with apes). They (i.e. religion in general) could pursue this path but when reality disagrees, the truth tends to win out. Once the congregation realises that they are being lied to in this instance, it becomes a simple matter to start question everything else.

And you don't want that to happen do you?

2007-10-15T02:47:00.000-07:00

(quizzes are such easy replacements for posts)

You fit in with: Humanism 20% spiritual. 60% reason-oriented.
	Your ideals mostly resemble that of a Humanist. Although you do not have a lot of faith, you are devoted to making this world better, in the short time that you have to live.
Take This Quiz at QuizGalaxy.com

2007-10-13T08:48:00.000-07:00

NUS VCF Intelligent Design Talk

Go see http://gssq.blogspot.com/2007/10/only-fools-are-positive.html for what the talk was supposed to be about

Yes, I was that annoying guy at the back of the room who made that outburst and repeatedly tried to pin the presenter down on an actual answer.

I made that outburst after sitting through a very bad presentation that had been billed as Evolution v. Intelligent Design but was actually (according to the good doctor) Paley's Argument from Design wrapped in the language of Intelligent Design. VCF's apologised and took responsibility for designing that poster which was good but doesn't explain the communication breakdown (or the unintelligent design of the explanation of the issue in that poster but I disgress)

Along the way he had misrepresented Anthony Flew's supposed conversion to Deism (he had been misled to believe there were no good theory for abiogensis), conflated abiogensis i.e. the origin of life with evolution, misrepresented the Big Bang as having a beginning (we don't know is the right answer), misquoted George Smooth (he actually said "If you're religious, it's like looking at God" and not the truncated version which omits the first part which is attributable to Hugh Ross), conflated complexity with intelligence, made arguments by big numbers (sorry Fred Hoyle is a bit of a crank and not an authority in this field anyway), misrepresented the state of the Urey-Miller experiments, quotemined Dawkins (yes Dawkins said that the cell was tremendously complex but the book from which that was quoted i.e. Climbing Mount Improbable is entirely and specifically about how evolution can achieve that complexity), claimed that there was no true definition of evolution on the basis that there were disputes as to the primary mechanism of evolution (and yes Gould's punctured equilibrium was misrepresented again) and asserted that there wasn't enough time for his version of evolution to occur and claimed that evolution was random chance.

For me, the snapping point was when he just said that Darwin was not religious despite clear evidence to the contrary (if he were any type of scholar) prompting me to say "For goodness sake, he entered a seminary" (I overstated the claim. He was studying theology with an aim to becoming a clergyman and did not in fact enter a seminary). More importantly, one of the reasons he took so long to publish his work was because he was very painfully aware of the religious implication of his work (this was still the time of young earth and divine creation after all) and felt guilt over it.

But for me, I was "apoplectic" (nah it's just me in debate mode) particularly once I saw how he refused to answer even straightforward questions and worse dismissed his quotemining of Darwin (he said Darwin had doubts about his theory because it could not explain the evolution of the eye WITHOUT mentioning that Darwin specifically refutes and addresses that doubt right after that paragraph!) as a small matter!

Meh.

2007-10-13T08:00:00.000-07:00

Why the marital rape exemption is senseless

I was prepared to leave this letter well alone until I read that the author is a philosophy tutor at NUS and this is an attempt to emulate the system of Aquinas in Summa Theologiae.

And better still I think this was one of the rare instances where everyone on the political spectrum in YoungRepublic condemned it, which is a remarkable show of unity and demonstrates how absurd his position is. But leaving aside the argument to popularity which might have been applied in the prior statement, here's why it's still fundamentally wrong in the first place.

http://www.straitstimes.com/ST%2BForum/Online%2BStory/STIStory_166104.html

I REFER to the article, 'Rape is rape, so husbands should not have immunity" by Dr Andy Ho (ST, Oct 2).

To remove bias, 'rape' here means only 'non-consensual sex', with no overtone.

With no overtone?! Sorry, the very fact that it is non-consensual makes it wrong. Unless you want to adopt the positions that facially a person's consent is not needed for acts done to him, this statement is latent non-sense (unsinn) in a Wittgenstein fashion i.e. it does not make sense insofar as one cannot imagine it to be falsifiable.

Dr Ho rebuts arguments for 'marital rape is not a crime'.

One: A woman's consent to marriage implies her lifelong consent to sex. Rebuttal: Lifelong consent becomes a 'legal fiction' when the husband turns into a violent stranger. Comment: The law makes no such exception, and no supporting argument is offered for this assertion.

One general comment. He presumes an A/Not A situation wherein rebuttal of Dr. Ho's positions means that his positions stands when in fact he bears the burden of demonstrating why the wife is not equally situated with non-married women with whom the rapist has sexual relations with and therefore the marital rape exemption might be justified despite an ostensible violation of the principle of the equal application of the law.

Two, maybe some believe that a woman's consent to marriage implies her lifelong consent to sex but I don't see a reason why this is the case. If so, then this entire comment is irrelevant. Why does marriage imply consent to sex anymore than it implies consent to say subjugation to the husband or the husband's dominion his hand in discipline? Marriage is a civil and legal institution (so if the Catholics allow for the annulment of marriage on the basis of non-consumation according to their religious beliefs, then so be it) and therefore all the wife consents to are the legal duties that are imposed by law. The common law has come a long way from saying that the wife has no legal personality (no standing before the law) because she is simply an extension of her husband. Since she is recognize to be her own legal person, it must be established why she somehow loses the right not to be raped by her husband as opposed to when she was not married to him.

Three, even if this was the basis of the law, Dr Ho's rebuttal stands.

Four, even if it did not, the interpretation of the letter writer is erroneous. One the matter of lifelong consent to sex, it would be more akin to the idea that the wife cannot withhold sex and still have the marriage stand NOT that the wife cannot withhold consent to sex.

Two: Marriage is a private intimacy, into which the law should thus not intrude. Rebuttal: Marriage as a private intimacy wrongly presumes the interests of husband and wife are aligned. Comment: Neither 'private' nor 'intimacy' presumes interests are aligned.

Nope, good try. The penal code (first drafted for India) is a very old piece of legislation and is a codification of the common law on criminal matters (with some exceptions like the right to self-defense where apparently the drafter's belief was that the natives were so submissive that there would not fight back even if attacked to death and therefore a right of private defense had to be added. Go figure). One of the ideas in the common law was that the wife was simply the extension of her husband and one of the rationales was that their interest were aligned.

Even if this were not true, it still misses the point of similarly situated for an equality of law analysis.

Three: Making marital rape a crime will poison reconciliation. Rebuttal: Marital rape already poisons reconciliation. Comment: Many marital rape victims do 'forgive and forget', and reconcile.

Battered Wife Syndrome. Go google it. They eventually crack and murder their husbands.

Also many don't, prosecution can still be done. Except that because we can't use the rape provision (which allows for sentences of up to 20 years), we have to get them on much lesser charges under use of force, causing hurt (max of a year unless grievous hurt is caused and the definition of grievous hurt is very exactly defined only to include stuff like emasculation, breaking of a limb, causing the person to be hospitalized for more than 30 days etc. which is not what rapes are about) or the stupid 377 provisions. The point to be emphasized is that the act of rape itself is the harm not the harm caused which tends not to be physical).

Four: Making marital rape a crime makes wives more likely to falsely accuse husbands. Rebuttal: England and Ireland have made marital rape a crime, without increasing false accusations. Comment: Dr Ho has a counter-example.

Actually, Dr Ho's point would have stood anyway since it would be the onus of those who advocate the marital rape exemption to prove that false accusations would be a serious problem or even a problem at all. The problem of prosecuting rape is not that of false convictions (although it might happen) but more so that of not being able to convict the rapist because of due process requirments in criminal law that (rightly in principle) make conviction hard. Should it boil down to a he-said-she-said situation, it is not going to be easy to convict on the basis of beyond a reasonable doubt. Add that to the situation of a marriage and in fact unless one puts in presumptions of non-consent, convictions are going to be very very difficult.

Dr Ho argues for 'marital rape should be a crime'.

One: Almost all aspects of women's legal subordination to men have been rejected. Comment: A traffic sign saying 'No entry - except ambulances' will insist on the exception.

There the exception can be justified. Here it cannot be. Therefore there are not analogous and the analogy does not stand.

Two: 'Rape is rape, so the marital rape exception should be completely erased.' Comment: The marital rape exception is built into the law. Insisting the exception be removed does not entail it should be.

The onus is on those wanting the marital rape exemption to justify why the woman once married is not similar situated to a woman who is not married when it comes to the application of rape laws.

Two, it is irrelevant that the exception is built into the law. Unless one commits the fallacy that the status quo is necessarily good, there is no merit to the point. Laws can be amended and repealled and that was the whole point of this exercise in the first place.

UNLESS he wants to argue that even the limited amendment to the marital rape exemption here was wrong? Good luck

Three: Marital rape harms the victim more than does stranger rape, which is a crime. Comment: First, harm may not be a sufficient reason here. Husbands also have duties to wives that strangers do not. Second, the alleged greater harms of betrayal, entrapment and isolation likely presume marital sex must be consensual, rendering the argument circular.

I will wrote the following brilliant response from a member of the YoungRepublic here
"He [the letter writer] also claimed to have found 'circular thinking':

1. Being raped by your husband is shittier than being raped by a stranger
2. But it is only shittier because there is some kind of meta-consent
insofar as he is your husband
3. But rape is a sexual act without consent therefore this is circular

When in fact it is:

1. Being raped by your husband is shittier than being raped by a stranger
because you trusted your husband to treat you with love and respect.

2. Being raped by your husband is therefore both a betrayal of the respect
he owes you as a woman AND as wife.

3. Therefore marital rape, far from being an exception to rape laws, should
be treated as a more heinous form of rape."

So yeah...whatever he said above.

Four: 'Why does the system then deny her what she considers to be in her best interest?' That is, if a wife considers it in her best interest that marital rape is a crime, then marital rape should be a crime. Comment: First, the law must consider the general interest, not that of just one party. Second, wives do not dictate the law.

The general interest is the protection of the individual from crimes, one of which is the protection of the individual from even simply being touched without consent, see here the tort of trespass to the person or what is in the vernacular called battery. Mind you this goes even further than people think it goes, even a simple touch is grounds for liability where there is no consent or implied consent to some de minimis touching when in public. So the consideration here is not that of one party.

Second, one can all too easily replace the word wife with victim to see how utterly fallacious the above is. We have a trial system for a reason.

In summary, we have a case for 'marital rape is not a crime', and none for 'marital rape should be a crime'.

In summary, what we have here is a perfect example of GIGO i.e. Garbage In Garbage Out. If your assumptions and premises are wrong, then you logical analysis will necessarily lead to garbage conclusions.

Peace

2007-08-28T07:47:00.000-07:00

Talking about Torture: Philosophical bridges in dialogue Part 1

I really should be reading my International Investment Law textbook but my mind is still rather fuzzy despite the time of the day and I'm hoping this will clear whatever remaining cobwebs so I can get down to actually reading the dang book.

As promised yesterday, I want to briefly highlight and discuss how axiomatic choices can make for secular positions that are nonetheless highly divergent in their conclusions. One of these positions in recent times has been that of torture. In particular, whether it is ethically permissible to ever use torture and if so, under what circumstances. From them, we try to fit it within the system of a liberal democracy (or any system that respects human rights because the lack of respect thereof simply means there is no bar to torture) and further within the rubric of the rule of law (the idea of the supremacy of law in the system and those rules as a constrain on arbitrary power).

So we can start first with the deontologist (moral absolutism) and contrast their perspective with act consequentialist. For the purposes of this discussion, it would suffice to say that the first term refers to the notion that principles are fixed and do not deviate simply by virtue of the situation and circumstance at hands. Thus if it is a moral good to tell the truth or not to kill or not to torture that those principles and prohibitions are absolute (as a grotesque simplification, Kantians would argue that since consequences simply cannot be controlled by the individual but only intentions can, then only intentions matters from an ethical perspective).

On the other hand, act consequentialism (or act utilitarianism) looks purely at the consequence of a particular act to determine if something is good or bad. Generally speaking, the position thus adopted can be loosely described as “the greatest good for the greatest numbers” and can be described as the ultimate form of situation ethics. These two ethical positions are both entirely subjectively (and to their proponents objectively) valid but their conclusion varies diametrically.

But on to building bridges: assuming now that one as a deontologist wishes to persuade someone of the consequentialist bent that the prohibition of torture ought to be absolute, how would I go about doing so? Since the ethical premises are different, trying to persuade the consequentialist through deontological means is going to be fairly useless. Nonetheless, I can adopt a form of consequentialism to make that particular argument. One of the charges laid at the feet of consequentialism and utilitarianism has been that nothing is prohibited if the circumstances were right. This might be true of act utilitarianism in that only the immediate consequences of the act matter BUT is in no way true from the viewpoint of rule utilitarianism. In rule utilitarianism, one calculates based on whether the harm of promulgating a rule outweighs the good, it seeks to take not just the immediate consequences but also the long term repercussions and it also tries to aggregate all likely scenarios so as not to let a truly aberrant situation skew the weighing. Thus for example while an act utilitarian will be hard-pressed to say that he would not shoot (or torture) an innocent person if it would save the lives of a entire town (or country etc.), a rule utilitarian can accept that such situations do exist but as a rule we ought not to do so because of reasons such as undermining the trust of the citizens in the system, the unlikelihood of such a situation outside of 24 etc., the backlash one would get from other members of society (or international community).

But personally, I think the situation is harder the other way round i.e. persuading a deontologist on ontological grounds why there should be no absolute prohibition on torture but merely a conditional one. That however will have to wait till tomorrow as I am absolute knackered by Tuesdays.

Peace

2007-08-26T09:23:00.000-07:00

The Case for Euthanasia

Interesting article much of which I agree with although I wouldn't have written it the way he did (it opens it up to attacks which would be irrelevant but which I predict would happen i.e. mostly on the grounds on emotions and "faith"). At the same time, I want to offer up some common arguments against euthanasia and why I feel most of them fall on balance or are mitigated if not derogated by other considerations.

The case for euthanasia

When thinking about our 'rights' to death, are there double standards? CHARLES TAN

DEATH is perhaps the only truly universal trait that we all share and thus, identify with — regardless of culture, status, or faith — and yet it is still taboo (if not impolite) to talk about it, much less debate it, in modern society.

Something I'm somewhat familiar with if not personally then by association with persons (or a person) who thinks hard about the issues and stills has problems communicating across those reasons to that person's parents.

If you've ever watched the Animal Planet channel, you've probably gawked in disbelief at how fortunate some pets are. Paris Hilton's pooch chows down on foie gras, while 3 billion people (that's half the world) live on less than $3 a day.

But if life is good for these pets, death might be even better — for when perceived to be in agony, at least they are put out of their misery.

Humans on the other hand, have no such option.

Strangely enough, this was something I was thinking about the other day and it is indeed a rather curious turn of events as to why this is the case. Especially so when one considers that the choice to be put down is not that of the pets but those of the pet owners and the veterinarian.

So, what is an aspiring economist doing questioning the legality of euthanasia? Aren't such matters best left in the hands of ethical philosophers and moral legislators?

The way I see it, the criminalisation of euthanasia is tantamount to a violation of the free market and individual property rights, and thus warrants a rational (read: economic) review.

Oh sigh... Geez. Violation of the free market? I don't see how this can constitute a violation of the free market except in a fairly roundabout way i.e. by denying the basic premise that individuals ought to be able to make decisions for themselves (which in itself is premised on the notion that only we know what's best for us). And of all ways to put it, "a rational (read: economic) review"?! I hope that this was a matter of editing and not the actual phrasing he used.

Now, it is patently obviously that this approach is not necessarily wrong and in fact arguably has much to recommend for it. But I submit that the basis for this is not economics (the science of scarcity as it were) but on the broader notion of rationality and "public reason" i.e. arguments that would be applicable to every member of society.

The most common justification for the flagrant infringement of a basic human right — the freedom of choice — is that the average person often makes "bad" decisions, thus the need to relieve him of certain options.

However, if a decision bears little to no adverse effects on anyone but oneself, why should the government intervene?

To be sure, I believe most would find the mohawk a "bad" haircut; but the hair on someone's head is his, not mine, and his garish haircut doesn't waft into my eyes like second-hand smoke does. How he decides to treat his hair should be no business of ours.

By the same token, what a man chooses to do with his life should be treated with equal respect, for it is the individual's prerogative, and not the communal right, to decide.

Well, that's the premise for paternalism to be sure and yes paternalism by definition infringes on certain of your basic liberties. But at the same time, there might be other reasons for the derogation of a right, up to and including, because it infringes on another's right or simply another right. It is this second part of the second aspect (another right) which I feel that this article does not quite deal with, although I say this for completeness sake rather than because I feel it is fundamentally detrimental to his case.

Choice presupposes ownership. Therefore, central to the euthanasia debate is religion, for your belief in the nature of cosmic truth will ultimately determine who owns, and therefore controls, your life.

Euthanasia finds its strongest opposition in the annals of religion — and this is perhaps the reason why supposedly secular legislation is skewed so — because modern law remains primarily based upon Biblical canon.

To deny one the right of choice over his own life, is to presume that he had no ownership over it to begin with.

Followers of monotheistic faiths believe that life was bestowed by some supreme Creator, and thus, can only be rightfully taken away by Him.

I think this is about right. Strip it to its core and I get the sense that this is what most of the opposition is about. While there are secular arguments against euthanasia as evidenced below, much of it is arguably excuses rather than real reasons why suicide should not be permitted as a principle (the arguments for euthanasia are arguably stronger).

Some might argue that our emasculation with regard to birth should follow into death, but such a fatalistic view is about as bright as saying that those born into poverty should not endeavour to enrich themselves.

Instead, Life, like an inheritance, is but an endowment, and has no bearing over what you may decide to do with it.

Let me concede that we have no say in our creation — our parents did.

Life is as much a given as Death is; but while (or perhaps, because) we have no control over the former, we strive to control the latter like we attempt of everything else around us.

Oh gosh, wouldn't it be much better to say it's a non-sequitur? Here's a reformulation of the argument based on secular human rights: the basis of human rights is that of life because one has those human rights as a result of one's life (and thereby accordingly the inherent dignity of life of which human rights are suppose to protect). Secondly, life and human rights presumes the capacity for choice whereas death is the ultimate negation of that choice. That ultimate negation is therefore the premise upon which the state may derogate your choice in order to prevent the ultimate derogation through death.

But while this argument may hold water in the case of say mental ailments e.g. anorexia that is causing the person to literary starve himself or herself to death, and that this is not a choice that is in any sense of the word rational or informed, therefore the state may legitimately abrogate that "choice" and perhaps institute a regiment of forced feeding and medication.

Where the analogy holds and falls apart in euthanasia is that we are talking really about end-of-life treatment. Euthanasia occurs with terminally ill patients and we're generally talking about patients with massively diminished quality of life due to pain or incapacitation from the illness. Thus while it is is a form of suicide BUT the premise of it is that this is simply hastening the process and avoiding the associated pain and/or the mental diminshment from the heavy palliative care that is needed (query: in the absence of our capacity to think and make choices, are we still human in any sense of the word? NB: we aren't talking about infants or even the severely mentally handicapped as that would be to use exceptions to make general policy).

Everything modern medicine has achieved might seem to be in contravention of a divine order.

Consider how — and this can be empirically proven — two identical people, with identical illnesses can experience vastly different life expectancies, when given, or deprived of, access to medical amenities.

To me, this is positive proof that we are either defying some heavenly instruction by our prolonged existence, or that perhaps such an order never existed to begin with.

If we assume, for the sake of argument, that such an order exists, it must then logically follow that if He does not find the extension of our mortal existence offensive, then why should the converse be so controversial?

If we try reasoning along an atheistic slant, then the argument becomes even more potent.

No arguments from me here. I could think of a couple of apologetics and even of theodicy but hey I didn't find them persuasive them, I doubt I find them persuasive now.

Many biologists argue that what differentiates humans from the rest of the animal kingdom is the capacity for emotion; and perhaps, what unites us, is the sensation of pain.

If pain truly is universal, then our double standard between animals and humans in this regard is not only hypocritical — it is downright perverse.

No it's actually worse. Every living organism feels "pain" insofar as we react to external stimuli. But when we talk about pain, what we're actually contemplating is the capacity to understand and to suffer. That's the huge difference between lobsters and "higher" organisms.

Consider this: An animal, with no means of communicating its true intent in a language intelligible by humans, except its display of perceived agony, is by default, put down if thought to be suffering; while a human, perfectly capable of communicating intent and/or visibly in pain, is by default refused any assistance for voluntary euthanasia.

Here here!

Lastly, a country that has the death penalty has no right opposing euthanasia, for one of the most popular arguments against euthanasia is that its legalisation constitutes a government sanction for suicide and therefore cheapens the inherent worth of human life.

Hmmmm, this requires quite a bit of elaboration but I think it basically fits. One counter argument is that the state is simply derogating your life in accordance with law and morality and rights when you abridge the life of another i.e. that the state is thus acting in a rightful manner and does not thus cheapen life. But by a similar token, this reasoning can be applied to a properly crafted euthanasia policy, see e.g. the Netherlands's policy or Oregon's Death with Dignity Act i.e. it ensures an informed decision and consent and that the state is simply giving effect to the intention of its citizens (or at least not interfering with them).

To digress a bit, there are other parallels to be drawn.

Some argue that the death penalty is justified in that it has a deterrent effect and that imprisoning a felon for "25 to life" is ridiculously expensive for the taxpayer to upkeep so heinous a criminal.

Actually it's 24 times more expensive to execute a person than to keep him in jail in the US. Much of that cost is due to the many levels and layers of appeals to ensure no wrongful conviction (which still doesn't keep innocent people off death row per the Innocence Project). But unless someone wants to make the argument that we wish to reduce the procedural safeguards to make it cheaper to kill someone, I can't see how this point is if nothing even more damning.

It should be obvious that the criminalisation of euthanasia has no deterrent effect on any individual, simply because it is not an act of frivolity, but one of desperation.

The able will still resort to messy alternatives or seek assistance in Holland, where euthanasia is legal. The unable must continue wallowing in pain. Even if the ban does preserve life, it most certainly robs it of dignity.

This to me is the heart of the entire issue. I think it helps to explain why euthanasia is and why it is (somewhat) different from plain suicide and I think it really helps to give some facts and figures as to existing problems to demonstrate that much of the concerns are not empirically derived.

Additionally, recall the point I made earlier. Human rights are "granted" simply by virtue of human life and the inherent dignity of human life. Thus once stripped of dignity (as is the idea behind cruel and ununsual punishments, inhumane and degrading punishment as well as torture and crimes against humanity and genocide), one is represented to be less than human, which is why we fight so hard against these violations of human rights and why even Singapore acknowledges them to be at the very core of human rights and non-derogable to boot.

Also, keeping an unwilling patient on life support ties up precious medical resources and attention, which could otherwise be used to save patients with a will to live. An outright ban is not only just cruel, it also runs in direct contradiction to the logic behind many of our existing laws and beliefs.

Cough cough...not really. As the author has already pointed out, quite a bit of our laws are indeed based on biblical notions by virtue of the fact we inherited them from the British (at least until we cut off our legal teat back in 1994 through the Applicability of English Law Act. Mind you though, we still cite English cases because that's how we were and still are trained).

But the more forceful point to be made is that we have quite a few laws that run powerfully counter to them. Abortion (public health grounds), HOTA (public health), Stem-cell (Science and public health), gambling (sad to say tourism although I like to believe that choice has a role to play in it), prostitution (public health and a sop to human fallibility of sorts. Yeah, it never ceases to amaze my foreign friends that prostitution has been legal here since the time of Raffles.)

The inconsistencies in our justification should compel us to question if our reasoning in support of the ban is valid, or if they are predicated upon traditional dogmas which are in serious need of intellectual review.

Snort. If only. Too much of religion is premised on faith and not reason (otherwise Hume's presumption of Atheism would stand).

As an atheist, I find that the absence of an afterlife in my ideology reinforces my love for life.

For only when we concede just how short life really is, do we begin to cherish what little time we have left.

Depriving us of our right to death does nothing to that effect.

Hey...atheist outing himself in the public press no less. Well given that we, the non-religious (by which I mean in Singapore as people who do not identify with any religion) make up a substantial minority in Singapore (possibly even more than the Abrahamic religions), I think it's a good idea for us to make our views heard.

The problem of course is that I don't think there is a consensus of non-religious views on almost any issue given the preponderance of axiomatic choices that one could make with regards to philosophy, epistemology (how we know things) and ethics (what is right and good and wrong and bad) that need not be premised on a divine being. So I know this other atheist (well a good number of others, including free-thinkers and agnostics and deists etc.) and we disagree on issues of the limits of freedom of speech and whether the death penalty ought to be abolished.

Nonetheless, I believe that it's generally still a good thing because given a debate between the non-religious, we simply cannot fall back on the position that God(s) said X and therefore X. Mind you, the religious don't always do so (see the point about public reason), but that's a fall back position that we don't have the luxury of. And further, in conjunction with the above proposition, without invoking God(s) said so, I can't imagine there to be a rational or moral viewpoint that cannot be adopted by one of us "godless". Instead there might be a more robust question of the sort of philosophical foundations as to what your views are founded on.

Tomorrow, I will go back on the issue of torture and explore how one can, without any religious justification (and I personally find that religion can justify almost any position that one can think of and history bears me out on this) come to differing viewpoints on the permissibility of torture and how one can still build bridges i.e. how a consequentialist can talk to an ontocologist.

Peace

2007-08-26T08:56:00.000-07:00

Back to Blogging

Hi, assuming that I still have any readers left, this is to let you know that I'm still alive and fairly well.

The blog was on hiatus for a good bit of time due mostly to the transition back from the States to Singapore. Along the way I had a good number of things to do involving law school, law work (or working after law school), family as well as friends.

Then there was the period where I was bummed by things not entirely going my way (read: not getting ILP) and the blog was left on the backburner for a good long while. And of course the transition back to school and the associated work and readings (and volunteering to do a presentation in the 2nd week on John Locke's prerogative power).

But yes, I'm back and hopefully ready to blog about the stuff that interests me. So stay tuned.

2007-06-10T09:56:00.000-07:00

Author On Vacation

Alright, I'm off on vacation to the Rockies and the West Coast of the USA. Will be back in Singapore at the beginning of July.

Peace.

2007-06-07T00:13:00.000-07:00

10 Best reasons Gay Marriage is wrong:
(I just couldn't resist this classic piece)

1. Being gay is not natural. Real Americans always reject unnatural things like eyeglasses, polyester, and air conditioning.

