Saturday, 14 July 2018

The Rule of Law

It's been said that there are as many definitions of the rule of law as there are lawyers, or, at least, constitutional lawyers. But everyone agrees it is a really important thing to have.

As I understand it, the principle of the rule of law is that everyone and anyone is subject to the same framework of justice and expected to live up to the same set of rules. That framework and those rules, obviously, are the Law. And because everyone and anyone is subject to the Law, we can say it rules.

So what about some other definitions of the rule of law? Being a layman, I shall compare my idea with Wikipedia:
The rule of law is the "authority and influence of law in society, especially when viewed as a constraint on individual and institutional behaviour; (hence) the principle whereby all members of a society (including those in government) are considered equally subject to publicly disclosed legal codes and processes".[2]
That seems... pretty much the same. It's got a very important bit in it about "publicly disclosed" (which I take to mean no secret courts and secret laws) and that's what I mean by "same," but it's probably important to explicitly state that transparency is part of the rule of law.

How about the misinterpretation of Magna Carta? The Rule of Law is often traced back to Magna Carta you see..
XXIX. NO Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the land. We will sell to no man, we will not deny or defer to any man either Justice or Right.[228]
The problem with taking this to mean a rule of law was established by Magna Carta is that "freeman" had a very specific meaning in the 13th Century and the meaning was quite different to that we have now where it basically just refers to anyone. This is a generally important point, though. The way the Law works is that it is written and produced by a legislative body, it is followed by agents and the executive (part of government) and it is enforced by a judiciary. The process of enforcement generally means having to decide what a law means... and there is a fair amount of scope there. In New Zealand these interpretations are meant to follow what is termed the purposive approach:
5 Ascertaining meaning of legislation
  • (1) The meaning of an enactment must be ascertained from its text and in the light of its purpose.
  • (2) The matters that may be considered in ascertaining the meaning of an enactment include the indications provided in the enactment.
  • (3) Examples of those indications are preambles, the analysis, a table of contents, headings to Parts and sections, marginal notes, diagrams, graphics, examples and explanatory material, and the organisation and format of the enactment.
I say meant but I really have absolutely no reason to imagine that statutory interpretation doesn't follow this process in practice. Except, I was never really able to figure out how a person could be said to get off on a technicality. If you're reading with the purposive approach, the plain meaning of the text above is saying that the Spirit of the law is, in fact, the Law. Hence, no such thing as a technicality. But I'm probably confused on this point because I did just the one Comlaw paper and this seems rather more appropriate to the questions surely treated in an actual Law education. The real problem (with laws having to be read/interpreted to exist), therefore, is this bit (handy dandy quote from a PDF I've read basically none of that I found literally five minutes ago):
The constitutional importance of individuals being able to understand the law, and order their affairs accordingly, is a key tenet of any legitimate legal system. Lord Bingham relates it to the rule of law which he says requires, among other things, that the law be accessible and so far as possible, intelligible, clear and predictable.8
Unlike a lot of people I really don't think footnotes are optional, so I'll quote that too:
Thomas Bingham “The Rule of Law” (2007) 66 CLJ 67. Professor Lon Fuller, an American jurist, went so far to say that “law” would not be law if it was so unclear that it was impossible to understand: Lon Fuller Morality of Law (New Haven, Yale University Press, 1969). There is an extended discussion of Fuller’s eight criteria of law at 46–91.
Only lawyers could actually say these sorts of things. I think I'm a pretty smart dude but I really couldn't make head nor tail out of British citizenship law. And, similarly, the whole reason why lawyers exist is because the Law requires its own education. And that happens because the Law is its own (very narrow, if you ask me) way of thinking. That's been obvious for hundreds of years. I suppose, charitably speaking, what they mean is that you've got to be able to get a sense of what it says... which is certainly the case with our quote from Magna Carta (which, to be clear, is to a Medievalist a contract not a constitution, to a lawyer  a constitution and to the historians of Early Modern England it's something in between). But it must be said that the purposive approach ought to make the plain meaning of our quote from Magna Carta mean something actually opposed to the legal meaning. Do we have, therefore, the Rule of Law when we've got old laws sitting around?

