Law ruins your lifeAnother day, another newspaper headline that automatically kicks in a legal response rather than anything else.So our beloved tabloid (layout) The New Paper has as their headlines something about how a mother had changed (presumably unilaterally) her daughter's, age 9, surname to her own from her husband. The upset father is now suing all and sundry including the school and MOE. Now mind you, I have not read this report so the following analysis might be entirely wrong but I figure it shouldn't be too difficult to cover most conceivable (and probable) bases so it should be fairly accurate. In fact, the set of facts that shall be covered in the case below is so much more clearcut than the one listed in TNP that if that hadn't, there is nearly no possibility of there being a different outcome this time round.As an aside, the reason law ruins your life is not only do you view this as a legal issue but specifically through the prism of family law (there are some rather fascinating constitutional issues about surnames but that tends to be in Japan and South Korea for various cultural reasons) as opposed to simply being a human-interest story.The case that we are primarily interested in is a decade old case of L v. L, [1997] 1 SLR 222 (don't worry about the citation it's for the lawyers who can actually be bothered and have the access to look up the case). The proposition/legal rule that can be derived from this case is that a parent cannot unilaterally change the surname of the child i.e. without the consent of the other parent. This is because for various reasons, the change of a surname is held to be a "serious matter", as serious and important as taking the child out of Singapore for more than a month without the consent of the other parent (parental kidnapping). Anyway, the facts of the case were that the parents were divorced, the mother had sole custody and decided to change the surname of her daughter to the man she was about to marry. The father claimed that this act was unlawful and wanted a reversal of the change to be mandated by the court. Without g0ing into the decision of the Family Court and the High Court, the important part is that the Court of Appeal agreed, held that this was actually actionable and that a remedy would be granted.Two thing of significance: 1. the mother actually had sole custody, which technically means she has sole authority (this has been strongly militated by judicial decisions) and there was absolutely no statutory prohibition against sole guardian changing name of the charge/ward. 2. the court found that the father was a caring father who was interested and concerned as to his child's well-being.The second point is of relevance because of this later case of Khor Bee Imm v. Wong Tee Kee, [2002] 1 SLR 101 which also involved mother unilaterally changing surname of child, except that in this case, there was no court order for the reversal of the change. The reason simply was that it was not in the best interest of the child in this case to change his surname back. The father in this case was not as intimately involved nor as concerned with the well-being of the child. Furthermore, the child was not a young girl but a young man of 17 who had been with the changed surname for a good number of years, was known as such, had no desire to change it back, and comfortable with it. Furthermore he told he judge that he had no relationship with the biological father seeking the reversal.So to iterate, you need the other parent's consent or you need a fairly exceptional set of facts and time to create some form of quasi-estoppel i.e. you are prevented from essentially going back on your "consent" to the surname change. It is quasi because legal estoppel can actually be enforced i.e. whereas this is merely a consideration that the judge will probably take into account.And Now You Know (go google it). Peace So Long and Thanks for all the fishIt is with quite some regret that I have decided this will be my last post in the foreseeable future if not forever. The reason simply is that time moved on and things happened and for various reasons, I neither have the inclination nor the reasons to blog.I don't regret the stuff that I have written and in today's world, what I have written cannot be deleted and can always be retrieved. I at best regretted my early support for the 2nd Iraq War and that I never really made a retraction. And my early stupidity on climate change, having adopted a "skeptical" view towards anthropic warming.But anyway, peace ja? ST Letter Rejected (Thankfully?)Well, to be fair I didn't expect the letter to be accepted and it (the spoof) probably wouldn't have made sense if one did not actually bother to go dig out the letter to which it was responding to.Further, while I appreciate the poor journalist/editor has to plough through all of the letters that he/she receives daily and that a standard-form response is the most efficient way of doing so, nonetheless, the following brought an ironic smile to my face.If your letter relates to a matter under the purview of a government department, you may want to visitwww.sgdi.gov.sg for a list of officials to contact.After all my letter was meant to be extreme and over-the-top and the thought that it be submitted to a public official and possibly taken seriously sends chills down my spine. After all I really don't see the sentiments expressed being too far removed from what the original letter writer was expressing.Anyway for anyone wanting a more exhaustive debunking of Mr Nelson Quah's letter, go check this out. It's yummy civil libertarianism without all the annoying legal technicalities and jargon that would have bogged my analysis down!Oh and it's a good blog too. I'm not certain what to make of this. Is this a good or a bad thing? We should consider having our own Anti-social Behaviour Act to deal with ugly S'poreansTHE Scottish Parliament passed the Anti-social Behaviour Act (ABA) in 2004 with the original intention of curbing noise nuisance. This Act, which empowers authorised officers and the police to take summary action against an offender by imposing a fine and even confiscating the offending equipment, is effective in curtailing the noise problem. We should have a similar Act in Singapore modified and expanded in scope to deal with the various anti-social behaviour problems here. Here are some anti-social behaviour problems which can be corrected by this Act. >>On MRT trains and public buses, it can be used to catch and fine those who fail to give up the designated seats for the pregnant, disabled and elderly. It can also be used to nab those who assault bus drivers when asked to produce their passes for identification. >>On the road, it can be used to punish those who grab the oncoming taxi without consideration that another person is there earlier waiting for it. The cabby can be reminded that if he picks up the queue-jumper, he will be reported to the police for action to be taken against him under this Act. >>In crowded car parks, it can be used to fine inconsiderate and discourteous drivers who go against the directional sign to occupy the empty lot, ignoring those who were there earlier. >>At various places, it can discipline people who display anti-social and repugnant behaviours such as queue-jumping and spitting. >>On the Internet, it can be used to punish and discipline irresponsible bloggers who are quick to insult a person by their libellous remarks or foul language. The police can fine the errant bloggers who usually operate under the cloak of anonymity and ask them to apologise and reveal their true identities including their photographs on their blogs. This Act is all-embracing and can be applied in some way to eradicate any anti-social behaviour displayed by the ugly Singaporeans. Should there be any future anti-social behaviours, the ambit of the Act can be enlarged to deal with these new problems. The ugly Singaporeans are a bane to society as they destroy our efforts in building a gracious society. They also tarnish our image as a First World country by their Third World behaviours. National campaigns in the past have not yielded much results and we should not discontinue these ongoing programmes aimed at changing their values, attitudes and behaviours. We should also seriously consider having our own ABA to reform those hard-core anti-social elements who cannot be changed by the persuasive approach of national campaigns. An excellent suggestion! In fact I propose how the ambit should in fact be broader than the letter's author suggests!On MRT trains and public buses, it can be used to catch and fine those who fail to control their children who run amok. It can also be used to nab those who assault our senses with their horrible taste in fashion and music.On the road, it can be used to punish those who do not slow down at zebra-crossings without consideration that another person is there waiting. The driver can be reminded that if he does not slow down, he will be reported to the police for action to be taken against him under this ActIn crowded food courts, it can be used to fine inconsiderate and discourteous persons who go against the accepted etiquette to occupy the empty seats, ignoring those who were there earlier.At various places, it can discipline people who display anti-social and repugnant behaviours such as speaking loudy or with improper English grammatical syntax.On the Internet or print media, it can be used to punish and discipline irresponsible letter writers who are quick to use faulty logic without due consideration of constitutional liberties to advocate improper social engineering measures. The police can fine the errant letter writer who usually operate under constitutional protection of free expression and ask them to apologise and reveal their true identities including their photographs in print. Because I have plumbed the depths of the internets (including reading fstdt.com), I realise that sarcasm and irony is dead so just to ensure you that I haven't taken leave of my sense and that this was a spoof letter.For a while I wasn't quite sure if this letter wasn't a spoof itself ala the Sokal Hoax but a quick google search shows that the writer has made similar arguments before so it's likely he was serious.That scares me.... Saint Augustine on Science and ScriptureUsually, even a non-Christian knows something about the earth, the heavens, and the other elements of this world, about the motion and orbit of the stars and even their size and relative positions, about the predictable eclipses of the sun and moon, the cycles of the years and the seasons, about the kinds of animals, shrubs, stones, and so forth, and this knowledge he hold to as being certain from reason and experience. Now, it is a disgraceful and dangerous thing for an infidel to hear a Christian, presumably giving the meaning of Holy Scripture, talking nonsense on these topics; and we should take all means to prevent such an embarrassing situation, in which people show up vast ignorance in a Christian and laugh it to scorn. The shame is not so much that an ignorant individual is derided, but that people outside the household of faith think our sacred writers held such opinions, and, to the great loss of those for whose salvation we toil, the writers of our Scripture are criticized and rejected as unlearned men. If they find a Christian mistaken in a field which they themselves know well and hear him maintaining his foolish opinions about our books, how are they going to believe those books in matters concerning the resurrection of the dead, the hope of eternal life, and the kingdom of heaven, when they think their pages are full of falsehoods and on facts which they themselves have learnt from experience and the light of reason? Reckless and incompetent expounders of Holy Scripture bring untold trouble and sorrow on their wiser brethren when they are caught in one of their mischievous false opinions and are taken to task by those who are not bound by the authority of our sacred books. For then, to defend their utterly foolish and obviously untrue statements, they will try to call upon Holy Scripture for proof and even recite from memory many passages which they think support their position, although they understand neither what they say nor the things about which they make assertion. [1 Timothy 1.7]Context: I passed by St Andrews Cathedral's Visitor's Center which had an anti-evolution poster (or an evolution denier one quoting how Man being made in God's image being somehow incompatible with a common ancestry with apes). They (i.e. religion in general) could pursue this path but when reality disagrees, the truth tends to win out. Once the congregation realises that they are being lied to in this instance, it becomes a simple matter to start question everything else.And you don't want that to happen do you? (quizzes are such easy replacements for posts)You fit in with:Humanism20% spiritual.60% reason-oriented.Your ideals mostly resemble that of a Humanist. Although you do not have a lot of faith, you are devoted to making this world better, in the short time that you have to live.Take This Quiz at QuizGalaxy.com NUS VCF Intelligent Design TalkGo see http://gssq.blogspot.com/2007/10/only-fools-are-positive.html for what the talk was supposed to be aboutYes, I was that annoying guy at the back of the room who made that outburst and repeatedly tried to pin the presenter down on an actual answer.I made that outburst after sitting through a very bad presentation that had been billed as Evolution v. Intelligent Design but was actually (according to the good doctor) Paley's Argument from Design wrapped in the language of Intelligent Design. VCF's apologised and took responsibility for designing that poster which was good but doesn't explain the communication breakdown (or the unintelligent design of the explanation of the issue in that poster but I disgress)Along the way he had misrepresented Anthony Flew's supposed conversion to Deism (he had been misled to believe there were no good theory for abiogensis), conflated abiogensis i.e. the origin of life with evolution, misrepresented the Big Bang as having a beginning (we don't know is the right answer), misquoted George Smooth (he actually said "If you're religious, it's like looking at God" and not the truncated version which omits the first part which is attributable to Hugh Ross), conflated complexity with intelligence, made arguments by big numbers (sorry Fred Hoyle is a bit of a crank and not an authority in this field anyway), misrepresented the state of the Urey-Miller experiments, quotemined Dawkins (yes Dawkins said that the cell was tremendously complex but the book from which that was quoted i.e. Climbing Mount Improbable is entirely and specifically about how evolution can achieve that complexity), claimed that there was no true definition of evolution on the basis that there were disputes as to the primary mechanism of evolution (and yes Gould's