2. Gay marriage will encourage people to be gay, in the same way that hanging around tall people will make you tall.

3. Legalizing gay marriage will open the door to all kinds of crazy behavior. People may even wish to marry their pets because a dog has legal standing and can sign a marriage contract.

4. Straight marriage has been around a long time and hasn't changed at all; women are still property, blacks still can't marry whites, and divorce is still illegal.

5. Straight marriage will be less meaningful if gay marriage were allowed; the sanctity of Britany Spears' 55-hour just-for-fun marriage would be destroyed.

6. Straight marriages are valid because they produce children. Gay couples, infertile couples, and old people shouldn't be allowed to marry because our orphanages aren't full yet, and the world needs more children.

7. Obviously gay parents will raise gay children, since straight parents only raise straight children.

8. Gay marriage is not supported by religion. In a theocracy like ours, the values of one religion are imposed on the entire country. That's why we have only one religion in America.

9. Children can never succeed without a male and a female role model at home. That's why we as a society expressly forbid single parents to raise children.

10. Gay marriage will change the foundation of society; we could never adapt to new social norms. Just like we haven't adapted to cars, the service-sector economy, or longer life spans.

I have no idea who originated this so if anyone knows, drop me a mail.

2007-06-04T17:14:00.001-07:00

Parting is such Sweet Sorrow: Reflections on the Winter and Spring Quarter

With the simultaneous handing in of my International Trade Law, International Intellectual Property Rights and Philosophy of Law paper, I am officially done with my finals and hence at the UW, my host university for the past 9 plus months.

It's been a great academic experience and despite my best efforts, it seems that I have actually made some really close friends, something that might seem awfully shocking to my readers.

But it is time for me to leave and to finish my degree back home. I will be back early July.

Bring it on.

2007-05-25T16:22:00.000-07:00

Vice Dean A/P Victor Ramraj responds to Asst/P Yvonne Lee

The freedom to disagree, respectfully
Victor V. Ramraj, For The Straits Times
9 May 2007
Straits Times
English
(c) 2007 Singapore Press Holdings Limited

IT HAS been argued that the decriminalisation of sodomy is the first step on a slippery slope towards a 'homosexual agenda' that includes civil unions and same-sex marriages.

I disagree with this view and the arguments advanced in support of it. Still, the debate on this subject has provided us with a key lesson on the importance of public discussion on matters of deep moral significance - and the importance of respectful disagreement.

First, a few comments on some of the claims in the debate.

Even in societies abroad where legal structures such as same-sex civil unions have been introduced, this did not happen overnight, but only after significant shifts in social and political attitudes.

If the majority of Singaporeans find homosexuality offensive, then there is little reason for them to worry that the entire legal landscape will change in an instant.

If change eventually does come, it will follow only after open and respectful debate and a conscious choice on the part of Singaporeans to become a more tolerant and hospitable society.

Others, particularly in cyberspace this past week, have challenged the accuracy of empirical claims behind the argument to retain sodomy as a crime - and the debate will no doubt continue. I will not repeat these arguments here. As for constitutional law, formal constitutional doctrine on such matters is hardly conclusive. In 1930, Lord Sankey likened a Constitution to 'a living tree capable of growth and expansion within its natural limits'. Particularly in Singapore, where the methodology of constitutional law is still evolving, there is much to be said for this vision.

Intolerant vs criminal

I WANT to turn, however, to a rather different point that arises from this controversy. Does branding opponents of decriminalisation 'intolerant' undermine or effectively censor free speech?

Surely, the answer to this question is no. Indeed, the reverse may be more likely; opponents of decriminalisation effectively silence others by continuing to regard the behaviour they oppose as criminal. To be branded intolerant is one thing; to be branded a criminal is quite another.

The publication of letters and commentary in this newspaper shows that those who disagree with decriminalisation are perfectly free to express their views. Perhaps, then, the deeper concern is not that these views will be censored (plainly, they haven't been), but that others will not find them convincing. If that is the true concern, then rigorous and respectful persuasion would be the answer.

If the discussion on Singapore blogs is any indication, recent exchanges about the decriminalisation of sodomy have provoked an important debate, one that demonstrates that Singaporeans, including many tertiary students, are far from apathetic when it comes to issues of great social significance. An issue of profound social importance is receiving the serious public attention, reflection and debate it deserves.

The sources of identity

FOR those who choose to engage in this debate, let us remind ourselves that our words have profound personal impact on those around us, on both sides of this controversy.

Those whose religious views are tolerant of homosexuality, and especially those of us with secular-humanist inclinations, must remain sensitive to the deeply personal and communal role that religious doctrine plays in the lives of many.

At the same time, we must have faith that those who oppose the decriminalisation of sodomy on religious grounds will acknowledge that personal identity need not be a matter of religion at all. It is possible, even common, to define one's identity outside of religion - in terms of one's intimate relationships, career goals, community service, life-long projects and deep personal convictions. A person's sense of identity is no less worthy of respect in the public square on account of its secular sources.

I can only imagine the deep personal anguish experienced by gays and lesbians in Singapore when confronted by the criminal law. Their voices should be heard in the spirit of an open, respectful and meaningful discussion.

Whatever is said in the course of this debate, it is clear that someone, somewhere, will take offence. But the ability for all to speak out should not be taken for granted. There are reasonable limits to be placed on hateful speech - a view that I have defended elsewhere. But in the present context, in a society that is increasingly more open, I find myself drawn to the pithy comment sometimes attributed to Voltaire: 'I disapprove of what you say, but I will defend to the death your right to say it.'

Just some background, A/P Ramraj runs the Criminal Law/Criminalization aspect of Introduction to Legal Theory for 1st year NUS Law Students and having read his book, I can assure you he is well aware of both sides of the debate but having come down strongly on one side for obvious reasons.

He's obviously a lot more polite and cordial than I would have been but this is still a very punchy article. Separately, he takes a much more accommodationist stance with regards to religion than I would (the difference between fairy tales/myths and religions is the number of adherents. Watch the rise of Scientology and I predict it will go the way of the Church of the Latter Day Saints in becoming mainstream).

This is probably the last I will say on this particular matter because the good Asst/P doesn't have much of a leg to stand on beyond whining about personal attacks (accurate insults much less insults don't detract from the substance of the argument) and playing the two-step by shifting the grounds of her argument.

Not impressed then, not impressed now.

Addendum: Link to my original response added above and here.

2007-05-25T16:10:00.000-07:00

On Causation, Correlation, Confounding Factors and Post Hoc Ergo Propter Hoc

*Emo Shaun waiting for his DS Lite for the last week and since 8am this morning and is generally hating on the world*

I am not a social scientist and much less a statistician (except for the stuff I did in math class which was possibly the most useful thing I learned considering my eventual decision to enter law school). What I understand about numerical literacy and statistical literacy was almost entirely self taught and I fear possibly superficial at best. The purpose of this disclaimer is to proclaim my ignorance and amateur status in this area and hope I don't screw the following discussion up too badly.

One of the biggest difficulties in the social sciences as it relates to making policy is deciding causality i.e. what causes Y? In natural science, the ability to repeat experiments, the fact that the Universe appears mechanical and we have no objections on experimenting on water (as opposed to humans) makes it fairly easy to determine causality, even in complex systems. In the social sciences (or the humanities), however, dealing with humans and the interactions between humans makes experimentation more difficult and extrapolation of data much more complicated.

So any answer to any social problem is not likely to be reducible to a large extent. This is not to say that we cannot operate on a reductionist model but we have to be very careful that that model does not cause more harm than good by basing itself on an erroneous cause to the exclusion of other possible or likely causes.

To take a simple case and one close to heart, my grades have drastically improved since I came over to UW and like any student concerned about his grades, given that his grades determines his career to a large extent in this industry, knowing what was the cause or causes of it would be eminently useful when I have to return to NUS.

If I had remained in NUS in this year and my grades improved (as seems to be the case for almost all law students), one might well hypothesize that this was due to perhaps an end to compulsory classes which allows students to take a class that they are personally interested in and presumably that interest translates into a better understanding of the topic and therefore better grades. Or it might be that now that there are smaller classes and there is no need to mark on a curve, that students are able to show that they are in fact just as proficient as the former A students but no longer get a lower grade simply because of the mandatory grade distribution. Or it might even simply be that with 2 years of law school experience, one had always had the capability but has finally figured out how to ace that examination. Or it might be a result of all three plus a combination of luck and fortitude etc.

Now translate that into doing a law program in a different country under a fairly different system and the potential factors affecting the improvement in grades multiple. Certain differences offhand between UW and NUS that might be contributing factors include i) opportunity to use a laptop for the final exams and therefore handwriting is no longer a factor in the marking scheme, ii) a lack of a social life and extra curricular activities that gives more time for studies, iii) actually spending more time on studies, iv) change in studying technique which involves a painstaking transcription of notes onto the laptop from the various sources and v) everything mentioned in the prior paragraph.

Now everything I have said so far is probably causative in one form or another. There is a reasonable rational mechanism in which each may translate into better grades one way or another.

The opposite of that of correlation wherein there might well be a statistically significant link between the two but it does not necessarily mean one causes the other. A good example of this with regards to the above mentioned situation might be that "because" I am hanging around more foreigners, therefore my grades have improved. There is a strong correlative tie if one should plot on one axis, Shaun's association with foreigners and on the other Shaun's law grades. But it should be clear that there is no necessary link between the two. Or another example near and dear to my heart (because I'm a Pastafarian), the decrease in the total number of pirates worldwide is closely correlated to the increase in mean global temperatures. Now that is primarily satirical but given the abuses of correlation (attempting to conflate it with causation) I hope that this would be something that we can keep in mind.

Somewhat related to this problem is that of the logical fallacy of Post Hoc, Propter Ergo Hoc i.e. After It, therefore because of It. Or to rephrase it, just because B occurred after A does not mean A caused B. There is a temptation because of the way we view and experience time as linear and of our strong innate (possibly biological imperative) to associate any occurrence (effect) with a cause that this fallacy crops up.

Peace.

2007-05-24T22:11:00.000-07:00

Equal Protection, Sexual Orientation and the Homosexual "Agenda"

Been busy but have found some free time now that I've got drafts out on my Philosophy of Law paper and International Merger & Acquisition.

Anyway, Asst/P Yvonne Lee wrote the following article articulating her viewpoint about why decriminalization of homosexuality in Singapore would be an error and I think her article is pretty much logically fallacious on a number of grounds. I had her as a lecturer and thought she was decent and fairly sensible unlike the other constitutional law profs who have made their (erroneous) feelings on this matter pretty clear. As such I must say I am sorely disappointed by her views (not that she would care of course)

A/P Victor Ramraj has a response here. He makes most of the major arguments that need to be made but unlike him, I don't have space constraints.

READERS of The Straits Times have written in to question the rationale for the criminalisation of homosexual acts. It is imperative that we understand the legal and broader social implications, and that Parliament, in the forthcoming debate on the Penal Code reform, carefully considers these implications.

The Home Affairs Ministry has indicated that Section 377A of the Penal Code (S377A) will be retained. S377A prohibits the commission of gross indecency by one male person with another male person. Opinions have been expressed that S377A may be unconstitutional because it discriminates against homosexuals by criminalising homosexual sex and not oral and anal sex committed by heterosexuals or lesbians.

This is an over-simplistic reading of the equality clause.

It should be worth noting that given she was US educated and cited a US Supreme Court case upholding Affirmative Action in University Admissions, she ought to have been aware of Lawrence v. Texas as well, which struck down Texas's anti-sodomy laws as violating the 14th Amendment (Equal Protection Clause). I raise this because despite raising the constitutional issues, I believe it is her analysis that is the overly simplistic one, one governed primarily by parochial and a highly formalistic approach. As we shall come to see, she simply relies on a logical fallacy that the status quo is good in defending the legality of this homophobic piece of legislation.

Worse still, she never provides a substantiation for why we ought to discriminate between heterosexual and homosexual couples. To reframe the issue, it isn't about the right to homosexual sodomy but rather the right for consenting adults (which takes out the fucking stupid pedophilia and bestiality argument out of the water) to engage in sexual acts in the privacy of their bedroom.

Context
FIRSTLY, the legal meaning of equality must be understood within its social context. Equality is not an absolute value. Extreme applications of equality impair community interests and violate the rights of others. Furthermore, the Constitution does not prohibit all forms of discrimination.

Like cases must be treated alike, but Parliament may enact measures which differentiate between different groups. The courts hold that such measures must satisfy two tests to be constitutionally valid: Firstly, the classification must have a rational basis. Secondly, the law must serve a legitimate purpose which is reasonably related to the basis for the classification.

Each differentiating legal measure serves a social objective. For example, a married individual with four children enjoys higher tax relief than one without children. The public good is to encourage married couples to have more babies.

True but primarily irrelevant because she never establishes how a) it is in fact in the public interest to criminalize sodomy, b) to criminalize it only for homosexuals and not heterosexuals and c) to criminalize it only for male homosexuals but not female homosexuals.

At this point, under US Equal Protection Doctrine, it fails not only the rational basis test of Lawrence v. Texas but also the anti-animus principle of Romer v. Evans.

To view the issue of S377A exclusively as a matter of equality omits the broader context - that rights can clash with other rights and community values.

Again irrelevant and begging the question.

When they do, Parliament may pass laws which reflect the public good in preference over the rights of the individual or groups.

I could make the same critique again but I want to do it on a deeper level this time. She's begging the question on a meta-systemic level in that she is asserting that the current judicial interpretation of the Equal Protection Clause is necessarily the right one and the only one at that.

I will proffer instead that the whole idea of individual freedoms is that they cannot be at the mercy of the majoritarian will. Yes, no right is absolute as she correctly points, but her balance is one that would sacrifice the individual's right on the altar of "the public good" when she has provided no grounds for doing so. Short of "because" this is currently the way the legal rational basis review test is structured.

I also want to point out what the rational basis test can stand for. It stands for discriminating on any basis the government wants to. Quotas for women in medicine? Easy, allocation of scare resources, we have statistics that show women don't stay in medicine long. Only families with more than a certain level of income may have 2 or more children. Why? Because only they would be able to afford it etc. I submit that the rational basis test simply is incapable of striking down discriminatory laws, law which would strike the majority of us as unjust.

Any argument to decriminalise homosexual sex must consider the harmful social consequences. For example, would affirming homosexual sexual practices serve the common good? It is a known medical fact that homosexual intercourse or sodomy is an inherently unhealthy act that carries higher risks of a number of sexually transmitted infections. The law should not facilitate acts which threaten public health.

1) This should then apply to heterosexual sodomy as well
2) Preventive measures can be taken
3) It proves too much: on that highly paternalistic basis, we can ban any activity that is "harmful". Smoking, alcohol, skydiving, driving, eating fast food etc.
To claim that it threats public health is scare mongering and ultimately irrelevant to the consideration here. To iterate, if it's okay for heterosexual couples, why is it not for homosexual couples.

In fact, this is a good example of a measure being both "underinclusive" (why only gay men then?) and "overinclusive" where the ends-means nexus is not particular rational much less tight (preventive measure not bloody criminalization). Of course, our rational basis test is not going to strike it down.

Moreover, any reform to the Penal Code must preserve fundamental values which serve the public good, instead of abstract notions of equality or fashion.

Assertion, begging the question, non-sequitur. I find it utterly hysterical that a Constitutional Law professor is running this argument. Article 4 of the Singapore Constitution states that any law that is inconsistent with the Constitution, is to the extent of that inconsistency, void. So major premise, Constitution trumps any normal piece of law. minor premise, the notion of equality before the law is enshrine under our Constitution (yes one could make the argument that sexual orientation is not a protected class but I want to focus on the idea that the Penal Code trumps these individual freedoms). Therefore, the "abstract notion of equality' does in fact trump the Penal Code.

Oops.

Broader agenda
RECENT developments in foreign jurisdictions like Canada, Sweden, the United Kingdom and the United States indicate that the move to decriminalise homosexual sex is the first step in a broader homosexual rights agenda to transform social morality:

It becomes clear at this stage, her arguments boils down to homosexual sodomy is icky and somehow morally wrong, despite never proving this particular point. I understand that in her exchange with Mr. Selby she takes offense to a great many things that he says. But not once does she actually demonstrate that she is not in fact myopic or homophobic etc.

Sorry, an accurate insult is not an ad hominen attack, Asst/P.

• If S377A is repealed, homosexual sex is legitimised, transformed from a crime into an 'alternative lifestyle'.

So what? Unless the right of consenting adults to engage in sexual activity in the privacy of their bedrooms is somehow wrong?! That's why I don't buy any of her arguments that she is not perpetuating an anti-homosexual agenda (see how framing and tossing terms around work? Except in my case, it's probably true).

• The minimum age for sodomy must then be specified. This opens the door for homosexual lobbyists to pursue the next step of equalising the age of consent for homosexuals and heterosexuals. The current age of consent for homosexual sex in countries which have decriminalised sodomy ranges from 13 to 18, covering Singapore males from Secondary 1 to junior college.

Again so what? I can legally have sexual intercourse with a secondary school girl. This is an appeal to emotions (another logical fallacy).

• The third step is re-conceptualising homosexuality as a civil right in the name of equality. As an 'alternative lifestyle', homosexual lobbyists will seek for this to be endorsed and 'mainstreamed' into society (for example, arts, education, entertainment and media), beyond the privacy of the bedroom. The current view that 'sexual orientation' should not be a basis for discrimination is problematic. 'Sexual orientation' is a vague term covering a range of sexual expressions, including paedophilia and bestiality. Also, the assertion that one is 'born gay' is scientifically unproven.

Poisoning the well. Non-sequitur. The interesting thing is that unlike anti-gay activist here in the US, she can't use the Teflon coated slippery slope of polygamy because our legal system already sanctions it! Oops.

So what's the basis for why decriminalizing homosexual sodomy (as oppose to homosexual cunnilingus or masturbation which is legal by the way under the new Penal Code) will lead to such horrors and not the legal ones? Hmmmm now... Inquiring legal minds want to know!

Separately, so what if sexual orientation is a vague term, consenting adults, privacy of bed room. Yup that settles the problem of pedophilia or bestiality.

Whether one is "born gay" to me is an irrelevant question. One isn't born Christian or Hindu or Buddhist of Marxist etc. etc. It's a false argument. But the evidence tends to lean towards a genetic basis.

• An active homosexual agenda has engendered clashes with fundamental liberties such as free speech and religious liberty. Christian pastors have been criminally prosecuted for sermons declaring that homosexuality is a sin, a view also held by Muslims and many non-religious people who consider homosexuality unnatural and morally repugnant. Attempts have been made to extend 'hate speech' laws to the Bible and Quran.

So we smack them down if that happens. Big whoop. And besides, how is this even bad or worse than the current criminalization?

And gee, we do have something called the Maintenance of Religious Harmony Act which places quite a few restrictions on what religious figures can say so that's a legitimate restriction on her so-called religious liberty there. If preaching hate from the pulpit against political figures is illegal, why not homosexuality? And if rights aren't absolute, why should the balance swing against them? So once again, begging the question.

People who oppose the homosexual agenda are branded as intolerant, bigoted, homophobes, or hateful towards homosexuals who are merely 'different'. This does not promote free speech but seeks to censor it. If this intolerance against religion is imported into multiracial and multireligious Singapore, this will breed social divisiveness.

So what? Begging the question. And because I haven't seen a rational argument against homosexuality yet, yes I will brand them as intolerant, bigoted, homophobes and hateful. Please, I readily await being proven wrong.

Besides, oh boo hoo... Being called a bad name is worse being branded a criminal, or deviant or abomination unto god or specifically immoral as her article has insinuated. And because of religious privilege, one can't strike back as effectively.

I say that beliefs should not get a free pass just because they are "religious" in nature. And separately, Muslims and Christians aren't a majority and even there are divisions as to their viewpoints on homosexuality. And last I check, Singapore was a secular state. Between hurt feelings and genuine deprivation of liberty, I think I'll pick the latter thank you.

Public good? What's sauce for the goose is sauce for the gander. The claims is easier made that it is in the public good that valuable members of society ought not to subject to impermissible discrimination because of certain erroneous interpretations of some bronze age religions.

• The final step involves attempts to redefine 'marriage', the fundamental institution and bedrock of many civilisations. The redefinition is a radical reconstruction of 'marriage' - no longer a union between man and woman but includes 'same-sex marriage'. Homosexuals must then be allowed to marry someone of the same sex and be given the benefits of marriage such as tax benefits, adoption of children and/or state-funded access to alternative 'reproduction' methods.

So what? Assertions as to the nature of marriage. It so was not a bed rock in Roman Civilization. Under Roman Law, marriage (assuming it was not in manus which fell out of favour rapidly anyway) was purely consensual and divorce was simply a matter of deciding that one did not want to be in a marriage anymore. Changes to marriage and divorce occurred when Christianity became the state religion. As long as we're engaging in post hoc fallacies, we can also say that Christianity caused the downfall of the Roman Empire because its adoption preceded it.

And oh, the real fundamental basis of marriage and bedrock principle was that women were chattel and wives a extension of their husbands (under a Roman manus marriage, wives were consider children to their husband which explains their massive unpopularity and disuse). So what exactly is she arguing about here?

The argument that decriminalising homosexual sex will not cause a change in moral attitudes is erroneous. It has been suggested that even after adultery was decriminalised, it remained morally reprehensible. So too, decriminalising homosexual sex will not cause a shift in moral attitudes.

So what? Actually I would up the case of Plessy v. Furgeson where the US Supreme Court held that "separate but equal" did not harm the Blacks because any notions of inferiority was simply self-inflicted. The law does have normative force. The US Supreme Court eventually had to make a massive mea culpa in Brown v. Board of Education and reject this doctrine because they were proven wrong empirically and recognized that if the law says you're different or deviant, people actually buy that.

While the law embodies a moral judgment, it is not always prudent for the law to punish all immoral behaviour. However, to draw an analogy between adulterers and homosexuals is fallacious. Adulterers do not seek societal approval, but certain homosexual activists campaign to alter the public mindset and to gain legal and social endorsement of the gay lifestyle.

Non-sequitur. Firstly, presumes that the law should ban some and not all immoral behavior, I would love to see where she can logically draw that line. Second, begging the question that homosexuality is immoral. Third, my moral views on adultery can be grounded on non-religious grounds. I challenge anyone trying to do so for homosexuality on non-religious grounds.

The fact is, under the proposed Penal Code reform, homosexuals wishing to lead private lives may do so, provided they do not foist their homosexual acts on the public.

This very neatly exposes her real agenda. The only explanation left for her argument is that she opposes homosexuality.

Back to US Constitutional law, the Court should not (especially under Equal Protection Doctrine) give succour to private prejudices, Palmore v. Sidoti, where the Supreme Court reversed a decision to give custody of the child to the father because the mother had married outside of her race to a Black man.

So why have this special provision which signals out homosexuals and only male homosexuals at all?!! We already have public indecency laws. Sorry ma'am, you can't have you cake and try to eat it. Now the article is just incoherent.

S377A is a legitimate statement of the values of our society. In constitutional terms, equality claims operate within a broader social context.

Assertion. Begging the question. Legitimate in the eyes of the law perhaps. But hardly moral. In fact if you're a Natural Lawyer, Lex Injusta non Est Lex, An Unjust Law Is Not Law. So even if the Constitution does not prohibit it, Natural Law does.

Homosexuality is offensive to the majority of citizens. Allowing an aggressive homosexual rights agenda to dictate law reform ignores the nature of Singapore's multireligious, multiracial community. Such an agenda would be divisive. Therefore, the attention given to fundamental moral values of the majority of citizens by retaining S377A in its entirety strikes the right balance.

Assertion. Prove it.

So is adultery, so is the marital rape exemption which is finally going to be repealed. Using phrases like "aggressive homosexual rights agenda" just marks you out as a religious conservative right wing fundy using the same old repeatedly debunked talking points.

This has been a monumentally wrongheaded and badly written piece. I am always very happy to stand by what I say and always remain ready to defend them.

Addendum: Here is a philosopher's take (Editor of Royal Institute of Philosophy Journal Think) on the common arguments against homosexuality. It's a marvelous taking apart and a great read to boot.

Addendum 2: I realize that not all of us have such a distinct lack of life as to read up obsessively about logical fallacies and/or debaters. So I have included links that explain some of the terms I have used.

2007-05-01T18:14:00.000-07:00

Genetic Testing and Liability

The hypothetical question is about a famous television personality who is thinking of undergoing BRCA1/2 mutuation testing and making a documentary special about it in order to raise awareness. She has three daughters (who react differently, one of which has kids of her own) and two sons. The specific details ought to be clear from the answer itself.

The most immediate issue that Flora presents is why people undergo genetic testing and when is such genetic testing warranted. Genetic testing has the ability to confirm whether one suffers from a particular deleterious genetic abnormality (carrier or otherwise) and individuals tend to do so if there is any indication in their family history of heightened susceptibility. But the warranting of any genetic test is via its efficacy which is determined by its clinical validity. “Clinical validity reflects both the sensitivity of the test—the proportion of affected people with a positive test—and the penetrance of the mutations identified by the test. Penetrance refers to the proportion of mutation carriers who will manifest the disease”.[1]

The most important thing to note is that estimates of the lifetime risk of breast cancer that is associated with BRCA 1 and BRCA 2 ranges from 26 percent to 85 percent. While the risk for ovarian cancer is elevated, it is to a lesser extent than for breast cancer although the risk estimates similarly vary. Nevertheless, given her advanced age, and her high risk family history, it would be rational to get tested for the BRCA mutations. This is born out by the 2005 U.S. Preventive Services Task Force’s, “Genetic Risk Assessment and BRCA Mutation Testing for Breast and Ovarian Cancer Susceptibility” and its summary of recommendation which gave a very low recommendation for routine testing but gave a much higher grade for referring women with “increased-risk family history) for genetic counseling as they believed it “allows informed decision making about testing and further prophylactic treatment”.[2]

The second issue is how genetic testing (for various genetic diseases) ought to be portrayed in the media and here the fear is that there is some possibility that it might be potentially misleading. Areas of concern include the BRCA test’s clinical utility not being recommended as a routine test. Furthermore, a positive test merely means increased risk (and not a certainty) of contracting breast and/or ovarian cancer and conversely, a negative test does not mean a person is safe from breast or ovarian cancer. But if the three episode special is done properly and in conjunction with genetic counseling, this could be a very useful tool for women at high risk and for generally educating the public and even dispelling possible misconceptions, myths, prejudices and stereotypes that the public may have about carriers of the BRCA mutation. In summary, this may well be a great educational opportunity if properly done but it could also worsen the situation by raising awareness but not the public’s understanding of the issue and generating fear and also increasing the negative psychological externalities that carriers will suffer.

