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Source: (consider it)
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Thread: Legality and Morality
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TurquoiseTastic
Fish of a different color
# 8978
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Posted
quote:
Originally posted by Marvin the Martian:
quote:
Originally posted by TurquoiseTastic:
I think maybe obedience to legitimate authority is good in itself.
I can go with that. When you find one, let me know.
I don't mean a perfect authority. I mean for example:
- a parent's authority over a child
- a judge's authority to enforce the law
- an officer's authority to command soldiers
If they give evil commands, you shouldn't obey them. But if they just give annoying ones, you ought to do as they say.
Even in an anarchist viewpoint one might submit to an authority one had previously consented to.
And even an evil authority may be acting in a legitimate way. Even if you live in a tyrannical dictatorship you should probably obey the traffic regulations.
Posts: 1092 | From: Hants., UK | Registered: Jan 2005
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orfeo
Ship's Musical Counterpoint
# 13878
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Posted
quote:
Originally posted by Marvin the Martian:
quote:
Originally posted by TurquoiseTastic:
I think maybe obedience to legitimate authority is good in itself.
I can go with that. When you find one, let me know.
...You don't recognise the legitimacy of UK law?
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Technology has brought us all closer together. Turns out a lot of the people you meet as a result are complete idiots.
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Marvin the Martian
Interplanetary
# 4360
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Posted
quote:
Originally posted by orfeo:
quote:
Originally posted by Marvin the Martian:
quote:
Originally posted by TurquoiseTastic:
I think maybe obedience to legitimate authority is good in itself.
I can go with that. When you find one, let me know.
...You don't recognise the legitimacy of UK law?
Not as a good thing in and of itself, no. I don't blindly obey every single law that gets farted out of the corrupt party-political mud wrestling match that is the UK government, and neither does anybody else I know.
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Hail Gallaxhar
Posts: 30100 | From: Adrift on a sea of surreality | Registered: Apr 2003
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Marvin the Martian
Interplanetary
# 4360
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Posted
quote:
Originally posted by TurquoiseTastic:
quote:
Originally posted by Marvin the Martian:
quote:
Originally posted by TurquoiseTastic:
I think maybe obedience to legitimate authority is good in itself.
I can go with that. When you find one, let me know.
I don't mean a perfect authority.
But you do mean it is a good thing to obey, regardless of its perfection or lack thereof. Which means:
quote:
- a parent's authority over a child
Josef Fritzl's daughter should have just done what he told her to.
quote:
- a judge's authority to enforce the law
The people convicted by these judges should just accept their sentences.
quote:
- an officer's authority to command soldiers
The Nuremberg Defence?
quote:
If they give evil commands, you shouldn't obey them. But if they just give annoying ones, you ought to do as they say.
If it's ever right to break the law or disobey evil commands, then it's false to say that obedience to legitimate authority is good in itself.
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Hail Gallaxhar
Posts: 30100 | From: Adrift on a sea of surreality | Registered: Apr 2003
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TurquoiseTastic
Fish of a different color
# 8978
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Posted
quote:
Originally posted by Marvin the Martian:
quote:
Originally posted by TurquoiseTastic:
quote:
Originally posted by Marvin the Martian:
quote:
Originally posted by TurquoiseTastic:
I think maybe obedience to legitimate authority is good in itself.
I can go with that. When you find one, let me know.
I don't mean a perfect authority.
But you do mean it is a good thing to obey, regardless of its perfection or lack thereof. Which means:
quote:
- a parent's authority over a child
Josef Fritzl's daughter should have just done what he told her to.
quote:
- a judge's authority to enforce the law
The people convicted by these judges should just accept their sentences.
quote:
- an officer's authority to command soldiers
The Nuremberg Defence?
quote:
If they give evil commands, you shouldn't obey them. But if they just give annoying ones, you ought to do as they say.
If it's ever right to break the law or disobey evil commands, then it's false to say that obedience to legitimate authority is good in itself.
Aargh! No! No that argument does not follow! It is possible for something to be "good in itself" and yet for it to be wrong, wrong, wrong to do it under certain circumstances.
It is "good in itself" to feed the starving. But it wouldn't be good for Dr. Lecter to serve up a perfectly cooked bit of human liver with Chianti to a hungry man. Your argument is like saying "How dare you say relieving hunger is a good thing. That would mean Hannibal was right!"