punctured equilibrium was misrepresented again) and asserted that there wasn't enough time for his version of evolution to occur and claimed that evolution was random chance.For me, the snapping point was when he just said that Darwin was not religious despite clear evidence to the contrary (if he were any type of scholar) prompting me to say "For goodness sake, he entered a seminary" (I overstated the claim. He was studying theology with an aim to becoming a clergyman and did not in fact enter a seminary). More importantly, one of the reasons he took so long to publish his work was because he was very painfully aware of the religious implication of his work (this was still the time of young earth and divine creation after all) and felt guilt over it.But for me, I was "apoplectic" (nah it's just me in debate mode) particularly once I saw how he refused to answer even straightforward questions and worse dismissed his quotemining of Darwin (he said Darwin had doubts about his theory because it could not explain the evolution of the eye WITHOUT mentioning that Darwin specifically refutes and addresses that doubt right after that paragraph!) as a small matter!Meh. Why the marital rape exemption is senselessI was prepared to leave this letter well alone until I read that the author is a philosophy tutor at NUS and this is an attempt to emulate the system of Aquinas in Summa Theologiae.And better still I think this was one of the rare instances where everyone on the political spectrum in YoungRepublic condemned it, which is a remarkable show of unity and demonstrates how absurd his position is. But leaving aside the argument to popularity which might have been applied in the prior statement, here's why it's still fundamentally wrong in the first place.http://www.straitstimes.com/ST%2BForum/Online%2BStory/STIStory_166104.htmlI REFER to the article, 'Rape is rape, so husbands should not have immunity" by Dr Andy Ho (ST, Oct 2).To remove bias, 'rape' here means only 'non-consensual sex', with no overtone.With no overtone?! Sorry, the very fact that it is non-consensual makes it wrong. Unless you want to adopt the positions that facially a person's consent is not needed for acts done to him, this statement is latent non-sense (unsinn) in a Wittgenstein fashion i.e. it does not make sense insofar as one cannot imagine it to be falsifiable. Dr Ho rebuts arguments for 'marital rape is not a crime'.One: A woman's consent to marriage implies her lifelong consent to sex. Rebuttal: Lifelong consent becomes a 'legal fiction' when the husband turns into a violent stranger. Comment: The law makes no such exception, and no supporting argument is offered for this assertion.One general comment. He presumes an A/Not A situation wherein rebuttal of Dr. Ho's positions means that his positions stands when in fact he bears the burden of demonstrating why the wife is not equally situated with non-married women with whom the rapist has sexual relations with and therefore the marital rape exemption might be justified despite an ostensible violation of the principle of the equal application of the law.Two, maybe some believe that a woman's consent to marriage implies her lifelong consent to sex but I don't see a reason why this is the case. If so, then this entire comment is irrelevant. Why does marriage imply consent to sex anymore than it implies consent to say subjugation to the husband or the husband's dominion his hand in discipline? Marriage is a civil and legal institution (so if the Catholics allow for the annulment of marriage on the basis of non-consumation according to their religious beliefs, then so be it) and therefore all the wife consents to are the legal duties that are imposed by law. The common law has come a long way from saying that the wife has no legal personality (no standing before the law) because she is simply an extension of her husband. Since she is recognize to be her own legal person, it must be established why she somehow loses the right not to be raped by her husband as opposed to when she was not married to him.Three, even if this was the basis of the law, Dr Ho's rebuttal stands.Four, even if it did not, the interpretation of the letter writer is erroneous. One the matter of lifelong consent to sex, it would be more akin to the idea that the wife cannot withhold sex and still have the marriage stand NOT that the wife cannot withhold consent to sex. Two: Marriage is a private intimacy, into which the law should thus not intrude. Rebuttal: Marriage as a private intimacy wrongly presumes the interests of husband and wife are aligned. Comment: Neither 'private' nor 'intimacy' presumes interests are aligned.Nope, good try. The penal code (first drafted for India) is a very old piece of legislation and is a codification of the common law on criminal matters (with some exceptions like the right to self-defense where apparently the drafter's belief was that the natives were so submissive that there would not fight back even if attacked to death and therefore a right of private defense had to be added. Go figure). One of the ideas in the common law was that the wife was simply the extension of her husband and one of the rationales was that their interest were aligned.Even if this were not true, it still misses the point of similarly situated for an equality of law analysis.Three: Making marital rape a crime will poison reconciliation. Rebuttal: Marital rape already poisons reconciliation. Comment: Many marital rape victims do 'forgive and forget', and reconcile.Battered Wife Syndrome. Go google it. They eventually crack and murder their husbands.Also many don't, prosecution can still be done. Except that because we can't use the rape provision (which allows for sentences of up to 20 years), we have to get them on much lesser charges under use of force, causing hurt (max of a year unless grievous hurt is caused and the definition of grievous hurt is very exactly defined only to include stuff like emasculation, breaking of a limb, causing the person to be hospitalized for more than 30 days etc. which is not what rapes are about) or the stupid 377 provisions. The point to be emphasized is that the act of rape itself is the harm not the harm caused which tends not to be physical). Four: Making marital rape a crime makes wives more likely to falsely accuse husbands. Rebuttal: England and Ireland have made marital rape a crime, without increasing false accusations. Comment: Dr Ho has a counter-example.Actually, Dr Ho's point would have stood anyway since it would be the onus of those who advocate the marital rape exemption to prove that false accusations would be a serious problem or even a problem at all. The problem of prosecuting rape is not that of false convictions (although it might happen) but more so that of not being able to convict the rapist because of due process requirments in criminal law that (rightly in principle) make conviction hard. Should it boil down to a he-said-she-said situation, it is not going to be easy to convict on the basis of beyond a reasonable doubt. Add that to the situation of a marriage and in fact unless one puts in presumptions of non-consent, convictions are going to be very very difficult. Dr Ho argues for 'marital rape should be a crime'.One: Almost all aspects of women's legal subordination to men have been rejected. Comment: A traffic sign saying 'No entry - except ambulances' will insist on the exception.There the exception can be justified. Here it cannot be. Therefore there are not analogous and the analogy does not stand. Two: 'Rape is rape, so the marital rape exception should be completely erased.' Comment: The marital rape exception is built into the law. Insisting the exception be removed does not entail it should be.The onus is on those wanting the marital rape exemption to justify why the woman once married is not similar situated to a woman who is not married when it comes to the application of rape laws.Two, it is irrelevant that the exception is built into the law. Unless one commits the fallacy that the status quo is necessarily good, there is no merit to the point. Laws can be amended and repealled and that was the whole point of this exercise in the first place.UNLESS he wants to argue that even the limited amendment to the marital rape exemption here was wrong? Good luck Three: Marital rape harms the victim more than does stranger rape, which is a crime. Comment: First, harm may not be a sufficient reason here. Husbands also have duties to wives that strangers do not. Second, the alleged greater harms of betrayal, entrapment and isolation likely presume marital sex must be consensual, rendering the argument circular.I will wrote the following brilliant response from a member of the YoungRepublic here"He [the letter writer] also claimed to have found 'circular thinking':1. Being raped by your husband is shittier than being raped by a stranger2. But it is only shittier because there is some kind of meta-consentinsofar as he is your husband3. But rape is a sexual act without consent therefore this is circularWhen in fact it is:1. Being raped by your husband is shittier than being raped by a strangerbecause you trusted your husband to treat you with love and respect.2. Being raped by your husband is therefore both a betrayal of the respecthe owes you as a woman AND as wife.3. Therefore marital rape, far from being an exception to rape laws, shouldbe treated as a more heinous form of rape."So yeah...whatever he said above. Four: 'Why does the system then deny her what she considers to be in her best interest?' That is, if a wife considers it in her best interest that marital rape is a crime, then marital rape should be a crime. Comment: First, the law must consider the general interest, not that of just one party. Second, wives do not dictate the law.The general interest is the protection of the individual from crimes, one of which is the protection of the individual from even simply being touched without consent, see here the tort of trespass to the person or what is in the vernacular called battery. Mind you this goes even further than people think it goes, even a simple touch is grounds for liability where there is no consent or implied consent to some de minimis touching when in public. So the consideration here is not that of one party.Second, one can all too easily replace the word wife with victim to see how utterly fallacious the above is. We have a trial system for a reason. In summary, we have a case for 'marital rape is not a crime', and none for 'marital rape should be a crime'. In summary, what we have here is a perfect example of GIGO i.e. Garbage In Garbage Out. If your assumptions and premises are wrong, then you logical analysis will necessarily lead to garbage conclusions.Peace Talking about Torture: Philosophical bridges in dialogue Part 1 I really should be reading my International Investment Law textbook but my mind is still rather fuzzy despite the time of the day and I'm hoping this will clear whatever remaining cobwebs so I can get down to actually reading the dang book.As promised yesterday, I want to briefly highlight and discuss how axiomatic choices can make for secular positions that are nonetheless highly divergent in their conclusions. One of these positions in recent times has been that of torture. In particular, whether it is ethically permissible to ever use torture and if so, under what circumstances. From them, we try to fit it within the system of a liberal democracy (or any system that respects human rights because the lack of respect thereof simply means there is no bar to torture) and further within the rubric of the rule of law (the idea of the supremacy of law in the system and those rules as a constrain on arbitrary power). So we can start first with the deontologist (moral absolutism) and contrast their perspective with act consequentialist. For the purposes of this discussion, it would suffice to say that the first term refers to the notion that principles are fixed and do not deviate simply by virtue of the situation and circumstance at hands. Thus if it is a moral good to tell the truth or not to kill or not to torture that those principles and prohibitions are absolute (as a grotesque simplification, Kantians would argue that since consequences simply cannot be controlled by the individual but only intentions can, then only intentions matters from an ethical perspective). On the other hand, act consequentialism (or act utilitarianism) looks purely at the consequence of a particular act to determine if something is good or bad. Generally speaking, the position thus adopted can be loosely described as “the greatest good for the greatest numbers” and can be described as the ultimate form of situation ethics. These two ethical positions are both entirely subjectively (and to their proponents objectively) valid but their conclusion varies diametrically.But on to building bridges: assuming now that one as a deontologist wishes to persuade someone of the consequentialist bent that the prohibition of torture ought to be absolute, how would I go about doing so? Since the ethical premises are different, trying to persuade the consequentialist through deontological means is going to be fairly useless. Nonetheless, I can adopt a form of consequentialism to make that particular argument. One of the charges laid at the feet of consequentialism and utilitarianism has been that nothing is prohibited if the circumstances were right. This might be true of act utilitarianism in that only the immediate consequences of the act matter BUT is in no way true from the viewpoint of rule utilitarianism. In rule utilitarianism, one calculates based on whether the harm of promulgating a rule outweighs the good, it seeks to take not just the immediate consequences but also the long term repercussions and it also tries to aggregate all likely scenarios so as not to let a truly aberrant situation skew the weighing. Thus for example while an act utilitarian will be hard-pressed to say that he would not shoot (or torture) an innocent person if it would save the lives of a entire town (or country etc.), a rule utilitarian can accept that such situations do exist but as a rule we ought not to do so because of reasons such as undermining the trust of the citizens in the system, the unlikelihood of such a situation outside of 24 etc., the backlash one would get from other members of society (or international community).But personally, I think the situation is harder the other way round i.e. persuading a deontologist on ontological grounds why there should be no absolute prohibition on torture but merely a conditional one. That however will have to wait till tomorrow as I am absolute knackered by Tuesdays. Peace The Case for EuthanasiaInteresting article much of which I agree with although I wouldn't have written it the way he did (it opens it up to attacks which would be irrelevant but which I predict would happen i.e. mostly on the grounds on emotions and "faith"). At the same time, I want to offer up some common arguments against euthanasia and why I feel most of them fall on balance or are mitigated if not derogated by other considerations.The case for euthanasiaWhen thinking about our 'rights' to death, are there double standards? CHARLES TAN DEATH is perhaps the only truly universal trait that we all share and thus, identify with — regardless of culture, status, or faith — and yet it is still taboo (if not impolite) to talk about it, much less debate it, in modern society. Something I'm somewhat familiar with if not personally then by association with persons (or a person) who thinks hard about the issues and stills has problems communicating across those reasons to that person's parents.If you've ever watched the Animal Planet channel, you've probably gawked in disbelief at how fortunate some pets are. Paris Hilton's pooch chows down on foie gras, while 3 billion people (that's half the world) live on less than $3 a day.But if life is good for these pets, death might be even better — for when perceived to be in agony, at least they are put out of their misery.Humans on the other hand, have no such option.Strangely enough, this was something I was thinking about the other day and it is indeed a rather curious turn of events as to why this is the case. Especially so when one considers that the choice to be put down is not that of the pets but those of the pet owners and the veterinarian.So, what is an aspiring economist doing questioning the legality of euthanasia? Aren't such matters best left in the hands of ethical philosophers and moral legislators?The way I see it, the criminalisation of euthanasia is tantamount to a violation of the free market and individual property rights, and thus warrants a rational (read: economic) review.Oh sigh... Geez. Violation of the free market? I don't see how this can constitute a violation of the free market except in a fairly roundabout way i.e. by denying the basic premise that individuals ought to be able to make decisions for themselves (which in itself is premised on the notion that only we know what's best for us). And of all ways to put it, "a rational (read: economic) review"?! I hope that this was a matter of editing and not the actual phrasing he used.Now, it is patently obviously that this approach is not necessarily wrong and in fact arguably has much to recommend for it. But I submit that the basis for this is not economics (the science of scarcity as it were) but on the broader notion of rationality and "public reason" i.e. arguments that would be applicable to every member of society.The most common justification for the flagrant infringement of a basic human right — the freedom of choice — is that the average person often makes "bad" decisions, thus the need to relieve him of certain options.However, if a decision bears little to no adverse effects on anyone but oneself, why should the government intervene?To be sure, I believe most would find the mohawk a "bad" haircut; but the hair on someone's head is his, not mine, and his garish haircut doesn't waft into my eyes like second-hand smoke does. How he decides to treat his hair should be no business of ours.By the same token, what a man chooses to do with his life should be treated with equal respect, for it is the individual's prerogative, and not the communal right, to decide.Well, that's the premise for paternalism to be sure and yes paternalism by definition infringes on certain of your basic liberties. But at the same time, there might be other reasons for the derogation of a right, up to and including, because it infringes on another's right or simply another right. It is this second part of the second aspect (another right) which I feel that this article does not quite deal with, although I say this for completeness sake rather than because I feel it is fundamentally detrimental to his case.Choice presupposes ownership. Therefore, central to the euthanasia debate is religion, for your belief in the nature of cosmic truth will ultimately determine who owns, and therefore controls, your life.Euthanasia finds its strongest opposition in the annals of religion — and this is perhaps the reason why supposedly secular legislation is skewed so — because modern law remains primarily based upon Biblical canon.To deny one the right of choice over his own life, is to presume that he had no ownership over it to begin with.Followers of monotheistic faiths believe that life was bestowed by some supreme Creator, and thus, can only be rightfully taken away by Him. I think this is about right. Strip it to its core and I get the sense that this is what most of the opposition is about. While there are secular arguments against euthanasia as evidenced below, much of it is arguably excuses rather than real reasons why suicide should not be permitted as a principle (the arguments for euthanasia are arguably stronger).Some might argue that our emasculation with regard to birth should follow into death, but such a fatalistic view is about as bright as saying that those born into poverty should not endeavour to enrich themselves.Instead, Life, like an inheritance, is but an endowment, and has no bearing over what you may decide to do with it.Let me concede that we have no say in our creation — our parents did.Life is as much a given as Death is; but while (or perhaps, because) we have no control over the former, we strive to control the latter like we attempt of everything else around us. Oh gosh, wouldn't it be much better to say it's a non-sequitur? Here's a reformulation of the argument based on secular human rights: the basis of human rights is that of life because one has those human rights as a result of one's life (and thereby accordingly the inherent dignity of life of which human rights are suppose to protect). Secondly, life and human rights presumes the capacity for choice whereas death is the ultimate negation of that choice. That ultimate negation is therefore the premise upon which the state may derogate your choice in order to prevent the ultimate derogation through death.But while this argument may hold water in the case of say mental ailments e.g. anorexia that is causing the person to literary starve himself or herself to death, and that this is not a choice that is in any sense of the word rational or informed, therefore the state may legitimately abrogate that "choice" and perhaps institute a regiment of forced feeding and medication.Where the analogy holds and falls apart in euthanasia is that we are talking really about end-of-life treatment. Euthanasia occurs with terminally ill patients and we're generally talking about patients with massively diminished quality of life due to pain or incapacitation from the illness. Thus while it is is a form of suicide BUT the premise of it is that this is simply hastening the process and avoiding the associated pain and/or the mental diminshment from the heavy palliative care that is needed (query: in the absence of our capacity to think and make choices, are we still human in any sense of the word? NB: we aren't talking about infants or even the severely mentally handicapped as that would be to use exceptions to make general policy).Everything modern medicine has achieved might seem to be in contravention of a divine order.Consider how — and this can be empirically proven — two identical people, with identical illnesses can experience vastly different life expectancies, when given, or deprived of, access to medical amenities.To me, this is positive proof that we are either defying some heavenly instruction by our prolonged existence, or that perhaps such an order never existed to begin with.If we assume, for the sake of argument, that such an order exists, it must then logically follow that if He does not find the extension of our mortal existence offensive, then why should the converse be so controversial?If we try reasoning along an atheistic slant, then the argument becomes even more potent. No arguments from me here. I could think of a couple of apologetics and even of theodicy but hey I didn't find them persuasive them, I doubt I find them persuasive now.Many biologists argue that what differentiates humans from the rest of the animal kingdom is the capacity for emotion; and perhaps, what unites us, is the sensation of pain.If pain truly is universal, then our double standard between animals and humans in this regard is not only hypocritical — it is downright perverse.No it's actually worse. Every living organism feels "pain" insofar as we react to external stimuli. But when we talk about pain, what we're actually contemplating is the capacity to understand and to suffer. That's the huge difference between lobsters and "higher" organisms.Consider this: An animal, with no means of communicating its true intent in a language intelligible by humans, except its display of perceived agony, is by default, put down if thought to be suffering; while a human, perfectly capable of communicating intent and/or visibly in pain, is by default refused any assistance for voluntary euthanasia.Here here!Lastly, a country that has the death penalty has no right opposing euthanasia, for one of the most popular arguments against euthanasia is that its legalisation constitutes a government sanction for suicide and therefore cheapens the inherent worth of human life.Hmmmm, this requires quite a bit of elaboration but I think it basically fits. One counter argument is that the state is simply derogating your life in accordance with law and morality and rights when you abridge the life of another i.e. that the state is thus acting in a rightful manner and does not thus cheapen life. But by a similar token, this reasoning can be applied to a properly crafted euthanasia policy, see e.g. the Netherlands's policy or Oregon's Death with Dignity Act i.e. it ensures an informed decision and consent and that the state is simply giving effect to the intention of its citizens (or at least not interfering with them).To digress a bit, there are other parallels to be drawn.Some argue that the death penalty is justified in that it has a deterrent effect and that imprisoning a felon for "25 to life" is ridiculously expensive for the taxpayer to upkeep so heinous a criminal.Actually it's 24 times more expensive to execute a person than to keep him in jail in the US. Much of that cost is due to the many levels and layers of appeals to ensure no wrongful conviction (which still doesn't keep innocent people off death row per the Innocence Project). But unless someone wants to make the argument that we wish to reduce the procedural safeguards to make it cheaper to kill someone, I can't see how this point is if nothing even more damning.It should be obvious that the criminalisation of euthanasia has no deterrent effect on any individual, simply because it is not an act of frivolity, but one of desperation.The able will still resort to messy alternatives or seek assistance in Holland, where euthanasia is legal. The unable must continue wallowing in pain. Even if the ban does preserve life, it most certainly robs it of dignity.This to me is the heart of the entire issue. I think it helps to explain why euthanasia is and why it is (somewhat) different from plain suicide and I think it really helps to give some facts and figures as to existing problems to demonstrate that much of the concerns are not empirically derived.Additionally, recall the point I made earlier. Human rights are "granted" simply by virtue of human life and the inherent dignity of human life. Thus once stripped of dignity (as is the idea behind cruel and ununsual punishments, inhumane and degrading punishment as well as torture and crimes against humanity and genocide), one is represented to be less than human, which is why we fight so hard against these violations of human rights and why even Singapore acknowledges them to be at the very core of human rights and non-derogable to boot.Also, keeping an unwilling patient on life support ties up precious medical resources and attention, which could otherwise be used to save patients with a will to live. An outright ban is not only just cruel, it also runs in direct contradiction to the logic behind many of our existing laws and beliefs. Cough cough...not really. As the author has already pointed out, quite a bit of our laws are indeed based on biblical notions by virtue of the fact we inherited them from the British (at least until we cut off our legal teat back in 1994 through the Applicability of English Law Act. Mind you though, we still cite English cases because that's how we were and still are trained).But the more forceful point to be made is that we have quite a few laws that run powerfully counter to them. Abortion (public health grounds), HOTA (public health), Stem-cell (Science and public health), gambling (sad to say tourism although I like to believe that choice has a role to play in it), prostitution (public health and a sop to human fallibility of sorts. Yeah, it never ceases to amaze my foreign friends that prostitution has been legal here since the time of Raffles.)The inconsistencies in our justification should compel us to question if our reasoning in support of the ban is valid, or if they are predicated upon traditional dogmas which are in serious need of intellectual review.Snort. If only. Too much of religion is premised on faith and not reason (otherwise Hume's presumption of Atheism would stand).As an atheist, I find that the absence of an afterlife in my ideology reinforces my love for life.For only when we concede just how short life really is, do we begin to cherish what little time we have left.Depriving us of our right to death does nothing to that effect.Hey...atheist outing himself in the public press no less. Well given that we, the non-religious (by which I mean in Singapore as people who do not identify with any religion) make up a substantial minority in Singapore (possibly even more than the Abrahamic religions), I think it's a good idea for us to make our views heard.The problem of course is that I don't think there is a consensus of non-religious views on almost any issue given the preponderance of axiomatic choices that one could make with regards to philosophy, epistemology (how we know things) and ethics (what is right and good and wrong and bad) that need not be premised on a divine being. So I know this other atheist (well a good number of others, including free-thinkers and agnostics and deists etc.) and we disagree on issues of the limits of freedom of speech and whether the death penalty ought to be abolished.Nonetheless, I believe that it's generally still a good thing because given a debate between the non-religious, we simply cannot fall back on the position that God(s) said X and therefore X. Mind you, the religious don't always do so (see the point about public reason), but that's a fall back position that we don't have the luxury of. And further, in conjunction with the above proposition, without invoking God(s) said so, I can't imagine there to be a rational or moral viewpoint that cannot be adopted by one of us "godless". Instead there might be a more robust question of the sort of philosophical foundations as to what your views are founded on.Tomorrow, I will go back on the issue of torture and explore how one can, without any religious justification (and I personally find that religion can justify almost any position that one can think of and history bears me out on this) come to differing viewpoints on the permissibility of torture and how one can still build bridges i.e. how a consequentialist can talk to an ontocologist.Peace Back to BloggingHi, assuming that I still have any readers left, this is to let you know that I'm still alive and fairly well.The blog was on hiatus for a good bit of time due mostly to the transition back from the States to Singapore. Along the way I had a good number of things to do involving law school, law work (or working after law school), family as well as friends.Then there was the period where I was bummed by things not entirely going my way (read: not getting ILP) and the blog was left on the backburner for a good long while. And of course the transition back to school and the associated work and readings (and volunteering to do a presentation in the 2nd week on John Locke's prerogative power).But yes, I'm back and hopefully ready to blog about the stuff that interests me. So stay tuned. Author On VacationAlright, I'm off on vacation to the Rockies and the West Coast of the USA. Will be back in Singapore at the beginning of July.Peace. 