Wednesday, June 30, 2010

Living Law, International Law, and Meddling Snobs

I was recently involved on the edge of a legal case in which Side A demanded that Side B pay it some 50,000 Shekels (that's a bit less than $13,000). On the face of it, simply reading the relevant law, Side A's case looked plausible. Side B, however, wasn't interested in paying, and went to court. Since Side B's lawyer was better than Side A's (he was also nastier), the court ended up awarding Side A less than a third of what they had demanded.

That's what the living law looks like. There are the dry words in the rule book, there are interpretations, different ways of applying them, external considerations which turn out not to be so external after all, and so on. Lawyers may not be a popular species, but they've got their uses. If it was enough simply to legislate a law and then live by it, the world might be simpler but it's hard to see how it would be better (sigh).

This is one reason why the entire industry of international-law-punditry is ridiculous. The idea that some dames and fellows sitting in air-conditioned offices in London, say, or New York or Paris, can pontificate on the legality of actions being taken in faraway lands, is laughable - or should be.

What makes it even worse is that those dames and fellows are peddling a Weltanschauung, not some hypothetical pure law. This is inevitable, of course, since legal systems reflect the incremental and aggregate positions of the society they come from, not some objective truth. Don't get me wrong on this: I'm a firm believer in objective truth, in the cases it can be determined, but laws aren't about it, they're about organizing society. The International Law Brigades, however, don't accept that. According to them, there's a credo of sanctified principles by which all human society is obliged to live, and their job is to admonish and rebuke the delinquents, from their seat high above the fray, so high it can't be contaminated by nasty things such as reality, political compromise, accommodation of contradictory needs, or anything contaminating like all that.

Take this example. Some Spanish legislators are about to discuss a ban against full-face veils. Seen from the perspective of the philosophy of law, it's a fascinating subject, quite complex. There's the freedom of women to dress as their religion demands (assuming it does, which may or may not be the business of anyone else to say). There's the urge by men to control women by forcing them behind the veil. There the impossibility of telling which it is, and when, and when it's first this one then that one then this one again or not. There's the matter of disrupting fundamental codes of behavior and interaction between people,which also may or may not be relevant. There's the plethora of security and police measures required to preserve public order and the right of regular folks not to be harmed as they go about their business. There's the matter of the borders of the state: can it force someone to pay tax, buy insurance, refrain from making loud noise late at night, dress immodestly, dress too modestly...

Ah, and there's the matter of who gets to decide all this, and how, and if different societies might not wish to resolve the same set of questions with different sets of answers.

Not in the world of Amnesty International, however. They know the answers, all of them, and demand the democratically elected legislators in Catalonia not discuss the issue and search for a response best suited to the will of their constituents, but rather dutifully to line up on the line drawn by the almighty Amnesty International.
Amnesty International has called on law-makers in the Spanish region of Catalonia not to adopt a motion on Wednesday in favour of banning women from wearing the full-face veil in public buildings and spaces.

1 comment:

Anonymous said...

when a US company established a German bureau in the 70s when labour was scarce and jobs abundant they introduced a nice little sick leave benefit their Dutch office had to us (after all they are so similar, aren't they?)
- when times changed and they wanted to get rid of some personnel they paid through their noses for it because that harmless little benefit when married to German conditions turned out to be noxious and was put to good use by the laid-offs

If jurists can goof it with minor things that certainly proves that they must be infallible on the big things ;-)

my current book on the American indepence war collated from some Irish papers of the time claims that even then the soldiers were in principle still entitled to looting after having sacked a city and that even though thinking about just war theories seems to have been going on ever since the first stone was thrown at another human.