Posts: 1092 | From: Hants., UK | Registered: Jan 2005
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shamwari
Shipmate
# 15556
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Posted
I suppose it was inevitable that the thread should broaden out to discuss whether obedience to Authority is a good / bad thing.
My gripe about the dodgy tax avoidance scheme being moral or not ( I think it isnt) was more about the morality of avoiding paying a "lawful" tax.
I dont pay my tax because some Authority has told me to. I pay because my taxes are the means by which Health and Education and all the rest are funded. What is immoral to me about the case in question is that we have someone living off and enjoying the benefits of the State whilst avoiding the responsibility of contributing to the same.
Posts: 1914 | From: from the abyss of misunderstanding | Registered: Mar 2010
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Kwesi
Shipmate
# 10274
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Posted
Marvin the Martian: quote:
TurquoiseTastic:
I think maybe obedience to legitimate authority is good in itself.
Marvin: But you do mean it is a good thing to obey, regardless of its perfection or lack thereof.
If it's ever right to break the law or disobey evil commands, then it's false to say that obedience to legitimate authority is good in itself.
I am not sure, Martin, that I'm entirely in agreement with your reasoning, or rather the way you frame your proposition. In matters of this kind there are usually exceptions which challenge the rule, but that does not make the proposition false. IMO it is generally the case, especially in a democratic society, that obedience to the law is a good in itself even when it leads one to accept laws which one might regard as wrong or immoral, as is often the case. That is why many who engage in civil disobedience expect to be punished for breaking the law i.e. they accept the rule of law, because they hope the law will eventually be changed to promote their interests. Democratic authorities do not claim to rule because they are perfect, far from it, but because they have been legitimately chosen in conformity with agreed procedures to make decisions. Experience suggests that a bias towards acceptance of that right is for the common good.
Posts: 1641 | From: South Ofankor | Registered: Sep 2005
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lapsed heathen
Hurler on the ditch
# 4403
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Posted
quote:
they accept the rule of law
This is the key here, the rule of law isn't the same as the law. Obedience to the rule of law may oblige you to break some laws, or to protest the fact that the rule isn't in fact being applied.
In JC'c case the rule of law is being broken as he has the capability to dodge laws that others cant.
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"We are the Easter people and our song is Alleluia"
Posts: 1361 | From: Marble county | Registered: Apr 2003
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Kwesi
Shipmate
# 10274
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Posted
lapsed heathen : quote:
This is the key here, the rule of law isn't the same as the law. Obedience to the rule of law may oblige you to break some laws,
I think it would help if you could expand your point, and provide an example or two, as your contention is not as obvious as you seem to think it is.
Posts: 1641 | From: South Ofankor | Registered: Sep 2005
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Bean Sidhe
Shipmate
# 11823
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Posted
Another comedian, Ken Dodd, suffered little public opprobrium (though much hilarity) when he was caught with his tax-pants down some years ago. But Ken is a gentle, family entertainer. Jimmy Carr has traded as a satirist, notably delivering a TV diatribe against a major bank for doing just what he has been doing - juggling regulations, quite legally, to pay a derisory amount of tax. There's legality, there's morality, and then there's thumping hypocrisy.
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How do you know when a politician is lying?
His lips are moving.
Danny DeVito
Posts: 4363 | From: where the taxis won't go | Registered: Sep 2006
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Bean Sidhe
Shipmate
# 11823
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Posted
As for the question in the OP, this point has been made here but it's worth emphasising. Ideally, the letter of the law will effectively enforce its spirit but, in a complex area like tax law, this is difficult. Exploiting cracks in the letter to frustrate its spirit (and therefore, theoretically at least, the will of one's fellow citizens) is certainly legal, but I can't see that it's moral. Just an offence against common decency.
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How do you know when a politician is lying?
His lips are moving.
Danny DeVito
Posts: 4363 | From: where the taxis won't go | Registered: Sep 2006
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Boogie
Boogie on down!
# 13538
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Posted
quote:
Originally posted by Bean Sidhe:
As for the question in the OP, this point has been made here but it's worth emphasising. Ideally, the letter of the law will effectively enforce its spirit but, in a complex area like tax law, this is difficult. Exploiting cracks in the letter to frustrate its spirit (and therefore, theoretically at least, the will of one's fellow citizens) is certainly legal, but I can't see that it's moral. Just an offence against common decency.