10 Best reasons Gay Marriage is wrong:(I just couldn't resist this classic piece)1. Being gay is not natural. Real Americans always reject unnatural things like eyeglasses, polyester, and air conditioning.2. Gay marriage will encourage people to be gay, in the same way that hanging around tall people will make you tall.3. Legalizing gay marriage will open the door to all kinds of crazy behavior. People may even wish to marry their pets because a dog has legal standing and can sign a marriage contract.4. Straight marriage has been around a long time and hasn't changed at all; women are still property, blacks still can't marry whites, and divorce is still illegal.5. Straight marriage will be less meaningful if gay marriage were allowed; the sanctity of Britany Spears' 55-hour just-for-fun marriage would be destroyed.6. Straight marriages are valid because they produce children. Gay couples, infertile couples, and old people shouldn't be allowed to marry because our orphanages aren't full yet, and the world needs more children.7. Obviously gay parents will raise gay children, since straight parents only raise straight children.8. Gay marriage is not supported by religion. In a theocracy like ours, the values of one religion are imposed on the entire country. That's why we have only one religion in America.9. Children can never succeed without a male and a female role model at home. That's why we as a society expressly forbid single parents to raise children.10. Gay marriage will change the foundation of society; we could never adapt to new social norms. Just like we haven't adapted to cars, the service-sector economy, or longer life spans.I have no idea who originated this so if anyone knows, drop me a mail. Parting is such Sweet Sorrow: Reflections on the Winter and Spring QuarterWith the simultaneous handing in of my International Trade Law, International Intellectual Property Rights and Philosophy of Law paper, I am officially done with my finals and hence at the UW, my host university for the past 9 plus months.It's been a great academic experience and despite my best efforts, it seems that I have actually made some really close friends, something that might seem awfully shocking to my readers.But it is time for me to leave and to finish my degree back home. I will be back early July.Bring it on. Vice Dean A/P Victor Ramraj responds to Asst/P Yvonne LeeThe freedom to disagree, respectfullyVictor V. Ramraj, For The Straits Times9 May 2007Straits TimesEnglish(c) 2007 Singapore Press Holdings LimitedIT HAS been argued that the decriminalisation of sodomy is the first step on a slippery slope towards a 'homosexual agenda' that includes civil unions and same-sex marriages.I disagree with this view and the arguments advanced in support of it. Still, the debate on this subject has provided us with a key lesson on the importance of public discussion on matters of deep moral significance - and the importance of respectful disagreement.First, a few comments on some of the claims in the debate.Even in societies abroad where legal structures such as same-sex civil unions have been introduced, this did not happen overnight, but only after significant shifts in social and political attitudes.If the majority of Singaporeans find homosexuality offensive, then there is little reason for them to worry that the entire legal landscape will change in an instant.If change eventually does come, it will follow only after open and respectful debate and a conscious choice on the part of Singaporeans to become a more tolerant and hospitable society.Others, particularly in cyberspace this past week, have challenged the accuracy of empirical claims behind the argument to retain sodomy as a crime - and the debate will no doubt continue. I will not repeat these arguments here. As for constitutional law, formal constitutional doctrine on such matters is hardly conclusive. In 1930, Lord Sankey likened a Constitution to 'a living tree capable of growth and expansion within its natural limits'. Particularly in Singapore, where the methodology of constitutional law is still evolving, there is much to be said for this vision.Intolerant vs criminalI WANT to turn, however, to a rather different point that arises from this controversy. Does branding opponents of decriminalisation 'intolerant' undermine or effectively censor free speech?Surely, the answer to this question is no. Indeed, the reverse may be more likely; opponents of decriminalisation effectively silence others by continuing to regard the behaviour they oppose as criminal. To be branded intolerant is one thing; to be branded a criminal is quite another.The publication of letters and commentary in this newspaper shows that those who disagree with decriminalisation are perfectly free to express their views. Perhaps, then, the deeper concern is not that these views will be censored (plainly, they haven't been), but that others will not find them convincing. If that is the true concern, then rigorous and respectful persuasion would be the answer.If the discussion on Singapore blogs is any indication, recent exchanges about the decriminalisation of sodomy have provoked an important debate, one that demonstrates that Singaporeans, including many tertiary students, are far from apathetic when it comes to issues of great social significance. An issue of profound social importance is receiving the serious public attention, reflection and debate it deserves.The sources of identityFOR those who choose to engage in this debate, let us remind ourselves that our words have profound personal impact on those around us, on both sides of this controversy.Those whose religious views are tolerant of homosexuality, and especially those of us with secular-humanist inclinations, must remain sensitive to the deeply personal and communal role that religious doctrine plays in the lives of many.At the same time, we must have faith that those who oppose the decriminalisation of sodomy on religious grounds will acknowledge that personal identity need not be a matter of religion at all. It is possible, even common, to define one's identity outside of religion - in terms of one's intimate relationships, career goals, community service, life-long projects and deep personal convictions. A person's sense of identity is no less worthy of respect in the public square on account of its secular sources.I can only imagine the deep personal anguish experienced by gays and lesbians in Singapore when confronted by the criminal law. Their voices should be heard in the spirit of an open, respectful and meaningful discussion.Whatever is said in the course of this debate, it is clear that someone, somewhere, will take offence. But the ability for all to speak out should not be taken for granted. There are reasonable limits to be placed on hateful speech - a view that I have defended elsewhere. But in the present context, in a society that is increasingly more open, I find myself drawn to the pithy comment sometimes attributed to Voltaire: 'I disapprove of what you say, but I will defend to the death your right to say it.'Just some background, A/P Ramraj runs the Criminal Law/Criminalization aspect of Introduction to Legal Theory for 1st year NUS Law Students and having read his book, I can assure you he is well aware of both sides of the debate but having come down strongly on one side for obvious reasons.He's obviously a lot more polite and cordial than I would have been but this is still a very punchy article. Separately, he takes a much more accommodationist stance with regards to religion than I would (the difference between fairy tales/myths and religions is the number of adherents. Watch the rise of Scientology and I predict it will go the way of the Church of the Latter Day Saints in becoming mainstream).This is probably the last I will say on this particular matter because the good Asst/P doesn't have much of a leg to stand on beyond whining about personal attacks (accurate insults much less insults don't detract from the substance of the argument) and playing the two-step by shifting the grounds of her argument.Not impressed then, not impressed now.Addendum: Link to my original response added above and here. On Causation, Correlation, Confounding Factors and Post Hoc Ergo Propter Hoc*Emo Shaun waiting for his DS Lite for the last week and since 8am this morning and is generally hating on the world*I am not a social scientist and much less a statistician (except for the stuff I did in math class which was possibly the most useful thing I learned considering my eventual decision to enter law school). What I understand about numerical literacy and statistical literacy was almost entirely self taught and I fear possibly superficial at best. The purpose of this disclaimer is to proclaim my ignorance and amateur status in this area and hope I don't screw the following discussion up too badly.One of the biggest difficulties in the social sciences as it relates to making policy is deciding causality i.e. what causes Y? In natural science, the ability to repeat experiments, the fact that the Universe appears mechanical and we have no objections on experimenting on water (as opposed to humans) makes it fairly easy to determine causality, even in complex systems. In the social sciences (or the humanities), however, dealing with humans and the interactions between humans makes experimentation more difficult and extrapolation of data much more complicated.So any answer to any social problem is not likely to be reducible to a large extent. This is not to say that we cannot operate on a reductionist model but we have to be very careful that that model does not cause more harm than good by basing itself on an erroneous cause to the exclusion of other possible or likely causes.To take a simple case and one close to heart, my grades have drastically improved since I came over to UW and like any student concerned about his grades, given that his grades determines his career to a large extent in this industry, knowing what was the cause or causes of it would be eminently useful when I have to return to NUS.If I had remained in NUS in this year and my grades improved (as seems to be the case for almost all law students), one might well hypothesize that this was due to perhaps an end to compulsory classes which allows students to take a class that they are personally interested in and presumably that interest translates into a better understanding of the topic and therefore better grades. Or it might be that now that there are smaller classes and there is no need to mark on a curve, that students are able to show that they are in fact just as proficient as the former A students but no longer get a lower grade simply because of the mandatory grade distribution. Or it might even simply be that with 2 years of law school experience, one had always had the capability but has finally figured out how to ace that examination. Or it might be a result of all three plus a combination of luck and fortitude etc.Now translate that into doing a law program in a different country under a fairly different system and the potential factors affecting the improvement in grades multiple. Certain differences offhand between UW and NUS that might be contributing factors include i) opportunity to use a laptop for the final exams and therefore handwriting is no longer a factor in the marking scheme, ii) a lack of a social life and extra curricular activities that gives more time for studies, iii) actually spending more time on studies, iv) change in studying technique which involves a painstaking transcription of notes onto the laptop from the various sources and v) everything mentioned in the prior paragraph.Now everything I have said so far is probably causative in one form or another. There is a reasonable rational mechanism in which each may translate into better grades one way or another.The opposite of that of correlation wherein there might well be a statistically significant link between the two but it does not necessarily mean one causes the other. A good example of this with regards to the above mentioned situation might be that "because" I am hanging around more foreigners, therefore my grades have improved. There is a strong correlative tie if one should plot on one axis, Shaun's association with foreigners and on the other Shaun's law grades. But it should be clear that there is no necessary link between the two. Or another example near and dear to my heart (because I'm a Pastafarian), the decrease in the total number of pirates worldwide is closely correlated to the increase in mean global temperatures. Now that is primarily satirical but given the abuses of correlation (attempting to conflate it with causation) I hope that this would be something that we can keep in mind.Somewhat related to this problem is that of the logical fallacy of Post Hoc, Propter Ergo Hoc i.e. After It, therefore because of It. Or to rephrase it, just because B occurred after A does not mean A caused B. There is a temptation because of the way we view and experience time as linear and of our strong innate (possibly biological imperative) to associate any occurrence (effect) with a cause that this fallacy crops up.Peace. Equal Protection, Sexual Orientation and the Homosexual "Agenda"Been busy but have found some free time now that I've got drafts out on my Philosophy of Law paper and International