Wednesday, April 20, 2011

The Law, part 2

First part here.

(Before the Law by Franz Kafka)

The Law is esoteric, and its practice is a matter for experts. It is said that "Ignorance of Law is no excuse", but who knows the law completely?

The Law can never treat people equally because people's recourse to law differs, their power to defend themselves differs, their power to engage others to defend themselves differs.

Law is impersonal. The judge has to regard a criminal as well as an aggrieved person without subjectivity. In normal life, we judge people from their faces, stature, clothing, mannerisms, body language, tone of voice, warmth, vibe, tears, smirks... To all that, Law is (and perhaps should be) blind.

The ideal judge would be a computer which through sheer formal analysis decides the matter. Ideally, laws would be specified in formal language. But then, they would be opaque to who they impact.

Are there undecidable matters, impervious to rigorous analysis? On what basis are they decided in the real world? The judge's mood, the lawyer's energy, the regularity of the plaintiff's jaw?

In civil suits, there is always someone trying to gain unjustly. If they lose, the courts rarely if ever punish them for the harassment caused to the winner. Their loss of the lawsuit is deemed sufficient penalty. Costs are rarely imposed. "Dragging" someone to court, if concluded in a loss for the plaintiff, must be considered a criminal offense. It is not very different from dragging someone to a wrestling pit and then raining blows on them, forcing them to defend themselves.

Most people disregard the extent to which the economic disparities are conserved at the point of guns. If you see massive disparity in a society, but no guns, look closer.

An act to violate someone's rights is one kind of a crime. I think it is also a crime, perhaps a greater one, to put someone in a situation of peril where he has to break the law in order to uphold his rights and his peace. It is a greater crime because one has created a criminal from a righteous man, and then the might of State is turned onto him. From then on, he will not trust the machinery of law to protect him, and will regard it as foolishness to be law abiding.

Creating a just Law is one of the most solemn tasks given to man. The Bill of Rights is a paean to the American notion of freedom, and limits to what extent the State shall govern the citizens of that country. "The congress shall make no law ..." On the other hand, consider the language of the Fundamental Rights of a slavish country like India:
Freedom of speech and expression, which enable an individual to participate in public activities. The phrase, "freedom of press" has not been used in Article 19, but freedom of expression includes freedom of press. Reasonable restrictions can be imposed in the interest of public order, security of State, decency or morality.

Freedom to assemble peacefully without arms, on which the State can impose reasonable restrictions in the interest of public order and the sovereignty and integrity of India.

Freedom to form associations or unions on which the State can impose reasonable restrictions on this freedom in the interest of public order, morality and the sovereignty and integrity of India.

Freedom to move freely throughout the territory of India though reasonable restrictions can be imposed on this right in the interest of the general public, for example, restrictions may be imposed on movement and travelling, so as to control epidemics.

Freedom to reside and settle in any part of the territory of India which is also subject to reasonable restrictions by the State in the interest of the general public or for the protection of the scheduled tribes because certain safeguards as are envisaged here seem to be justified to protect indigenous and tribal peoples from exploitation and coercion.

Freedom to practice any profession or to carry on any occupation, trade or business on which the State may impose reasonable restrictions in the interest of the general public.
While in the US Bill of Rights, the State is prohibited from infringing on a certain right, in the Fundamental Rights in India, the State is given discretion to violate those rights.

When the lawmakers are non-representative, then the duty of a citizen to abide by those laws is not a given.

Civil Disobedience is today a crime.

Monday, April 11, 2011

The Law

One frequently hears: "Do not take law into your own hands." It is worth asking: "Why not?"

The truthful answer has to be: "Because you cannot be trusted to be just."

The law is a surjective mapping of states of anguish and outrage to procedural remedies.

If somebody does you "wrong", then you file a complaint, and watch as the circus unfolds.

Since the Law takes care, your masculinity, or bravery, or courage, or cowardice are irrelevant.

The law is meant to protect the weak, and thereby weakens the strong. It is a move towards equality. An effective law-enforcement system is essential to social equality.

The Western genre of films and fiction is a celebration of masculinity precisely because law has not been delegated to institutions.

The Hero exists because he directs (or resists) his fate. If the tools of engaging with fate are relegated to others, then heroism is going to become extinct.

There are no heroes in a metropolitan city. There are only those who know the process well, and others who are relatively ignorant.

The nerd is the future of man. The nerd is not an actor, but a twiddler.

"The opposite of manliness isn't cowardice; it's technology." (N N Taleb)

"Knowledge is power", but when it replaces "Will power" then it leads to emptiness and psychological impotence.

War is the absence of Law. There have been efforts to internationalize law, but to little effect. Countries fight with their neighbors using all the means at their disposal, but criminalize the same activity between two individuals within the nation. Even shouting at your spouse is a criminal act in many modern societies.

Some say, and I agree, that modernity is the dominance of the intellect over the emotional. Intellect is procedure, and procedure is by its very nature a wet blanket for the fire of emotion.

The Law can be considered a further step in the same direction. To not only relegate to reason, but to relegate to others whose job it is then to work within reason to address a wrong.

Unless it consists of psychologically neutered individuals, a law-abiding society is an alienating one.

The more law-abiding a society, the more it will need faux outlets for fulfillment.

The tribal does not need enlightenment. The city-dweller does. What the city-dweller seeks nostalgically is a feeling of aliveness, which has been usurped by the machinery of the city.

Consider (simplistically) the three levels of living: physical, emotional and intellectual. The city values only the third, with the first two being artifacts instead of being natural, spontaneous parts of one's day. How can it be a fulfilling life?

The Law is institutionalized and formalized conflict-resolution. What people seek is revenge and to hurt the other and to see tears on the other's face, what Law cares about is written argument and whether the affidavit is notarized. It is not nearly the same thing.

It is an interesting question to ask whether an advanced and evolved society will have more laws or less. Whether it will be able to trust its citizenry to be just and therefore take law into their own hands.

Gun control laws are opposed by "conservative" men unwilling to become applicants to the state to redress their wrongs, but are advocated by "progressive" feminists, leftists and believers in democracy and its institutions.

(to be continued)