Yes, and one that's only available to the very rich. Which means that even those who don't have any common decency, but can't avail themselves of highly paid accountants, are miffed.
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Garden. Room. Walk
Posts: 13030 | From: Boogie Wonderland | Registered: Mar 2008
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orfeo
Ship's Musical Counterpoint
# 13878
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Posted
quote:
Originally posted by Marvin the Martian:
quote:
Originally posted by orfeo:
quote:
Originally posted by Marvin the Martian:
quote:
Originally posted by TurquoiseTastic:
I think maybe obedience to legitimate authority is good in itself.
I can go with that. When you find one, let me know.
...You don't recognise the legitimacy of UK law?
Not as a good thing in and of itself, no. I don't blindly obey every single law that gets farted out of the corrupt party-political mud wrestling match that is the UK government, and neither does anybody else I know.
The UK parliament, not the UK government. Which might seem like nit-picking to some, but sometimes it's a distinction of vital importance.
More importantly, legitimate and 'good' aren't quite the same thing. Okay, so you disobey some laws. If you get caught disobeying, do you accept the consequences? Or do you tell the courts (or executive in some cases) "I refuse to be punished because I don't accept the law I broke was valid to begin with"?
If you accept punishment for breaking a law, you are still recognising that law's legitimacy even if you think the content of the law is downright stupid.
[ 25. June 2012, 02:52: Message edited by: orfeo ]
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Technology has brought us all closer together. Turns out a lot of the people you meet as a result are complete idiots.
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Kwesi
Shipmate
# 10274
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Posted
The great scandal regarding tax is why governments are tardy to close tax loopholes, and sustain offshore funds, tax havens, Switzerland and the like.
Posts: 1641 | From: South Ofankor | Registered: Sep 2005
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Marvin the Martian
Interplanetary
# 4360
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Posted
quote:
Originally posted by orfeo:
More importantly, legitimate and 'good' aren't quite the same thing. Okay, so you disobey some laws. If you get caught disobeying, do you accept the consequences? Or do you tell the courts (or executive in some cases) "I refuse to be punished because I don't accept the law I broke was valid to begin with"?
I'd prefer to do the latter, but in practical terms what good would it achieve? They're the ones with a police force and an army. They're not just going to let me walk away when I refuse to accept their authority.
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Hail Gallaxhar
Posts: 30100 | From: Adrift on a sea of surreality | Registered: Apr 2003
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lapsed heathen
Hurler on the ditch
# 4403
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Posted
quote:
Originally posted by Kwesi:
lapsed heathen : quote:
This is the key here, the rule of law isn't the same as the law. Obedience to the rule of law may oblige you to break some laws,
I think it would help if you could expand your point, and provide an example or two, as your contention is not as obvious as you seem to think it is.
Badly worded, I'll admit so to clear things up;
The rule of law is not that you must obey the law but that the law must apply to everyone. Any law that targets an individual or group like slavery or apartheid or segregation is not a law that has any moral authority, to act morally you will have to break these laws. The moral thing to do is to protest against them.
Tax laws are one example of where some i.e. the rich can avoid the law, legally but not morally.
Of course one may have a 'bleeding the beast' attitude to tax which you hold to be wrong but if your not protesting in the street about tax then you are not acting morally just selfishly.
If you see what I mean?
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"We are the Easter people and our song is Alleluia"
Posts: 1361 | From: Marble county | Registered: Apr 2003
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orfeo
Ship's Musical Counterpoint
# 13878
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Posted
I see what you mean, but that's not quite what 'rule of law' means in my view.
Mind you, it's a phrase that gets trotted out with a few slightly different meanings.
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Technology has brought us all closer together. Turns out a lot of the people you meet as a result are complete idiots.
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ken
Ship's Roundhead
# 2460
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Posted
quote:
Originally posted by orfeo:
I see what you mean, but that's not quite what 'rule of law' means in my view.
Mind you, it's a phrase that gets trotted out with a few slightly different meanings.
But its got a well-established technical meaning - basically that the government is under the law as well as subjects. The opposite of "the rule of law" is autocracy.
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Ken
L’amor che move il sole e l’altre stelle.