This is where I think I will move from a half-arsed attempt at legal theorising to making an equally half-arsed attempt at legal-political theorising.

In New Zealand we have a government (the executive) which is part of parliament (the legislature) that we hold to be sovereign. That is to say that there is nothing one parliament can do to permanently bind another parliament and there is nothing the courts can do strike down legislation, at least laws that have been enacted correctly.

To my mind, if parliamentary proceedings have not been followed it is a nonsense to say that parliament exists and hence anything that such a "parliament" did isn't really a law (because it wasn't a parliament at all). Beyond this, though, I am completely comfortable with parliamentary supremacy. Indeed, I would argue that the alternative is forcing the highest judicial bodies to confront political questions. As an example, Brown v Board of Education over in the States was not a legal matter, but a political confrontation framed in "legalese." That's a gross violation of the principles of democracy (although, technically speaking, in the US their supreme court justices don't have to be judges/lawyers, but since they always are they don't get a pass).

Why do I mention this? Well, because I make the political argument that if a parliament has not repealed a piece of legislation that this is a tacit endorsement* of that legislation and, hence, the judiciary must continually understand legislation as it makes sense now. If parliaments are truly to be sovereign and the rule of law is truly to exist, every parliament accepts laws or gets rid of them... and if they accept laws they have a purpose to doing so.

The astute reader is probably thinking that the "sense" of a statute which has already been used in a court case is going to be affected by the way it was interpreted in that court case. Such a reader might also wonder if this means that the judiciary always has some kind of legislative (as in, law making) role... even without the common law. I agree (thus why I call such a reader astute).

The simple fact of one person having decided and stated a meaning of a text colours all subsequent thinking about the same text. From the strongest of disagreements to the most forceful affirmations. Every. Subsequent. Thought. The important bit is that parliament's interpretation is the interpretation (regarding purpose). And because parliament is the people and the people are the parliament old laws are thus not a barrier to the rule of law. So what if it is affected by the judicial interpretations of the past? This is simply the mechanism by which consistent meaning is achieved. No more. No less.

All this swings on that bit about predictability. I have some quite sharp criticisms of the Law and Justice systems, including its opaqueness, so the readability of the footnote is not something I want to bring on board. We cannot predict meaning and hence laws/legalness when we're meant to be reading from some quite alien experiences (i.e. those of the past): meaning is socially constituted (i.e. it's a product of the present moment and continually updating at that). This is simply how reading and understanding work.

When I was younger I was quite sympathetic to the flag change cause and also to the other view... to my understanding, I have presented a "living" statute/constitution argument so the other view would be originalism. These days, obviously, I disagree with both; holding them to be immature and childish... the former motivated by that childish concern with what others think and originalism the classic "but teacher said" immaturity. Hopefully it should be clear that I have implicitly suggested that a problem with originalism is that it is inconsistent with the rule of law, creating caprice and unfairness instead of justice through the availability of unpredictable meanings. It might likewise be said to rely on naive ideas about reading (ignoring the every. subsequent. thought. point quite entirely).

The thing is that as far as I can tell Originalism is an American thing. Which is appropriate because what has motivated this post is the question of whether or not the rule of law can be said to exist in the United States at all. Not because Originalist interpretations occur there (that is, as it were, something I discovered in the course of developing the ideal segue) but because no-one is sure if a sitting US president can be charged with a crime and subjected to prosecution.
It is undisputed, according to legal experts, that litigation over obstruction of justice or defamation could proceed after Trump leaves office. But the question of whether the president can be sued or prosecuted while in office is murkier.
I'm afraid this is just incompatible with the rule of law. If the rule of law truly was a feature of American society it would not be a question but a known fact that the US president could be charged and prosecuted. This is what the rule of law means... and it is what I cam to talk about. The Rule of Law does not exist in United States of America... and they might appoint a dude to SCOTUS who actively argues against it). Mental.

The rule of law should exist. The idea that everyone is subject to the Law is immensely reassuring, it's what lets us know that if we managed to get the coin together we might be able to go to a court and get a just outcome. The rule of law is a fundamental assumption we make in predicting human behaviour, without confidence that it exists it's hard to see the Law as a tool.. a means of getting things done. The rule of law lets is a fundamental presumption about society, and an eminently defensible one. The USA's ambivalence to it is another nail in a coffin that, these days, is surely mostly metal.

