ss <[EMAIL PROTECTED]> writes: > On Tuesday 19 Aug 2008 10:02:30 pm Perry E. Metzger wrote: >> > On Tuesday 19 Aug 2008 8:34:48 pm Perry E. Metzger wrote: >> >> The purpose of a legal system is to provide utility for the people >> >> among whom it operates. That is the only goal that deserves >> >> respect. If the sheet of paper specifies actions that on balance harm >> >> people then it deserves to be crumpled up and tossed out. >> > >> > OK. If you say so.. >> >> Do you believe otherwise? Is the function of government to impose >> arbitrary rule, or to serve the needs of the people living in the >> governed territory? If it is to rule, then why should anyone, other >> than someone interested in the raw and arbitrary exercise of power for >> their own benefit, want it? > > Er - I.m not in this any more. You lost me when you decided to toss > out the Indian constitution. It is crucial to this discussion .
Is it? So far as I know, the Indian Constitution is a document drafted by human beings as a means of achieving their goals. It is not, in itself, a goal -- or at least should not be. The function of a legal charter like a constitution (if it is to have a legitimate function) is to achieve some set of external goals desired by its drafters. One cannot point to the document as a source of legitimacy or an end in itself -- the legitimacy necessarily comes from the people who are participants in the chartered organization, and the ends must be their ends. A law or a constitution can say monstrous things. The fact that these horrors are printed on fancy paper and enforced by courts does not legitimize them. The Nuremberg Laws were not just in spite of the fact that they were passed with all i's dotted and all t's crossed. The Union of South Africa had a constitution that insisted that only white people deserved rights. Can one justify that idea based on the fact that the constitution said it? A constitution can also say wonderful things, like that all people should be free to speak their minds without fear, or that all people can expect equal treatment before the law. However, we cannot judge that a provision is monstrous or wonderful merely because it is embodied in a document printed on fancy paper with official seals stamped in the corners. We must judge based on external criteria. The crux of this discussion, the core of the question of how one judges, is to examine the implicit criteria -- to make the goals explicit, to subject them to the bright light of the daytime, and to decide both whether they are the appropriate and whether the proposed constitution, or law, or policy, furthers or hinders them. You keep retreating to what documents say rather than discussing what is desirable. This is not helpful. Tell us, rather, what it is that you wish to achieve? > Article 370 of the Indian tossed out piece of paper expressly > disallows Indians who are not Kashmiris (such as myself) from owning > land in Kashmir. Perhaps this is good, perhaps it is bad, but how does the mere fact that it is in a constitution tell us what is desirable? That doesn't give evidence of what the appropriate policy should be, or what appropriate goals should be. It just tell us what people have currently chosen to write down. In Ireland the laws say abortion is illegal. In the US the laws say that it is legal. Does that mean abortion is evil in Ireland and good in the US? No, it just tells us that the documents say different things, and we have to look elsewhere than the laws themselves to find a framework for deciding what is desirable. Laws do not tell us what should be. They only tell us what is. If we want to have a meaningful discussion about what should be, we cannot search for justification in laws. We have to appeal to much more fundamental principles, and to discuss what the laws *should* say. So, what are the underlying principles here? What is the basis on which to judge what is good? Tell us what it is that you are attempting to *achieve*, and tell us why you think others should agree with these goals, and why the policy furthers these goals. *That* is a meaningful discussion. Perry -- Perry E. Metzger [EMAIL PROTECTED]