Posts: 39579 | From: London | Registered: Mar 2002
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orfeo
Ship's Musical Counterpoint
# 13878
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Posted
Ken, I agree, but that's not quite the way in which lapsed heathen used it. The idea he/she put forward said that laws about slavery or apartheid 'targeted groups' and somehow weren't valid for that reason.
Which isn't correct. For starters, LOTS of laws end up targeting particular people based on the presence of a particular characteristic.
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Technology has brought us all closer together. Turns out a lot of the people you meet as a result are complete idiots.
Posts: 18173 | From: Under | Registered: Jul 2008
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Timothy the Obscure
Mostly Friendly
# 292
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Posted
I'm trying hard to think of one that I would consider legitimate. ISTM one key aspect rule of law is equality before the law.
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When you think of the long and gloomy history of man, you will find more hideous crimes have been committed in the name of obedience than have ever been committed in the name of rebellion.
- C. P. Snow
Posts: 6114 | From: PDX | Registered: May 2001
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orfeo
Ship's Musical Counterpoint
# 13878
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Posted
quote:
Originally posted by Timothy the Obscure:
I'm trying hard to think of one that I would consider legitimate. ISTM one key aspect rule of law is equality before the law.
Lawyers have obligations that non-lawyers don't. Doctors have obligations that non-doctors don't. Drivers of cars have obligations that non-drivers don't.
And so on and so on.
'Equality before the law' is an incredibly loose notion. If what you're trying to suggest is that something like skin colour is a poor choice of characteristic to distinguish between people then I'd agree, but my point is that the law spends of practically ALL of its time saying "you: do this, YOU: don't do this, You can do this if you want but those other people can't" etc etc etc.
It's a fairly fundamental drafting point that every time you grant a right or impose an obligation, you need to be clear about who you are granting to or imposing on. Sometimes it's as general as 'a person', but frequently it's not.
When people talk about 'equality before the law', I can only assume what they're trying to say is that there should be some kind of rational reason for whatever distinction between people is made. But I don't think 'rule of law' has anything to do with this, because "non-discrimination" is only part of the rules if there is a overarching law that SAYS it's part of the rules.
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Technology has brought us all closer together. Turns out a lot of the people you meet as a result are complete idiots.
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Timothy the Obscure
Mostly Friendly
# 292
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Posted
quote:
Originally posted by orfeo:
quote:
Originally posted by Timothy the Obscure:
I'm trying hard to think of one that I would consider legitimate. ISTM one key aspect rule of law is equality before the law.
Lawyers have obligations that non-lawyers don't. Doctors have obligations that non-doctors don't. Drivers of cars have obligations that non-drivers don't.
And so on and so on.
OK--as psychologist in this state I have an obligation to report child abuse (unless I learn of it in privileged communication, in which case it gets ambiguous), and people who don't hold professional licenses don't so I get the point. But the distinction has to do with function, not with a personal characteristic like skin color, gender, income, etc. Equality under the law implies that people who are doing the same thing have to live up to the same standards. I don't think that's a hard distinction to make.
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When you think of the long and gloomy history of man, you will find more hideous crimes have been committed in the name of obedience than have ever been committed in the name of rebellion.
- C. P. Snow
Posts: 6114 | From: PDX | Registered: May 2001
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orfeo
Ship's Musical Counterpoint
# 13878
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Posted
Yes, which is basically what I said in the next part of my post.
HOWEVER, I don't think there is anything inherent in the concept of 'rule of law' that stops a law that discriminates on the basis of something like skin colour. So long as such a law is passed by a Parliament with competency to make laws on any subject (not always the case, eg in federal states), and so long as the Constitution of the relevant jurisdiction doesn't forbid such irrationally unequal treatment (some Constitutions do, but not all), then such a rule is a perfectly valid law.
The Australian Constitution explicitly says that the Commonwealth Parliament has the power to make laws with respect to "the people of any race for whom it is deemed necessary to make special laws". While there has been at least one interesting case about the precise extent of this power (especially after 1967 amendments which removed an exception that applied to Australia's indigenous people), you would be very hard put to argue in this country that a law specifically applying to members of a particular race was not a valid law that operated as part of the 'rule of law'.
Valid laws and good laws are two fundamentally different concepts, and I certainly don't think that any country that received its legal system from the UK, at the very least, confines law-making powers to making 'good' laws.
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Technology has brought us all closer together. Turns out a lot of the people you meet as a result are complete idiots.