* In the common law it is actually assumed that silence cannot mean anything other than silence (there was a case about a horse, I think). This is generally more sensible and you might have seen one of the issues that arises with using silence to infer meaning. Notice how I seemingly want it two ways. Laws can be invalid if they are made by invalid parliaments, but if they aren't subsequently repealed by later parliaments then these parliaments are saying that the laws are, in fact, real. The reconciliation is simply that these were never laws at all. The later parliaments might want to have these laws around but they can't without actually making the Law in the first place. I have started from the premise that a parliament is also the way it says it will make laws; never actually making a law is not one of the ways any parliament has ever said it will make laws. This gives room for a court to come along years later and say, "Woah, hold on guys, that's not a real law, you didn't have a parliament there".

Sunday, 10 June 2018

Feminism's Perspective

In certain discussions you'll often hear people say, "It's always the same with you isn't it? What about the men?" The point being made is that it should be possible to talk about inequalities toward women without considering men at the same time. That sounds reasonable, right?

Changing society is not a particularly easy thing to do. Sometimes you come along and people are just in the mood for change. There's something that's going which is so big and so unpopular that everyone's got a sense that the world's broken. All you have to do then is just show them how. But usually you've got to do more than have catchy slogans and the perfect pictures. Usually you've got to present the thinking and studying you've done to people (because, make no mistake, even when it's "easier" you've got this). And how can you do that if you're always getting distracted by other issues? "What about..."

There is another way of looking at things, though. And that's to say if you don't consider everything then you end up with bad outcomes. A lot of American centred discussions of gender inequality will bring up the CDC's definition of rape. That was changed some years ago to reflect feminist advocacy for change. Unfortunately, what happened is that most male rape victims don't count as rape victims under the new definition: the concept of raping is different when the victim is male or female. Even worse, because the definition was changed, there is far less impetus to change it again because a lot of people, metaphorically, went home, job done. (See pg. 13, column 2, bottom of page.)

I'm not sure how they arrived at their definitions, but you can imagine that their thinking was more marginal than it could have been. And by marginal, I use it in the statistical sense. We might have a joint distribution for two random variables M and F, but we can obtain marginal distributions from this by integrating M or F out. In other words, the marginal distribution describes the behaviour of a random variable when only considering that random variable. This is often sensible. It is also often not sensible.

This brings me to the following headline: "It’s 2018. Could we please stop sanctifying men for doing basic parenting." This is the kind of article that would probably not be published were it about women and written by a man. And if it was published it'd be couched quite differently. It's a thing, if you're confused, that women get to comment without question on men in ways that are now seen as downright odd if men do it. What particular insight into masculinity does a woman have over a man? Who knows, but lots of women write those. But to write about femininity as a man? Yeah... you don't really see this. (The fact is the rhetorical question I just posed is idiotic; the problem is not women writing about too many things but men writing about too few.) Anyway, my point is that a man probably wouldn't also forget that "Dads are babysitters" is a Thing. They'd never let such a headline be written.

(Hell, The Spinoff manages to write this headline a week removed from this headline: "Where are all the baby changing rooms for dads?" Notice also that this article was written by a woman... as I said, that rhetorical question is idiotic.)

Headlines are problematic. I've said before that they set the tone for what's going to be read... they're a vital piece of the contextual puzzle (and we know it is a puzzle). But they're also all that a lot of people will read. That's not a bad thing. It's a big world out there and a lot of stuff happens. Thus, bad headlines are a bad articles. And sometimes the bad headline is made even worse because it's not even accurate. In this case, it is, sadly, accurate.

It's an incredibly naive article. It ignores vital contextual information like the changing facilities infrastructure and wants to have it both ways with other contextual information. Take this point:
Articles like this, no matter how well-intentioned, do no favours for anyone.
The jumping off point always seems to be that a woman’s place is in the home, either as a full time stay-at-home mum or, at the very least, as the primary caregiver of the children.
There's a saying that no is statement can make an ought statement. That's not an entirely unproblematic idea but it's the inverse what's happening here. Cuming wants the ought (that these are non-notable) to be the is, but the reason why the jumping off point is that "a woman's place is in the home" is because that's the reality of what people think... it's why there's a cottage industry of sorts built against the "dads are baysitters" corollary. But you'd only look at this way by asking yourself "What about the women?"