Laura and her husband’s concern about the loss of privacy and the psychological effect on her young daughters is a fair one. First, given the hereditary nature of genes, it logically means that “[a] genetic diagnosis often indicates that other family members are at risk for the same condition.”[3] Second, just as people have the right to learn of their medical condition, they too should, prima facie, have a right to know of their medical condition on their own terms,[4] therefore they have the right to insulate themselves from Laura’s results. Admittedly, the situation here is greatly simplified in that both husband and wife are of the same mind. It may be that there are conceivable circumstances whereby a person (or their wards) ought to be informed regardless of their wishes e.g. where a genetic disease will manifest itself with devastating results unless there is early intervention and even possibly where the parents disagree with each other. But given that the BRCA mutation “merely” presents itself as a increase risk and one with a huge variance at that, the impetus for informing without the person’s consent is greatly diminished.

If Laura is known to be Flora’s daughter, there is a good chance that she would be linked to Flora’s condition. This would include the associated societal opinions about carriers of the BCRA mutation. Her daughters might well be similarly “tainted” and suffer negative psychological effects from the very knowledge of their (possible) “genetic curse” as well as ostracization or stigmatization due to ignorance, all of which would be exacerbated by their youth/immaturity. In fact, given their minor status and the fact that they are not the ones being tested, it cannot be said that they have assented or much less consented to being “tested”. Furthermore, since they are years away from any possible preventive treatment and decades away from any phenotypic manifestation, therefore knowledge that they have the BRCA mutations would simply weigh on their minds for these years to come without any real positive externality.

Lisa’s plans to skip testing, but increase her frequency of mammograms appears to be very sensible. Currently, mammograms are still the best way of cancer screening i.e. it detects as oppose to predicts manifestation of cancer. Even if she had tested positive for BRCA1/2 mutations and is thus at increased risk of early onset cancer, starting frequent mammograms would have been likely anyway and is the best medical response short of radical preventive surgery. Given that the background risk of breast-ovarian cancer is very high relative to other types of cancer and her family history, so even without the BRCA mutation, it is still a good decision. Plus medical information as opposed to genetic information poses less of an issue to familial privacy which should allay Laura type fears and concerns.

There are grounds for Lisa’s worry about being stigmatized in terms of future employment opportunities in the broadcasting industry. But in terms of pure job discrimination that is what the law through the Anti-Discrimination Act (ADA) seeks to prevent. There is little that one can do about private discrimination except personal and broad based societal education (which Flora’s three-part special might achieve). But it could be said that her proactive stance with regards to regular mammograms (other than it being private medical information) would also serve to allay the fears of her bosses since early detecting of cancerous breast masses (Stage I-II) have very high cure rates and resulting prognosis.

It appears that Flora may be able to restrict Linda should she decide to undergo a prophylactic bilateral mastectomy. The conflict between Flora and Linda presents the general difficulties of who ought to make the medical decision for a minor. The law generally presumes that minors are not capable of competent in making their own decisions and therefore cannot decide without parental consent to undergo a particular medical procedure. This is subject to the “mature minor rule” which recognizes that some adolescents “as capable of understanding the consequence of some medical decisions”,[5] but these rules are circumstantially circumscribed to situations in which “the state has an interest in the adolescent’s seeking medical attention that might not be sough if the problem were disclosed to the parent” e.g. reproductive rights and sexually transmitted diseases.[6] Another exception is that of the “emancipated minor” but that treats minors as adults by virtue of the state recognizing their “adult” status as a result of certain situations, none of which are applicable here.[7]

What complicates matters is a) the relatively advanced age of Linda (16), b) the low penetrance of BRCA mutations and c) the radical and extreme prophylactic surgery Linda wishes to undergo. As things stand, the AAP does not support genetic testing of adolescents to predict late onset disorders “when the genetic information has not been shown to reduce morbidity and mortality through interventions initiated in childhood.[8] This is eminently sensible especially in this situation given the irreversible nature of such a surgery, the low penetrance,[9] plus the fact that it is a mere 2 years to full adulthood and that this time-lag would not adversely affect Linda’s condition. But if it could be shown that Linda is as competent and fully cognizant of the situation as any adult and would suffer from tremendous psychological trauma whether through the uncertainty of not being tested or not having the surgery, a case could be made that in these very specific circumstances, Flora’s wishes should not be given precedence over Linda’s.

The sons’ lack of concern is indicative of their ignorance and unfortunately probably that of wider society’s as well, regarding male risk of contracting breast cancer. Albeit small, this risk still constitutes 1% of all cancers afflicting males. But further, according to the American Cancer Society, it appears that the BRCA mutations have a similar effect on the risk of breast cancer in male carriers but also an increased risk for prostate and skin cancer.[10] Given that mammograms are not generally part of any male’s routine medical examination, there is a much stronger case here for genetic testing particularly as a positive result might signal the need for more regular medical tests. This is so whether it is for breast cancer or simply that of prostate cancer because of the elevate risk the BRCA mutation poses.

The scenario Flora’s daughter-in-law presents is one familiar in prenatal genetic testing and screening i.e. the use of such testing to choose a healthy baby, by terminating fetuses with genetic abnormalities. The moral issue here is whether a positive test for a BRCA 1/2 mutation warrants an abortion given that it is merely presents an increased risk of breast and ovarian cancer which is hardly a debilitating disease and does not impose any particular hardship on the parents unlike babies born with cystic fibrosis or Down syndrome.

Alternatively, even with an increased risk for early onset breast or ovarian cancer as with a BRCA 1/2 mutation, nevertheless, there is an absence of the sort of massively shortened life span and poor quality of life that is presented in cases of incurable diseases such as thalassemia major or Huntington’s Disease which strongly factors into decisions to terminate the pregnancy. In these latter situations, there are considerations weighted in favour of terminating the pregnancy on the basis of the emotional guilt that parents suffer when they deliberately birth a child who is likely to die in their own lifetime. This inversion of the “natural” order of things can bear heavily on the minds of parents and generate such strong negative emotions e.g. sorrow and guilt that it affects their ability to properly bond with their other children and can put a strain on the marriage and the family upon the child’s death. Similarly the surviving “normal” siblings might well suffer from survivor’s guilt with repercussions on their capacity to form healthy familial bonds. In contrast, a BRCA 1/2 mutation does not appear likely to generate those sorts of negative sentiment as it simply presents an increased risk of cancer, while admittedly of the sort that is early onset, that can be cured or even prevented.

There is further, no legal liability to avoid the pregnancy and the birth of the child on the basis of a “wrongful birth” suit i.e. an action by the child for having been born and forced to live with the disabilities and disadvantages of her birth. Even if one ignores the tiny number of jurisdictions that recognize such a cause of action,[11] it hardly presents a case whereby a reasonable person might well say that the suit ought to be successful because “non-life” is preferable to the “life” the plaintiff is living.[12]

This also highlights the importance of genetic counseling. On the facts, we are given no indication of why Laura’s daughter-in-law might want to terminate a pregnancy on the basis that the fetus has a BRCA mutation. If her decision is made on some erroneous understanding of the consequence of having such a mutation to the child, then genetic counseling is manifestly important is providing such information that she can make an informed decision as to the status of her pregnancy such that she does not make a decision she will later regret.

[1] Wylie Burke, Genomic Medicine: Genetic Testing, 347 New Eng. J.Med. 1867 (2002) extracted in Kuszler et. el., Genetic Technologies and the Law, (Caroline Academic Press, 1^st ed.), p. 605-610 at 607

[2] http://www.ahrq.gov/clinic/uspstf/uspsbrgen.htm , accessed on Feb 08 2007

[3] Wylie Burke, supra n. 1, at 606

[4] Personal medical information after all is one of the “zones of privacy” recognized by the US Supreme Court and also the Common Law’s general recognition that one may refuse life-saving medical treatment.

[5] American Society of Human Genetics/American Cllege of Medical Genetics, Points to Consider:

Ethical, Legal, and Psychosocial Implications of Gnetic Testing in Children and Adolescents, 57 Am. J. Hum. Genet. 1233 (1995) in Kuszler, supra, at p. 624-634 at 631

[6] Ibid.

[7] Ibid.

[8] See Kuszler, supra, at p. 635

[9] Thereby requiring more evidence to establish the efficacy of intervention to reduce risk, see Burke, supra, at p. 608

[10] http://www.cancer.org/docroot/NWS/content/NWS_1_1x_Breast_Cancer_Genes_Can_Affect_Men_Too.asp, accessed on Feb 08 2007

[11] Only 3 jurisdictions allow such a claim and California prohibits a child from suing her parents

[12] See e.g. Turpin v. Sortini, 643 P.2d 954 (Cal. 1982)

2007-04-28T15:05:00.000-07:00

Talking about Torture: Philosophical bridges in dialogue Part 1

So we can start first with the deontologist and contrast their perspective with act consequentialist. For the purposes of this discussion, it would suffice to say that the first term refers to the notion that principles are fixed and do not deviate simply by virtue of the situation and circumstance at hands. Thus if it is a moral good to tell the truth or not to kill or not to torture that those principles and prohibitions are absolute (as a grotesque simplification, Kantians would argue that since consequences simply cannot be controlled by the individual but only intentions can, then only intentions matters from an ethical perspective).

But on to building bridges: assuming now that one as a deontologist wishes to persuade someone of the consequentialist bent that the prohibition of torture ought to be absolute, how would I go about doing so? Since the ethical premises are different, trying to persuade the consequentialist through deontological means is going to be fairly useless. Nonetheless, I can adopt a form of consequentialism to make that particular argument. One of the charges laid at the feet of consequentialism and utilitarianism has been that nothing is prohibited if the circumstances were right. This might be true of act utilitarianism in that only the immediate consequences of the act matter BUT is in no way true from the viewpoint of rule utilitarianism. In rule utilitarianism, one calculates based on whether the harm of promulgating a rule outweighs the good, it seeks to take not just the immediate consequences but also the long term repercussions and it also tries to aggregate all likely scenarios so as not to let a truly aberrant situation skew the weighing. Thus for example while an act utilitarian will be hard-pressed to say that he would not shoot (or torture) an innocent person if it would save the lives of a entire town (or country etc.), a rule utilitarian can accept that such situations do exist but as a rule we ought not to do so because of reasons such as undermining the trust of the citizens in the system, the unlikelihood of such a situation outside of 24 etc., the backlash one would get from other members of society (or international community).

But personally, I think the situation is harder the other way round i.e. persuading a deontologist on ontological grounds why there should be no absolute prohibition on torture but merely a conditional one. That however will have to wait till tomorrow as I am absolute knackered by Tuesdays.

Peace

2007-04-27T16:53:00.000-07:00

Indonesia and Singapore sign two landmark treaties - International Herald Tribune

So can we get our sand now?

2007-04-27T16:21:00.000-07:00

Stopping judges from legislating - The Daily of the University of Washington

Fun diversion from having to read more International IP Law or International Merger & Acquisitions stuff. But this is one of those articles that I read in the morning and which I then find hard to restrain myself from posting some kind of reply because of its sheer inanity and utter wrongness of it all.

I would say that I don't think a non-lawyer is necessarily barred from comment on, much less very intelligently on legal matters and issues, especially when it comes to policy. But law isn't just about outcome but also the legal reasoning behind the outcome and I personally think this is one article where the author is seriously out of her depth. If you wanted to write an article on judicial activisms and restraint and the idea of fidelity to law, at the very least run it pass a lawyer or given the slant she wanted to take, someone from the Federalist Society.

I'm tempted to do a fisking but I'll refrain from it unless someone is really really interested in the multi-level reasons for why her entire article is wrong.

One hundred fifty years ago, the Supreme Court passed a decision regarding a black slave named Dred Scott, declaring his suit for freedom invalid. The court ruled that because he was of black African descent, he was not allowed to be free, nor did he qualify for citizenship.

The decision not only violated the Missouri Compromise, a piece of legislation that ensured the freedom of slaves in the North, but it even cited the Fifth Amendment, saying that judges had no right to take property from its owner without “due process.” Scott was the property.

Today, Americans look at this court decision and ask themselves, “How did the courts get away with it?” It’s clear that the parts of the Constitution the justices were using didn’t really speak to the case, and the ruling invalidated an existing law. Not to mention it took the bloodiest war in American history — the U.S. Civil War, with more than 600,000 deaths, about 200 times worse than the Iraq war — to nullify the decision.

Although the heart of the Dred Scott case was the abolition of slavery, the crime of the court was its direct disregard for the legislature and its laws. This ruling was one of the first of many judicial tyrannies. However, few, if any, judges are prosecuted for their crimes.

Judicial tyranny is often defined by a judge’s abuse of power. Often this is seen in decisions either to enforce convictions without any support of the law or to write laws from the bench.

Today, interest groups who use corrupt judges to circumvent the legislature frequently cover up issues of judicial tyranny. Organizations like the American Civil Liberties Union (ACLU) quickly learned that it’s difficult to persuade large governing bodies to support their bills, but with the court systems it only takes a few high-paid lawyers and a couple of biased judges to make a law. This approach completely undermines the balance of powers.

Constitutional framer Alexander Hamilton said in Federalist Paper No. 78, “The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever.” Hamilton, like the other framers, was greatly concerned with the power of judges. He says the courts have “neither force nor will,” which is to say they should exist as judges, not legislators or even executioners.

In 2005, the Ninth Circuit Court ruled against parental rights, making it unlawful for students to be removed from sex education programs in school. It was a blatant example of judges making laws without any voter or legislative support. This decision was made shortly after the same court banned the Pledge of Allegiance.

In response to the consistent abuse of power, Republican lawmakers tried to split the court, which is the largest of all the U.S. circuit courts, into two, creating a 12th Circuit Court. Democratic Speaker of the House Nancy Pelosi accused Republicans of “attacking an independent judiciary.” She’s right, and thank God somebody is doing it. If a lawmaker is accepting bribes, you throw him out. If a police chief is breaking the law, you throw him out. If a judge is legislating from the bench, you defend him and ensure he can continue to abuse the law? It’s backward, and I’m sure Democrats would agree if the corrupted courts weren’t so helpful to their policy-making.

Federal courts aren’t the only ones that have turned their mallets into scepters.

Massachusetts was the first state to legalize gay marriage, but at the time pollsters found that only 30 percent of the state actually wanted gay marriage, according to a Washington Times article. Special interest groups pushed the law by suing the government, and Massachusetts congressmen were ordered to write the law.

Such interest groups have a history of abusing our government processes. In fact, the first actual legislative decision in the country that has progressed toward gay marriage was Gov. Chris Gregoire’s recent bill, which allows certain privileges to gay couples. Even though you may disagree with the decision, you have to be thankful that it was made legally.

No matter how just the cause may seem, the function of the court cannot and should never be legislation; otherwise, we end up with situations like the Dred Scott debacle. Lawsuits should not be a substitute for thoughtful lawmaking. We need to stop supporting organizations that circumvent the legislature and start supporting our own right to vote.

I'm going to first blockquote a comment because I make a reference to it....

You can accuse judicial activists of creating problems by not showing judicial restraint, but the same can be said for judges who refuse to consider that the founding fathers may have intended our constitution to change with time.
Plessy v. Ferguson was a decision that clearly had roots in the principle of judicial restraint, but in retrospect it caused over 60 years of segregation. Not until Brown v. Board of Education (one of the "best" activist rulings), were blacks prompted to believe that they had a legal right to attend un-segregated schools.

Even the Dred Scott decision had a positive effect - it helped people realize how crazy and immoral slavery was, sparking the Civil War.

And this is my comment in full.
I think Alex generally hit the nail on its head here with his point about Plessy. And with regards to slavery, there was the pesky problem of the Fugitive Slave Act and the fact that slaves counted as 3/5 of a person (and Native Americans weren't counted at all) and the ability of the Federal Government to nationalize the various National Guards to put down slave revolts etc.

I would just add that Ms. Flint's notion of judicial legislation and activism and judicial restraint are pretty much empty buzzwords because there is no ground upon which one can reconcile her statements with her own notion of separation of powers.

The Supreme Court honestly believed that its decision would defuse the pre-existing tension, Dred Scott was a product of its times and stands as a classic example of what Professor Jack Balkin would call "The Problem of Constitutional Evil" in that the Constitution sanctioned the institution of slavery and it was understood by all the states that this was the case. So under Ms. Flint's notion of judicial restraint, this is precisely what the Supreme Court should have done. Anything else while morally right would not be exactly lawful.

It would thus appear that her idea of judicial activism is either a) the decision is not one she likes (Dred Scott) or b) is against majoritarian will (Massachusetts and presumably the Hawaiian Supreme Court on the issue of gay marriage) both of which reveal a profound misunderstanding of the role of the US Supreme Court as guardian and final adjudicator on the meaning of the interpretation as well as what the Constitution represents i.e. an anti-majoritarian document. This explains the electoral college, the entire system of the two houses of Congress (Senators were only directly elected recently) and the Bill of Rights. On the last, a more individualist notion of rights could scarcely be imagined.

If a law is contrary to the Constitution, it is null and void and the function of the Court is to point that out and strike it down. Thus, if marriage is a right (as it is) regardless of one's sexual orientation (which is where the debate lies), then it does not matter the extent of popular opposition to it. By way of example, in the case of Palmore v Sidoti, Burger CJ said that the court could not give effect to private prejudices and give custody of a child to the father simply because the mother was entering into a mixed marriage. Or perhaps even more analogous would be the case of Loving v Virginia which finally struck down anti-miscegenation laws, laws that were created, sustained and justified on ground remarkable similar to those used to sustain anti-gay marriage laws. And they were all validly enacted by democratic legislatures and massively popular. I would be very interested to know if Ms. Flint would consider the Lovings (or the NAACP in its push to integrate public schools) to be one of those "special interests groups which have a history of abusing our government process".

If Ms. Flint really wanted to attack special interest groups, perhaps she should consider the idea of legal standing of corporations to sue for Constitutional violations which was created almost as an afterthought by the Supreme Court and has been used to great effect by them. But even that would be a logical fallacy because it's simply a blatant appeal to emotions without any real justification for why it is right or wrong, or good or bad.

There are much deeper philosophical underpinnings to what constitutes fidelity to law, and whether one can necessarily achieve it from an objective point of view. But it's a crying shame that Ms. Flint would label judges who she disagrees with as "corrupt" without even attempting to demonstrate how they were even necessarily wrong. Now that is really wrong.

Peace.

2007-04-06T19:01:00.000-07:00

Accepting cultural dichotomies - The Daily of the University of Washington Online

*face-palm; head-desk*

I had been "forced" to plow through the natural law section of a particular analytical jurisprudence textbook wherein I was of the opinion that the editor of the book was engaging in some rather dubious reasoning in certain of his essays that he had inserted into his book.

One of the more annoying parts was where he conflated moral relativism with moral nihilism where got me rather annoyed because it smacks of shoddy reasoning and more often than more was a serious case of moral imperialism at work.

And then I read this article which did precisely that, the author writing from the viewpoint of moral relativism down the merry path to moral nihilism.

While Afghan women can now legally vote, attend school and walk in public without a burqa, little has changed for women living in the Pashtun regions of Afghanistan since the Taliban’s fall.

The Pashtuns — also called Pushtuns, Pakhtuns and Pathans — live along the “border zone” of Afghanistan and Pakistan. Nearly 50 percent of Afghanistan’s, and 15 percent of Pakistan’s, population is Pashtun, meaning they speak Pashtu and follow Pushtunwali, a tribal code with an Islamic influence, particularly in times of war.

Relatively unchanged for centuries and hardly touched by even the British during their colonial rule, the Pashtun society follows a system emphasizing honor, respect and revenge, primarily to uphold one’s honor.

Pashtun women lack almost all rights. They can be beaten for talking back to their husbands, killed by their fathers or uncles for eloping with a man or traded to end a blood feud between clans.

According to Pashtuns interviewed by The Economist, the best way to resolve inter-clan disputes is through jirgas, or tribal courts. Often the court orders a clan to trade a 15-year-old, 10-year-old and 5-year-old girl with the enemy clan, which is called lund pur, or “wet debt.”

Pashtuns believe this exchange creates peace between clans because three generations will be connected through marriage. As one Pashtun proverb states, “Blood cannot wash away blood, but blood can be turned into love.”

Although many reviled the system under the Taliban, many Pashtuns opposed the Taliban’s Shariah — Islamic law — as being too soft. Within Shariah, women are allowed to own land, widows are not required to marry their deceased husband’s brothers or cousins and the trade of girls to settle disputes is not allowed, unlike the Pashtun system. In this society, women are property, forever tied to their fathers, uncles or husbands.

As a woman who believes in equal rights across the genders, I am internally conflicted when I learn about societies like the Pashtun’s, or other societies that have practices such as clitoral circumcision, which prevents a female from achieving orgasm.

Do I have a right, however, to impose my Western standards on another culture? I think not. Although I am strongly opposed to these practices, I don’t believe any Western influence would change the situation.

The Pashtuns have waged bloody wars against governments and groups that attempt to oversee or control their lives. Their cultural emphasis on honor and upholding honor at all costs supports their battles against foreign powers — even the United States.

To change their practices would require oppressing their entire culture.

Taking a step back and looking at our own society, one can find structured patterns of behavior, albeit at a completely different level. The average American child goes to school, then to college, gets married, buys a house and has kids. Until our parents’ generation, most women stayed at home, cleaned and cared for children.

Although we have the freedom to follow a different path, many follow this systematic process without question. In cultures as strict and stringent as the Pashtun’s, no one questions his or her role in life, and actions and decisions follow a scripted tribal code.

Undoubtedly, our culture is diametrically opposed to the Pashtun’s, but there exists a structure in every culture, and to force it to change is to threaten the society itself.

For example, clitoral circumcision is common throughout Northern Africa, and many human rights groups have tried to spread awareness to women about their bodily rights. The great majority of women believe these Western groups are crazy. To them, clitoral circumcision transforms a young girl into a woman, and they choose to partake in the ceremony.

Culture structures our daily lives, and by acknowledging this, we can begin to understand why people participate in activities that we consider inhumane or unethical.

Although my cultural preconditions register certain activities as wrong, others from another culture may see our daily activities as obscene.

I don’t believe I have any right to judge.

Man....talk about giving fuel to the fire. Here was my reply:

It is hard enough to get people to accept moral relativism and multi-culturalism without having to repeatedly defend against charges that it leads to moral nihilism, which (rightly or wrongly), the article gives as its overarching impression.

Assuming that we take at face value her asserted conclusion that she does not believe she has a right to judge, the question remains whether this is a necessary outcome of her moral relativism argument. After all, one could easily argue and accept that a liberal democracy is the most satisfying contingent framework on the very basis of moral relativity itself. For if all norms are subjectively valid, this does not presuppose that one necessarily has to take a hands-off approach because actions accrue as a result of those norms. Those norms in turn affect material tangible beings we like to call humans. Therefore, the appropriate question should what system best allows for all these norms to coexist to their fullest extent because we still have to adjudicate between these various norms if for no other reason than the fact that we co-exist. Therefore a liberal democracy almost by definition allows for a framework of such coexistence by protecting minority viewpoints and culture from the majority while also protecting individuals from oppressive minority cultures e.g. honour killings.

Even if we accept that culture exists outside of individuals and that it remains separate and immutable, it does not answer the question of whether that culture deserves to exist in the first place or that the culture ought to remain immutable and unchanging. Patrick Glenn argues that culture and traditions are composed essentially of information and that unless one if a fundamentalist, that information will change over time and with exposure to other cultures. It’s also worth noting that he denounces both the moral absolutist approach as well as the moral nihilistic approach.

But what is most disturbing in this "I have no right to judge approach" is that it ultimately denies the capacity and capability of every individual to determine at least for herself or himself the validity of norms and the closest approximation of Truth through reason. It denies self-actualization and it denies capacity to act in the face of true evil and oppression. If Ms. McKean does not mean to go so far, she might well like to issue a clarification or a correction.

Thus a moral relativist approach can be compatible with "imposing" a worldview or a framework wherein every individual can achieve freedom of thought and conscience. These things cannot occur where a society is coercive, repressive, thought controlling and totalitarian in those regards.

Respect for a culture does not mean remaining blind to its flaws.

Addendum: Here's a well written response over at The Broken Watch taking issue with certain unclear points of Ms. McKean's article (conflation of ontological arguments with ones based on utility) as well as an examination of the genetic fallacy i.e. just because something is from a particular place does not i) reflect that is is only contextually valid and ii) reflect its inherent validity or lack thereof.

2007-04-02T14:23:00.001-07:00

Schools drop Holocaust lessons | Special reports | Guardian Unlimited

I couldn't have come up with a better rebuttal of why offense cannot be a basis for limiting the freedom of speech (much less arguably education) but here is a fantastic (but very disturbing) example of potential offense on the part of the few trumping the teaching of historical fact.

From the article:

Schools have avoided teaching the Holocaust and the Crusades in history lessons because they are concerned about causing offence to Muslim pupils or challenging "charged" versions of history which children have been taught at home, government research has found.

A report for the Department for Education and Skills found that a history department in a northern city had avoided selecting the Holocaust as a GCSE topic for fear of confronting "anti-semitic sentiment and Holocaust denial" among some Muslim pupils.

Another school decided to teach the Holocaust despite anti-semitic sentiment among students, but avoided the Crusades as "their balanced treatment of the topic would have directly challenged what was taught in some local mosques".

And it isn't just one group playing...

The report, Teaching Emotive and Controversial History, also revealed that one school was challenged by Christian parents for teachers' treatment of the Arab-Israeli conflict.

Here's the mealy mouthed response from the Government:

A DfES spokesman said: "It's up to schools to make a judgment on non-compulsory parts of the national curriculum. It is a broad framework and there is scope for schools to make their own decisions."

I still it's worth making a comment here about the Sedition Act and the Maintenance of Religious Harmony Act. On their face, while insanely broad and therefore prone to abuse, there does exist a fairly massive qualifier clause insofar as regardless of whatever ill-feelings or invectives hurled, as long as it to the propagation of information and "truth" it will be fine.

Under a liberal system, it is not difficult to see how this can be used to support a liberal notion of the freedom of speech and expression. And in fact, it would tend towards more civilized discourse. So no "hate speech" but plays like Talaq which is a discourse on anti-female notions and customs within certain religions and "races" should be alright.

But it's clear that this depends on the normative values and discretion of the Executive (in the face of judicial discretion) and that is what I believe makes it dangerous.

2007-04-01T22:51:00.000-07:00

A Don's Life - Times Online - WBLG: History Carnival 51

My first and foremost love has to be of history and seeing how it all ties in. For a long while I was seriously contemplating becoming a military historian and a good number of my favorite books are still history books e.g. Paul Kennedy's Rise and Fall of Great Empires, Huntington's Clash of Civilizations, Boorstin's Trilogy (The Seekers, Discovers and Creators, the last of which I particularly enjoyed)

Until I got spurned by History (my grades weren't great) and seduced by other subjects (economics and then law).