Merger & Acquisition.Anyway, Asst/P Yvonne Lee wrote the following article articulating her viewpoint about why decriminalization of homosexuality in Singapore would be an error and I think her article is pretty much logically fallacious on a number of grounds. I had her as a lecturer and thought she was decent and fairly sensible unlike the other constitutional law profs who have made their (erroneous) feelings on this matter pretty clear. As such I must say I am sorely disappointed by her views (not that she would care of course)A/P Victor Ramraj has a response here. He makes most of the major arguments that need to be made but unlike him, I don't have space constraints.READERS of The Straits Times have written in to question the rationale for the criminalisation of homosexual acts. It is imperative that we understand the legal and broader social implications, and that Parliament, in the forthcoming debate on the Penal Code reform, carefully considers these implications.The Home Affairs Ministry has indicated that Section 377A of the Penal Code (S377A) will be retained. S377A prohibits the commission of gross indecency by one male person with another male person. Opinions have been expressed that S377A may be unconstitutional because it discriminates against homosexuals by criminalising homosexual sex and not oral and anal sex committed by heterosexuals or lesbians.This is an over-simplistic reading of the equality clause.It should be worth noting that given she was US educated and cited a US Supreme Court case upholding Affirmative Action in University Admissions, she ought to have been aware of Lawrence v. Texas as well, which struck down Texas's anti-sodomy laws as violating the 14th Amendment (Equal Protection Clause). I raise this because despite raising the constitutional issues, I believe it is her analysis that is the overly simplistic one, one governed primarily by parochial and a highly formalistic approach. As we shall come to see, she simply relies on a logical fallacy that the status quo is good in defending the legality of this homophobic piece of legislation.Worse still, she never provides a substantiation for why we ought to discriminate between heterosexual and homosexual couples. To reframe the issue, it isn't about the right to homosexual sodomy but rather the right for consenting adults (which takes out the fucking stupid pedophilia and bestiality argument out of the water) to engage in sexual acts in the privacy of their bedroom.ContextFIRSTLY, the legal meaning of equality must be understood within its social context. Equality is not an absolute value. Extreme applications of equality impair community interests and violate the rights of others. Furthermore, the Constitution does not prohibit all forms of discrimination.Like cases must be treated alike, but Parliament may enact measures which differentiate between different groups. The courts hold that such measures must satisfy two tests to be constitutionally valid: Firstly, the classification must have a rational basis. Secondly, the law must serve a legitimate purpose which is reasonably related to the basis for the classification.Each differentiating legal measure serves a social objective. For example, a married individual with four children enjoys higher tax relief than one without children. The public good is to encourage married couples to have more babies.True but primarily irrelevant because she never establishes how a) it is in fact in the public interest to criminalize sodomy, b) to criminalize it only for homosexuals and not heterosexuals and c) to criminalize it only for male homosexuals but not female homosexuals.At this point, under US Equal Protection Doctrine, it fails not only the rational basis test of Lawrence v. Texas but also the anti-animus principle of Romer v. Evans.To view the issue of S377A exclusively as a matter of equality omits the broader context - that rights can clash with other rights and community values.Again irrelevant and begging the question.When they do, Parliament may pass laws which reflect the public good in preference over the rights of the individual or groups.I could make the same critique again but I want to do it on a deeper level this time. She's begging the question on a meta-systemic level in that she is asserting that the current judicial interpretation of the Equal Protection Clause is necessarily the right one and the only one at that.I will proffer instead that the whole idea of individual freedoms is that they cannot be at the mercy of the majoritarian will. Yes, no right is absolute as she correctly points, but her balance is one that would sacrifice the individual's right on the altar of "the public good" when she has provided no grounds for doing so. Short of "because" this is currently the way the legal rational basis review test is structured.I also want to point out what the rational basis test can stand for. It stands for discriminating on any basis the government wants to. Quotas for women in medicine? Easy, allocation of scare resources, we have statistics that show women don't stay in medicine long. Only families with more than a certain level of income may have 2 or more children. Why? Because only they would be able to afford it etc. I submit that the rational basis test simply is incapable of striking down discriminatory laws, law which would strike the majority of us as unjust.Any argument to decriminalise homosexual sex must consider the harmful social consequences. For example, would affirming homosexual sexual practices serve the common good? It is a known medical fact that homosexual intercourse or sodomy is an inherently unhealthy act that carries higher risks of a number of sexually transmitted infections. The law should not facilitate acts which threaten public health.1) This should then apply to heterosexual sodomy as well2) Preventive measures can be taken3) It proves too much: on that highly paternalistic basis, we can ban any activity that is "harmful". Smoking, alcohol, skydiving, driving, eating fast food etc.To claim that it threats public health is scare mongering and ultimately irrelevant to the consideration here. To iterate, if it's okay for heterosexual couples, why is it not for homosexual couples.In fact, this is a good example of a measure being both "underinclusive" (why only gay men then?) and "overinclusive" where the ends-means nexus is not particular rational much less tight (preventive measure not bloody criminalization). Of course, our rational basis test is not going to strike it down.Moreover, any reform to the Penal Code must preserve fundamental values which serve the public good, instead of abstract notions of equality or fashion.Assertion, begging the question, non-sequitur. I find it utterly hysterical that a Constitutional Law professor is running this argument. Article 4 of the Singapore Constitution states that any law that is inconsistent with the Constitution, is to the extent of that inconsistency, void. So major premise, Constitution trumps any normal piece of law. minor premise, the notion of equality before the law is enshrine under our Constitution (yes one could make the argument that sexual orientation is not a protected class but I want to focus on the idea that the Penal Code trumps these individual freedoms). Therefore, the "abstract notion of equality' does in fact trump the Penal Code.Oops.Broader agendaRECENT developments in foreign jurisdictions like Canada, Sweden, the United Kingdom and the United States indicate that the move to decriminalise homosexual sex is the first step in a broader homosexual rights agenda to transform social morality:It becomes clear at this stage, her arguments boils down to homosexual sodomy is icky and somehow morally wrong, despite never proving this particular point. I understand that in her exchange with Mr. Selby she takes offense to a great many things that he says. But not once does she actually demonstrate that she is not in fact myopic or homophobic etc.Sorry, an accurate insult is not an ad hominen attack, Asst/P.• If S377A is repealed, homosexual sex is legitimised, transformed from a crime into an 'alternative lifestyle'.So what? Unless the right of consenting adults to engage in sexual activity in the privacy of their bedrooms is somehow wrong?! That's why I don't buy any of her arguments that she is not perpetuating an anti-homosexual agenda (see how framing and tossing terms around work? Except in my case, it's probably true).• The minimum age for sodomy must then be specified. This opens the door for homosexual lobbyists to pursue the next step of equalising the age of consent for homosexuals and heterosexuals. The current age of consent for homosexual sex in countries which have decriminalised sodomy ranges from 13 to 18, covering Singapore males from Secondary 1 to junior college.Again so what? I can legally have sexual intercourse with a secondary school girl. This is an appeal to emotions (another logical fallacy).• The third step is re-conceptualising homosexuality as a civil right in the name of equality. As an 'alternative lifestyle', homosexual lobbyists will seek for this to be endorsed and 'mainstreamed' into society (for example, arts, education, entertainment and media), beyond the privacy of the bedroom. The current view that 'sexual orientation' should not be a basis for discrimination is problematic. 'Sexual orientation' is a vague term covering a range of sexual expressions, including paedophilia and bestiality. Also, the assertion that one is 'born gay' is scientifically unproven.Poisoning the well. Non-sequitur. The interesting thing is that unlike anti-gay activist here in the US, she can't use the Teflon coated slippery slope of polygamy because our legal system already sanctions it! Oops.So what's the basis for why decriminalizing homosexual sodomy (as oppose to homosexual cunnilingus or masturbation which is legal by the way under the new Penal Code) will lead to such horrors and not the legal ones? Hmmmm now... Inquiring legal minds want to know!Separately, so what if sexual orientation is a vague term, consenting adults, privacy of bed room. Yup that settles the problem of pedophilia or bestiality.Whether one is "born gay" to me is an irrelevant question. One isn't born Christian or Hindu or Buddhist of Marxist etc. etc. It's a false argument. But the evidence tends to lean towards a genetic basis.• An active homosexual agenda has engendered clashes with fundamental liberties such as free speech and religious liberty. Christian pastors have been criminally prosecuted for sermons declaring that homosexuality is a sin, a view also held by Muslims and many non-religious people who consider homosexuality unnatural and morally repugnant. Attempts have been made to extend 'hate speech' laws to the Bible and Quran.So we smack them down if that happens. Big whoop. And besides, how is this even bad or worse than the current criminalization?And gee, we do have something called the Maintenance of Religious Harmony Act which places quite a few restrictions on what religious figures can say so that's a legitimate restriction on her so-called religious liberty there. If preaching hate from the pulpit against political figures is illegal, why not homosexuality? And if rights aren't absolute, why should the balance swing against them? So once again, begging the question.People who oppose the homosexual agenda are branded as intolerant, bigoted, homophobes, or hateful towards homosexuals who are merely 'different'. This does not promote free speech but seeks to censor it. If this intolerance against religion is imported into multiracial and multireligious Singapore, this will breed social divisiveness.So what? Begging the question. And because I haven't seen a rational argument against homosexuality yet, yes I will brand them as intolerant, bigoted, homophobes and hateful. Please, I readily await being proven wrong.Besides, oh boo hoo... Being called a bad name is worse being branded a criminal, or deviant or abomination unto god or specifically immoral as her article has insinuated. And because of religious privilege, one can't strike back as effectively.I say that beliefs should not get a free pass just because they are "religious" in nature. And separately, Muslims and Christians aren't a majority and even there are divisions as to their viewpoints on homosexuality. And last I check, Singapore was a secular state. Between hurt feelings and genuine deprivation of liberty, I think I'll pick the latter thank you.Public good? What's sauce for the goose is sauce for the gander. The claims is easier made that it is in the public good that valuable members of society ought not to subject to impermissible discrimination because of certain erroneous interpretations of some bronze age religions.