The problem here is not women staying at home. It's not women being not seen as the breadwinner. It's nothing about women.

The problem is that fatherhood is not an attendant assumption about men, when it should be. It's this. And that's a pretty old film now. (Although, of course, it's more similar to babysitting, but ECE isn't babysitting either, and plays heavily into their unfamiliarity but even so.)

Cuming's approach also makes her ambitions worse. The idea she's putting about is that these new stories hurt everyone. Well, sure, they do make the mundane extraordinary. But when you put them in context what it also says is, "Look, men can do this stuff." And if we think about Daddy Day Care again, we're either meant to laugh at them for being so useless at the start... or if we're nodding along saying, "That's so true" we're meant to evolve with the characters in the film so that next time we watch it we're laughing at them at the start.
And finally, this type of sycophantic fetishism of dads just being parents needs to stop BECAUSE IT IS PISSING MUMS OFF. 
Not even hiding her motives... this article is a classic illustration of What Aboutism.
Unless it’s a story about Chris Hemsworth moving to a really hot climate and he has to walk his kids and his dog every morning along the beach with shirt off while making sandwiches for lunch and being spoon-fed muesli by his male nanny, Chris Evans. 
This is an article in need of some self-awareness in a bad way. You definitely can write an article about how "Mummy Bloggers" are a Thing and "Daddy Blogging" is a miracle, but this isn't the way to do it. We don't once see a consideration of the other perspective... it's framed entirely from this what aboutist point of view. I don't want to say that's too wrapped up in her own emotional reaction because, you know, this, but it's too wrapped up in her own emotional response. Let me quote the following line on "hot history":
Whenever contemporary historians go at each other's throats over differences of opinion on current history, their more serene colleagues often offer the following consoling reflection. To their minds, contemporary history is history in which many parties still have a stake because individuals and groups are generally attached  to the image presented of them. And where different interests are involved, conflicts of interest are never far removed. Consequently, a calm and detached approach to the past requires severing the direct link with it, which in turn only happens with the passage of
 time. Temporal distance is in this view a necessary condition of scholarly distance;' hot history must first 'cool off' in the archives for a generation or two before it can be warmed up on paper in an adequate way by historians. For Clio's owl, too, only flies at dusk. (Chris Lorenz, "Beyond Good and Evil? The German Empire of 1871 and Modern German Historiography", Journal of Contemporary History, Vol. 30, No. 4 (Oct., 1995), pg. 729)
Emphasis Mine.

Notice also that Lorenz doesn't appear to buy into this point of view... it's just something he's talking about. Indeed, the idea of Hot History above isn't non-problematic. But the hands off approach, mental distancing, is something that is good and useful... depending on your purpose. But even if your purpose is otherwise, writing out your emotional reaction isn't beyond question. Allow me to quote the following at you:
The Link-Up organisations, which work so closely with traumatised individuals, would perhaps respond to the issues raised by stating 'yes, these things are true, Peter, but why talk about them? Let's help our clients to achieve as much as it's possible both in terms of family relations and identity. It doesn't matter about the larger picture.' ( Peter Read (2002) "Clio or Janus? Historians and the stolen generations", Australian Historical Studies, 33:118, pg. 60)
Emphasis mine.

In other words, just because it's true and authentic you're not free from the responsibility of what your output does. And yes that's a terrifying statement to make. But that's a fear that should be held in mind every time anyone sits down to write. We cannot escape that we're not islands. We're not even island chains. (That's an About a Boy reference.)

To be honest, Cuming's article could probably be published safely with only one alteration... some sort of disclaimer or qualifying remark or opposing article being linked to. But, as is, why was it written? What does it do? Does it understand what its backdrop actually is? Because it's not Mummy Bloggers. It's that there is no such Thing as Daddy Blogging... although, let's be real, there is it just has no cultural capital, which is why the capital T.