Posts: 18173 | From: Under | Registered: Jul 2008
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lapsed heathen
Hurler on the ditch
# 4403
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Posted
What I'm saying is if you start writing laws that don't cant be applied to you and yours then you have broken the rule of law.
The law may be valid in a legal sense but if it denies justice then it is a bad law and should be protested.
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"We are the Easter people and our song is Alleluia"
Posts: 1361 | From: Marble county | Registered: Apr 2003
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orfeo
Ship's Musical Counterpoint
# 13878
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Posted
quote:
Originally posted by lapsed heathen:
What I'm saying is if you start writing laws that don't cant be applied to you and yours then you have broken the rule of law.
I fail to see how this works. Are you suggesting we can't tax miners unless the mining industry has direct representation in parliament?
While I have every sympathy for the sentiments you're expressing, I simply don't think that rule of law is the right phrase for what you're trying to express. In fact I think you're illustrating the difference between legality and morality rather nicely, because 'rule of law' doesn't have anything to do with morality.
Besides, "you and yours" are represented in Parliaments. The people to whom the laws will apply are the people who get to elect the representatives.
More or less... children. Are you saying we can't make laws applying to children?
[ 28. June 2012, 00:25: Message edited by: orfeo ]
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Technology has brought us all closer together. Turns out a lot of the people you meet as a result are complete idiots.
Posts: 18173 | From: Under | Registered: Jul 2008
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lapsed heathen
Hurler on the ditch
# 4403
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Posted
As an example, I'm in charge of everything and I decide to make a law that makes it illegal to smoke while in the company of children.
Being mad I decide to make it illegal for smokers to be in the company of children.
See what I mean?
Hard to put your finger on exactly when the rule is broken. It's as much about being able to avail of the protection of the law as being subject to the strictures of the law.
Tax law is a real problem as it is used to manipulate economies as much as to raise revenue, which leads to inequalities and get outs that distort the intention.
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"We are the Easter people and our song is Alleluia"
Posts: 1361 | From: Marble county | Registered: Apr 2003
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orfeo
Ship's Musical Counterpoint
# 13878
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Posted
quote:
Originally posted by lapsed heathen:
As an example, I'm in charge of everything and I decide to make a law that makes it illegal to smoke while in the company of children.
Being mad I decide to make it illegal for smokers to be in the company of children.
See what I mean?
No. I don't. Whether or not either of those is a valid law depends on whether or not there are other rules that say something about the right to freedom of association.
Which has nothing at all to do with whether they're GOOD laws.
[ 02. July 2012, 02:11: Message edited by: orfeo ]
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Technology has brought us all closer together. Turns out a lot of the people you meet as a result are complete idiots.
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Timothy the Obscure
Mostly Friendly
# 292
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Posted
This seems to beg several questions about the legitimacy of governments and the scope of their powers. Skipping over the underlying arguments, I'll set forth my guiding principles:
1. All governments derive their legitimate powers from the consent of the governed.
2. That consent is revocable.
3. Consent is determined by majority rule.
4. The rights of minorities are to be protected, especially the rights of minorities to engage in activities that might enable them to win others over to their position and so become majorities.
5. All people have equal standing before the law--no one, because of conditions of birth or circumstance has different rights or disabilities so far as the law is concerned. People may have particular obligations they have taken on (such as those I took on when I chose to become a psychologist), but those are voluntary and can be surrendered, along with any accompanying privileges.
6. The legitimate purpose of government is to ensure the peace and material well-being of all those under its jurisdiction, insofar as this can be accomplished.
7. Any laws that are contrary to these principles are invalid and compel no one's obedience.
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When you think of the long and gloomy history of man, you will find more hideous crimes have been committed in the name of obedience than have ever been committed in the name of rebellion.
- C. P. Snow
Posts: 6114 | From: PDX | Registered: May 2001
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orfeo
Ship's Musical Counterpoint
# 13878
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Posted
quote:
Originally posted by Timothy the Obscure:
This seems to beg several questions about the legitimacy of governments and the scope of their powers. Skipping over the underlying arguments, I'll set forth my guiding principles:
1. All governments derive their legitimate powers from the consent of the governed.
2. That consent is revocable.
3. Consent is determined by majority rule.
4. The rights of minorities are to be protected, especially the rights of minorities to engage in activities that might enable them to win others over to their position and so become majorities.