But there are some great blog posts. Read them for History Is.

2007-03-31T18:14:00.000-07:00

Bush calls British sailors 'hostages' in Iran - CNN.com

Here the words of the wise political philosopher of our time is apropos. Messr Jon Stewart commented that "We (the US) may not be very good at nation building. But we are very good at nation un-building".

And I seriously doubt that people have forgotten of the Falkland Wars, especially since it's front page news on the IHT.com. I mean, the British went to war over a piece of land that no one in Britain had visited much less heard of before the war started.

Thumbing your nose at the "Western imperialist powers" may be all well and good, but seriously man, whazzup?

2007-03-29T18:45:00.000-07:00

Aardvarchaeology : Skeptics' Circle 57: The Zebra Spilled its Plastinia on Bemis

More Skeptical Yumminess.

I think it's worth mentioning that my grandmother was a medium throughout her entire life and has mystical powers attributed to her. I was a young participant in some of the rites and her place would literally be packed with people not just in the house but queuing up outside, some even coming all the way from Malaysia to visit her and seek her aid and advise.

I make no comment on that time as I was too young to consciously consider it but what I can say is that I was brought up in the background of that entire Chinese syncretic religion and that in turn heavily colored my viewpoint as to the existence of the supernatural.

My first foray into the world of skepticism was the realization that "magic" was simply illusion and camera trips. But whatever vestigial residue left was blown apart by James Randi, where I learned about cold reading, ideomotor effect, placebo effect, truth about homeopathy etc.

And I never looked back since. My world may be "colder" but it's a much saner, rational and logical world.

Peace.

2007-03-24T16:09:00.000-07:00

Blog on Hiatus?

Well, I'm back from Portland and San Francisco, nice places both and well worth visiting if you're in the Pacific Northwest or generally on the West Coast.

But due to some course scheduling, in particular my inability to get certain courses that I would like, my course load is perhaps slightly heavier than I would have expected. This is not in terms of the number of credit hours but in terms of my familiarity of the subject matter at hand. So without the straight international economics and developmental state stuff that I was hoping to get, I have had to take International Copyright & Trademarks as well as International Mergers & Acquisitions, neither of which I am as familiar with as was the case with International Law or even First Amendment.

And I already have readings to do.

Thus to cut a long story short, I may be shutting down this blog for the next few months until I return home, unless someone else wants to guestblog for a while.

Peace

2007-03-17T01:00:00.000-07:00

Spring Break!

Southwards ho for more sunshine and warmth. Back late next weeks.

Peace.

2007-03-15T20:55:00.000-07:00

T-Shirt Slogans I want Printed

1. You Don't Believe in Thor?! Why Do you Hate Thor?!!

2. PolSci: Where Ignorance is Rational

3. Economics: Assume!

4. Sleep: An Inadequate Substitute for Caffeine

5. Woo /= W00t

2007-03-15T16:40:00.000-07:00

TODAYonline: Creation, sex and condoms

W00t! Exams over and what better way than to thrall our ever present lovely local media for more stuff to write about. Anyway, I admire Ms. Ong's approach to sex and sexual education of her children but I just want to touch on the ever present problem of the naturalist fallacy that permeates way too many arguments.

creation, sex and condoms

Friday • March 16, 2007

frances ong

When my daughter attended a camp last year, her father gave her a box of condoms and explained that, like all good scouts, one must be prepared. When I went to Hong Kong alone for work, my husband gave me a box, too, and smiled.

Before anyone throws the first stone at him, allow me to explain.

*Sigh*, bring birth control pills for one really obvious reason. If you happened to get raped, swallowing a certain number of birth control pills act somewhat like emergency contraception to prevent implantation. But that's just a public service announcement.

We believe the best place for our teenagers to learn about sex is at home. This includes learning about the proper use of contraceptives, such as how to put a condom on and the benefits and side effects of the Pill, the IUD, and about abortion.

However, the use of contraceptives must not be taught in isolation. It is not a simple issue of "prevention is better than cure". Contraceptive use can prevent the creation of an unwanted child, protect oneself from sexually transmitted diseases and also might give one a false a sense of freedom to have sex with anyone, anywhere and anytime.

Argument of moral hazard: This is an argument that has arisen a number of times and like any argument, can be generalized and examined in other contexts. The idea is that if one is protected from risk, one is more likely to engage in risky behavior. This pops up all over the place, from mandatory statutory workmen compensation schemes, to state insurance in lieu of tortious action, to IMF bailout policies and of course my favourite response, just because we have fire extinguishers in the house does not mean we're going to start cooking with grease.

I remember an exchange I once had with Prof Kumar during torts when he was mentioning the aforementioned mandatory insurance scheme in the workplace whereby every employer contributed a certain amount to essentially pay for coverage for their workers. My question was whether this would give rise to an issue of moral hazard in the absence of statutory safety requirements and the like. His response was that people who purchase disability insurance are not likely to start running across the road or engage in riskier behavior just because they are covered. BUT this was qualified after some thought on the basis that risking your own life and limb is not akin to risking your employee's safety as long as you meet safety requirements.

The more general principle that can be drawn from these examples is that it is somewhat simplistic to simply argue that moral hazard will be the result of any action that reduces risk. By that "logic" moral hazard is everywhere the moment we reduce risk. Instead the more pertinent analysis would be a marginal one i.e. does this particular increase in risk prevent reduce risk to an extent whereby people end up taking even more risk than would otherwise be the case? In some cases this would be true (imagine a failure rate of over 90% for parachutes and then imagine whether your average reasonable person is going to want to do skydiving and now start considering whether it is rational for people to go skydiving with all the risk prevention mechanisms that are in place).

For me, I agree with Mrs Ong here insofar as nothing beats out evolutionary biology in terms of our desire to procreate. Hormones exist for a reason. Anyone who wants to pretend otherwise is attempting to ignore reality. Does acculturation help? To an extent, but I've done a previous post highlight a recent study that show pre-marital sex has been remarkably constant since the 1940s. So one does wonder whether there really has a golden age of chastity.

This was not our intention when we embarked on this journey with our children. We hope they will not engage in premarital sex, but we are aware that peer pressure and societal values act as a counterweight to what we teach them. We recognise that we cannot stop them if they intend to have sex.

All we can do is show them the true freedom of sex within a marriage. We are very open with our children about our sex life. They know that, on a lazy Sunday afternoon, it is best to leave their parents alone. They realise that sex is the deepest form of communication between two committed individuals.

Of course, some people will argue that this can also take place outside marriage. They will argue that they have formed meaningful, happy relationships and that marriage does not guarantee fidelity.

While others are free to make their own lifestyle choices, we believe sex should not be just a recreational activity one engages in after a single drink (or more, probably) on the first date.

Fair enough. But even adults? Even those pushing 30 or older? There is a distinction to be drawn between teenage sex and adult pre-marital sex, I'm still waiting for a justification against adult pre-marital sex that does not involve very dodgy statistics and "science" or that is based on some written text that claims divine inspiration (and you should know my views about religion by now).

We have observed that many teenagers and adults engage in premarital sex because they feel insecure. They want a sense of assurance from others. But, one of the untold effects of casual sex is the sense of insecurity one feels after the act is over.

Some people seek companionship and believe that offering their bodies is the easiest way to tie someone down. But, they may soon begin to ask themselves: Will my partner continue with this relationship, or will he or she seek another person to have sex with tonight? If we could fall in bed so easily last night, will we fall out of love as easily today? Why do I feel like a piece of used tissue paper when he does not continue the relationship?

Hop aboard the non-sequitor train! This is where I like to point out the socialization argument as once made much more hilariously by Bertrand Russel who pointed out our entire society's neurosis and even psychosis on sex by simply replacing the word sex with trains. So blinker a child's mind, make trains a taboo topic, cover his eyes when you approach a railway station, and you end up with the exact same reaction that is at its core utterly and totally nonsensical and fallacious.

Or to simplify, kids feel that way because society make them feel that way and for no other reason. Put sex on a pedestal for no good reason and this is the result you create. It is not sex, or pre-martial sex or casual sex that is the root cause of it. It is our attitudes towards it that is the underlying basis for this entire melodramatic Sturm und Drang.

Sex between two committed individuals is enjoyable, and the fruit of this relationship is the child that will be created in the process.

One of the reasons why our birth rate has plummeted is because, through the use of contraceptives, we have separated the act of creation from sex. By understanding the purpose and function of our body, we will learn to respect it as a powerful tool to create new life.

When they are taught about sex in this light, our children will be less inclined to engage in pre-marital sex, as creating a life brings on new responsibility.

Ah...finally the naturalist/naturalistic fallacy a.k.a. what is natural is good. What's the point of Understanding and of Knowledge if we do not apply it? I think it's fantastic we have managed to separate sex from procreation and I think it's an absolute moral good insofar as women now have control over their bodies. The gender revolution could not have occurred, nor the strides women have made if they could not control their reproduction. There are no two ways about it.

Anyway, this has made a nice interlude post Roman Law and dinner and possibly screwdrivers.

Peace

2007-03-10T13:54:00.000-08:00

Not Dead Just Busy With Exams

General hiatus from blogging for a while. If I still have any readers left, I'll see you in about a week.

Peace.

2007-03-01T11:10:00.000-08:00

The Second Sight: 55th Skeptics' Circle: The Number Of The Skeptic

The 55th Skeptic Circle is up. I would strongly and strenuously urge people to read it, if nothing else, to shake up your beliefs in the supernatural, the unfalsifiable and the sheer non-evidential.

Peace

2007-02-25T23:33:00.000-08:00

Scorsese finally joins the Oscar club - International Herald Tribune

I can't believe I'm actually excited for him but strangely enough I always thought he was perpetually getting snubbed by the Academy for some strange reason.

But in a matter of speaking, this is a strange tribute not just to him but the the Hong Kong movie industry as well. My understanding is that for a very long time, the HK directors were deriving much of their influence from him. And in The Departed, he returned the favor by drawing on Infernal Affairs.

And finally a win for Mr. Scorsese. Sweet.

2007-02-20T20:55:00.000-08:00

Stereotypes and Statistics in the Administration of the Criminal Justice System

An interesting case that I came across while doing readings for Equal Protection. The case of United States

v. Armstrong was decided before the US Supreme Court in 1996 and it returned to the the above issue post McCleskey v. Kemp (1987).

Facts: Armstrong, the defendant was an African American who had been charged with "conspiring to possess with intent to distribute 'crack' cocaine". Sought discovery from the prosecution to gather evidence supporting his claim that the government was not prosecuting similarly situated suspects of other races.

Trial history: Court of Appeal upheld order granting request

Holding: 8-1 reversal on basis that the defendant had failed to make threshold showing of similarly situated individuals of a different race were not prosecuted

Reasoning: Threshold showing is “a credible showing of different treatment of similarly situated persons” on the basis that it struck the best compromise between government’s interest in prosecution and defendant’s interest in avoiding selective prosecution

The Supreme Court derided CA for reaching its decision in part on the basis that it started “with the presumption that people of all races commit all types of crime – not with the premise that any type of crime is the exclusive province of any particular racial or ethnic groups” without any backing and appears contradicted by the (then) most recent statistics of the US Sentencing Commission

“Presumptions at war with presumably reliable statistics have no proper place in the analysis of the issue” and here are the interesting stats they cited, >90% of person sentenced in 1994 for crack cocaine trafficking were black; 93.4% 6f convicted LSD dealers were white; and 91% of those convicted for pornography or prostitution were white

I think there is an element of begging the question and putting the cart before horse but I think they is also some truth to the argument that sometimes the discrepancy is not due to some form of invidious discrimination but reflects the reality of the situation.

Peace

2007-02-19T18:13:00.000-08:00

Home on the Strange: J-Horror Will Eat Itself, Part 1

I don't normally do this but I need to get this off my chest.

I absolutely hate J-Horror like The Ring, the Grudge, Still Water and all the other such movies. My instinctual reaction is "you're dead, you died a tragic death, boo hoo. So why the hell are you going around killing people just because they happen to be staying in the place you were killed".

I'm a BtVS (Buffy the Vampire Slayer) Fan, I've read (it was much faster than watching it) all the episode transcripts from Season One to Angel Season 5.

Repeatedly.

SO YOU DO NOT CAST SARAH MICHELLE GELLER RUNNING AWAY FROM A SNOT NOSE TEN YEAR OLD GHOST BOY WITH BIG EYES.

Thank you.

2007-02-18T16:26:00.000-08:00

Carnival Of The Godless #60 | Unscrewing The Inscrutable

More godlessness goodies. It's one of the carnivals I read (the other being the Skeptic's Circle and Carnival of History) and I don't think it's being publicized enough back home in Singapore. So here's my little contribution.

And yes, I'm out, I'm an Atheist.

Peace.

2007-02-18T16:06:00.000-08:00

Reconciling faith and academia - The Daily of the University of Washington Online

Reconciling faith and academia
February 16, 2007
By Celeste Flint
With midterms phasing out and scores pouring in, I’m sure most of us have at least considered challenging our grades. Amid these debates of what should pass and what deserves to fail, it leads one to question on what principles students should be graded. More specifically, should a student’s acceptance of the ideas taught in class have anything to do with their grades?

I was somewhat surprised at the attention The New York Times gave University of Rhode Island Ph.D. graduate Marcus Ross for writing a dissertation that, although it followed all the scientific principles taught at his university, he personally disagreed with. Ross’ ultimate goal in receiving the Ph.D. was to be a good paleontologist. However, because of religious beliefs, he just happens to disagree with Darwin’s theory of evolution.

Ross’ dissertation was accepted, but it’s frightening to think that professors from other universities openly and avidly disagreed with the decision because of Ross’ religious views. This discrimination doesn’t just affect those with religious beliefs, but anyone with moral, social and political values that differ from those of the educated elite.

I once took a sociology course at a community college, where I was among the more studious classmates. However, after looking over an essay exam, I noticed I lost a few points on a question with the only comment being that although I understood all the concepts well, I didn’t sound like I believed them. The truth is I didn’t accept half of the material. At first I laughed about it, as I was entertained by the teacher’s frustration, but still, I was discriminated against for holding different beliefs about society than the teacher did. The most frustrating part was that I understood the ideas better than the majority in the class who accepted them.

Although most professors respect differing opinions, especially if they are well-supported, I’ve seen and experienced several occasions when agreeing with the teacher was the ticket to a good grade. For Ross, his dilemma was equivalent to a socialist in an American economics course being told he couldn’t pass because he doesn’t uphold the values of capitalism. To master the knowledge of something doesn’t necessarily require one to believe it or to even think it right.

This fuzzy line is best defined by the misconception that a professor’s job is not just to teach ideas but to also indoctrinate students with them. The beauty of education and science is that it invites us to challenge our beliefs and the beliefs of others but being able to question popular and even scientific beliefs is contingent on knowing that they could actually be wrong. When professors indoctrinate students instead of teaching them, it closes the door to inquiry and exploration of ideas.

All things should be taken in moderation; the authority of a well-educated person shouldn’t be placed on par with an upset student. However, it is both arrogant and asinine to assume that because someone rejects popular and even scientific ideas, that they neither understand the ramifications of their beliefs, nor have valid and logical reasons for believing what they choose.

Michael Dini, an opponent to religious individuals like Ross in the scientific community, was quoted in The New York Times as saying, “Scientists do not base their acceptance or rejection of theories on religion, and someone who does should not be able to become a scientist.”

Although the argument that religious people take what they believe solely on faith can be true, people have been defending their beliefs with quality reason and rhetoric since the days of Plato and Aristotle. Don’t assume that because individuals value faith they can’t logically and even scientifically defend their beliefs. It wasn’t right when Galileo was made to recant his scientific ideas, so why should students be expected to recant their beliefs for the adoption of popular ideas?

Cheap blog post because this actually raised enough of an eyebrow and a mutter or two than I was once again "motivated" to reply...

Here's the full text of my comment on the site, any additional amendments are in italics.

It would appear that Ms. Flint has very erroneously conflated a number of issues that have absolutely no bearing with one another and does not necessarily support her argument.

Amongst which is the very first example she cites, the Dr. Ross incident. Here’s a fuller picture of what actually happened with regard to Dr. Ross and why his situation is so downright odd if not egregious.

He successfully defends his dissertation on geosciences (he's a paleontologist for goodness sake!) but is a YEC (young earth creationist) i.e. someone who believes that the world on which we reside on is between 6000-1000 years old based on a very literal reading of the Bible (Literal 7 Day creation in Genesis and a backward counting of the years based on who beget whom). His dissertation on the other hand repeatedly accepts and refers to events that happened tens of millions of years ago.

Therefore opposition to his receiving the Ph.D. is not simply because of his opposition to Evolution (which is merely a byproduct of his young earth beliefs) but simply because his own personal beliefs are so fundamentally at odds with his entire dissertation and field. One really wonders how he would respond to the question as to how much confidence he has in his results.

To be honest, it's a bit like David Irving getting a 2nd Ph.D. by demonstrating why the Holocaust is a historical event and in fact much worse than what was previously known.

Further, there is a very real problem of someone using this Ph.D. in a very misleading fashion by posing as an authority on a position that led to one’s Ph.D. in the first place. Some background here, he's affiliated with the Discovery Institute, doyens of Intelligent Design (To paraphrase Dr. William Dembski, John's logos reformulated in the idioms of the mathematics of irreducible complexity). And he will be cited as an authority on why apparently Evolution is bunk, notwithstanding the fact that his entire dissertation rests on and probably reaffirms the various hypothesis of the Theory of Evolution once again.

Lastly, while Ms. Flint highlights a potential problem with disagreeing with the preferred position and theories of the professor, there is still a huge distinction to be made between the social sciences (Economics and Sociology) and the sciences (Geosciences and Evolutionary Biology) insofar as the rigourness of scientific facts and theories are much less in doubt in the latter simply because one does not have to deal with humans and their nature. Therefore, while one might well quibble whether a particular theory is to be preferred in a non-science field (We could have loads of fun debating what the best form of government is), the same cannot be said within Science (Reality is what remains even when you choose to ignore it), especially where there is a stunning lack of evidence for either a young earth or creationism and a tremendous amount of evidence across a good many disciplines supporting the very old age of the earth and the universe and for Evolution.

Lastly, there is a reason it’s called faith and not reason, "quality reasons" or not. Recanting a belief is not the same as recanting reality despites the constant push for us to do so when we are asked to have "faith".

Dr. Ross simply could not defend his belief and got his degree by engaging in verifiable reality. If nothing else, we would keep that in mind.

Peace

2007-02-15T11:18:00.001-08:00

Rogue development aid - International Herald Tribune

Very good article and one that I seriously hope the author (who is Editor in Chief of Foreign Policy i.e. the glossy and prettier sister of Foreign Affair) will expend in an upcoming issue.

There is a a much more self-interested side to developmental aid and that is of Dollar Diplomacy. It needs to be emphasized that many nations partake in it, whether it is as a gifter or as a partaker. The issue is fairly complex and I think I'm generally on balance not in opposition to the concept insofar as it is an instrumentalist functional concept.

The problem is that such instrumental formalist structures are not just tools or procedural. There is a substantive component wherein it codifies and stratifies existing power structures. So for example, the rule of law (or by law) can end up entrenching the status quo which can be massively detrimental or unfair to whichever or whoever is the downtrodden e.g. all contracts are to be enforced and any law that infringes on contracts will be struck down will hurt parties with less bargaining power and as time goes on see a concentration of power in those with existing power because the law will not remedial or even allow for a remedial of such a situation.

Therefore the issue and I think one that comes out fairly clearly in the article is whether the state giving the aid has its self-interest aligned with that of the interest of the developing state and whether those interests are in line with the global interest.

Say what you will about the US as a hegemon, I can scarcely see how China could not be worse and this is a good example why. They don't see it in their self interest to align themselves with the global long term interest. In essence, they are exhibiting the very worst of neo-imperialism and the sort of activity during the Cold War where one supported any state that opposed the other side no matter how antithetical they might be to your side i.e. the enemy of my enemy is my friend....even if he would otherwise be my enemy.

So what we have here is China essentially buying access to natural resources through offering aid without strings. So here's the money, do what you want, we don't care about the corruption or that it will not benefit your citizens, now where's our contract? At least the EU and US appears to care and the fact is, they generally do. Onerous as these strings maybe (and stupid like in the case of the global gag rule), the general rule is that they seek not to enrich the ruling elite but a genuine concern with ensuring the project succeeds, thereby helping the citizens those projects are supposed to help.

Or to put it even more simply, I don't trust China's interests.

2007-02-10T23:21:00.000-08:00

Law and Genetics Assignment 1 (Access to Health Care Insurance: Genetic Discrimination)

(not a fantastic grade admittedly but it's decent enough, will be putting up more law school exam answers over the next few days)

It is worth setting out, at the outset, the rationale behind Rothstein/Anderlik’s distinction between the legitimacy of using genotype and phenotype as the discriminatory or intelligible criterion.[1] Their first definition of discrimination is one that has an intrinsically negative connotation which they identify as “evaluating people based on ‘questionable stereotypes’ rather than individual merits and abilities, invading people’s privacy, the morally and publicly unacceptable stratification of the community into ‘haves’ and ‘have-nots’, and the punishment of people for characteristics over which they have no control in violation of cherished beliefs in justice and equality.”[2]

The second definition is what they term “actuarial definition” i.e. “an all-purpose descriptor for the practice of making distinctions” and to this they attach the notion that irrationality is the basis of social unacceptability and therefore “only irrational distinctions should be socially unacceptable”.[3] Furthermore, with specific reference to the insurance industry they explain that “discrimination only becomes problematic where there is no sound actuarial basis for the manner in which risks are classified, or individuals with equivalent risks are treated differently”.[4]

Under these definitions, the distinction made is fairly intuitive and particularly so in the cases of asymptomatic individuals who essentially fulfill both types of discrimination. After all, while a phenotype is the existing expression of a particular genotype by a cell or an individual, a genotype by contrast appears to be a potentiality. And according to the authors “[a] large majority of the public considers discrimination against these [asymptomatic] individuals as unfair because current opportunities are being denied to seemingly unaffected individuals merely because a genetic test or assessment indicates an increased risk of future incapacity.”[5]

There are, thus, effectively two manners in which we can conceptualize this distinction. Firstly, that it is definitional/formal distinction as defined above. Alternatively, that it is a functional one i.e. the distinction is made because it fits certain positive and normative criteria. Therefore, under this notion, a rigid adherence to the formal genotype/phenotype distinction is to lose sight of what the distinction sought to do in the first place i.e. to distinguish between what is or is not genetic discrimination.

On the issue of reconciling the genotype/phenotype distinction to the Court, in Katskee v. Blue Cross/Blue Shield of Nebraska,[6] determining that Katshee’s familial susceptibility as a “disease” for the purposes of coming within the insurance contract, it cannot be ignored that this was a review of a summary judgment and therefore the court automatically “views the evidence in a light most favorable to the nonmoving party and gives that party the benefit of all reasonable inferences deducible from the evidence”.[7]

But more importantly, this was a court simply construing and interpreting this insurance contract like they would in any other form of a contract i.e. in accordance with general principles of construction and will be “guided by definitions found in dictionaries and additionally by judicial opinions rendered by other courts which have considered the meaning of these terms”.[8] And therefore, based upon various lay and medical dictionaries, as well as judicial decisions having defining the term (‘disease’) broadly, there was a resulting attribution on the part of the insurer to also adopt that broad interpretation.[9] As such, it would appear hard to square a logical and principled distinction with what is ultimately a pure legal categorization.

Nevertheless, based on the “functional” distinction, the decision is arguably consistent insofar as it would have been unfair under the circumstances to treat Katskee differently simply because her condition was that of a genotype and not phenotype. By focusing merely upon the “predisposition to an illness (cancer)”, as Blue Cross would have done, is to blithely ignores insurable diseases/conditions/illnesses such as hypertension (high blood pressure) or a high cholesterol level which in and of themselves are not harmful per se but have a similar (albeit higher) chance of developing into cardiovascular diseases and higher risks of cardiovascular accidents. This bears directly on “actuarial discrimination” as it is treating equivalent risks differently. Seen in that light, it is unfair that the lack of “symptoms” would deny Katskee “the most medically appropriate treatment available”.[10]

While it cannot be denied that insurers are legitimately allowed to inquire into one’s family history of hypertension and high cholesterol levels and thereby adjust premiums accordingly, but the underlying point is that in those cases, a predisposition is sufficient for the insurer to pay for medication e.g. Lipitor that is in effect a preventive measure.

Nonetheless, there is a very appealing logical symmetry in the argument that if Blue Cross is prohibited from discriminating against Katskee on the basis of genotype, then it should be absolved from paying for services associated with that genotype unless it has actually manifested in pathology. In fact, one could go even further and argue that in this instance, it is not even an insured risk and therefore, they ought not to be liable, manifestation of pathology or not. That basis would be it is an unfair bargain insofar as insurance is a pricing of risks through premiums; that it is a private industry with the basic motive of profit maximizing; and that without the ability to discriminate on the basis of genotype, it is unable to price that risk effectively.

But it is submitted that there are a number of justifications, legal or otherwise, that support the case and the proposition residing within it and on balance justifies supporting it. Firstly, and most fundamentally, it cannot be the intent of the legislature, having outlawed genetic discrimination in health care insurance to somehow allow genetic discrimination in through the backdoor as it were by allowing insurers to reject medical treatments on the basis of said genetic condition. Secondly, the legal reasoning is not flawed if one accepts the basic premise of the broad scope of the terms e.g. disease/illness as judicially defined previous and variously in the dictionaries. This is linked to the fact that the insurers are the ones controlling what is in essence a standard form, with the corollary that what one controls, one can amend. And in this instance they have chosen to adopt a broad definition keeping in mind that they always had the power to amend it and therefore the court is not acting in an arbitrary and capricious fashion by holding them to their own bargain.

Alternatively, there are fairly strong economic arguments to be made. This is because prevention is almost invariably cheaper than a cure when it comes to a major surgical procedure (and/or the associated radiotherapy or chemotherapy in this factual matrix) with cancer as opposed to a major surgical procedure without cancer (and without the associated radiotherapy or chemotherapy). In a sense then, Blue Cross would have been unjustly enriched if they did not have to pay the cost of the surgery because they would likely have had avoided having to pay for the higher cancer related courses down the road if Katskee had not undergone the treatment in the first place.

It is further submitted that such economic cost-benefit analysis is particularly justified seeing as how our examination is that of a private enterprise and this is a readily identifiable quantification.

It will not be denied that this cost calculus changes if, as in the hypothetical facts given, Katskee’s family history is in fact not characteristic of early onset cancers. In which case, the immediate argument above suffers given the market of heath insurance i.e. short-term with high turnovers, as it will not be Blue Cross that is unjustly enriched but whichever health insurer that Katskee would be under during the time she would have had suffered the cancers.