• The final step involves attempts to redefine 'marriage', the fundamental institution and bedrock of many civilisations. The redefinition is a radical reconstruction of 'marriage' - no longer a union between man and woman but includes 'same-sex marriage'. Homosexuals must then be allowed to marry someone of the same sex and be given the benefits of marriage such as tax benefits, adoption of children and/or state-funded access to alternative 'reproduction' methods.So what? Assertions as to the nature of marriage. It so was not a bed rock in Roman Civilization. Under Roman Law, marriage (assuming it was not in manus which fell out of favour rapidly anyway) was purely consensual and divorce was simply a matter of deciding that one did not want to be in a marriage anymore. Changes to marriage and divorce occurred when Christianity became the state religion. As long as we're engaging in post hoc fallacies, we can also say that Christianity caused the downfall of the Roman Empire because its adoption preceded it.And oh, the real fundamental basis of marriage and bedrock principle was that women were chattel and wives a extension of their husbands (under a Roman manus marriage, wives were consider children to their husband which explains their massive unpopularity and disuse). So what exactly is she arguing about here?The argument that decriminalising homosexual sex will not cause a change in moral attitudes is erroneous. It has been suggested that even after adultery was decriminalised, it remained morally reprehensible. So too, decriminalising homosexual sex will not cause a shift in moral attitudes.So what? Actually I would up the case of Plessy v. Furgeson where the US Supreme Court held that "separate but equal" did not harm the Blacks because any notions of inferiority was simply self-inflicted. The law does have normative force. The US Supreme Court eventually had to make a massive mea culpa in Brown v. Board of Education and reject this doctrine because they were proven wrong empirically and recognized that if the law says you're different or deviant, people actually buy that.While the law embodies a moral judgment, it is not always prudent for the law to punish all immoral behaviour. However, to draw an analogy between adulterers and homosexuals is fallacious. Adulterers do not seek societal approval, but certain homosexual activists campaign to alter the public mindset and to gain legal and social endorsement of the gay lifestyle.Non-sequitur. Firstly, presumes that the law should ban some and not all immoral behavior, I would love to see where she can logically draw that line. Second, begging the question that homosexuality is immoral. Third, my moral views on adultery can be grounded on non-religious grounds. I challenge anyone trying to do so for homosexuality on non-religious grounds.The fact is, under the proposed Penal Code reform, homosexuals wishing to lead private lives may do so, provided they do not foist their homosexual acts on the public.This very neatly exposes her real agenda. The only explanation left for her argument is that she opposes homosexuality.Back to US Constitutional law, the Court should not (especially under Equal Protection Doctrine) give succour to private prejudices, Palmore v. Sidoti, where the Supreme Court reversed a decision to give custody of the child to the father because the mother had married outside of her race to a Black man.So why have this special provision which signals out homosexuals and only male homosexuals at all?!! We already have public indecency laws. Sorry ma'am, you can't have you cake and try to eat it. Now the article is just incoherent.S377A is a legitimate statement of the values of our society. In constitutional terms, equality claims operate within a broader social context.Assertion. Begging the question. Legitimate in the eyes of the law perhaps. But hardly moral. In fact if you're a Natural Lawyer, Lex Injusta non Est Lex, An Unjust Law Is Not Law. So even if the Constitution does not prohibit it, Natural Law does.Homosexuality is offensive to the majority of citizens. Allowing an aggressive homosexual rights agenda to dictate law reform ignores the nature of Singapore's multireligious, multiracial community. Such an agenda would be divisive. Therefore, the attention given to fundamental moral values of the majority of citizens by retaining S377A in its entirety strikes the right balance.Assertion. Prove it.So is adultery, so is the marital rape exemption which is finally going to be repealed. Using phrases like "aggressive homosexual rights agenda" just marks you out as a religious conservative right wing fundy using the same old repeatedly debunked talking points.This has been a monumentally wrongheaded and badly written piece. I am always very happy to stand by what I say and always remain ready to defend them.Addendum: Here is a philosopher's take (Editor of Royal Institute of Philosophy Journal Think) on the common arguments against homosexuality. It's a marvelous taking apart and a great read to boot.Addendum 2: I realize that not all of us have such a distinct lack of life as to read up obsessively about logical fallacies and/or debaters. So I have included links that explain some of the terms I have used. Genetic Testing and LiabilityThe hypothetical question is about a famous television personality who is thinking of undergoing BRCA1/2 mutuation testing and making a documentary special about it in order to raise awareness. She has three daughters (who react differently, one of which has kids of her own) and two sons. The specific details ought to be clear from the answer itself.The most immediate issue that Flora presents is why people undergo genetic testing and when is such genetic testing warranted. Genetic testing has the ability to confirm whether one suffers from a particular deleterious genetic abnormality (carrier or otherwise) and individuals tend to do so if there is any indication in their family history of heightened susceptibility. But the warranting of any genetic test is via its efficacy which is determined by its clinical validity. “Clinical validity reflects both the sensitivity of the test—the proportion of affected people with a positive test—and the penetrance of the mutations identified by the test. Penetrance refers to the proportion of mutation carriers who will manifest the disease”.[1] The most important thing to note is that estimates of the lifetime risk of breast cancer that is associated with BRCA 1 and BRCA 2 ranges from 26 percent to 85 percent. While the risk for ovarian cancer is elevated, it is to a lesser extent than for breast cancer although the risk estimates similarly vary. Nevertheless, given her advanced age, and her high risk family history, it would be rational to get tested for the BRCA mutations. This is born out by the 2005 U.S. Preventive Services Task Force’s, “Genetic Risk Assessment and BRCA Mutation Testing for Breast and Ovarian Cancer Susceptibility” and its summary of recommendation which gave a very low recommendation for routine testing but gave a much higher grade for referring women with “increased-risk family history) for genetic counseling as they believed it “allows informed decision making about testing and further prophylactic treatment”.[2] The second issue is how genetic testing (for various genetic diseases) ought to be portrayed in the media and here the fear is that there is some possibility that it might be potentially misleading. Areas of concern include the BRCA test’s clinical utility not being recommended as a routine test. Furthermore, a positive test merely means increased risk (and not a certainty) of contracting breast and/or ovarian cancer and conversely, a negative test does not mean a person is safe from breast or ovarian cancer. But if the three episode special is done properly and in conjunction with genetic counseling, this could be a very useful tool for women at high risk and for generally educating the public and even dispelling possible misconceptions, myths, prejudices and stereotypes that the public may have about carriers of the BRCA mutation. In summary, this may well be a great educational opportunity if properly done but it could also worsen the situation by raising awareness but not the public’s understanding of the issue and generating fear and also increasing the negative psychological externalities that carriers will suffer. Laura and her husband’s concern about the loss of privacy and the psychological effect on her young daughters is a fair one. First, given the hereditary nature of genes, it logically means that “[a] genetic diagnosis often indicates that other family members are at risk for the same condition.”[3] Second, just as people have the right to learn of their medical condition, they too should, prima facie, have a right to know of their medical condition on their own terms,[4] therefore they have the right to insulate themselves from Laura’s results. Admittedly, the situation here is greatly simplified in that both husband and wife are of the same mind. It may be that there are conceivable circumstances whereby a person (or their wards) ought to be informed regardless of their wishes e.g. where a genetic disease will manifest itself with devastating results unless there is early intervention and even possibly where the parents disagree with each other. But given that the BRCA mutation “merely” presents itself as a increase risk and one with a huge variance at that, the impetus for informing without the person’s consent is greatly diminished. If Laura is known to be Flora’s daughter, there is a good chance that she would be linked to Flora’s condition. This would include the associated societal opinions about carriers of the BCRA mutation. Her daughters might well be similarly “tainted” and suffer negative psychological effects from the very knowledge of their (possible) “genetic curse” as well as ostracization or stigmatization due to ignorance, all of which would be exacerbated by their youth/immaturity. In fact, given their minor status and the fact that they are not the ones being tested, it cannot be said that they have assented or much less consented to being “tested”. Furthermore, since they are years away from any possible preventive treatment and decades away from any phenotypic manifestation, therefore knowledge that they have the BRCA mutations would simply weigh on their minds for these years to come without any real positive externality. Lisa’s plans to skip testing, but increase her frequency of mammograms appears to be very sensible. Currently, mammograms are still the best way of cancer screening i.e. it detects as oppose to predicts manifestation of cancer. Even if she had tested positive for BRCA1/2 mutations and is thus at increased risk of early onset cancer, starting frequent mammograms would have been likely anyway and is the best medical response short of radical preventive surgery. Given that the background risk of breast-ovarian cancer is very high relative to other types of cancer and her family history, so even without the BRCA mutation, it is still a good decision. Plus medical information as opposed to genetic information poses less of an issue to familial privacy which should allay Laura type fears and concerns. There are grounds for Lisa’s worry about being stigmatized in terms of future employment opportunities in the broadcasting industry. But in terms of pure job discrimination that is what the law through the Anti-Discrimination Act (ADA) seeks to prevent. There is little that one can do about private discrimination except personal and broad based societal education (which Flora’s three-part special might achieve). But it could be said that her proactive stance with regards to regular mammograms (other than it being private medical information) would also serve to allay the fears of her bosses since early detecting of cancerous breast masses (Stage I-II) have very high cure rates and resulting prognosis. It appears that Flora may be able to restrict Linda should she decide to undergo a prophylactic bilateral mastectomy. The conflict between Flora and Linda presents the general difficulties of who ought to make the medical decision for a minor. The law generally presumes that minors are not capable of competent in making their own decisions and therefore cannot decide without parental consent to undergo a particular medical procedure. This is subject to the “mature minor rule” which recognizes that some adolescents “as capable of understanding the consequence of some medical decisions”,[5] but these rules are circumstantially circumscribed to situations in which “the state has an interest in the adolescent’s seeking medical attention that might not be sough if the problem were disclosed to the parent” e.g. reproductive rights and sexually transmitted diseases.[6] Another exception is that of the “emancipated minor” but that treats minors as adults by virtue of the state recognizing their “adult” status as a result of certain situations, none of which are applicable here.[7] What complicates matters is a) the relatively advanced age of Linda (16), b) the low penetrance of BRCA mutations and c) the radical and extreme prophylactic surgery Linda wishes to undergo. As things stand, the AAP does not support genetic testing of adolescents to predict late onset disorders “when the genetic information has not been shown to reduce morbidity and mortality through interventions initiated in childhood.[8] This is eminently sensible especially in this situation given the irreversible nature of such a surgery, the low penetrance,[9] plus the fact that it is a mere 2 years to full adulthood and that this time-lag would not adversely affect Linda’s condition. But if it could be shown that Linda is as competent and fully cognizant of the situation as any adult and would suffer from tremendous psychological trauma whether through the uncertainty of not being tested or not having the surgery, a case could be made that in these very specific circumstances, Flora’s wishes should not be given precedence over Linda’s. The sons’ lack of concern is indicative of their ignorance and unfortunately probably that of wider society’s as well, regarding male risk of contracting breast cancer. Albeit small, this risk still constitutes 1% of all cancers afflicting males. But further, according to the American Cancer Society, it appears that the BRCA mutations have a similar effect on the risk of breast cancer in male carriers but also an increased risk for prostate and skin cancer.[10] Given that mammograms are not generally part of any male’s routine medical examination, there is a much stronger case here for genetic testing particularly as a positive result might signal the need for more regular medical tests. This is so whether it is for breast cancer or simply that of prostate cancer because of the elevate risk the BRCA mutation poses. The scenario Flora’s daughter-in-law presents is one familiar in prenatal genetic testing and screening i.e. the use of such testing to choose a healthy baby, by terminating fetuses with genetic abnormalities. The moral issue here is whether a positive test for a BRCA 1/2 mutation warrants an abortion given that it is merely presents an increased risk of breast and ovarian cancer which is hardly a debilitating disease and does not impose any particular hardship on the parents unlike babies born with cystic fibrosis or Down syndrome. Alternatively, even with an increased risk for early onset breast or ovarian cancer as with a BRCA 1/2 mutation, nevertheless, there is an absence of the sort of massively shortened life span and poor quality of life that is presented in cases of incurable diseases such as thalassemia major or Huntington’s Disease which strongly factors into decisions to terminate the pregnancy. In these latter situations, there are considerations weighted in favour of terminating the pregnancy on the basis of the emotional guilt that parents suffer when they deliberately birth a child who is likely to die in their own lifetime. This inversion of the “natural” order of things can bear heavily on the minds of parents and generate such strong negative emotions e.g. sorrow and guilt that it affects their ability to properly bond with their other children and can put a strain on the marriage and the family upon the child’s death. Similarly the surviving “normal” siblings might well suffer from survivor’s guilt with repercussions on their capacity to form healthy familial bonds. In contrast, a BRCA 1/2 mutation does not appear likely to generate those sorts of negative sentiment as it simply presents an increased risk of cancer, while admittedly of the sort that is early onset, that can be cured or even prevented. There is further, no legal liability to avoid the pregnancy and the birth of the child on the basis of a “wrongful birth” suit i.e. an action by the child for having been born and forced to live with the disabilities and disadvantages of her birth. Even if one ignores the tiny number of jurisdictions that recognize such a cause of action,[11] it hardly presents a case whereby a reasonable person might well say that the suit ought to be successful because “non-life” is preferable to the “life” the plaintiff is living.