5. All people have equal standing before the law--no one, because of conditions of birth or circumstance has different rights or disabilities so far as the law is concerned. People may have particular obligations they have taken on (such as those I took on when I chose to become a psychologist), but those are voluntary and can be surrendered, along with any accompanying privileges.
6. The legitimate purpose of government is to ensure the peace and material well-being of all those under its jurisdiction, insofar as this can be accomplished.
7. Any laws that are contrary to these principles are invalid and compel no one's obedience.
The fundamental problem here is that laws are not made by governments. They are made by parliaments.
This exposes a problem with principle 3 in particular, because 'majority rule' has nothing to do with the legitimacy of parliaments as opposed to governments. Parliaments derive their legitimacy from the electoral process and from people accepting the results, and from people accepting the laws that issue from parliament regardless of whether or not it was 'their' party who formed government.
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Technology has brought us all closer together. Turns out a lot of the people you meet as a result are complete idiots.
Posts: 18173 | From: Under | Registered: Jul 2008
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lapsed heathen
Hurler on the ditch
# 4403
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Posted
quote:
Originally posted by orfeo:
No. I don't. Whether or not either of those is a valid law depends on whether or not there are other rules that say something about the right to freedom of association.
Which has nothing at all to do with whether they're GOOD laws.
And then that rule depends on another and so on, until you reach "because I can hurt you if you don't obey"
That determines no law exists but the law of might makes right.
Sadly this is the situation much as we disguise it and minimize it's brutality, but in the end it's force that enforces a law and it's valid until an opposing force overrules it.
I thought we were talking about what would make a law valid in a consensual situation.
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"We are the Easter people and our song is Alleluia"
Posts: 1361 | From: Marble county | Registered: Apr 2003
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orfeo
Ship's Musical Counterpoint
# 13878
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Posted
quote:
Originally posted by lapsed heathen:
quote:
Originally posted by orfeo:
No. I don't. Whether or not either of those is a valid law depends on whether or not there are other rules that say something about the right to freedom of association.
Which has nothing at all to do with whether they're GOOD laws.
And then that rule depends on another and so on, until you reach "because I can hurt you if you don't obey"
That determines no law exists but the law of might makes right.
Sadly this is the situation much as we disguise it and minimize it's brutality, but in the end it's force that enforces a law and it's valid until an opposing force overrules it.
I thought we were talking about what would make a law valid in a consensual situation.
Well, no, because that's what constitutions are for. They are the basic rules that set up the entire legal system of a country, and that all the players are required to play by.
That's precisely WHY courts are given the role of interpreting the constitution, so that someone can tell the 'mighty' parts of the system that they're not allowed to do anything they want.
And generally constitutions (at least national ones) are made considerably harder to amend than ordinary laws, so that a government can't change the basic ground rules to suit themselves.
I mean, if "do it or else" was the situation, why did we just have a massive court decision about whether Obamacare was constitutional in the United States? The entire point is that Obama (or Congress) can't just do whatever he/they want because they're "powerful".
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Technology has brought us all closer together. Turns out a lot of the people you meet as a result are complete idiots.
Posts: 18173 | From: Under | Registered: Jul 2008
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Kwesi
Shipmate
# 10274
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Posted
Orfeo quote:
I mean, if "do it or else" was the situation, why did we just have a massive court decision about whether Obamacare was constitutional in the United States? The entire point is that Obama (or Congress) can't just do whatever he/they want because they're "powerful".
Oefeo, you raise a very interesting question regarding the democratic credibility of the US Constitution: Why should nine politically unaccountable individuals, elected for life, have any say in setting aside or approving a law agreed by both Houses of the United States Congress and signed by the President?
Those nine justices also have the power to interpret the US Constitution in whatever way seems suitable to them. It is they who can do whatever he/they want because they're "powerful".
Posts: 1641 | From: South Ofankor | Registered: Sep 2005
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orfeo
Ship's Musical Counterpoint
# 13878
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Posted
quote:
Originally posted by Kwesi:
Orfeo quote:
I mean, if "do it or else" was the situation, why did we just have a massive court decision about whether Obamacare was constitutional in the United States? The entire point is that Obama (or Congress) can't just do whatever he/they want because they're "powerful".
