||Issue No. 173||04 April 2003|
The Fog of War
Interview: Picking Up The Peaces
Unions: The Royal Con
National Focus: Around the Grounds
Economics: The Secret War on Trade
International: United Front
History: Confessions of a Badge Collector
Politics: Stalin’s Legacy
Review: Such Was Not Ned’s Life
Poetry: Osama's Top Recruiter
Satire: Woolworths CEO Denied Bonus After Company Posts Profit
The Locker Room
Trots Bomb Back
Letters to the Editor
The Rule of Law
Enjoy your editorials - even though you can't spell and have atrocious grammar! - I pretty much always agree with your views, or at least find them thought-provoking.
In this week's edition, you mention the Geneva Convention. Robert Hill let slip on TV recently that Australian troops would not do certain things, because Australia is a signatory to the Geneva Convention, but that US troops could do other things because the US had not signed up to that - clause? the whole thing? I don't know, but perhaps you might explore these differences for me and others concerned about this disgraceful war.
Please keep up the good work, including your relative distance from the Labor Party hack jackasses. Unions and their representatives, with all their flaws, are a lifeblood for any working woman.
Dear Mr Lewis,
Jurisprudence lies outside of the narrow range of my legal competence, but as I endured the musings of a balding libertarian academic with more than a passing regard for Hayek over six months of my life, I would suggest that the following statement is misleading.
" There was a time when the Law was an absolute; in jurisprudence they
called it Natural Law. The equation was simple: The law reflected what
was right, therefore the law was in and of itself a good.
This principle reached its zenith in the years leading up to World War
II before the horrors of Hitler and the Nuremberg Principle broke the
link between law and justice for all time."
Natural law advances the proposition that an unjust law is not a law, or a variation thereupon. Whilst the passage of time has dulled both memory and sense, the slither of conceptual unity which defines natural law is that the law must be evaluated with reference to some normative standard, and that a failure to comply with that law will displace, modify, or render inoperative the particular provision which is offensive to that normative standard.
The alternative doctrine is legal positivism. The characterisation of natural law and positive law is of some significance although in substance their adherents have only limited areas of disagreement. One of the key features of positivism is the "separability" thesis, which is that law and morality are distinct. The course of action suggested as flowing from this concept differ.
Now for the contentious area where my memory fails me in the manner of a white collar criminal at a civil penalties proceeding. German lawyers tended to hold to positivism or a vague sort of sociological perspective which held law to be a cultural phenomena and that therefore in essence there is no absolute standard and then morality sort of runs out, at least that is my lapsed catholic understanding. Another group yet held to positivism, which is probably the only way to have a functioning legal system. Basically the Germans disappeared up there own fundamental orifice shortly prior to acquiescing when Adolf and his at least in Germany today, his imaginary friends, killing a lot of innocent people.
The holocaust caused considerable if remote pain to many German academic lawyers and is perhaps best recorded in the Hart/Fuller debate and surrounding academic publication in the 1950s on the topic of at what point one's obligation to follow the law ends.
Now as to the Nuremberg principle, what principle is that, that the victorious powers may retrospectively try individuals for crimes of such gravity that they may properly be regarded as crimes against humanity and as such regardless of the domestic legal framework, nations are consequently empowered to deal with these people if it is within their power to do so. Alternatively it could be that waging an offensive war is a crime. The Nuremberg Principle if anything reaffirms the nexus between law and justice, despite the procedural short comings of the trial process. Much of the criticism of America's war against Iraq is extracted from the Nuremberg principles (might I note that much of the debate surrounding its legality has been simplistic and ill informed, if your looking for a tool of the week look no further to Suri Rapatanala at UQ's law school who came out in support of the war against Iraqi.) A better analysis of this aspect of international law is found in Geoffrey Robertson's book "Crimes Against Humanity."
Perhaps a more valid criticism of the law is that the emphasis lies on negative and individual liberty, and hides essentially conservative concepts reflecting the prejudice and concerns of the author behind vague motherhood statements concerning the intrinsic value of the rule of law as defined by the establishment.
It would be fair to state that the Holocaust demonstrated the impotence of law without force, the injustice which occurs in the face of uncritical acceptance of the substance of the law, and that dogma is incompatible with an effective legal system. These are essentially political problems which reflect on and are reflected through the legal system. The desirability of this state of affairs is no doubt open to challenge, but I would submit that without the power to change laws, even if it creates injustice in some sense than you have hit stasis, and in stasis no one benefits, especially those already on the bottom rung of the ladder.
The law has done more for labour than it has to dash in over the past 100 years, and simply because the Cole Royal Commission was a witch hunt there is no need to simply engage in a formulaic, doctrinal and inaccurate critique of law. It is the sort of journalism one would expect to see in the opinion pages of the Australian and does your publication little credit. Stating that moral law postulates that the law is right and therefore good is unhelpful and inaccurate. Further the conclusion that the Nuremberg Principles render the law a speckled donkey is plainly incorrect.
I'm a financial member of the ALP, when I was able to joined a union so I'm not adverse to your usual editorial bias, but come on, it's the sort of thing that is going to bring your publication into disrepute.
"The righteousness of Bush and of Abbott have a common flavour, it is the certainty of the powerful. Any notion of 'The Law' is an ass in their hands. Maybe the Anarchists have won after all ..."
glad to hear you think so ;)
thought your editorial was very well considered, anyway.
One of the greatest problems with the Law today is the fast disappearing presumption of innocence until found guilty. It stems from the inability to differentiate between the deviant and the non-deviant.
Politicians are also ensuring work for lawyers - great insurance policy if there is a lawyer in the family.
Trouble is with the mindless making of laws for the sake of doing something people have had to question their ability to obey the laws of their country. Where is this going to take the Western world - into Stalinist dictatorships?
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