[12] This also highlights the importance of genetic counseling. On the facts, we are given no indication of why Laura’s daughter-in-law might want to terminate a pregnancy on the basis that the fetus has a BRCA mutation. If her decision is made on some erroneous understanding of the consequence of having such a mutation to the child, then genetic counseling is manifestly important is providing such information that she can make an informed decision as to the status of her pregnancy such that she does not make a decision she will later regret. [1] Wylie Burke, Genomic Medicine: Genetic Testing, 347 New Eng. J.Med. 1867 (2002) extracted in Kuszler et. el., Genetic Technologies and the Law, (Caroline Academic Press, 1st ed.), p. 605-610 at 607 [2] http://www.ahrq.gov/clinic/uspstf/uspsbrgen.htm , accessed on Feb 08 2007 [3] Wylie Burke, supra n. 1, at 606 [4] Personal medical information after all is one of the “zones of privacy” recognized by the US Supreme Court and also the Common Law’s general recognition that one may refuse life-saving medical treatment. [5] American Society of Human Genetics/American Cllege of Medical Genetics, Points to Consider: Ethical, Legal, and Psychosocial Implications of Gnetic Testing in Children and Adolescents, 57 Am. J. Hum. Genet. 1233 (1995) in Kuszler, supra, at p. 624-634 at 631 [6] Ibid. [7] Ibid. [8] See Kuszler, supra, at p. 635 [9] Thereby requiring more evidence to establish the efficacy of intervention to reduce risk, see Burke, supra, at p. 608 [10] http://www.cancer.org/docroot/NWS/content/NWS_1_1x_Breast_Cancer_Genes_Can_Affect_Men_Too.asp, accessed on Feb 08 2007 [11] Only 3 jurisdictions allow such a claim and California prohibits a child from suing her parents [12] See e.g. Turpin v. Sortini, 643 P.2d 954 (Cal. 1982) Talking about Torture: Philosophical bridges in dialogue Part 1 I really should be reading my International Investment Law textbook but my mind is still rather fuzzy despite the time of the day and I'm hoping this will clear whatever remaining cobwebs so I can get down to actually reading the dang book.As promised yesterday, I want to briefly highlight and discuss how axiomatic choices can make for secular positions that are nonetheless highly divergent in their conclusions. One of these positions in recent times has been that of torture. In particular, whether it is ethically permissible to ever use torture and if so, under what circumstances. From them, we try to fit it within the system of a liberal democracy (or any system that respects human rights because the lack of respect thereof simply means there is no bar to torture) and further within the rubric of the rule of law (the idea of the supremacy of law in the system and those rules as a constrain on arbitrary power). So we can start first with the deontologist and contrast their perspective with act consequentialist. For the purposes of this discussion, it would suffice to say that the first term refers to the notion that principles are fixed and do not deviate simply by virtue of the situation and circumstance at hands. Thus if it is a moral good to tell the truth or not to kill or not to torture that those principles and prohibitions are absolute (as a grotesque simplification, Kantians would argue that since consequences simply cannot be controlled by the individual but only intentions can, then only intentions matters from an ethical perspective). On the other hand, act consequentialism (or act utilitarianism) looks purely at the consequence of a particular act to determine if something is good or bad. Generally speaking, the position thus adopted can be loosely described as “the greatest good for the greatest numbers” and can be described as the ultimate form of situation ethics. These two ethical positions are both entirely subjectively (and to their proponents objectively) valid but their conclusion varies diametrically. But on to building bridges: assuming now that one as a deontologist wishes to persuade someone of the consequentialist bent that the prohibition of torture ought to be absolute, how would I go about doing so? Since the ethical premises are different, trying to persuade the consequentialist through deontological means is going to be fairly useless. Nonetheless, I can adopt a form of consequentialism to make that particular argument. One of the charges laid at the feet of consequentialism and utilitarianism has been that nothing is prohibited if the circumstances were right. This might be true of act utilitarianism in that only the immediate consequences of the act matter BUT is in no way true from the viewpoint of rule utilitarianism. In rule utilitarianism, one calculates based on whether the harm of promulgating a rule outweighs the good, it seeks to take not just the immediate consequences but also the long term repercussions and it also tries to aggregate all likely scenarios so as not to let a truly aberrant situation skew the weighing. Thus for example while an act utilitarian will be hard-pressed to say that he would not shoot (or torture) an innocent person if it would save the lives of a entire town (or country etc.), a rule utilitarian can accept that such situations do exist but as a rule we ought not to do so because of reasons such as undermining the trust of the citizens in the system, the unlikelihood of such a situation outside of 24 etc., the backlash one would get from other members of society (or international community). But personally, I think the situation is harder the other way round i.e. persuading a deontologist on ontological grounds why there should be no absolute prohibition on torture but merely a conditional one. That however will have to wait till tomorrow as I am absolute knackered by Tuesdays. Peace Indonesia and Singapore sign two landmark treaties - International Herald TribuneSo can we get our sand now? Stopping judges from legislating - The Daily of the University of WashingtonFun diversion from having to read more International IP Law or International Merger & Acquisitions stuff. But this is one of those articles that I read in the morning and which I then find hard to restrain myself from posting some kind of reply because of its sheer inanity and utter wrongness of it all.I would say that I don't think a non-lawyer is necessarily barred from comment on, much less very intelligently on legal matters and issues, especially when it comes to policy. But law isn't just about outcome but also the legal reasoning behind the outcome and I personally think this is one article where the author is seriously out of her depth. If you wanted to write an article on judicial activisms and restraint and the idea of fidelity to law, at the very least run it pass a lawyer or given the slant she wanted to take, someone from the Federalist Society.I'm tempted to do a fisking but I'll refrain from it unless someone is really really interested in the multi-level reasons for why her entire article is wrong. One hundred fifty years ago, the Supreme Court passed a decision regarding a black slave named Dred Scott, declaring his suit for freedom invalid. The court ruled that because he was of black African descent, he was not allowed to be free, nor did he qualify for citizenship.The decision not only violated the Missouri Compromise, a piece of legislation that ensured the freedom of slaves in the North, but it even cited the Fifth Amendment, saying that judges had no right to take property from its owner without “due process.” Scott was the property.Today, Americans look at this court decision and ask themselves, “How did the courts get away with it?” It’s clear that the parts of the Constitution the justices were using didn’t really speak to the case, and the ruling invalidated an existing law. Not to mention it took the bloodiest war in American history — the U.S. Civil War, with more than 600,000 deaths, about 200 times worse than the Iraq war — to nullify the decision.Although the heart of the Dred Scott case was the abolition of slavery, the crime of the court was its direct disregard for the legislature and its laws. This ruling was one of the first of many judicial tyrannies. However, few, if any, judges are prosecuted for their crimes.Judicial tyranny is often defined by a judge’s abuse of power. Often this is seen in decisions either to enforce convictions without any support of the law or to write laws from the bench.Today, interest groups who use corrupt judges to circumvent the legislature frequently cover up issues of judicial tyranny. Organizations like the American Civil Liberties Union (ACLU) quickly learned that it’s difficult to persuade large governing bodies to support their bills, but with the court systems it only takes a few high-paid lawyers and a couple of biased judges to make a law. This approach completely undermines the balance of powers.Constitutional framer Alexander Hamilton said in Federalist Paper No. 78, “The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever.” Hamilton, like the other framers, was greatly concerned with the power of judges. He says the courts have “neither force nor will,” which is to say they should exist as judges, not legislators or even executioners.In 2005, the Ninth Circuit Court ruled against parental rights, making it unlawful for students to be removed from sex education programs in school. It was a blatant example of judges making laws without any voter or legislative support. This decision was made shortly after the same court banned the Pledge of Allegiance.In response to the consistent abuse of power, Republican lawmakers tried to split the court, which is the largest of all the U.S. circuit courts, into two, creating a 12th Circuit Court. Democratic Speaker of the House Nancy Pelosi accused Republicans of “attacking an independent judiciary.” She’s right, and thank God somebody is doing it. If a lawmaker is accepting bribes, you throw him out. If a police chief is breaking the law, you throw him out. If a judge is legislating from the bench, you defend him and ensure he can continue to abuse the law? It’s backward, and I’m sure Democrats would agree if the corrupted courts weren’t so helpful to their policy-making.Federal courts aren’t the only ones that have turned their mallets into scepters.Massachusetts was the first state to legalize gay marriage, but at the time pollsters found that only 30 percent of the state actually wanted gay marriage, according to a Washington Times article. Special interest groups pushed the law by suing the government, and Massachusetts congressmen were ordered to write the law.Such interest groups have a history of abusing our government processes. In fact, the first actual legislative decision in the country that has progressed toward gay marriage was Gov. Chris Gregoire’s recent bill, which allows certain privileges to gay couples. Even though you may disagree with the decision, you have to be thankful that it was made legally.No matter how just the cause may seem, the function of the court cannot and should never be legislation; otherwise, we end up with situations like the Dred Scott debacle. Lawsuits should not be a substitute for thoughtful lawmaking. We need to stop supporting organizations that circumvent the legislature and start supporting our own right to vote.I'm going to first blockquote a comment because I make a reference to it....You can accuse judicial activists of creating problems by not showing judicial restraint, but the same can be said for judges who refuse to consider that the founding fathers may have intended our constitution to change with time.Plessy v. Ferguson was a decision that clearly had roots in the principle of judicial restraint, but in retrospect it caused over 60 years of segregation. Not until Brown v. Board of Education (one of the "best" activist rulings), were blacks prompted to believe that they had a legal right to attend un-segregated schools.Even the Dred Scott decision had a positive effect - it helped people realize how crazy and immoral slavery was, sparking the Civil War.And this is my comment in full.I think Alex generally hit the nail on its head here with his point about Plessy. And with regards to slavery, there was the pesky problem of the Fugitive Slave Act and the fact that slaves counted as 3/5 of a person (and Native Americans weren't counted at all) and the ability of the Federal Government to nationalize the various National Guards to put down slave revolts etc.I would just add that Ms. Flint's notion of judicial legislation and activism and judicial restraint are pretty much empty buzzwords because there is no ground upon which one can reconcile her statements with her own notion of separation of powers.The Supreme Court honestly believed that its decision would defuse the pre-existing tension, Dred Scott was a product of its times and stands as a classic example of what Professor Jack Balkin would call "The Problem of Constitutional Evil" in that the Constitution sanctioned the institution of slavery and it was understood by all the states that this was the case. So under Ms. Flint's notion of judicial restraint, this is precisely what the Supreme Court should have done. Anything else while morally right would not be exactly lawful.It would thus appear that her idea of judicial activism is either a) the decision is not one she likes (Dred Scott) or b) is against majoritarian will (Massachusetts and presumably the Hawaiian Supreme Court on the issue of gay marriage) both of which reveal a profound misunderstanding of the role of the US Supreme Court as guardian and final adjudicator on the meaning of the interpretation as well as what the Constitution represents i.e. an anti-majoritarian document. This explains the electoral college, the entire system of the two houses of Congress (Senators were only directly elected recently) and the Bill of Rights. On the last, a more individualist notion of rights could scarcely be imagined.If a law is contrary to the Constitution, it is null and void and the function of the Court is to point that out and strike it down. Thus, if marriage is a right (as it is) regardless of one's sexual orientation (which is where the debate lies), then it does not matter the extent of popular opposition to it. By way of example, in the case of Palmore v Sidoti, Burger CJ said that the court could not give effect to private prejudices and give custody of a child to the father simply because the mother was entering into a mixed marriage. Or perhaps even more analogous would be the case of Loving v Virginia which finally struck down anti-miscegenation laws, laws that were created, sustained and justified on ground remarkable similar to those used to sustain anti-gay marriage laws. And they were all validly enacted by democratic legislatures and massively popular. I would be very interested to know if Ms. Flint would consider the Lovings (or the NAACP in its push to integrate public schools) to be