However, in contrast to this monetary balance, it is worth noting one of the reasons on which the court bases its eventual holding is that “the diagnosis may encompass symptoms of anxiety and stress, which some women experience because of their knowledge of the substantial likelihood of developing cancer”.[11] And it can be said to lose sight of the individual in a system, particularly that of health care runs contrary to the its entire notion. And further, one might well argue that it would be cruel to withhold an early treatment on the basis that it is not cost-effective.

In the end, however, these argument probably do not change the outcome of the case. Legally, the test of whether a “condition which itself constitutes a predisposition to another illness is necessarily an illness within the meaning of an insurance policy”,[12] is not when the eventuality occurs but where it is “so remote in its potential mischief that common speech would not label it a disease or infirmity”.[13] Therefore, the lack of an early onset is not a bar to recovery for the preventive surgery.

Personally, the crux of this issue as this author sees it is whether this early surgical intervention is “the most medically appropriate treatment available”. As long as it is, the relatively lateness of the onset ought not to be a factor. And in addition to that, one might well imagine how it could readily be imputed into the overall calculations as to whether it is indeed “the most medically appropriate treatment available”.

Thus even if it should be economically unfair and disadvantageous to this particular insurer, as it might well be given the reasons above, and even should adverse selection occur such that the cost of premiums rises across the pool, this is an acceptable price to pay given the long term societal good that is being accrued through early prevention and intervention. And if as a result consumption of insurance falls, then it falls to the government and in particular their role to encourage societal optimal consumption through subsidies if need be,[14] especially where there is long term benefit to be gained.

In contrast, for patients like Karen Schmidt,[15] whose medical histories serve as indirect evidence of their genetic information, their exclusion is variously either “fair” or “unfair” depending on the viewpoint from which one analyzes the situation. For example, if one considers her situation in vacuo, it is not necessarily unfair discrimination given the bases on which the insurance company operates on. On the other hand, if one takes into account existing laws against genetic discrimination and the manner in which the market for health insurance works, then it is definitely unfair vis a vis her opportunities in relations to a) others with an equivalent health risk in pure genotype without her medical background and b) the discrepancy in terms of health disclosure between group health and private health insurance.

To return to definitions, Rothstein/Anderlik define “unfair” discrimination (as subsumed by their categorization of what constitutes genetic discrimination) as “drawing a distinction among individuals or groups plus an element of either irrational or socially unacceptability or both”.[16] In contrast, Rich/Ziegler would simply distinguish between fair and unfair discrimination on the basis of whether it is reasonable and lawful.[17] They believe that “insurance discrimination” to be lawful because it does not flout the Equal Protection Clause under the 14^th Amendment of the US Constitution on its face, or the judicial interpretations of that Amendment.[18] And they see it as reasonable on the basis that risk classification is perfectly rational within the insurance community and in fact essential to prevent asymmetric information leading to adverse selection and the potential injury not simply to the industry itself but to healthcare in general.[19]

Adverse selection refers to a situation whereby the insured takes on a disproportionate amount of insurance, which is the result of the insurer not knowing what the insured knows and therefore cannot price the insurance premiums accordingly. This skews the market in such a fashion that the insurer would need to raise insurance premium rates across the board simply because there is no way of readily identifying such adverse selectors. And where adverse selection is a big problem as is with the case of anti-genetic discrimination laws, this then raises the incentive for insurers to crack down hard on any adverse selectors they may find and increases their risk adversity, particularly towards individuals.[20]

And thus it would appear that the key difference between the definitions by Rothstein/Anderlik and Rich/Ziegler is apparently that something that is societally unacceptable might still constitute “fair” discrimination because in this instance, adverse selection poses a big enough issue that societal disavowal of genetic discrimination ought to be set aside.

And since a history of breast cancer at 35 is probably a significant issue from an actuarial standpoint, therefore it appears as a reasonable basis as a criterion for discrimination. This is especially so coupled with the fact that her mother and sisters had experienced either breast or ovarian cancer, which was sufficient for her doctor to recommend genetic testing to determine whether she has a BRCA1/2 mutation. That unfortunate confirmation meant that it puts her at high risk of breast and ovarian cancer. This in turn places her at a fairly huge variance in terms of health risk from an otherwise “normal” female of her age.

So assuming that there were no genetic discrimination laws and further assuming that there were no difference in obtaining insurance coverage whether on an individual basis or through an employer, the exclusion of a patient like Karen is not necessarily unfair primarily because she did shop around for insurance. And it is on the record that one of the reasons why she applied to Fortis was the fact that the application only asked for medical history for the past 10 years, which allow her to truthfully withhold her medical history to a certain extent.[21]

But even in this hypothetical world it can be said that since the form was controlled by Fortis and it was well within their power to have extended the time frame for which medical conditions/consultations etc. needed to be disclosed but they made a conscious decision to limit it to ten years instead. Secondly, if insurers were free to treat genetic information just like any other form of information, we are probably less likely to see such need for evasive maneuverings primarily because it would be firstly a lot harder to get round a request for a genetic test for example, but much more pertinently, because of the reduced likelihood of adverse selection, companies will likely to be less restrictive in terms of eligibility and would simply price risk accordingly with premiums or with exclusions.

But in the current system, there is little doubt that Karen was subjected to “unfair” i.e. unreasonable, discrimination in totality, us taking into account the market structure, existence of genetic discrimination laws and the lack of a need for health information in obtaining coverage through an employer. The last factor of which is especially egregious because they is simply no rational explanation to lay a reasonable basis to distinguish the two situations.

Furthermore, Karen is in a particularly vulnerable state because of the existence of genetic discrimination laws. If, for example, she had not had her particular medical history but underwent genetic testing to determine her BRCA1/2 mutation, she could not be denied health insurance coverage under the HIPAA since it provides guaranteed enrollment for eligible individuals, regardless of their health status.[22] Or even for that matter the Wisconsin Statute on Restrictions on Use of Genetic Test Results which forbids, through section (1) and (2)(c) and (d), an insurer from using a genetic test from either considering eligibility or condition rates or coverage on the basis of either a genetic test or what the results of those were. But instead under her current situation, she can be forced to reveal her genetic information indirectly through disclosure of her medical history and can thus be denied insurance. While difficulty in obtaining insurance does not necessarily mean impossibility of obtaining insurance, nevertheless, the comparison is startling in its likely effects.

This actually places her in a worse position then if such laws had never existed because of the market structure in healthcare insurance. Such a structure where the major costs to the company are short term medical expenses and wherein their customers purchase them only for a short term and with a resultant high turnover creates the increased problem of adverse selection vis a vis the anti-genetic discrimination laws because it arguably makes customers such as Karen much less attractive and it becomes in their interest not to take her as a customer, particularly when she was in the market for long-term health insurance.[23]

But at the heart of it, what makes her exclusion so unreasonable is that there was no need to actually rescind her insurance contract. After all, if insurance is the pricing of risk, the reasonable thing to do would have simply been to renegotiate the contract and basically raise the premium. This argument is strengthened if one of our criteria for what constitutes unfair is societal unacceptability and this at the very least, on balance, one such situation.

There is no denying that the entire insurance pool being made to pay higher average premiums as a result of adverse selection may well be economically unfair on the basis that the individual is subsidizing someone else’s risk and disadvantageous in the sense that it could trigger a spiral that could well destroy the entire industry because every rise in average premiums causes more people to drop out which in turn forces higher average premiums.

At this juncture, an interesting question may be raised: “Is Schmidt the mirror image of Katskee?” by virtue of the fact that when Fortis rescinded her insurance coverage, they are doing so ostensibly on grounds of her phenotype even though in actuality it is very likely that the real reason was her genotype. After all, the remedy sought by Fortis was that of equitable rescission on the basis of a fraudulent misrepresentation i.e. misrepresenting that she did not have a history of breast cancer and treatment, which is her phenotype. Yet it must be that their real concern is that of her genotype or more accurately her future risks, because if her genotype were not at issue, there would be no real reason to rescind her contract since after all an insurance company is primarily profit oriented and if priced right, every contract represents profits for the company.

But regardless, it does cast doubt on the sustainability of the genotype/phenotype distinction as the definitional determination of genetic discrimination except insofar as it pertains to pre-employment or pre-insurance coverage. Instead, once insurance coverage is had, the definitional distinction ought to give way to the functional distinction in order to effectuate society’s beliefs on why genetic discrimination is impermissible.

What Karen’s case represents is a challenge to genetic exceptionalism in insurance, this idea that genetic information is somehow fundamentally different from other forms of medical information such that it warrants special protection, primarily through anti-genetic discrimination laws. The danger of this approach is that it in fact creates a form of medical underclass, a class for whom truthful information garnered by lawful means provides insurers with their genetic information. One solution may further extend the ambit of protection to patients like her. However, that in turn fundamentally undermines the notion of genetic exceptionalism, which has a cascading effect on genetic anti-discrimination laws in general.

While it is tempting to conclude that such a situation remains rooted in the peculiar health care system within the United States of America, it is worth bearing in mind that where in other states where health care is socialized, then the issue of genetic discrimination revolves about life insurance instead. This debate is not likely one to subsist anytime soon.

[1] Mark A. Rothstein & Mary R. Anderlik, ‘What is Genetic Discrimination, and When and How Can it Be Prevented’ in Kuszler et. el., Genetic Technologies and the Law, (Caroline Academic Press, 1^st ed.), p. 91-94

[2] Ibid, at p. 91-92

[3] Supra n. 1 at p. 92

[4] Ibid.

[5] Ibid.

[6] 515 N.W.2d 645 (Neb. 1994), extracted in Kuszler et. el., Genetic Technologies and the Law, (Caroline Academic Press, 1^st ed.), p. 202-208

[7] Ibid., at 203

[8] Supra n. 6 at p. 204

[9] Supra n. 6 at p. 204 - 205

[10] Supra n. 6 at p. 202

[11] Supra n. 6 at p. 206

[12] Supra n.6 at p. 207 citing Silverstein v. Metropolitan Life Ins. Co., 171 N.E. 914 ([N.Y.] 1930)

[13] Ibid. per Cardozo CJ writing for the court

[14] As is the case for primary and secondary education, which tend to be under-consumed in a free market.

[15] Schmidti v. Fortis Insurance Co., 349 F. Supp. 2d 1171 (N.D. Iowa 2005), extracted in Kuszler et. el., Genetic Technologies and the Law, (Caroline Academic Press, 1^st ed.), p. 170-190

[16] Supra n. 1 at p. 92. Although as previously mentioned, they accept that society accepts discriminations that are irrational but might well condemn discrimination that are rational

[17] Robert F. Rich & Julian Ziegler, ‘Genetic Discrimination in Health Insurance for a (Not So) Special Problem?’ in Kuszler et. el., Genetic Technologies and the Law, (Caroline Academic Press, 1^st ed.), p. 213-239

[18] Ibid., at p. 214 citing Lindsley v. Natural Carbonic Gas Co.

[19] Supra n. 16 at p. 215-216

[20] This is to account for companies that might specifically target high risk groups or the so-called state subsidized non-profit “high-risk pools” which seeks to bridge the gap between very high premiums that these people can’t afford or are simply rejected outright

[21] Supra n. 14 at p. 173

[22] Supra n. 16 at p. 225.

[23] Supra n. 14, see fn. 1 at p. 171

2007-02-06T17:13:00.000-08:00

Economic free fall in Zimbabwe - International Herald Tribune

Where good news may actually mean things getting worse

Humans are cognitively remarkably efficient machines i.e. we perform a lot of activities, even ones purporting to require loads of attention and concentration is actually very little of it. Devotion to details simply means that everything else is ignored.

As a result, given the really limited capacity that we have to be pay to pay attention to any number of issues at any one point in time (or sequence of time), Zimbabwe has fallen by the way side simply because of Worse Things Happening (TM) read Sudan, Rwanda, Ethopia - Somalia and of course everyone's favourite official stupidest war Ethopia-Eritrea (I probably shouldn't be too hard on the Ethopians because they did clean up the Somali Islamist situation. They seriously get no respect despite the fact they could kick most of their neighbours in a war).

So one might well wonder, given decades of political oppression, an entirely screwed up land redistribution policy resulting in a collapse of the agricultural industry and turning a net exporter into a net importer, using starvation and beatings as a political weapon and a economy in the doldrums, how could it get worse?

Well, we now know that the economy is in a free-fall. The sort of hyper-inflation that caused the collapse of the Weimar Republic, except in this case, an brutal autocratic regime is already in power and made a mess of things.

Wonderful.

Maybe I'm being overly optimistic. Despite a textbook example of state sanction and state sponsored genocide in Rwanda, people stayed out and the Press Secretary went into this darkly hilarious attempted explanation of how many acts of genocide constitute genocide in toto. Corpses were floating down river for goodness sake and the international community was so paralyzed that they could not even launch a medical mission to fish them out to prevent pestilence downstream. Same for Sudan where it was actually a big deal for one of the P5 to call what was happening there genocide.

So why would we consider the total collapse of Zimbabwe to bring any help from the international community? Well the situation in Africa is settling down and maybe a disaster on a big enough scale will either prompt the domestic government to open up or the international community to step in (mass refugee crisis constitutes a threat to international peace and security so technically the SC could launch a humanitarian intervention).

Or so one could hope.

2007-02-04T17:58:00.001-08:00

(muahahaha)

i knew those 8 years in christian schools meant something...

You know the Bible 93%!

Wow! You are awesome! You are a true Biblical scholar, not just a hearer but a personal reader! The books, the characters, the events, the verses - you know it all! You are fantastic!

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2007-02-02T21:33:00.000-08:00

You know the Bible 69%!

Wow! You are truly a student of the Bible! Some of the questions were difficult, but they didn't slow you down! You know the books, the characters, the events . . . Very impressive!

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Dang....kinda sad. Granted that I'm not a Christian much less cracked open a bible in more than a decade but I thought I might have scored a bit higher. I had too much problems with the who beget who questions.

2007-01-31T14:06:00.000-08:00

I Will Be Back

Too busy to blog.

Too many assignments. Should have planned schedule better.

Will put up assignments and notes for interested readers once I get a grade back.

Peace.

2007-01-28T16:32:00.001-08:00

An EU-like pact for Asean: A distant dream? - International Herald Tribune

An issue I keep an eye on if for no other reason I think something along these lines is inevitable if not in my lifetime, then my hypothetical children's lifetimes. And further, I believe the question becomes really an extent to which this becomes reality.

I think the present inequities and disparities between the nations (not least due to geographical distances between and within nations) make any true EU style association and cooperation more of a pipe dream than anything else.

And I don't think it can be understated how much these disparities make it difficult, if not downright impossible for there to be the sort of political organization that people think of associated with the EU. It's one thing after all for there to be a regional trade bloc since these disparities form the very basis of comparative advantages to advance trade. But it would be a nightmare to try to create a common currency given the economic and political differences between nations.

After all, a common currency is going to require a central bank which in turn will be imposing a single interest rate across South East Asian nations. Given the different business cycles and stages of economic development these nations are in, it's impossible for a single interest rate to be imposed that would not either cripple some economies or hurt all economies involved.

And let's not forget that one of the central tensions within the EU and surrounding the EU Constitution is the balance of voting power between the larger and smaller nations. At this point, I don't necessarily trust the larger nations to vote or govern in such a way that would not be detrimental to the smaller nations. Conversely, the larger nations would not be pleased should the smaller nations be able to stiffle any political/economic moves that are in the favour of the majority of people involved.

The biggest problem as I see it is that it is intrinsic within the system and not necessarily one that can be solve through a tweaking of the policy mechanisms. I may yet be proven wrong of course...but let's see how it goes from here on.

Peace

2007-01-28T16:17:00.000-08:00

What Kind of Reader Are You? Your Result: Dedicated Reader You are always trying to find the time to get back to your book. You are convinced that the world would be a much better place if only everyone read more.
Obsessive-Compulsive Bookworm
Literate Good Citizen
Book Snob
Fad Reader
Non-Reader
What Kind of Reader Are You? Create Your Own Quiz

I got Obsessive Compulsive Reader the first time but I don't remember which answer I changed.

Anyway, close enough regardless of which I got. Although I think that they should be a category for Debater because it otherwise skews the results.

2007-01-25T14:02:00.000-08:00

Is Shaun an Evil Baby Torturer?

I have some time before Equal Protection class starts to burn so let me set this in context. Due to the peculiarities of the exchange program I'm currently undergoing, my course credits transfer (which explains why I'm bugged to keep a particular number of credits per quarter) BUT not my grades (which is why they've effectively said, don't bother us unless you fail). Factor this in together with the fact that I'm barred from taking a course once back in NUS that is substantially similar to what I'm taking in UW, together with my somewhat precarious situation of my final year of studies being worth 33 1/3% of my final degree grade and some small amount of strategizing becomes necessary i.e. they are some courses that I'm probably going to score in for various reasons and some I will most assuredly not e.g. structured loans or secured transactions because the top students and corporate lawyer wannabes will flood that course and they are better than me at substantive law.

As a result, I dropped my International Protection of Human Rights and took another class instead. But because of the partial time conflict, this nevertheless gives me the opportunity to audit the class for the first half of every lesson. And since I haven't been kicked out of the class and am still allowed to speak, it probably means that the lecturers don't mind my presence there.

So anyway, the class starts off with the very provocative ticking time bomb scenario which can only be stopped by torturing a known terrorist. And of course, I couldn't resist saying something. So my comment (around the 4th I think) was about a simple acknowledgment that torture is being used and it is better to regulate it then to turn a blind eye to it (and implicitly being moral hypocrites). I would very strongly suggest searching my blog with the keyword "torture' and read every single post because you'll find a very fascinating development in my stance on this very particular issue.

Anyway, having taken the initial step towards cementing the class's view of me as the ultimate evil realist (I'm actually more of an Institutionalist but that's not the point), I was for some reason given the chance to have the last word and I basically made the point I last made when I last faced this scenario. Why draw the line where we draw the line? I personally think this is a rhetorical device without any particularly strong argumentation factor and I would charge this scenario as basically drawing a very morally arbitrary line. And what I did say was, why not given a situation where we have a better than probable knowledge that this terrorist is likely to know where the bomb is, why not torture his 4 month old baby or even his family?

I hope that by the end of my two comments, I left everyone utterly confused as to my personal stance on this issue but I'm beginning to realize that it could just as easily translate to an advocacy to torture and not just the person involved on a routine basis.

Sigh...

2007-01-23T16:16:00.001-08:00

Developmental Economics in China

My "Elder Sister" thinks I alienated a number of people in class today after I...um...took issue with the prof's "leftist/radical" views of market economics in China. His critique and arguments have great force particularly in terms of the perpetuation of inequity within China as reflected in the rising social tensions between the rural/urban poor and the cosmopolitan middle class/rich.

Except that I threw out a defense of property rights which turned into a defense of globalisation which turned into a defense of prioritisation between economics and environment, which turned into a defense of market forces governing environmental regulation. Into a insane argument that any and every single results in some form of inequity and disenfranchisement (I got rightly corrected of course but I suppose my only argument was that it was a question of spectrum rather than an either-or proposition). And finally a "defense" of cultural relativism via Asian Values (which I absolutely abhor by the way because it is such an empty concept and smacks of the genetic fallacy).

Although along the way I did sneak in a argument that if the international community was concerned about a particular problem in the domestic sphere of a foreign nation and the problem was simply one of resources, their obligation is to pony up the cash.

I think I've toned down a lot in the past few years. I generally don't go into full debate mode unless someone seriously pisses me off so I thought my tone was fairly reasonable. But I'll defer here to an objective third party and probably shut up for a little while =P

Peace!

2007-01-23T14:23:00.000-08:00

Asian-American parody inflames Princeton - International Herald Tribune

Heh, it finally hit the IHT. I was wondering how long before it would make the mainstream international news.

But this annoyingly is sucking political oxygen from the underlying debate that needs to get way more attention. For whatever reason, we don't think it's "unfair" discrimination when we elevate historically disadvantaged and disenfranchised minorities to create a level playing field at the expense of the dominant group that would otherwise benefit from a colour blind, apparent level playing field. The most obvious example I can think of would be immediate post-Apartheid South Africa. Not taking into account what had happen would simply re-entrench the white minority.

But it strikes us harder when another minority loses out through such laws and I think it forces a rethinking of what exactly we should be expecting from an institute of higher learning, the value of diversity and how the selection procedure apparently works.

2007-01-23T02:20:00.000-08:00

Free Speech Friday - The Daily of the University of Washington Online

Cheap Filler Post

I got a letter published in the University's daily newspaper inadvertently.

Since they had an online version which allows comments to individual articles (something that the local press may want to consider e.g. Todayonline etc.), I posted a comment which was eventually republished as a "letter" to the editor.

The problem is that my writing style when comment on blogs or blogging for that matter tends to be more conversational and a lot snarkier than in contrast to my letters to the press (which reminds me, I should start tagging them as such).

And the thing is, the editing was fairly minimal in comparison to either the Straits Times or Today (I'm not sure if Streats when it existed published any letters of mine). In fact, on checking, there was barely any editing at all (and in fact the editing done was clearly marked out by square brackets).

So *cough*, the functional effect of it was that it was a lot more adversarial and less polite than I would have phrased it. In particular the way I ended the comment

I realize that not all of us are lawyers or necessarily well read in a particular area of law, but seriously, where’s the fact-checking in this regard?

So I feel kinda bad now.....

2007-01-16T09:44:00.000-08:00

Arguing, Argumentation and Justification

There was a certain confluence of events today that prompted this post.
1. Roman Law (the right for fathers to sell children into slavery)
2. International Human Rights (the idea of grundsnorm and axioms)
3. Chinese Law (Socialist Legal System....sort of)
4. Ongoing exchange on income inequity and retributive tax regime on YR

There is a theoretical approach called the critical approach which encourages us to be aware and critical of our mental frameworks when evaluating an external system. A somewhat analogous parallel would be what Hart calls the external as opposed to internal critique. The relevance is that it forces us to be aware of and hopefully be able to justify the particular schema or analytical framework that we are using.

For example, to twist an example used by Lon Fuller in his Morality of Law (and validly critique by Hart in his article pointing out that it might as well be called the Morality of Poisoning), he argues that there would be something intrinsically inconsistent and immoral if we randomly assigned rights to people without due regard as to their status or position and the example he uses is abortion. However, given that any abortion regulation e.g. wait periods, 2nd physician, facilities that can be used for termination etc., inevitably places an increased burden on indigent women, is it anymore right/moral/immoral that because of their economic condition they are forced to relinquish control over their own bodily integrity as opposed to a lottery draw for any woman regardless of their economic position?

Or take a less emotive topic e.g. right of road access. In certain cities e.g. Manila and Mexico City (and some European cities), in a bid to curb the number of cars using the roads on any single day, they have a system which only permits cars with even numbers on certain days and odd numbers on others. This system can be contrasted to a system, say Singapore's which puts a huge premium on the prices of cars and further delineates access to certain roads at certain times of the day with willingness (and capacity) to pay.

Or why do we even principally support redistributive policies anyway? One justification is the entire veil of ignorance argument i.e. assume you do not know what your status in life will be, create a system and the system that is created will in turn tend to look somewhat like the capitalist welfare states that we generally have. But even Jon Rawls (the philosopher form which the former proposition was derived) believed the only form of inequity that should exist is that which takes from the rich to give to the poor. But do the rich necessarily consume more resources and when they pay 12 times more in absolute terms, do they get 12 times the vote or 12 times the response time from the police (actually...)? I generally accept redistributive policies on the basis of indifference curves and marginal utility analysis but I don't think there is a particular principled reason why it's necessarily normatively better than another principle.

Or the eternal question of whether a colour-blind Constitution is actually more equal than a Constitution that supports Affirmative Action or vice versa.

Comments?

2007-01-15T19:34:00.000-08:00

Martin Luther King Jr. Day

It's Martin Luther King Jr. Day and this is his famous Speech on the Mall a.k.a. I Have A Dream speech. I have chosen not to use the audio recording simply because I believe here the words are so powerful that it does not require an orator of Dr. King's calibre to make it resound.

This is the remarkable power of good rhetoric, not just polemics and sound bites.

I am happy to join with you today in what will go down in history as the greatest demonstration for freedom in the history of our nation.

Five score years ago, a great American, in whose symbolic shadow we stand today, signed the Emancipation Proclamation. This momentous decree came as a great beacon light of hope to millions of Negro slaves who had been seared in the flames of withering injustice. It came as a joyous daybreak to end the long night of their captivity.

But one hundred years later, the Negro still is not free. One hundred years later, the life of the Negro is still sadly crippled by the manacles of segregation and the chains of discrimination. One hundred years later, the Negro lives on a lonely island of poverty in the midst of a vast ocean of material prosperity. One hundred years later, the Negro is still languishing in the corners of American society and finds himself an exile in his own land. So we have come here today to dramatize a shameful condition.

In a sense we have come to our nation's capital to cash a check. When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to fall heir. This note was a promise that all men, yes, black men as well as white men, would be guaranteed the unalienable rights of life, liberty, and the pursuit of happiness.

It is obvious today that America has defaulted on this promissory note insofar as her citizens of color are concerned. Instead of honoring this sacred obligation, America has given the Negro people a bad check, a check which has come back marked "insufficient funds." But we refuse to believe that the bank of justice is bankrupt. We refuse to believe that there are insufficient funds in the great vaults of opportunity of this nation. So we have come to cash this check — a check that will give us upon demand the riches of freedom and the security of justice. We have also come to this hallowed spot to remind America of the fierce urgency of now. This is no time to engage in the luxury of cooling off or to take the tranquilizing drug of gradualism. Now is the time to make real the promises of democracy. Now is the time to rise from the dark and desolate valley of segregation to the sunlit path of racial justice. Now is the time to lift our nation from the quick sands of racial injustice to the solid rock of brotherhood. Now is the time to make justice a reality for all of God's children.

It would be fatal for the nation to overlook the urgency of the moment. This sweltering summer of the Negro's legitimate discontent will not pass until there is an invigorating autumn of freedom and equality. Nineteen sixty-three is not an end, but a beginning. Those who hope that the Negro needed to blow off steam and will now be content will have a rude awakening if the nation returns to business as usual. There will be neither rest nor tranquility in America until the Negro is granted his citizenship rights. The whirlwinds of revolt will continue to shake the foundations of our nation until the bright day of justice emerges.

But there is something that I must say to my people who stand on the warm threshold which leads into the palace of justice. In the process of gaining our rightful place we must not be guilty of wrongful deeds. Let us not seek to satisfy our thirst for freedom by drinking from the cup of bitterness and hatred.