Oefeo, you raise a very interesting question regarding the democratic credibility of the US Constitution: Why should nine politically unaccountable individuals, elected for life, have any say in setting aside or approving a law agreed by both Houses of the United States Congress and signed by the President?
Those nine justices also have the power to interpret the US Constitution in whatever way seems suitable to them. It is they who can do whatever he/they want because they're "powerful".
In terms of interpreting the US Constitution, arguably yes.
However, those 9 people:
- have no power to propose laws
- have no power to decide a dispute unless it's brought to them
- have no direct means of implementing their decisions
And so on and so forth. The Supreme Court only has authority by the power of its words. In terms of enforcement - the problem that lapsed heathen seemed most concerned about with the rule of law - a court is utterly weak. No army or police force or massive group of employees at its disposal.
Folks, this is utterly fundamental to separation of powers. Indeed it's the entire POINT. Each of the 3 branches of government is strong in some areas and weak in others - that's why it's a separation of powers, not an accumulation of them. The entire purpose is to prevent anyone having enough power to upset the applecart completely by being the ultimate authority.
The legislature has the power to pass laws, the executive has the power to implement laws, and the judiciary has the power to interpret them. The whole reason for this is to prevent one person (or group) from being in a position to make the rules up as he/she goes along.
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Posts: 18173 | From: Under | Registered: Jul 2008
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lapsed heathen
Hurler on the ditch
# 4403
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Posted
quote:
Originally posted by orfeo:
The whole reason for this is to prevent one person (or group) from being in a position to make the rules up as he/she goes along.
Yes, thats the limiting factor in our system.
Our laws are valid to the extent that we all agree on the rules for making, passing and interpreting them.
They stop being valid when this system is perverted or sidestepped.
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"We are the Easter people and our song is Alleluia"
Posts: 1361 | From: Marble county | Registered: Apr 2003
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lapsed heathen
Hurler on the ditch
# 4403
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Posted
Now where dose the will of the people come in?
(I know, double post sorry, connection dropped before I could edit)
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"We are the Easter people and our song is Alleluia"
Posts: 1361 | From: Marble county | Registered: Apr 2003
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Kwesi
Shipmate
# 10274
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Posted
Well, Orfeo, I think you will find that the judicial activism of the Warren Court played a major role in kick-starting civil rights "legislation". Brown versus the Topeka Board of Education (1954), preceded Congressional action by a decade. Do I need to mention Roe versus Wade (1973) etc.?
Posts: 1641 | From: South Ofankor | Registered: Sep 2005
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orfeo
Ship's Musical Counterpoint
# 13878
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Posted
quote:
Originally posted by lapsed heathen:
quote:
Originally posted by orfeo:
The whole reason for this is to prevent one person (or group) from being in a position to make the rules up as he/she goes along.
Yes, thats the limiting factor in our system.
Our laws are valid to the extent that we all agree on the rules for making, passing and interpreting them.
They stop being valid when this system is perverted or sidestepped.
Yes. Exactly.
Most of us live in countries where the system is sidestepped extremely rarely. Thankfully.
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Technology has brought us all closer together. Turns out a lot of the people you meet as a result are complete idiots.
Posts: 18173 | From: Under | Registered: Jul 2008
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orfeo
Ship's Musical Counterpoint
# 13878
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Posted
quote:
Originally posted by lapsed heathen:
Now where dose the will of the people come in?
(I know, double post sorry, connection dropped before I could edit)
The will of the people comes into setting up the system in the first place (agreeing to a Constitution) and continuing to agree to that system.
Why do 9 people get to decide the fate of Obamacare? Because there is implicit consent from the other players in the drama (at least, the big players) that the decision of those 9 people will be binding.
It's that sense of consent that underlies the system. If you have people refusing to recognise the legitimacy of laws or of court decisions, then there is the capacity for the system to break down.
In essence, you have the potential for revolution.
It does happen. The first example that tends to leap to my mind is the 2009 constitutional crisis in Fiji.
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Technology has brought us all closer together. Turns out a lot of the people you meet as a result are complete idiots.
Posts: 18173 | From: Under | Registered: Jul 2008
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orfeo
Ship's Musical Counterpoint
# 13878
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Posted
quote:
Originally posted by Kwesi:
Well, Orfeo, I think you will find that the judicial activism of the Warren Court played a major role in kick-starting civil rights "legislation". Brown versus the Topeka Board of Education (1954), preceded Congressional action by a decade. Do I need to mention Roe versus Wade (1973) etc.?