one of those "special interests groups which have a history of abusing our government process".If Ms. Flint really wanted to attack special interest groups, perhaps she should consider the idea of legal standing of corporations to sue for Constitutional violations which was created almost as an afterthought by the Supreme Court and has been used to great effect by them. But even that would be a logical fallacy because it's simply a blatant appeal to emotions without any real justification for why it is right or wrong, or good or bad.There are much deeper philosophical underpinnings to what constitutes fidelity to law, and whether one can necessarily achieve it from an objective point of view. But it's a crying shame that Ms. Flint would label judges who she disagrees with as "corrupt" without even attempting to demonstrate how they were even necessarily wrong. Now that is really wrong.Peace. Accepting cultural dichotomies - The Daily of the University of Washington Online*face-palm; head-desk*I had been "forced" to plow through the natural law section of a particular analytical jurisprudence textbook wherein I was of the opinion that the editor of the book was engaging in some rather dubious reasoning in certain of his essays that he had inserted into his book.One of the more annoying parts was where he conflated moral relativism with moral nihilism where got me rather annoyed because it smacks of shoddy reasoning and more often than more was a serious case of moral imperialism at work.And then I read this article which did precisely that, the author writing from the viewpoint of moral relativism down the merry path to moral nihilism.While Afghan women can now legally vote, attend school and walk in public without a burqa, little has changed for women living in the Pashtun regions of Afghanistan since the Taliban’s fall.The Pashtuns — also called Pushtuns, Pakhtuns and Pathans — live along the “border zone” of Afghanistan and Pakistan. Nearly 50 percent of Afghanistan’s, and 15 percent of Pakistan’s, population is Pashtun, meaning they speak Pashtu and follow Pushtunwali, a tribal code with an Islamic influence, particularly in times of war.Relatively unchanged for centuries and hardly touched by even the British during their colonial rule, the Pashtun society follows a system emphasizing honor, respect and revenge, primarily to uphold one’s honor.Pashtun women lack almost all rights. They can be beaten for talking back to their husbands, killed by their fathers or uncles for eloping with a man or traded to end a blood feud between clans.According to Pashtuns interviewed by The Economist, the best way to resolve inter-clan disputes is through jirgas, or tribal courts. Often the court orders a clan to trade a 15-year-old, 10-year-old and 5-year-old girl with the enemy clan, which is called lund pur, or “wet debt.”Pashtuns believe this exchange creates peace between clans because three generations will be connected through marriage. As one Pashtun proverb states, “Blood cannot wash away blood, but blood can be turned into love.”Although many reviled the system under the Taliban, many Pashtuns opposed the Taliban’s Shariah — Islamic law — as being too soft. Within Shariah, women are allowed to own land, widows are not required to marry their deceased husband’s brothers or cousins and the trade of girls to settle disputes is not allowed, unlike the Pashtun system. In this society, women are property, forever tied to their fathers, uncles or husbands.As a woman who believes in equal rights across the genders, I am internally conflicted when I learn about societies like the Pashtun’s, or other societies that have practices such as clitoral circumcision, which prevents a female from achieving orgasm.Do I have a right, however, to impose my Western standards on another culture? I think not. Although I am strongly opposed to these practices, I don’t believe any Western influence would change the situation.The Pashtuns have waged bloody wars against governments and groups that attempt to oversee or control their lives. Their cultural emphasis on honor and upholding honor at all costs supports their battles against foreign powers — even the United States.To change their practices would require oppressing their entire culture.Taking a step back and looking at our own society, one can find structured patterns of behavior, albeit at a completely different level. The average American child goes to school, then to college, gets married, buys a house and has kids. Until our parents’ generation, most women stayed at home, cleaned and cared for children.Although we have the freedom to follow a different path, many follow this systematic process without question. In cultures as strict and stringent as the Pashtun’s, no one questions his or her role in life, and actions and decisions follow a scripted tribal code.Undoubtedly, our culture is diametrically opposed to the Pashtun’s, but there exists a structure in every culture, and to force it to change is to threaten the society itself.For example, clitoral circumcision is common throughout Northern Africa, and many human rights groups have tried to spread awareness to women about their bodily rights. The great majority of women believe these Western groups are crazy. To them, clitoral circumcision transforms a young girl into a woman, and they choose to partake in the ceremony.Culture structures our daily lives, and by acknowledging this, we can begin to understand why people participate in activities that we consider inhumane or unethical.Although my cultural preconditions register certain activities as wrong, others from another culture may see our daily activities as obscene.I don’t believe I have any right to judge. Man....talk about giving fuel to the fire. Here was my reply:It is hard enough to get people to accept moral relativism and multi-culturalism without having to repeatedly defend against charges that it leads to moral nihilism, which (rightly or wrongly), the article gives as its overarching impression.Assuming that we take at face value her asserted conclusion that she does not believe she has a right to judge, the question remains whether this is a necessary outcome of her moral relativism argument. After all, one could easily argue and accept that a liberal democracy is the most satisfying contingent framework on the very basis of moral relativity itself. For if all norms are subjectively valid, this does not presuppose that one necessarily has to take a hands-off approach because actions accrue as a result of those norms. Those norms in turn affect material tangible beings we like to call humans. Therefore, the appropriate question should what system best allows for all these norms to coexist to their fullest extent because we still have to adjudicate between these various norms if for no other reason than the fact that we co-exist. Therefore a liberal democracy almost by definition allows for a framework of such coexistence by protecting minority viewpoints and culture from the majority while also protecting individuals from oppressive minority cultures e.g. honour killings.Even if we accept that culture exists outside of individuals and that it remains separate and immutable, it does not answer the question of whether that culture deserves to exist in the first place or that the culture ought to remain immutable and unchanging. Patrick Glenn argues that culture and traditions are composed essentially of information and that unless one if a fundamentalist, that information will change over time and with exposure to other cultures. It’s also worth noting that he denounces both the moral absolutist approach as well as the moral nihilistic approach.But what is most disturbing in this "I have no right to judge approach" is that it ultimately denies the capacity and capability of every individual to determine at least for herself or himself the validity of norms and the closest approximation of Truth through reason. It denies self-actualization and it denies capacity to act in the face of true evil and oppression. If Ms. McKean does not mean to go so far, she might well like to issue a clarification or a correction.Thus a moral relativist approach can be compatible with "imposing" a worldview or a framework wherein every individual can achieve freedom of thought and conscience. These things cannot occur where a society is coercive, repressive, thought controlling and totalitarian in those regards.Respect for a culture does not mean remaining blind to its flaws.Addendum: Here's a well written response over at The Broken Watch taking issue with certain unclear points of Ms. McKean's article (conflation of ontological arguments with ones based on utility) as well as an examination of the genetic fallacy i.e. just because something is from a particular place does not i) reflect that is is only contextually valid and ii) reflect its inherent validity or lack thereof. Schools drop Holocaust lessons | Special reports | Guardian UnlimitedI couldn't have come up with a better rebuttal of why offense cannot be a basis for limiting the freedom of speech (much less arguably education) but here is a fantastic (but very disturbing) example of potential offense on the part of the few trumping the teaching of historical fact.From the article:Schools have avoided teaching the Holocaust and the Crusades in history lessons because they are concerned about causing offence to Muslim pupils or challenging "charged" versions of history which children have been taught at home, government research has found.A report for the Department for Education and Skills found that a history department in a northern city had avoided selecting the Holocaust as a GCSE topic for fear of confronting "anti-semitic sentiment and Holocaust denial" among some Muslim pupils.Another school decided to teach the Holocaust despite anti-semitic sentiment among students, but avoided the Crusades as "their balanced treatment of the topic would have directly challenged what was taught in some local mosques".And it isn't just one group playing...The report, Teaching Emotive and Controversial History, also revealed that one school was challenged by Christian parents for teachers' treatment of the Arab-Israeli conflict.Here's the mealy mouthed response from the Government:A DfES spokesman said: "It's up to schools to make a judgment on non-compulsory parts of the national curriculum. It is a broad framework and there is scope for schools to make their own decisions."I still it's worth making a comment here about the Sedition Act and the Maintenance of Religious Harmony Act. On their face, while insanely broad and therefore prone to abuse, there does exist a fairly massive qualifier clause insofar as regardless of whatever ill-feelings or invectives hurled, as long as it to the propagation of information and "truth" it will be fine. Under a liberal system, it is not difficult to see how this can be used to support a liberal notion of the freedom of speech and expression. And in fact, it would tend towards more civilized discourse. So no "hate speech" but plays like Talaq which is a discourse on anti-female notions and customs within certain religions and "races" should be alright.But it's clear that this depends on the normative values and discretion of the Executive (in the face of judicial discretion) and that is what I believe makes it dangerous. A Don's Life - Times Online - WBLG: History Carnival 51My first and foremost love has to be of history and seeing how it all ties in. For a long while I was seriously contemplating becoming a military historian and a good number of my favorite books are still history books e.g. Paul Kennedy's Rise and Fall of Great Empires, Huntington's Clash of Civilizations, Boorstin's Trilogy (The Seekers, Discovers and Creators, the last of which I particularly enjoyed)Until I got spurned by History (my grades weren't great) and seduced by other subjects (economics and then law).But there are some great blog posts. Read them for History Is. Bush calls British sailors 'hostages' in Iran - CNN.comHere the words of the wise political philosopher of our time is apropos. Messr Jon Stewart commented that "We (the US) may not be very good at nation building. But we are very good at nation un-building".And I seriously doubt that people have forgotten of the Falkland Wars, especially since it's front page news on the IHT.com. I mean, the British went to war over a piece of land that no one in Britain had visited much less heard of before the war started.Thumbing your nose at the "Western imperialist powers" may be all well and good, but seriously man, whazzup? Aardvarchaeology : Skeptics' Circle 57: The Zebra Spilled its Plastinia on BemisMore Skeptical Yumminess. I think it's worth mentioning that my grandmother was a medium throughout her entire life and has mystical powers attributed to her. I was a young participant in some of the rites and her place would literally be packed with people not just in the house but queuing up outside, some even coming all the way from Malaysia to visit her and seek her aid and advise.I make no comment on that time as I was too young to consciously consider it but what I can say is that I was brought up in the background of that entire Chinese syncretic religion and that in turn heavily colored my viewpoint as to the existence of the supernatural.My first foray into the world of skepticism was the realization that "magic" was simply illusion and camera trips. But whatever vestigial residue left was blown apart by James Randi, where I learned about cold reading, ideomotor effect, placebo effect, truth about homeopathy etc.And I never looked back since. My world may be "colder" but it's a much saner, rational and logical world.Peace. Blog on Hiatus?Well, I'm back from Portland and San Francisco, nice places both and well worth visiting if you're in the Pacific Northwest or generally on the West Coast.But due to some course scheduling, in particular my inability to get certain courses that I would like, my course load is perhaps slightly heavier than I would have expected. This is not in terms of the number of credit hours but in terms of my familiarity of the subject matter at hand. So without the straight international economics and developmental state stuff that I was hoping to get, I have had to take International Copyright & Trademarks as well as International Mergers & Acquisitions, neither of which I am as familiar with as was the case with International Law or even First Amendment.And I already have readings to do.Thus to cut a long story short, I may be shutting down this blog for the next few months until I return home, unless someone else wants to guestblog for a while.Peace Spring Break!Southwards ho for more sunshine and warmth. Back late next weeks.Peace. T-Shirt Slogans I want Printed1. You Don't Believe in Thor?! Why Do you Hate Thor?!!2. PolSci: Where Ignorance is Rational3. Economics: Assume!4. Sleep: An Inadequate Substitute for Caffeine5. Woo /= W00t