We must forever conduct our struggle on the high plane of dignity and discipline. We must not allow our creative protest to degenerate into physical violence. Again and again we must rise to the majestic heights of meeting physical force with soul force. The marvelous new militancy which has engulfed the Negro community must not lead us to distrust of all white people, for many of our white brothers, as evidenced by their presence here today, have come to realize that their destiny is tied up with our destiny and their freedom is inextricably bound to our freedom. We cannot walk alone.

As we walk, we must make the pledge that we shall march ahead. We cannot turn back. There are those who are asking the devotees of civil rights, "When will you be satisfied?" We can never be satisfied as long as the Negro is the victim of the unspeakable horrors of police brutality. We can never be satisfied, as long as our bodies, heavy with the fatigue of travel, cannot gain lodging in the motels of the highways and the hotels of the cities. We can never be satisfied as long as a Negro in Mississippi cannot vote and a Negro in New York believes he has nothing for which to vote. No, no, we are not satisfied, and we will not be satisfied until justice rolls down like waters and righteousness like a mighty stream.

I am not unmindful that some of you have come here out of great trials and tribulations. Some of you have come fresh from narrow jail cells. Some of you have come from areas where your quest for freedom left you battered by the storms of persecution and staggered by the winds of police brutality. You have been the veterans of creative suffering. Continue to work with the faith that unearned suffering is redemptive.

Go back to Mississippi, go back to Alabama, go back to South Carolina, go back to Georgia, go back to Louisiana, go back to the slums and ghettos of our northern cities, knowing that somehow this situation can and will be changed. Let us not wallow in the valley of despair.

I say to you today, my friends, so even though we face the difficulties of today and tomorrow, I still have a dream. It is a dream deeply rooted in the American dream.

I have a dream that one day this nation will rise up and live out the true meaning of its creed: "We hold these truths to be self-evident: that all men are created equal."

I have a dream that one day on the red hills of Georgia the sons of former slaves and the sons of former slave owners will be able to sit down together at the table of brotherhood.

I have a dream that one day even the state of Mississippi, a state sweltering with the heat of injustice, sweltering with the heat of oppression, will be transformed into an oasis of freedom and justice.

I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.

I have a dream today.

I have a dream that one day, down in Alabama, with its vicious racists, with its governor having his lips dripping with the words of interposition and nullification; one day right there in Alabama, little black boys and black girls will be able to join hands with little white boys and white girls as sisters and brothers.

I have a dream today.

I have a dream that one day every valley shall be exalted, every hill and mountain shall be made low, the rough places will be made plain, and the crooked places will be made straight, and the glory of the Lord shall be revealed, and all flesh shall see it together.

This is our hope. This is the faith that I go back to the South with. With this faith we will be able to hew out of the mountain of despair a stone of hope. With this faith we will be able to transform the jangling discords of our nation into a beautiful symphony of brotherhood. With this faith we will be able to work together, to pray together, to struggle together, to go to jail together, to stand up for freedom together, knowing that we will be free one day.

This will be the day when all of God's children will be able to sing with a new meaning, "My country, 'tis of thee, sweet land of liberty, of thee I sing. Land where my fathers died, land of the pilgrim's pride, from every mountainside, let freedom ring."

And if America is to be a great nation this must become true. So let freedom ring from the prodigious hilltops of New Hampshire. Let freedom ring from the mighty mountains of New York. Let freedom ring from the heightening Alleghenies of Pennsylvania!

Let freedom ring from the snowcapped Rockies of Colorado!

Let freedom ring from the curvaceous slopes of California!

But not only that; let freedom ring from Stone Mountain of Georgia!

Let freedom ring from Lookout Mountain of Tennessee!

Let freedom ring from every hill and molehill of Mississippi. From every mountainside, let freedom ring.

And when this happens, When we allow freedom to ring, when we let it ring from every village and every hamlet, from every state and every city, we will be able to speed up that day when all of God's children, black men and white men, Jews and Gentiles, Protestants and Catholics, will be able to join hands and sing in the words of the old Negro spiritual, "Free at last! free at last! thank God Almighty, we are free at last!"

2007-01-15T17:07:00.000-08:00

Name and Shame: Part of Broader Societal Game?

(h/t: The Kway Teow Man: Is it public shaming? Isn't it Citizen Journalism? and Tomorrow.sg)

Mocking Andy Ho shouldn't be this much fun but dang he doesn't disappoint with every single article he writes. Although to be fair, his articles against woo were pretty good, but being a medical doctor, he should be ashamed by his misleading article on the Terri Shiavo case, especially after the entire premise of his article (that she could actually feel "pain" i.e. suffer as opposed to simply reacting to external stimuli was thoroughly debunked by the subsequent autopsy).

But apologies for poisoning the well, here's what he has to say on this subject.

The Straits Times, Jan 11, 2007

For shame, stop this indignity

By Andy Ho, Senior Writer

SOME Singaporeans have taken it upon themselves to shame their fellow citizens when they do not like what they see.

A recent example: Someone posted on the Internet a video of a woman carrying a six-month-old child and boarding a train, whereupon some young, already seated, commuters seemed to fall asleep instantly.

Bloody hell! Why didn't I think of this earlier? As a general rule, I give my seat to anyone whom I think deserves it more than I do. Admittedly, I've stopped giving my seats automatically to females unless they're carrying more stuff than I am (or are carrying particularly unwieldy stuff) but as a general rule of thumb, anyone who looks older, or pregnant women or even kids with those ridiculously large school bags "get a free pass" from me.

As an aside, there was a spirited discussion from a group of elderly (rather elderly in my opinion) after I gave up my seat to one of them. According to my mother (who understands more dialects than I do and was closer to them anyway), they were split into two camps as to whether there was an obligation on my part to give up my seat to any of them. But it generally boiled down eventually to, it's nice but not an obligation.

While I certainly don't expect others to do it to me i.e. not a general obligation, I personally believe that I ought on the simple basis that it's a minuscule sacrifice on my part i.e. small disutility in contrast not only to the potential harm for someone who really needs that seat but also the much large utility accrued. And quite sometimes, I've manage to "persuade" others to do the same. I only bring this up because lately I've been coming across the canard that atheist are amoral since they lack the fear of a big sky fairy punishing them after they die and it's really annoying me no ends.

This act of public shaming drew a lot of online support. But it also evoked much criticism.

By inflicting disgrace on someone for many others to see, such cyber-pillories remove any ambiguity about what some in society expect from others. Friends and families might chide the perps (perpetrators) while neighbours may snicker.

Those who support the action say that not only are offenders chastened, but such shaming could also deter others from misbehaving. It might even rehabilitate the offender, if he is persuaded that his actions were wrong.

Shaming is democratic, they say, in the sense that it reflects a community's values rather than some norm that the authorities may choose to impose willy-nilly. For example, while the Nazis marked the Jews with a yellow star to shame them, the same symbol is now worn proudly in Israel. Same for the pink triangle worn by homosexuals.

Almost Godwin but the point is taken that public adopting of a mark of derision transforms it into a form of cohesive unity and pride. It's a toss-up, Dan Savage used to call on his readers to start any letter to him with "Hey Fag" to diffuse the negative connotations associated with him but there was a huge debate over this particular technique used.

Is cyber-shaming par for the course then?

No, I find something disconcerting about it.

In a sense, shaming is an attempt to coerce conformity. Notice that to make the claim that shaming can be morally reforming requires those who dispense it to do so in the spirit of a parent punishing a child. It also requires the perp to repent and make amends.
But getting offenders to repent sounds like a cleric's job. It may also be how punishment functions in the intimate setting of one's family. If that is the case, we should not be shaming our fellow citizens. After all, who appointed us to guide their moral development?

The "perp"? What the hell? It's one of those times where you really wonder whether he keeps any distinctions straight or it's just one huge mess to him.

Well first off, could we please draw a distinction between criminal law (perp), Positive Morality (the morality, values, norms and mores of a paritcular institution or society) and Critical Morality (think of it as morality with a big M i.e. the values we use to critique positive morality) and a distinction between secularism and theocracy.

Positive Morality (much less Critical morality) is not the sole purview of religion. Society inevitably exerts certain forms of positive morality. Here all these people are doing to to highlight (without criminal sanction mind you) examples of flouting of societal norms.

It's remarkably strange to see Dr. Ho write, "who appointed us to guide their moral development?" considering his rather paternalistic view of the State (societal rights over human rights). Perhaps he believes that only the State ought to have the ability to lay out moral rules, but this runs inconsistently with his disavowal in the previous block quote of the democratic pressure to rein in those who do not conform to societal norms.

Anyway, for the whole thing to work, the offender must first care about what others think of him. The broader and deeper one's communal attachments, and the wider similar views about morality are held, the greater will be one's shame if shown up.

Thus while shaming sanctions are widely and effectively employed in homogeneous Japan, the diversity in Singapore means that their efficacy may be less than obvious.

I think our communities do not have the Japanese level of interdependence or strong norm cohesion, so shaming would be largely retributive - an eye for an eye - in effect.

A better argument but a very strange cultural relativistic one. Considering the uproar which he claims occur, it would be reasonable to say that we believe that people ought to be giving up their seats to obviously pregnant women and that on the whole we frown upon faking sleep to get around it.

And it's also a bit of a non-sequitor because we can draw upon a broader claim that there are certain values, norms and rules that can get a consensus even amongst diverse cultures. And even if we could not, respect for another's culture must end in a line somewhere e.g. the Picairn Island incident and the whole notion of honour killing. At his point, I can't think of any culture on where public transport there isn't a sense that we ought to be giving up our seats to those who need it more than us.

But let's just say, for the sake of argument, that shaming sanctions do turn out to be very effective. This may cause the shunned offenders to form a deviant sub-community where people are numb to shaming: After all, people can adapt quickly to the emotion.

Some economists have even modelled shaming penalties and found that the more people are shamed, the less effective such shaming penalties become. Also, the stigma attached to such penalties decreases as more people are subjected to them.

Maybe, I really wouldn't know about it. The extent of my knowledge is that shaming is much more effective than a monetary penalty system, see Steve Levitt's Freakonomics.

But considering the failure of status quo, we should be doing something about it. And furthermore his argument seems to be premised that too much shaming is a problem i.e. it's not a problem inherent in the policy but one which requires that the policy mechanism be tweaked.

In The Scarlet Letter, Nathaniel Hawthorne's classic about 17th-century Boston, Hester Prynne, who bears an illegitimate child, is forced to wear a scarlet 'A' on her chest. Embracing the contumelies heaped upon her, she even embroiders the scarlet letter herself. And with Pearl, her daughter, she establishes a defiant mini-community on the margins of the town that shamed them.

Likewise, some criminals develop new 'families' made up of fellow criminals who share a perverse pride in their immorality. When this happens, shame no longer deters bad behaviour.

Of course, in reality, there are few completely 'shameless' people, but the risk that deviant sub-communities may form is one instance of a more generic problem: How to achieve the optimum amount of deterrence or retribution? How can we know if the amount of suffering we inflict is proportional to the perp's blameworthiness? Moreover, shame can spill over to the non-guilty family members and close friends of the person shamed.

That's seriously stretching. And brought to its logical conclusion we ought not to shame anyone for any reason whatsoever.

That might well work because I tend to believe that reason is much more effective than shame and in fact reason can counteract shame e.g. if through Reason I establish that my actions were not contrary to it and therefore is no stain on my conscience. But nevertheless, shame appears to a integral part of any culture for wrongdoing and I think that it can be harnessed for good if it is not shaming for shaming's sake but there is also good reason to explain why that particular action is wrong in that regard.

Here is another problem: Shaming invokes the crowd's help, so it may quickly become a form of lynch justice. Publishing the names of sex offenders to shame them, as in some United States jurisdictions, has led to instances of rioting. Even if this does not happen, shaming leaves too much power in the hands of a fickle public.

Alright. Fair enough, I buy the point about Megan's Law (publication of sex offenders details etc.) and there was that ludicrious case of a paediatrician who nearly got lynched because the stupid mob mistaken though it mean pedophile. As it was her property got destroyed.

But the most basic problem with this assertion is that it is a massive non-sequitor. I mean to go from shaming to lynch mob justice is the worst sort of slippery slope argument I've seen in sometime. It's one thing to say that our baser instincts to protect our youth can manifest itself in lynch mob justice. But over spitting in the streets or not giving up a seat? This begins to feel like a descent into Alice's rabbithole

Then again, shaming is too easy a task to do, so private enforcers may use it indiscriminately while alleged offenders could have little opportunity to defend themselves. Eyewitness accounts can be faulty and even video captures could be misinterpreted since the context may not be obvious.

Not a new problem, we already have PIs doing it for unfaithful spouses. And again, it's a problem with the policy mechanism rather than anything intrinsically wrong with policy justification itself. Would it become a big problem? Maybe and if that happens, we shut it down.

While the shamed may suffer disproportionately, those who do the shaming might not themselves be left unscathed either. In many respects it is like any practice that 'in' groups use to make 'out' groups feel inferior, unwanted and rejected - as any teenager can tell you.

I am not saying that all instances of shaming are irrevocably bad.

*Giggle snort* ye gods, it feels like a bad secondary school essay. In and out groups are an intrinsic part of any society. Outside of criminal laws (the most obvious example of in and out groups) society also creates norms which are essentially just part of the social contract. And they are not stagnant either. Some may be good, and some others bad, stupid, ridiculous, foolish and just plain wrong, but society and its norms are not stagnant.

But while it may be a good thing for one to feel guilty and ashamed when one does something wrong, eliciting shame in another person is quite different. The former reflects a conflict between the kind of person I am and whom I had hoped I was or want to be. But the latter - condemning a wrongdoer in the guise of shaming him - involves the desire to see him squirm or suffer: Its goal really is to degrade and dehumanise someone - publicly.

Degrade and dehumanize? Alright, seriously, what was the editor doing when reading through this article? This runs almost contradictory to his premise that the goal of shaming is to ensure conformity. Conformity i.e. a desire to bring someone back into the fold i.e. rehabilitation (of a sort) is based on a desire to bring back someone into the fold of "civilized society". So unless the society is degrading and dehumanizing e.g. totalitarian and theocratic states, this argument simply holds no water whatsoever.

While shaming others publicly may seem impartial - we like to believe we are doing so on the basis of some higher moral principle - what it actually permits is for us to feel justified in expressing raw anger and moral superiority, negative emotions that are usually nicely kept under wraps.

Thus shaming is like very public gossip, whose shock value is what entertains. Its shock value, in turn, comes from the fact that it allows our strongest negative emotions such as hate and vindictiveness to be ventilated. This is why shaming others not only coarsens our own sensitivity to the dignity of others but also fosters the wrong dispositions in those of us who dole it out.

Shaming: It is undignified. Let's not do it.

What?! Can anyone parse this for me? It's just reads like a lot of handwaving and really brings to mind that "it's not even wrong". All I see is a whole bunch of non-sequitor assertions ("Thus shaming is like very public gossip, whose shock value is what entertains") or that it "comes form the fact that it allows our strongest negative emotions such as hate and vindictiveness to be ventilated". These are not arguments, it's rhetoric!

Well, putting all those aside, just one last final point about what I believe is the difference between these and CCTV. I believe the line is very fine and for now (until we descend into the dystopia of Dr. Ho's totalitarian state where citizens are an extension of state secret police apparatus) there are the following two distinctions.
1. Power. I have an innate distrust for any concentration of power in the believe borne out by history that Power tends to Corrupts, and Absolute Power tends to Corrupt Absolutely. CCTV may have very benign intentions are first, but the temptation to use those captured footage in a bid to embarrass political opponents or simply to keep tab on the state's "subjects" is a very real and present danger especially when there isn't transparency.

In contrast, individual citizens occasionally shooting what they feel as unsocietal behavior is nowhere near the threat to privacy that the state through its and resources can bring to bear on this issue.

2. Transparency. Does anyone know what's on those tapes, who has access to it etc.?

3. The law. The state can always change the law to suit its purposes (whether benign or malign) subject to constitutional restrictions and judicial review. The individual citizen is always constrained by the law. And I submit that there is a notion of "reasonable expectation of privacy" which can be used against someone who infringes upon your privacy. The most immediate and obvious example would be those upskirting or spying on changing rooms.

It's not as comprehensive or cohesive as I would have liked it but that's pretty much all the time I have so....

Peace

Addendum: CL points out that it also involved a video of a couple making out at the back of the bus and the discussion of the justification of making the video. And it's true that I do not explicitly state the justification for why I think that the video making was not wrong.

1. It's not legally wrong. There is no right of privacy in Singapore so your likeness can be used subject to copyright. The best that can be said is the "reasonable expectation of privacy" which I point out above is simply not present in these two cases.

2. It's not morally wrong. While a general distinction should be made between law and morality, in this case, I really don't see a moral claim for not publishing the video in light of the fact that given it was a very public place and that our culture (legal or otherwise) does not impute this notion of privacy in public places, there really cannot be any sustaining of a reliance claim on that of privacy.

2007-01-13T16:48:00.000-08:00

Southeast Asians to draft EU-style charter - International Herald Tribune

I....wow...um...gee....wow...I....

I'm still fairly stunned by all this. Even as late as yesterday, I was outright snorting that the IHT report that the member states of ASEAN (Association of South East Asian Nations) were contemplating such a charter was going to be more of the same old same old. Especially in light of the traditional ASEAN notion of consensus and non-interference in the affairs of member states.

And also I think, the remarkable ineffectualness of most ASEAN led multi-lateral interventionist actions, in particular the absolute remarkable failure to deal with the Indonesian forest fires that lead to the year haze (and which lead to losses of over USD 9 billion in 1997 and a near similar amount just last year). I would include in this assessment, too, the stalling over further trade liberalization since the 1970s-80s. And the outright stagnation since the 1990s, see e.g. Proton in Malaysia and agricultural products generally across the board.

And of course there is Myanmar, the backlash against them and ASEAN coming surprisingly in the form of Malaysia (although apparently they have been pushing this stance since the 1970s making them the earliest and arguably most consistent nation with regards to relations to the military junta). But read in another light, together with most vocal opposition to Indonesia recalcitrance and general trade illiberalization, maybe this was the final logical step seeing as ASEAN is acknowledged as the next closest regional organization after the EU (this idea was tossed around a little during the St. Gallen Symposium last year).

But as always, the formal law does not always correlate to events on the ground, especially in South East Asia so it's worth looking at the meat of the Charter.

Among the agreements approved on Saturday, the first day of the meeting of the heads of state in this central Philippine province, were the drafting of a new charter that seeks to integrate Southeast Asia much like the European Union, establish a free-trade zone by 2015, intensify the war on terrorism, protect the region's migrant workers, and improve the campaign against HIV/AIDS.

Eh...okay.... I have no idea what that means but let's play pundit anyway.
1. Integrate like the EU. It's worth mentioning that the EU evolved from a partnership primarily between Germany and France on the Coal and Steel Committee to the European Economic Committee (EEC) to the European Committee (EC) and finally the European Union (EU). Along the way, it expended in size, scope and ambition, from trade liberalization to globalization (including freedom of movment to work) to human rights consolidation and the creation of a quasi-federal system in the form of the European Parliament. Oh and yes, the Euro system (which necessitates a EU Central Bank).

So a term tossed out like this makes me wonder how far they want to push this thing. I wonder if Singapore will become like the next UK within the EU.

2. Establish a free-trade zone by 2015. Well if they succeed, it'll only be 5 years outside of the original goal. Singapore can only stand to benefit from this honestly.

3. Intensify the War on Terror. A lot of scope for synergy and consolidation there. And it's blindingly obvious that it's necessary. The normal issues of sovereignty, interference and opposing sympathies will rear its head but that's par for the course. In the meantime, the suggestions seem innocuous enough...

Meanwhile, the leaders also signed a counterterrorism agreement that, among other things, makes it obligatory for each member country to share information. The landmark agreement should also allow the extradition of terror suspects. It called on Asean nations as well to stop terror financing and hold counterterrorism trainings.

The devil is in the details and I foresee problems about extradition primarily between Malaysia and Thailand but it would be interesting to see how that gets sorted out.

3. Improving the campaign against HIV/AIDS. This, I humbly submit, is code for dealing with Myanmar, which not only has a massive problem which is leading to a refugee crisis that is upsetting Thailand, but they also recently kicked out the Red Cross which makes things a lot more dire. There was a Foreign Affairs article a while back which makes a very strong case that on the five grounds of humanitarian intervention, Myanmar is a candidate on all five grounds.

But it's a massive problem which will only get worse if nothing gets done immediately.

And of course there's the drug problem as well....*sigh*

Nevertheless, this is an exciting development (not necessarily in a good way but still exciting) so we'll see what comes up in the next few months and years.

Peace.
p.s. It seems that Terrence Lee is a Doctoral Candidate at the Department of Pol Sci at UW. I wonder if he'll write an article for this

2007-01-13T02:46:00.000-08:00

Readers beware: the myth of bias-free media - The Daily of the University of Washington Online

Mr. Brandon Dennis is the resident social conservative columnist for UW's student newspaper and I've been meaning to fisk his columns for sometime because I honestly think they are bad because he tries to prove too much (or are just plain wrong or the facts and sources he uses are very dubious e.g. World News Daily).

In this article, he makes (at the very conclusion) that because all forms of media have an inherent bias, there is a need to take more than one viewpoint to come to a conclusion. An entirely, eminently sensible position to take. You need two lines to create a point and you definitely need to read more than the Straits Times if you ever want to be a debater. And as they concede, they do have a pro-government bias.

And there is absolutely nothing wrong with that, except when you're effectively the only mainstream English daily, I would argue that you have a duty above and beyond that of simply being partisan. And in fact, with their history of misquoting opposing viewpoints, one wonders where the notion of journalistic integrity has gone.

Anyway, the real problem is that he also tries to exonerate (in a fashion) Fox News by attempting to tar all other forms of media with the same brush . Oh and he starts off with a little homily about how research showed him that the PATRIOT Act was really not as bad as the media makes it out to be and gives this little exchange between him and another student who has apparently sipped from the cup of liberalism and therefore cannot comprehend it might not be terribly bad.

To be fair, it's not all that bad, but let's just say that the Executive's actions with regards to warrantless NSA wiretapping and the SWIFT cooption incident demonstrate bad faith and a deliberate subversion of the rule of law. After all, Congress may be acting ultra vires with its passing of FISA or the War Powers Resolution but the appropriate course of action is to get it struck down not go ahead and flout what is a properly enacted statute.

Anyway, I realise that this is not my usual style of fisking but I typed out the comments already and I have no desire to reformat them to address his column paragraph by paragraph. So here it is....

Fallacy 1: Equivocation in mixing unconscious bias with actual bias (hmmm…maybe the word prejudice should be used here) and lumping all forms of media together (except for the poor talk radio hosts) and thus using it in a misleading fashion in an attempt to tar all other non-Fox networks and forms of media.

Which leads us to…

Fallacy 2: Non-sequitor. Even if all forms of media were actually deliberately biased (an unsustainable assertion as it is), the question must be the extent of their biasness i.e. some must be less biased than others. Included in this assessment must be a determination of whether there is a good faith attempt at being non-baised e.g. AP, Bloomberg etc. And furthermore, that doesn’t take Fox off the hook for pushing a very particular agenda.

Which brings us to…

Distinction 1: Editorial and News. Whether "old" or "new" media and without a definition here I will presume old refers to non-internet, non-news cable network types of media, which in turn refers to "new" media, there is a distinction to be made between the editorial section (where the paper sure takes a particular stance or conscious bias) and the news section where I will note that the best Mr Dennis comes up with is unconscious bias. Thus while I may dislike CNN’s Lou Dodd for pushing his populist rhetoric, it doesn’t permeate the rest of its news programming unlike say Fox. There is a reason why this distinction exists and conflating the two is being sloppy at best and disingenuous at worst.

Distinction 2: Reality of news reporting. More often than not, the frustration with the "old media" is that in their attempt to be balanced, they lose objectivity and that’s bias. See e.g. the pre-Dover trial media presentation of Intelligent Design. The entire he-said, she-said approach gives the impression of a scientific debate where there was none. This is balanced but it sure isn’t objective.

Issue 1: Does reality have a "socio-political-economic liberal bias"? Or conservative one? This is relevant in assessing whether a report or an entire network is biased in the sense that it is non-objective. Obviously, if reality has a liberal bias, then reporting in a liberal fashion isn’t being biased but simply being true to reality. Sometimes there is a right and a wrong answer (see e.g. the perpetual false dichotomy with regards to the adult and embryonic stem-cell debate or even that of globalization and "social justice") and by deliberately ignoring the strongest arguments of the other side, that’s real bias. However, ignoring factual distortions and not giving the other side a venue to perpetuate those views is not being biased, that’s just being objective.

First Amendment 101: I’m not entirely sure if Mr Dennis ever did any research or took any courses on First Amendment law and in particular libel because his example about the (deliberate) misquotation (“I am sure that there is no such thing as a fairy” becoming “I am…a fairy”) is just flat out wrong.

That is a libelous statement that would not receive First Amendment protection. Even under the most stringent protections available under New York Times v. Sullivan, the public official simply has to show that a false statement was make with actual malice i.e. that it was false or made recklessly in disregard of the truth.

The defamatory imputation is what is important here and therefore the ellipses are of no bar to a successful suit made here because the average reader of reasonable intelligence will take it to constitute an admission of homosexuality whereas the original statement of which it was made had nothing to do to that effect.

I realize that not all of us are lawyers or necessarily well read in a particular area of law but seriously where’s the fact checking in this regard? Kinda reminds me of the Ridge and some particularly sloppy articles written.

Peace.

2007-01-12T19:42:00.000-08:00

Public Law Assignment 2006

This essay cost me an A in Constitutional Law but I quite like it and it saves me from having to think of something to blog about. The citations have been omitted but the most important articles have been put in the essay itself.

If nothing else, this acts as a decent primer on Constitutional Developments since Independence. So enjoy.

Constitutional Amendments since 1966: Whither withered effects on Constitutionalism, Limited Government and Representative Democracy

I. INTRODUCTION

In the intervening period between the original Wee Chong Jin Constitutional Commission ("Commission") with its subsequent report ("report") and now, Singapore has come a very long way particularly with regards to its economic growth as well as subsequent social, political and constitutional developments.

The terms of reference of the Commission reflect what was felt to be the urgent problems that Singapore faced in the latter half of the 1960s. But despite the differing socio-economic-political climate, the assumptions and solutions advocated by the report have an as strong a force today, in its advocacy of a non-racial approach with a strong emphasis on protection of the individual's fundamental liberties as the best way to preserve multi-racialism and also formal institutional checks on the government.