Brown is a case about the interpretation of the Constitution. So is Roe v Wade. You cannot have either of those cases without a system that accepts that the Constitution is an overriding law that all subsidiary laws have to comply with.
They are not cases where someone decides as a matter of pure policy whether or not they think racial segregation or abortion is 'good' or 'bad'. That's what politicians are entitled to do. For judges, the question is whether racial segregation or abortion is compatible with the basic ideas that the people of the United States have previously claimed to espouse by putting something in the Constitution about due process or about equal protection. If the Constitution didn't SAY anything about equal protection, there would be no basis for a court to say "there ought to be equal protection".
Do judges make some decisions that are about fairly broad policy? Yes. But the fundamental difference is that they always have to point it back to a pre-existing rule or principle that has already been expressed. Even when they're accused of striking out into new territory and being 'activist', it's because they are pointing out the logical implications of something that was already in place.
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Technology has brought us all closer together. Turns out a lot of the people you meet as a result are complete idiots.
Posts: 18173 | From: Under | Registered: Jul 2008
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Moo
Ship's tough old bird
# 107
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Posted
There was an episode in US history when the President refused to enforce a Supreme Court decision. IIRC the president was Andrew Jackson. I don't remember who the Supreme Court chief justice was, and I don't know what the decision was about.
When Jackson heard the court's decision he said, "[name of Chief Justice] has made his decision. Now let him enforce it."
Moo
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Posts: 20365 | From: Alleghany Mountains of Virginia | Registered: May 2001
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Kwesi
Shipmate
# 10274
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Posted
Orfeo quote:
Brown is a case about the interpretation of the Constitution. So is Roe v Wade. You cannot have either of those cases without a system that accepts that the Constitution is an overriding law that all subsidiary laws have to comply with.
They are not cases where someone decides as a matter of pure policy whether or not they think racial segregation or abortion is 'good' or 'bad'. That's what politicians are entitled to do.
I think, Orfeo, that you underestimate the importance of the political opinions and prejudices of the Supreme Court Justices, and the very wide degree of flexibility the justices are given to interpret the Constitution. Surely, it was policy that produced the Plessy v Ferguson (1896) judgement that secured the legal base for segregation, and that Brown v The Topeka Board of Education (1954) was a conscious reversal of that policy. In the present day it is not law which divides the court, but the Conservative and Liberal prejudices of its members. If that were not the case it is difficult to explain why nomination and confirmation proceedings are so heavily politicised.
Posts: 1641 | From: South Ofankor | Registered: Sep 2005
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orfeo
Ship's Musical Counterpoint
# 13878
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Posted
Indeed, the whole business of judges is far more politicised in the United States than I'm familiar with, or comfortable with.
Nevertheless, once a judge is on the Supreme Court they don't actually HAVE to behave in the way that people expect of them. That's the beauty of them having tenure. And then the Chief Justice goes and upholds Obamacare despite being 'conservative'. Beautiful, isn't it? ![[Biased]](wink.gif)
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Technology has brought us all closer together. Turns out a lot of the people you meet as a result are complete idiots.
Posts: 18173 | From: Under | Registered: Jul 2008
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Timothy the Obscure
Mostly Friendly
# 292
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Posted
Orfeo:
Your distinction between parliaments and governments is irrelevant to my point , since I'm not using "government" in the narrow technical sense (in which it essentially means the cabinet in a parliamentary system), but in the broader sense in which it is used in the Declaration or Independence. A legislature (whether called a parliament, a congress, or anything else) is one functional aspect of a government. And those who make the laws derive their authority to do so from the consent of the majority of those governed by those laws.
It is worth noting that Brown vs. Board of Education did not overturn any federal law, and it was a unanimous decision. It did reverse a previous SCOTUS decision (Plessy vs, Ferguson), and so find a local ordinance unconstitutional.
And the case in which Andrew Jackson defied a Supreme Court decision had to do with expulsion of the Cherokee and other Indian Nations from the Eastern US, leading to the Trail of Tears. One of the most shameful episodes in American history.
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When you think of the long and gloomy history of man, you will find more hideous crimes have been committed in the name of obedience than have ever been committed in the name of rebellion.
- C. P. Snow
Posts: 6114 | From: PDX | Registered: May 2001
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