This paper will be looking at Constitutionalism from the viewpoint of constitutional supremacy and the type of constitution that the Constitution of the Republic of Singapore (“Constitution”) purports to be and its reality. In the area of limited government, this paper will focus on the mechanisms of constitutionalism that limit governmental power e.g. rule of law, separation of powers, institutional and political checks and balances.

II. CONSTITUTIONALISM: SUPREME OR SIMPLY THE SUPREMES?

The issue of constitutionalism revolves around the notion of constitutional supremacy. Article 4 of the Constitution states clearly its supremacy. And any law that is inconsistent with it, is to the extent to which it is inconsistent, void.

So the issue then becomes how easily is the Constitution amended and how often it is amended. There have been 2 major constitutional amendments in this respect, firstly, the restoration of the super majority of 2/3 amongst parliamentarians to amend any aspect of the constitution itself, and the subsequent additions of articles 5A and 5(2A). The first has the effect of making our Constitution a controlled one i.e. it requires something more than a bare majority to amend. That was a positive development for it clearly delineates how the Constitution is a superior law to ordinary legislation i.e. requiring more than a bare majority to amend. The second set of amendments would force any amendments to the stipulated constitutional articles, to also be subject to a 2/3-referendum passage. This strikes an apparent balance between flexibility and rigidity of the Constitution that the Commission captured well when they expressed the opinion that:

We are aware of the adage that a Constitution that will not bend will sooner or later be broken. We are also aware that a Constitution that is too flexible may well turn out to be worse than having no Constitution at all.

However, it must be noted that not only are the entrenching provisions not in force, but they are subject to the discretion of the President, whether to require a referendum. Additionally, amongst all the branches of government, the judiciary is not amongst those entrenched under the provisions. This has disturbing implications as to its role as a check and balance on government. Even so, since this is now a matter of when they would come in force rather than whether they ever will, it should be acknowledged as a positive development to Constitutionalism and applauded.

While the Constitution may be controlled, it is very flexible. The near absolute monopoly the People’s Action Party (PAP) has in parliament, together with its use of the party whip, ensures that any Constitutional amendment would automatically be passed. Furthermore, the Constitution's remarkably flexible can be observed through the great number of amendments made since our independence, in particular the ease in which the EP scheme was passed. Despite being a major amendment to the Westminster system we operated on, there was a refusal to allow submission of the scheme to a referendum. But that the government chooses to amend the Constitution does go towards showing the acknowledgment that it is legally supreme.

III. LIMITED GOVERNMENT: THE LIMIT ON LIMITS

Any study of “limited government” will need to examine how governmental power is theoretically limited with its concurrent reality. From the above analysis on Constitutionalism, it is clear that the Constitution is at best a weak restrain on power. For a number of reasons examined below, the dominance of the party is such that recourse to the ballot box insofar as it provides for an alternative government (and thus a removal of a bad government) is currently not serviceable as an external political check.

Thus we have to turn to internal political checks and balances with the most significant Constitutional amendment to this area being the introduction of the Elected President (EP) scheme in 1990. While the scheme might have been originally promising, subsequent developments have created a relatively much diminished institution.

This development’s significant is its furthering of the doctrine of the separation of powers. Being a Westminster System, Singapore does not have a 'pure' separation of powers. Instead we have a fusion of personnel because the cabinet is drawn from parliament. With the introduction of the EP, who may not be a member of any political party, we now (ostensibly) have a formal check and balance against the Legislature/Executive.

While the pre-EP's powers were almost exclusively ceremonial, in contrast, the EP's role is by far more custodial and was envisaged to be a check on a free-spending, rash and irresponsible government out to drain the nation's hard earned reserves through populist measures. In addition, he too was to be the safeguard of our fundamental liberties, protect the integrity of the civil service, and be a force of anti-corruption.

However, subsequent constitutional amendments and clarifications have diminished his powers. The most significant is probably the introduction of article 151A, which ousters the President's ability to disapprove of any defence or security measure at his discretion. Furthermore, the determination of what constitutes a defence or security measure resides solely in the purview of the executive thereby diminishing the President's ability to be a financial guardian in this respect. In addition, the greater fear would be that a fiscally irresponsible government, which the EP is meant to check, would be able to use this article as a loophole.

Similarly, articles 22B(9) and 22D(9) curtails the EP by removing his oversight of the transfer of reserves and placing that in the hands of the Executive (minister) or political appointees (statutory board chairperson, CEO and various directors). Furthermore, it appears that the power of the EP to act as a restraint on cabinet’s power would tend to be construed narrowly, as was the case of article 144. And while this was not a constitutional amendment per se, it lends credence to the general notion that power ultimately resides in the Executive/Legislature and greatly circumscribes the concept of limited government.

It would have been a positive development if the White Paper on past reserves, been instituted into the Constitution. However, it remains a convention, which though ‘binding’ on future governments and EPs, has an “easy escape clause” in that any party simply needs to notify the other party that it does not wish to abide by the principles enunciated.

But where the EP has the most potential to act as a check on the government is to be found in articles 5 and 5(2A). However, this is only a potential power as these articles are still not in force after over a decade and a half. Furthermore, the amendment of art 22H, which was referred to the Constitutional Tribunal and achieved, now establishes as long as article 5(2A) is not in force, the President only has the power to withhold his assent to (non-constitutional) bills that would circumvent or curtail his discretionary power. It is recommended that these articles be instituted to give the EP his full powers and to strengthen Constitutionalism and Limited Government.

Turning to non-political checks and balances, we observe through the Parliamentary Debates on the rule of law (Lex Rex), that there are two competing (though not mutually exclusive) concept i.e. Natural Justice i.e. procedural fairness and Substantive Justice. Closely correlated with its capability to restraint government is the notion of judicial review and subsequently that of an independent judiciary. For the judiciary must be able to examine and strike down laws that are inconsistent with the Constitution and hence void.

It is in this context that a focus on our fundamental liberties serves as a bulwark against an arbitrary and autocratic government whether it exerts a tyranny of the majority or of a minority. An independent judiciary capable and willing not only to examine the Executive's decision but to also act as the guardian of our fundamental liberties, best serves such a system.

Prior to 1989, the judiciary had been willing and able to take a robust interventionist stance i.e. taking an objective test to and looking behind the decisions of the executive as part of judicial review. Wee Chong Jin CJ said: "the notion of a subjective or unfettered discretion is contrary to the rule of law. All power has legal limits and the rule of law demands that the courts should be able to examine the exercise of discretionary power."

This was subsequently overturned in 1989 with an amendment to "restore the law on judicial review" i.e. back to the subjective test. At the same time, appeals to the Privy Council were limited i.e. abolished "in respect of judicial review of decisions under the ISA, of interpretation of the ISA and interpretation of any provisions in the Constitution relating to subversion and emergency powers contained in Part XII of the Constitution." The result is that at least in matters of national security pursuant to article 149, there is really no limit to governmental power or discretion beyond that of the ballot box.

And similarly, while it is heartening and gratifying that the courts have asserted the right of any individual qua citizen to bring a suit alleging a legislation to be inconsistent with the Constitution, nevertheless, the approach adopted has been more akin to a "bathroom scales" than a "balancing" one. Thus, as long as any of our fundamental liberties clashes with national security, it is axiomatic that national security will prevail absolutely.

Such approaches see Parliament as the principal guardian of our fundamental liberties. However, this does not derogate from the necessity of having the recommended formal institutional checks and balances on government.

IV. REPRESENTATIVE DEMOCRACY: WHO REPRESENTS WHOM FOR WHAT?

Representative Democracy refers to “a limited and indirect form of democracy based upon the selection (usually by election) of those who will rule on behalf of the people”. The practice in Singapore is that of parliamentary democracy where the emphasis is that on deliberation through an adversarial ‘loyal opposition’ which is capable of forming an alternative government i.e. political pluralism and plurality of views.

A. G(reat) R(acial) C(ommitment)s?

In general, it can be said that the constitutional amendments made to this area have had a positive effect in the short run but a detrimental in the long term, based upon a cost-benefit analysis (CBA). Firstly, the GRC system, both in its original intent as well as the subsequent enlargements in 1994 and 1996, have had the effect of undermining the notion of one person one vote. As a result, people are selecting on the basis of teams, which prima facie limits the choice of the electorate to “cherry-pick” individual candidates. Furthermore, there is no necessity to have by-elections in the event one of the team members is unable to execute his duty, as an MP as was the case in 1999, where the reason given by then PM Goh was the need to focus on economic recovery.

The GRC scheme also works against parliamentary democracy by effectively eliminating opposition parties as a possible alternative government. This has as much to do with the strength and track-record of the PAP as it does the weakness of the opposition, which is simply not capable of fielding enough viable candidates to contest a true general election while adopting the election tactic of simply allowing the PAP to form the government and offer themselves up as alternative voices in government. Additionally, by prolonging the period the opposition is not in government, this hurts their credibility as a viable opposition.

These detrimental effects are partially offset by the fact that the GRC system was originally conceived and continues to ensure minority (non-Chinese) representation in parliament in a bid to maintain the necessary multi-racialism. This thereby ensures true popular representation in parliament thereby bolstering parliamentary democracy. Unfortunately, the subsequent enlargements of the GRCs to 4 and then 6 member teams in 1991 and 1996 respectively, have reduced the total number of guaranteed minority parliamentarians.

One may well applaud the intent, however, it does presume and perpetuate a very stratified notion of race and race relations, with possible detrimental effects in the long run. The is so given that the “non-racial” approach advocated by the original commission, the reasons for which still has force today, coupled with over half a century's worth of Religious Harmony Days and constant “National Education” to drum the importance of harmony. But if one accepts the premise of the necessity of minorities representing minority views, then in the modern context, the most woefully underrepresented segment of society has to be Women. If so, the GRC system ought to be adapted to ensure female political participation.

B. The non-elected, not-quite-elected, and not-so-elected

Any evaluation of the Non-Constituent Member of Parliament (NCMP), and Nominated Member of Parliament (NMP) scheme, must be done via a CBA taking into account Singapore's context. So while on the one hand, such members, not being elected or having a popular mandate should be considered to be undermining Representative Democracy, at the same time, these MPs may well be representing the protest voters or the voters who did not vote for the PAP in the elections.

But the great uneasiness over these schemes can observed via the NMP scheme being subject to a "sunset clause", while the number of NCMPs are limited constitutionally. Particularly so when seen in light of the PAP’s approval of NMPs apolitical nature and presenting of non-partisan 'opposition' views in Parliament with their subsequent expansion in 1997 and 2001. There is nevertheless much force in the critiques levered against the concept of the NMP scheme, ranging as far back as the Randel Commission, and to the parliamentary debates.

However, these schemes were conceived that they would be able to provide an alternative viewpoint in parliament. Thus, while acknowledging the so-called ‘Opposition Gap’ i.e. the lack of opposition members providing opposing viewpoints in Parliament and the necessity of improving the quality of debate, nevertheless a question is raised as to whether this erodes representative or parliamentary democracy in the long run by “co-opting” the best and removing the impetus for an opposition/alternative government.

There is also the further downside of non-elected bodies sharing executive/legislative powers. For example, the provisions for the EP ensures that he has to share power not only with the cabinet but also non-elected bodies like the Council of Presidential Advisors, and Presidential Elections Committee, thereby entrenching them in the Constitution and undermining the concept of representative democracy in our parliamentary system. Similar to this is the Presidential Council for Minority Rights, which bears some similarities to the Council of State envisioned in the report in protecting minority rights. Unfortunately for parliamentary democracy, not only is this a far more limited version of the council originally proposed, but even on the protection of minorities front, it has yet to raise any adverse reports despite the prima facie "differentiating measure" inherent in many of the above-mentioned constitutional amendments.

V. CONCLUSION

The constitutional amendments have constituted a mixed blessing for the three specific objectives evaluated. However, even those can be said on balance to further these objectives, only achieve this in the short run will questionable to detrimental effects in the long term. We would do well to adopt the general advice of the Commission to focus on protecting the individual's fundamental liberties through strengthened and independent institutional checks and balances.

2007-01-07T02:00:00.000-08:00

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 scienceblogs.com 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!

Peace

2007-01-04T09:42:00.000-08:00

Back to School and Thoughts about Debate

Urgh, dang quarter system meant that I had to rush back to Seattle to attend the first day of school yesterday. Of course I was helped by the fact that I didn't break as an adjudicator, something that seemed likely until the last round.

I hesitate to write too much about this given that a blog, and is for all intent and purposes, a public affair and it's not too much of a stretch of imagination that something I write/publish sometime, somewhere will come back to haunt me e.g. the stuff I wrote about the Iraq invasion/liberation or hell, my general support for free expression and anti-death penalty etc. ad infinitum ad nauseum.

But generally, what I can say is that I had a fairly good run in the tournament. When I was a panelist, I was in good rooms with breaking adjudicators. When I was in weaker rooms, I was a chair. I'm just a little bummed that at the end of it all, I didn't break although I thought it was somewhat clear when I was assigned as a panelist in the last round to a decent room but really an inconsequential one (the teams had nothing on the line except one last good speech).

My experience as an adjudicator has provided valuable experience in how to speak for Worlds and it is fundamentally different from either All Asians/AUDC or the AustralAsians, which is why any comparison that I made during oral adjudication with any of the other styles was hedged with many qualifications and caveats.

My only real regret was that given the motions turning out the way they did, I was not a speaker at this tournament. This had to have been the first tournament in quite sometime where I actually had specialist knowledge for every single debate round and for every side (including strangely enough Quebec and Cosmetic Surgery). And it was that specialist knowledge that made the debates I watch sometimes particularly painful.

For example, on the motion, THBT the United Kingdom should destroy its nuclear arsenal, I was in an above average room with strong speakers, good engagement and team and role fulfillment. Nevertheless, NONE of the speakers mentioned the NPT and the obligations of the Nuclear Weapon States (NWS) to disarm their nuclear weapons as part of the common bargain threshed out in the negotiations of the treaty. As a result, an entire line of argumentation about the NPT and International Law was simply dropped and it was a fairly fundamental part of the theoretical and analytical framework for the justification of disarming nuclear weapons.

Or on an even more extreme case, THBT South Africa should Accelerate its land distributive policies. The word accelerate ought to have told you that there was a land redistribution policy in status quo but no one knew what the freaking policy was. Not my room which included Oxford A, Cambridge C (who made it to the grand finals) and Queensland A(? if it was they made it to the finals too) and NTU. Nor anyone on the NUS team and you really should have seen Alex's face when I said the following four words, "Willing Buyer, Willing Seller". Everything came crashing back to him at that point.

I personally think that the style of Worlds requires two strong speakers. Having a mismatched team is begging for adjudicators to never give you first as it is almost inevitable that the weaker speaker does not fulfill the speaker or team role and adjudicators will seize on that as grounds for a lower position. This is entirely right because the very minimum that has to be met are team and speaker role fulfillment before issues become a serious matter of determination of position and ranking. There will be exceptions and I have seen them, but I got outvoted in those two situations.

Another reason is that the 15 minute preparatory and walking time means that both speakers must have worked together for a substantial amount of time or they have a common frame of reference e.g. world schools e.g. me and Alex (both Li and Yeo) or Mark (general training) or Lifeng (Pro-Ams) etc. Even so, it's nothing like working with CL in terms of background (world schools), time (you try talking debate everytime you go out on a date for 5 years and see where that takes you) and matter (I read the Economist and Foreign Affairs, CL reads stuff like UK and US Spectator as well as Reasons and Mother Jones) and just sheer complementarity in terms of speaker roles (now anyway, we were still working team roles for a while and only settled in last year...man that was a good year despite not going to Worlds).

But I would suggest that this only works for Worlds. With a three-on-three style, having a "couple" debater (and strong ones generally) and a third person requires that the third person be able to mesh in with the only two. CL and I had much success individually with Mark and Alex (CL in Santa Thomas IVs and AUDC, me at NTU IVs), and vice versa. In contrast Alex with us at SMU Hammers was a good example of the converse as he was far far weaker than he was now, as he was coming straight out of NS. Since we kicked him into third and took substantive roles, our prep was very much varsity style one liners, which left him at a disadvantage as we left him to his own devices in determining the coherency of the team stance and argumentation.

That I believe, is the general problem of having a muppet i.e. a speaker you are essentially controlling as an extension of yourself for a debate. There is absolutely no doubt that that person will benefit tremendously from being on a team with two strong speakers. However, that has to be taken into account by the other two. Given a certain level of competency, there is no problem (see above). If the disparity is substantial, allowances must be acknowledged and made e.g. a simplification of the matter and ensuring the third speaker (or worse, if he is a substantive speaker) knows exactly what you desire out of a particular argument that he or she is running. Nothing is more startling, distracting, or destructive than for an argument about separation of powers and institutional competency to turn into a argument about democracy or an argument about regulatory capture be turn into a simplistic point about how bureaucracies are bad.

My favourite story which I still relate to the juniors is to challenge them to give me the argument of the "Russian Example" with regards to global nuclear disarmament. The background was that during a prep with Alex and Chun Hui, we tried to prep for THW support global nuclear disarmament and I casually dropped the phrase "Russian example" to Alex in the expectation that he would pick it up given his knowledge of the issue (due to the Model United Nations Conference at NTU) and the Economist. He did.

This is part of the broader point of having a lingua franca with other debaters whereby certain catch phrases resonate very strongly not unlike law e.g. separation of powers, western liberal democracy, cost benefit analysis, institutional competency and regulatory capture (I'm still trying to introduce the last point, it seems people have trouble with the concept I am told). Thus on a debate about allowing political parties that advocate pedophilia, it was a matter of getting out ideas of rule of law, political process, nature of democracy and a very very sneaky argument in a POI where I asked if sexual assault laws were going to be repealed as well. Since the answer was no, I turned the debate into one where the party was advocating a lowering of the age of consent (I didn't get called on it admittedly although Ashok R. having proposed the debate was fairly frustrated by my redefinition of the debate somewhat).

Anyway, I'm stuck in Seattle for another few months and am unlikely to debate here so this is likely my last debate post.

Peace.

2006-12-24T02:23:00.000-08:00

Going on Tournament

Yes, I'm quite well aware than the blog has been rather scantily updated recently. I think it helps not to have to read the local (read: Singapore) press and in particular the forum pages.

Anyway, I'll be going on tournament soon and will be back only after New Year's, by which time I will be thrown right smack into a new quarter. So go bug CL if you want to read something on the blog.

Regardless, Happy Holidays e.g. Merry Christmas, Kwanzaa, Hanukkah, Decemberween, Solstice, New Year etc.

Peace.

2006-12-20T15:50:00.000-08:00

Reality check: 95 percent of Americans had premarital sex - CNN.com

And the rate has been fairly stable all the way back to the 1940s. So there really wasn't a golden age of chaste youngsters. Which makes perfect sense given that there is an evolutionary reason why puberty starts as a fairly young age i.e. much younger than what we would common accept as a statutory age of consent.

Nevertheless I read it with a raised eyebrow as the numbers are pretty high. And as a skeptic, anytime I see something that agrees with me so completely, I tend to be cautious in affirming it until more facts come to light.

So here's the report from the Guttmacher Institute.

But first a disclaimer. I am not a statistician nor do I have much training in them outside of my A Level C Math classes. Furthermore, I don't really have a good ground in such research methodology, or at least nothing formally learned.

The first thing that struck me was their narrow definition of pre-martital sex which they defined as "either having had vaginal intercourse before first marrying or ever having had intercourse and never having married". The reason I say this is that there have been a couple of studies showing that teens (and adults) who while proclaiming never to have had sex, have engaged in what is called "anything-but" behavior i.e. having had engaged in what would be considered sexual activities such as mutual masturbation, oral and anal sexual intercourse. So either the figures would be way higher if such activities were included or possibly that sexual activity comes in a complete package.

Here are the results they drew:

Data from the 2002 survey indicate that by age 20, 77% of respondents had had sex, 75% had had premarital sex, and 12% had married; by age 44, 95% of respondents (94% of women, 96% of men, and 97% of those who had ever had sex) had had premarital sex. Even among those who abstained until at least age 20, 81% had had premarital sex by age 44. Among cohorts of women turning 15 between 1964 and 1993, at least 91% had had premarital sex by age 30. Among those turning 15 between 1954 and 1963, 82% had had premarital sex by age 30, and 88% had done so by age 44.

Well, so much for "expected standard" of behavior among society at large.

Note the last sentence because I want to point out a recent absurdity by the Bush "faith based" Administration which is now advocating abstinence until 30. That's right people, you can by now drink, drive, smoke, get killed and kill and you can't have sex. This is the question I've always wanted to ask one of those abstinence only people during those talks i.e. even if we were to take at face value everything you said thus far, would you include adults under the category of not having pre-marital sex and on what basis would you justify it.

Anyway, the rest of the research paper reads well and basically just repeatedly kicks the "conventional" wisdom in the face and then some more.

Some points to note. Median age of first premarital sex has been dropping since 1954 to 1993 (20.4 to 17.3) before creeping up for the period of 1994-2003 (17.6). Percentage who had had premarital sex by 15 has indeed shot up from 4% in the period of 1954-63 to 14 percent in 1984-93. Although the biggest percentage rise (50%) was between the periods of 1954-63 and 1964-73. While the percentage rise between 1984-93 and 1994-2003 was 7.69% (to 2 sf). Same goes for fall in median age.

Otherwise, the figures across the board since 1964 have been really really stable i.e. definitely not outside of the bounds of statistical significant i.e. noise.

So what would be the "moral" choice now? To basically ignore reality and the wider stable historical and future trends it presents, or continue with what is really a screwed up policy and in turn screwing up the lives of countless teenagers along the way? Sorry, irrational religious beliefs can no respect from me, particularly in this circumstance.

Peace.

2006-12-19T20:42:00.000-08:00

Local incoherent homophobe

Just read it and the comments. At last he's thrown off the pretense that he's not a homophobe and gone into full blown rightwing, bigoted lying that homosexuality promotes pedophilia.

Read the post and in particular the comments. His arguments have been shredded repeatedly, but like a boxing trainer, he just keeps coming back by ignoring the points asserting he's right and generally going "la-la-la I can't hear you".

As CL says, his argument is more against casual sex than homosexuality per se. Or as I put it, his arguments (and I use the term loosely) apply equally against heterosexuals.

So I suggested that he change the name of his blog to "Why Be Sexual?".

Well, let's see what he comes up with next.

Update: Well boo hoo. For the third time, he has called me stupid and refused to engage in debate.

2006-12-18T18:02:00.000-08:00

Suggestions on getting into NUS Law

It appears that the recent hits on my blog has mostly or almost entirely to do with searches on NUS Law, by deductive reasoning, it would appear that this is the result of “kiasu” or at least well prepared Singaporean students attempting to get a heads up on what to expect at a) the law entrance exam and b) the law interview.

I’m going to presume that you meet the minimum criteria for entering law school, otherwise you really don’t have much of a hope even being shortlisted. The reason I know this is because my GP grade was screwed up such that despite otherwise excellent A levels grade (and being a humanities student to boot, I mean seriously, does not an A in literature prove that I can read, write, comprehend and analyze in English at the very minimum?), I was not shortlisted for the entrance examinations.

Ironically, I was saved by National Service, which allowed me to reapply the next year on the basis of my SAT scores (I also submitted my retaken GP scores, which I had retaken for vindication).

Gripping aside, here’s what you generally ought to know.

1. The odds are against you.

Assuming you get past the short-listing stage, you’ll be amongst the 1000 plus students vying for a position for the 200 odd that will eventually be selected. The odds are not as bad as trying to get into Oxford or Cambridge, much less the International Relations course at LSE but it’s still fairly tough I would think because of the general caliber of the persons you will be up against. As the saying goes, everyone there at one point of their lives was first in class or the like.

2. Be able to handle surprises and make do

Now with regards to the written exams, it could take a number of forms. The year before mine was something akin to a comprehension test. I was hoping for that, I was expecting that. Instead I got a one paragraph essay requiring me to explain whether I supported a marital rape exemption, and why or why not. You could hear the collective intake of breadth when we were told to turn over the paper. It came after the stunned silence to be fair.

3. Read widely, read critically and then read some more

But because of the wide possibilities of what could turn up, my recommendation is simply to read and keep abreast of current affairs and general contentious issues. Remember even if you don’t have a particular opinion on any single issue, what you can do is to develop one if you understand the basic issues and principles to be applied.

4. Analyze, organize and kick ass

What the examiners are looking for I am told is the capability of seeing all the issues, and the capability of expressing them, taking a stance and defending it. What this will consist of is an acknowledgement of the strongest arguments on the other side and then demonstrating why it is wrong.

5. Think smarter not harder.

As an illustration, allow me to use the marital rape exemption essay that I had to write. Simply put, I had never considered that something of this sort actually existed and it struck me as wrong given what I knew about rape laws in general (very limited at that time admittedly but what I learnt from Ally McBeal and The Practice was sufficient for this context). Therefore, what I tried to do was to explore why I though the proposition was wrong and attempt to come up with arguments for the other side. The biggest problem I had was that I though it was such a clear erroneous position that I had difficulty coming up with arguments in support of it.

I don’t think I’m able to reproduce the essay from memory but here’s what I remember. Firstly, a general introduction about how the non consummation of marriage is grounds for a divorce even under the Roman Catholic Church. Next was, honestly, a rather confused analysis of whether it mattered because of other laws on the books that would permit prosecution anyway. Fortunately, I knew just about enough to throw out the argument that sentencing under these alternative charges would not be as harsh as rape. Then came a general analysis of possible negative consequences of overturning the marital rape exemption which I dismiss on grounds of due process and evidentiary burden protecting false accusations. Followed by a rhetorical argument about the absolute lack of rationality or logic in being protected better when one is in fact not married.

There was a quick and dirty mention of s. 377 and the ludicrous law that enables one to be prosecuted for being naked in one’s house (there are some good reasons for it but this is not the time and place to go into them). I raised the argument in a terribly roundabout fashion as the point I wanted to make was that the marital rape exemption was a way of keeping out the government from the bedroom. But I then shredded the position which made me wonder if I just wasted a load of time that could have better spent elsewhere.

5. The interview is important

According to law lore (and take what you will about the authenticity of that), the written paper is not as important as the interview. Some say that the interview is all and the written test at best is a tie-breaker. I really have no idea.

But the interview is at the very minimum one of the two components of the entire process and it’s very revealing about you. So I think it is very important, just how important on the other hand I have no idea.

6. Dress like a law student

This is a personal thing. I strongly advocate NOT dressing like a lawyer. You’re a law student wannabe not a lawyer yet. So no suit, no black and white. Ties are a questionable. I don’t think you need them at this stage but bring one along anyway and look at how people are dressed on that day.

And please please please dress up. This is an interview for a professional degree. Casual is a no no. Jeans are nearly automatically out (black jeans with a proper shirt might be fine). Casual formal is skirting the edge in my opinion.

7. Think before you speak.

It isn’t a debate, quick responses are not needed and may actually be detrimental. You want to seem thoughtful, and you want to make sure you’ve got your answer properly organized and thinking does that, buys you time and more.

8. Strike early and strike hard

Make your answers count. If they cut you off after the first line (very unlikely) or even after the third, make sure you’ve said what you needed to have said. Don’t ramble. I speak from personal experience here. Don’t feel that you necessarily have to fill up the time or silences.

9. Demonstrate your ability to see the issue and not just argue your side

Do a quick search on this blog, I have a short account of my interview by the by in a post or three before this. It involved strings being attached to state scholarships and I was made to express an argument for the other side. My interviewer said that he was worried I was unable to take on any position or issue.

10. Prepare.

There will be some standard questions e.g. why did you choose law, why should we select you, I see you’ve also applied for medicine/dentistry/scholarship/have a position in a foreign university. Be honest, interviewers can sense when you’re lying. Which is not to say you should not have a spin on why they should select you nonetheless.

Well good luck to all you future law students. Make you sure really want to do this. Peace.

2006-12-15T15:36:00.000-08:00

Confronting Holocaust denial - Opinion - International Herald Tribune

Go read the article, I promise you it's short and it's personal. It's by Ayaan Hirsi Ali which should tell you something about it. Here's IHT's description: "A Somali immigrant, she was a member of the Dutch Parliament and on a hit list of Muslim radicals for writing the screenplay for the film "Submission.""

I simply want to use the news around this conference to segue into what Free Speech and Free Expression actually means, because all too often I find that critics of Free Speech have some basic misconceptions of what it entails or worse, what Liberty actually stands for. In other areas, people have used the notion of free speech in an effort to detract attention or criticism of what they have said. And in the last area, we have those who are ignorant about the history of Free Speech (as I was till last year) and what they history means in light of how extensive this notion of Freedom of Speech is today.

Firstly, let's kick off with a definition of speech. Often today, the freedom of speech is used interchangeably with the freedom of expression and for good reason. In most countries, speech is not merely verbal or written but also includes expressive conduct or symbolic conduct. This includes draft card burning, flag burning, waving a foreign flag, appending the peace sign or using the crooked swastika to make a point. This is a more expansive notion of speech and personally I think speech ought to be expansive as it is merely a means to convey a particularized message which the general objective observer or public will reasonably understand what to take from it.

Next, what does the freedom to do something mean? Simply, it means you can do, not that you have to do it or you should do it. And often there is a conflation of all three in various criticisms and arguments for or against free speech which needs to be sorted out. The important thing about a recognized right is that it gives you a cause of action when your right is being abridged, in short, if your right is being violated, you can sue to restore it.

One of the oddities of the Singapore system (and one I think very few people know) is that we have very broad concept of standing, in contrast to, say the United States. Standing is legal doctrine which determines if you have the legal capacity to bring up the suit such that the court will hear it. In the US, standing requires you to have your right abridged before you can sue on it (subject to the doctrine of vagueness and overbreadth). In Singapore, however, any citizen can sue on the basis of a violation of Article 14 (Freedom of Speech and Assembly), even if the citizen whose right is being violated is a third party.

Anyway, one of the things I blame post-modernist for (fine it's not really their fault, its those who don't understand what it is and start misapplying their theories) is this idea of how "everyone is entitled to their opinion". No, they are not. It's stupid to think that some is entitled to an erroneous opinion. An opinion is entitled only by reference to a factual basis or logical reasoning.

Instead, all a person is really entitled to is to express his opinion without getting sanctioned by the government. In turn, it's not a defense when we pile on your opinion and explain why you are utterly, miserably and totally wrong! So you want to be a homophobe? Fine you have the right to express that opinion and possibly even to think that way (Freedom of Conscience cuts both ways), but I'll shred your arguments and probably point out why you're an idiot if in the face of evidence and reason, you don't change your mind.

Why this entire freedom is remarkable is that it did not exist until the Americans came along, and even then, their concept of Free Speech is markedly different from what they and we have now. Firstly, there was no concept of free speech, all you had in England was residual speech i.e. you can speak on anything that was not sanctioned by the government. This is arguably what we have in Singapore. We don't really have the notion of Constitutional Free Speech but really that of residual speech because parliament can always pass a law restricting speech and you would be tremendously hard pressed to get the court to strike it down because of the manner in which our Constitution is drafted and how our Court has interpreted Article 14 to give tremendous deference to the government in determining what is "necessary or expedient" such that it passes Constitutional muster.

And even where there was a push towards Free Speech, it was very limited and rather alien to how we understand it today. Blackstone in his very highly influence treaties Commentary on the Laws of England viewed the only evil to be restrained was that of prior restraint i.e. licensing regime on the printing presses. All speech could be punished ex post but not prior to it. I'm no student of American Constitutional History but this was arguably the grounds on which the Framers understood Free Speech to mean and which explains how the Sedition Act (yes they too had a Sedition Act) came to be.

And it's absolutely fascinating to see how the doctrine develops from the 18th Century onwards (and arguably didn't change all that much until the 19th century and eventually in the 1950s) till the doctrine that they have today, expansive, extensive and really rather awesome.

I value speech intrinsically because I value the individual. And it is only through expression that one may remain true to their conscience. To stifle speech is to stifle the person which makes it even the more insidious.

Speech is not simply a means to the end but an end in and of itself.

Peace.

2006-12-14T13:06:00.000-08:00

Exams Over Yay

Back to your eventual regular blogging sometime soon.

Peace

2006-12-08T16:16:00.000-08:00

TODAYonline: Penal Code Public Feedback

When the Going gets Tough, I get to Blogging

I suppose I could say that I don't have much reason to doubt the veracity of this article. But what's omitted is as important as what is expressly said.

I belong to the Young Republic, a non partisan mailing list which discusses a whole bunch of issues ranging from social to political to economic to science and even literature (rare but it happens). Admittedly we've lost a couple of conservative voices over the past 2 years but quite a number of us, even if considered extreme liberals or libertarians or whatever jargon that's being mentioned, hold sufficient centralist views and even conservative ones (on economics, I would be considered rightist and there's always the libertarians to count on).

So even if we account for the general social liberal bent that the vocal posters on the mailing list (and the blog(s) that we sometimes refer to), it doesn't explain the one paragraph mention of s. 377 and s. 377A (which currently are just sexually regressive but if the recommendations pass, it would just be anti-homosexual and for no good reason). According to 3 different persons who were at the Women's Forum, they was unanimous support for getting rid of the provisions outright, yes even among the presumably straight older section of the forum participants.

As such, making a one paragraph reference to it and giving Alex Au a one line quote is simply not doing the issue any justice. I would venture as far as to say, it's akin to giving the NAACP a one liner when deciding whether to decriminalise inter racial marriages during the Civil Rights Era. It's simply ludicrous in the face of the disproportionate length the other issues get.

Anyway, at the very least that was mentioned. The part about criminalising the act of hurting a person's racial feelings on top of the already criminal act of hurting a person's religious feelings was not even mentioned.

But the more entertaining debate occurred on YR when I shifted my stance on free speech and expression and argued for the extension of such laws to stamp put "hate" speech on the basis of gender, sexual orientation and medical condition in circumstances that we're seeing now i.e. the extension of speech protection to groups who arguably need it least given all the socialization that we've had from NE and the multitude of Racial and Religious Harmony Day.

Of course I got called out on it but it became an issue of whether it was sensible/rational/right/proper for someone who takes the intellectual position that all speech should be free regardless of their viewpoint (not incitement to violence mind you) to nevertheless argue for an even more encompassing anti-speech protection. It was a good debate as these things go, given the constraints of having our respective exams on at the same time but it is revealing insofar as how for me now political expediency trumps intellectual positions in certain situations.

And I think the reason for my shift in thinking is I'm seen the extremes to which intellectual positions can be taken, particularly in the legal field. I will not deny the attractive of the proposition especially in Constitutional law that Judges ought not to make law but merely declare it and as far as possible give effect to the original intent of the drafters/legislators (if alive) who at least are accountable to the people through elections. Of course, I think this disregards the fact that the original drafters of the Constitution (any constitution for that matter) were made by people from a different era (*insert joke here of how EU Parliament legislators are seen to be from the Country of EU Parliament), and it would behoove us as the living to be controlling by the dead hand of law givers long past.

I don't want to make this a post on Originalism and why I think it is simply currently used as a facade to advance certain socially conservative positions but I want to explain how an intellectual position can be taken too far if divorced from reality. [I want to emphasis here that this point and from here onwards now has no bearing on the issue I mentioned above except very and I do stress very tangentially.]

I generally do not think that the government is necessarily bad. That whether big or small, governments can do harm or ill. But, it is true that the larger the government, the more power it has and the more it can generally impinge on our lives if it chooses to do so. Anyway, the discussion was on First Amendment constrains on the government when it chooses to subsidize speech or penalize speech. One of the more controversial areas was whether the government could in effect force a particular decision on you in return for giving a benefit.

To take an example (and this was an actual exchange between me and the interviewer for my law interview), should the government be allowed to require you to take a specific subject in return for a scholarship? At that time, I couched my answer in terms of a benefit that the government does not have to give and hence, could put restrictions or make it a criterion for acceptance i.e. if they give you money, they sure can put strings on it. But when pressed for an opposite viewpoint (why oh why couldn't they ask about something else instead), I couched my argument in terms of the negative consequences of people doing something they did not enjoy. Note that my argument was based on a cost-benefit analysis i.e. it does not answer the basic principle that I was originally advocating.

And for all intent and purposes, I still adhere to that particular principle. But the problem comes when the government gets so large that it can through these problems effective buy your speech or to dry up speech. So for example, a particularly odious program effectively forces doctors to say that abortion is not a form of family planning and they could not speak about it when women come to a federally funded family planning clinic. Or to take another example, the government could simply pay every single journalist to write glowing reports about it and it would be perfectly constitutional.

There is of course, a strong principle behind this i.e. the government should not have to fund competing speech e.g. if it funds anti-smoking campaigns, we do not expect it to fund pro-smoking campaigns. What the government is entitled as the representative of the people to represent their speech i.e. governmental speech. In the earlier examples, the government is simply purchasing speech from those who would speak on its behalf.

But the most important distinction is that in one case there is no worry about the eradication of a particular viewpoint, so Philip Morris and gang, having sufficient money, will still be able to continue to buy their own speech. But even then, it is not inconceivable that the government will be able to outspend them and basically flood the advertising world with so much money that no one will work for the tobacco companies. What more when we are talking about individuals or smaller organisations? That's the problem, that big government can silence speech more easily than small government can.

So it's one thing to adhere to a principle when it is premised on a particular groundwork but it's foolhardy to adhere to it when the premise of that principle has been reversed.

I still think that speech should be as free as possible and it's ridiculous for any worldview (I don't think race or even verifiable history is a worldview but I think hate speech is better combated by showing how inane it is rather than trying to criminalise them) granted immunity from being criticized or offended but when it's a done deal that religion is going to be protected through anti-speech provisions, I figure it's the lesser of two evils.

I don't like it and I sure as hell could be wrong and it could set off a wave of vindictive reporting (I'm just less sad that homophobes will be targeted now). Or even entrench anti-speech provisions so tightly that they will never be eradicate (that's what a constitutional amendment is for). Furthermore, between this and a choice to eradicate all anti-speech provisions altogether, I'll go for the latter.

Anyway, it's a fairly academic debate seeing as how "teh gheys" still have to deal with their expression of sexuality being criminal. I think anti-speech protection is less of an issue for now.

Peace.

2006-12-07T22:22:00.000-08:00

Reflections on First Quarter in UW Law School

It's the exam period and I'm blowing off steam after a day of way too much coffee, a really long, intensive and exhausting First Amendment review class and then some more on Sale of Goods.

All things start as they must at the beginning. Despite the name of this blog, future events cannot affect past events, not even as a correlative factor. And it starts with a simple desire to study abroad as an exchange student for a year, as a sort of consolation prize for not being able to get an overseas scholarship in a year which broke all records for the largest number of people with 4As. And this despite being in the "Arts" stream with having done two S-Papers (and maybe because of that C5 I got for GP, officially the lowest grade ever to come from Hwa Chong Humanz).

And so I went through the grind of the application process, chose as my first three choices US Law Schools (followed in no particular order Canada, Australia and I think UK). Panicked over not getting called for an interview, got the call and then started to panic over the thought of the interview. And then finally panicked prior to entering the room for the interview (mind you this was spread over a couple of weeks, possible more than a month or two as I recall).

And it was over in 2 minutes literally.

It was in reality a simply matter of getting told I sucked and I didn't rank highly enough to go to NYU or Columbia (not a big surprise considering the people picked to go there i.e. Shou Min and Louis, both I have absolutely no hesitation in saying are better overall law students than I am) but whether I would like to go to this other US law school. I mean, hey, it's not the list so you haven't quite checked it out, you'll be the first NUS law student there so now real pressure, really, and oh take your time, yeah, let us know by this afternoon.

Um....right. After stuttering out a few confused statements, I was shown the door.

Alright, here's the serious part. I came to the US for the academic challenge. It's a post-graduate degree here. Many of them have multiple degrees. And in one class that I'm taking, 80% of them have at least a basic law degree if not a Master of Laws (yes that's what the LL in LL.M or LL.B stand for). And the people here have taken on significant debt through student loans and know what they are getting into.

As such, being in the midst of highly driven and intelligent, vocal and articulate people (admittedly the last two is a relative point compared to Singapore) has been fairly strenuous to say the least. I have held my own (although it took two weeks to get understood with my accent) thus far and it would be a coup for me to do well enough to break into the top half of the class/cohort. It's always a nice ego boost when your peers and Professors think that you're doing your LL.M and then realize that you're actually an undergraduate.

What kicks it up a notch is the fact that this is a quarter system and classes are generally confined to 50 minutes or an hour 20 minutes. And this is every single day unlike our system back home where you could have one massive 3 hour lecture and a 2 hour tutorial per week. In the latter case, you don't really feel the grind. Here, it hits you by the 3rd week. And furthermore, quarter system means no one month long study break, much less a mid-term break.

So being single here, with absolutely no other call on my time (I gave up debate here in the UW after a couple of weeks because there simply wasn't enough time), what is absolutely remarkable is how the students, despite being married or actually having kids, can still juggle everything. The maturity shows I think, and it's been cognitively odd to switch from being one of the older people in the cohort (by simply virtue of having gone through National Service) to being one of the youngest (there's another exchange student who's possibly younger).

And of course, there's the whole adapting to a new culture, a new place, living alone and independently for the first time (I got upgraded to a 4 person bunk after I became an instructor but that was that). It helps I think to be a fairly solitary creature. I think it's probably me but it's fairly hard to make new friends in law school here. Unlike an undergraduate program and not taking the same classes as the 1L (first year in law) means breaking into cliques. Not to mention being the only Singaporean on exchange here.

But as Alex and Mark can testify, I do get into misanthropic moods (it got pretty bad during the Australs admittedly) and hey, after my first year in NUS Law, I know it took some time for the rest of the cohort to *ahem* warm up to me.

But if any future law student from NUS is thinking of doing an exchange in the US, all I have got to say is that you really need to be mentally prepared for it or have strong adaptive and coping capabilities. Two years in NUS Law will set you up fro certain expectations that you simply cannot carry over here. But unless I screw up my exams, what I will say is that it will be a rewarding and enriching experience.

Peace.

2006-12-04T18:01:00.000-08:00

Effect of sleep deprivation on Cognitive Function

First class of the day was International Law and we were dealing with the Geneva Convention and how it may or may not apply depending on the political classification of a) whether the hostilities amount to a conflict, b) whether it is of an international character and c) who decides the "competent authority" that determines the status of prisoners where there are "doubts".

So it kicks off with a discussion of article 4 of the Third Geneva Convention where as long as certain criteria are met, a person belong to that regular force is granted the protections as a POW under the said Convention (otherwise, the person gets protection under the 4th Convention which governs civilians).

So I get suddenly called on to respond to the question of whether this undermines the sovereignty of the state by legitimizing to a certain extent insurgent forces.

S: *desperately trying to clear mind of cobwebs* Um *beat* well *beat* could you repeat the question?

(Question is repeated)

S: *stalling for time while trying to come up with a coherent response* I think that *beat* that it is a gross um overstatement of the sentiment because because the object of the Geneva Convention is to um civilize law and um put a civilizing gloss on the um *some literal hand waving* atrocities of war. And and as such it cannot be truly said to be legitimizing these forces.

*Gathering steam* An alternative way of looking at it as per the text um textbook is that the Geneva Convention is a series of unilateral declarations by Contracting Parties um High Contracting States to um obey the convention.

*Valiantly attempting to summarize* So it cannot be said to be legitimizing these forces insofar as the Convention insofar *realizes he used insofar again* tries to civilize war. *Buries face in hand*

And I spaced out during International Commercial Arbitration and again during First Amendment. Gah.

Peace.

2006-12-03T06:50:00.000-08:00

(more linkies!)

just one, actually.

but anyway, this is the sort of *ahem* science we could live with....

(Shaun thinks it's still woo but acknowledges that it's probably one of the better types of woo)

2006-12-03T06:44:00.000-08:00

(because shaun doesn't usually post things like that)

watch the volume!

complete food, etc, but i am always disturbed by ads that have foods wanting people to consume them...

2006-12-01T20:58:00.000-08:00

Mail & Guardian Online: Female Circumcision/Genital Mutilation a Cultural and not Islamic Practice

I guess this settles it then?

Some of the choicer quotes:

Eliminating the Violation of Women's Bodies, as the conference was publicised in Arabic, was attended by some of Islam's most senior and influential scholars. Most of them spoke against the common practice. The main message was that "female genital mutilation was never mandated in Islam ".

and...

Mohammed Sayyed Tantawi, the Grand Sheikh of al-Azhar, Sunni Islam's most prestigious university, said at the conference that "circumcising girls is just a cultural tradition in some countries that has nothing to do with the teachings of Islam".

"During my studies and research in Islam, I didn't find anything that I can trust as beseeching female circumcision," said the scholar, whose fatwas, religious edicts and words are followed by millions of Muslims around the world for direction in their lives.

The conference was attended by other heavyweights, whose endorsement of the public denunciation of the practice was seen as a landmark. Grand Mufti of Egypt Ali Goma'a, considered the most senior judge of Islamic law, was a patron of the conference. Others included Hamdi Mahmoud Zakzouk, Minister of Religious Affairs in Egypt; Sultan Abdelkader Mohamed Humad of Djibouti; and Sultan Ali Mirah Hanfary of Ethiopia.

But...

But while the clerics' call carries much weight, it is not clear if it will be sufficient to discourage parents from the practice. An official ban on circumcision enacted in 1996 remains ineffective in stopping it in this country.

"What will produce change is not just a fatwa or an opinion from clerics. What will change things is an alteration of the economic and social conditions that lead people to believe in the importance of circumcision," said Ahmed Abdallah, a professor of psychology at Zagazig University.

Abdallah appeared to fault the approach by the German human rights group that organised the conference because it assumed that religion was behind the practice.

"Fatwas will help but they will not do the whole thing," he added. "In this case, parents practising circumcision didn't do it because they received a religious edict asking them to do it in the first place. When they stop it they will not do so because of a religious edict either."

Really? One of the most troubling things about religion or religiosity is the apparent willingness to accept that good things flow from religion but not necessarily the bad. For example, to claim that religion plays no role in for example contemporary suicide bombings but it has everything to do with religion making people good through the provision of a moral guide cannot stand as a logically consistent premise.

Either religion is a contingent factor in both or it is not. Thus, either religion works as an excuse for the adoption of behavior, in which case we don't necessarily need religion to form the basis of a moral code or it isn't, in which case, we can lay atrocities at the feet of religion.

Discuss.

2006-11-27T19:42:00.000-08:00

Freak Weather Conditions

So it snowed in Seattle yesterday.

It's autumn.

And then I had to walk through hail to get back home. Fortunately the wind wasn't so strong and the hailstones were fairly small so getting pelted didn't sting too much.

Line of the day goes to CL: "Considering all the freak weather conditions that follow you. Thankfully, earthquakes aren't weather conditions.

Bah humbug.

Don't worry, you'll get back to your regular dose of political commentary soon. I've got something on the insanity occuring in Nicaragua with regards to reproductive justice.

2006-11-22T15:48:00.000-08:00

Good Fences make Good Neighbours

Apparently, Robert Frost was being ironic when he said this and it is clear why this would be so if one considers or attaches certain associations with neighbour i.e. not simply one who lives beside you but a notion of communal association and arguably aid in times of trouble and need.

For the law students, perhaps an easier manner in which to conceptualize it is the idea of duty of care as originally conceived in Donoghue v. Stevenson i.e. someone whom you ought to consider when doing something or performing certain actions for fear of causing harm to you neighbour.

The distinction between the former and the later is perhaps a distinction between a duty of care and a duty to care such that in the former, one has a positive duty to actually make things better for your neighbour whereas in the later, one simply has to take care not to hurt your neighbour.

I personally see race and religious relations in Singapore to be in the later category. Insofar as criminal sanctions or general legal restrictions are to be imposed, they are premised on the idea that as long as you don't thread on my toes, we can live in relative peace and tolerance. So two very good examples of these are the Maintanence of Religious Harmony Act as well as the Sedition Act.

One of the things that the MRHA does is to allow for the issuing of restraining orders (against religious office holders or other persons) for "causing feelings of enmity, hatred, ill-will or hostility between different religious groups" which as the parliamentary debate tells us includes aggressive evangelism (nice that the government understands how annoying that is). The criminalisation of the above comes from the Sedition Act (and the new provision of the Penal Code), or alternatively, the violation of the restraining order.

By the by, there is a raging debate right now as to how aggressive atheists should be in propagating their worldview. I think the rise of Richard Dawkins and Sam Harris is partially in reaction to the very aggressive stance on the part of the religious right and the intrusion of religion as the basis of morality and thence law as well as the education of science.

I think the conflict as it boils down to is the following. One side sees fanaticism of any sort as necessarily bad and they fear that the public face of science would be atheistic, which is precisely what the religious right want to do by forcing people to make a choice between god or science in the belief that people will tend to pick god, which will hurt science. The other side thinks it's cognitive dissonance no matter how you parse it, that taking down all the goddidit arguments thrown up by ID and their ilk but then suddenly drawing an arbitrary line in the sand and saying that science does not deal with That and therefore permits both god and science to coexist see e.g. Ken Miller (stauch Roman Catholic Evolutionary Biologist).

I think I sympathise with the first camp on a consequentialist argument but will tend towards the second for the sake of intellectually honestly. Yes, science will never disprove the god hypothesis but it sure can go a long way in mounting evidence against it. Maybe Science ought not for the sake of "good neighbourliness" have a stance but it sure has an implication.

Peace.

2006-11-21T17:12:00.000-08:00

More Free Speech Case

US town bars foreign flags in swipe at immigrants

Thu Nov 16, 3:37 PM ET

PHOENIX (Reuters) - A Nevada town passed a law this week making it illegal to fly a foreign nation's flag by itself, the latest swipe by a U.S. community at illegal immigrants.

The town council of Pahrump, which lies in the Mojave Desert west of Las Vegas, voted 3-2 on Tuesday to make flying any foreign flag above the U.S. flag or alone anoffense punishable by a $50 fine and 30 hours' community service.

The meeting also pushed through measures to deny services to illegal immigrants and make English the official language in Pahrump, a commuter town of 40,000 residents some 60 miles (97 km) west of Las Vegas.

Supporters said they passed the measure to hit back at Hispanic demonstrators who carried Mexican flags when they marched in U.S. cities earlier this year to press for rights for 10 million to 12 million illegal immigrants living in the shadows.

"All of the illegal alien protesters are waving Mexican flags, and we just got tired of it," town board clerk Paul Willis told Reuters in a telephone interview.

"This is the United States, and the Stars and Stripes should fly supreme," he added.

Hispanic groups slammed the flag ordinance as a blow to first-amendment rights to free speech but thought it unlikely that the community would enforce it.

"It is clearly unconstitutional, but given that Pahrump that is such a small town, I don't think they are going to be hiring any flag police any time soon." said John Trasvina, the president and general counsel of the Mexican American Legal Defense and Educational Fund.

In passing the bylaw, the town joined several other communities from California to Pennsylvania that have passed laws curbing illegal immigrants in recent months.

Among them are Escondido, in southern California, and Hazleton in Pennsylvania, where councilors barred landlords from renting to undocumented aliens and denied them access to services.

In Texas, where a third of the citizens are Hispanic, the Dallas suburb of Farmers Branch this week enacted laws fining landlords who rent to illegal immigrants and making English the official language.

Texas lawmakers preparing for the next legislative session in January filed bills this week to block state assistance to illegal immigrants and their children and to tax money transfers to Mexico, according to the bills.

One of the nice things about Constitutional Law in Singapore is how simple it is to predict how cases will turn out in Free Speech cases. And in our Constitution is a very explicit clause that defers to Parliament in terms of what constitutes "necessary or expident". Factor that to the presumption of constitutionality (i.e. the challenger has the onus of proving it is unconstitutional) and the government really has a remarkably low burden to shoulder.

It's a little harder to determine it under the US Constitution but the Court is at least on matters of speech/expressive conduct to be fairly clear.

Firstly, this is the suppression of what appears to be at a minimum, to be expressive conduct i.e. conduct that portrays a particularized message that an objective viewer would in the circumstances understand what it means per US v O'Brien. And what makes it even easier is that the town is specifically banning expressive conduct!

I would suppose that if this case came to court, the best (and arguably only) defense the town has is to somehow finesse this as a Time, Place and Manner regulation per the Ward line of cases. That is a regulation that does not prohibit speech so much as channeling it e.g. no protesting in the middle of the road and thereby obstructing traffic without a permit. Or decibel level control at particular times. These are content neutral regulations that would not discriminate amongst viewpoints.

But it is so obviously not facially content neutral, much less on its asserted governmental interest, since the town came right out to say they were regulating on a content discriminatory basis. Thus the court would have to apply strict scrutiny i.e. compelling state interest, and narrow tailoring of the regulation to the state interest such that it really is the least restrict alternative.

If so, unless the court makes a u-turn on the entire flag burning cases e.g. Texas v Johnson and accepts the primacy of the flag as a compelling state interest (they don't in case it wasn't obvious enough and in fact point out that's what makes it so potent as speech), I don’t see how it would survive a challenge.

Furthermore, unlike the flag burning cases, it is not a direct assault on the US flag here.

And just to rub it in, I would not think it would survive on a substantial overbreadth analysis either, Broadwick v Oklahoma. By substantial overbreadth I mean that the regulation would sweep in way too much protected speech as it is (you could put up the flag not simply to support immigration reform).