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LAW
Jan 31, 2021 14:15:09 GMT
Post by Admin on Jan 31, 2021 14:15:09 GMT
"There is a Single Law. The Law of Nature. The Law of Equilibrium. The Law of Unity. The Law Of infinite Love. We exist within it. It covers us like a mother covers a child. If we correspond to it, we will prosper. If we don't correspond to it, we'll suffer."
Abraham the Patriarch
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LAW
Feb 2, 2021 12:23:36 GMT
Post by Admin on Feb 2, 2021 12:23:36 GMT
WHY WE MUST DO MORE TO RECOGNIZE THE APPLICATION OF INDIGENOUS LAWBy Gavin Smith, West Coast Environmental Law. February 1, 2021 | EDUCATE! popularresistance.org/why-we-must-do-more-to-recognize-the-application-of-indigenous-law/The Invisible Thread? In the Supreme Court of Canada’s 1996 decision in R v Van Der Peet, Justice Beverley McLachlin[1] famously made reference to a “golden thread”: The history of the interface of Europeans and the common law with aboriginal peoples is a long one. As might be expected of such a long history, the principles by which the interface has been governed have not always been consistently applied. Yet running through this history, from its earliest beginnings to the present time is a golden thread – the recognition by the common law of the ancestral laws and customs of the aboriginal peoples who occupied the land prior to European settlement. For Wet’suwet’en people reading the BC Supreme Court’s December 31, 2019 decision in Coastal GasLink Pipeline Ltd v Huson, it may have seemed more like an “invisible thread.” The decision presents several obstacles to recognition of Indigenous law within the Canadian legal system, which must be overcome if the notion of the golden thread – and indeed the language of reconciliation – is to be meaningfully applied on the ground. The Context As we have previously addressed, a year ago the Wet’suwet’en Nation was in the international spotlight when an armed RCMP force entered its territories and arrested 14 people to enforce an interim injunction obtained by Coastal GasLink Pipeline Ltd. (“CGL”). All contempt charges against those arrested were later dropped (two assault charges are proceeding). An Access Protocol Agreement was negotiated in April 2019 to allow access to the area pursuant to the interim injunction, and a Court hearing of CGL’s application for an interlocutory injunction occured in June 2019. On December 31, 2019, the Court made its decision, granting CGL an interlocutory injunction and enforcement order, which effectively prohibits actions that would impede CGL’s access to the area to construct the pipeline. Wet’suwet’en Hereditary Chiefs subsequently issued a notice evicting CGL from specified Wet’suwet’en House territories, causing CGL workers to leave the area. CGL then posted notice of the injunction order, as a precursor to potential enforcement. The Court’s decision has serious and immediate implications given the armed enforcement by the RCMP that ocurred the last time around. Implications For How Indigenous Law Is Addressed In Canada’s Legal System The CGL case focused in large part on whether and how the Court would address the role of Indigenous law because, as summarized by the Court: [51] The defendants assert that the Wet’suwet’en people, as represented by their traditional governance structures, have not given permission to the plaintiff to enter their traditional unceded territories in which Sections 7 and 8 of the Pipeline Project are located. They submit that the plaintiff is in their traditional territory in violation of Wet’suwet’en law and authority and their efforts in erecting the Bridge Blockade were to prevent violation of Wet’suwet’en law. The defendants assert that they were at all times acting in accordance with Wet’suwet’en law and with proper authority. The Court was in relatively uncharted waters in this regard, because the Court is not an expert in Wet’suwet’en law and also because – despite the longstanding acknowledgement of Indigenous law within the Canadian legal system – Canada’s courts are still struggling with how to address these cases. As the Court stated in Coastal GasLink, “[t]he reconciliation of the common law with indigenous legal perspectives is still in its infancy.” Unfortunately, the Court’s approach in the Coastal GasLink decision presents at least four obstacles to giving practical meaning to the “golden thread” of recognition of Indigenous law within the Canadian legal system. This blog considers each obstacle in turn. 1. The Court says that Indigenous law is not “effectual” without recognition by the state or a judge In the Coastal GasLink decision, the BC Supreme Court’s overarching response to the application of Indigenous law is as follows: [127] As a general rule, indigenous customary laws do not become an effectual part of Canadian common law or Canadian domestic law until there is some means or process by which the indigenous customary law is recognized as being part of Canadian domestic law, either through incorporation into treaties, court declarations, such as aboriginal title or rights jurisprudence or statutory provisions: Alderville First Nation v. Canada 2014 FC 747, para. 40. [128] There has been no process by which Wet’suwet’en customary laws have been recognized in this manner. The aboriginal title claims of the Wet’suwet’en people have yet to be resolved either by negotiation or litigation. While Wet’suwet’en customary laws clearly exist on their own independent footing, they are not recognized as being an effectual part of Canadian law. The Court found that facts on the Wet’suwet’en legal perspective could be admitted as evidence to consider in the case, rather than applying as law. The most obvious obstacle this poses to recognition of Indigenous law is that, in a practical sense, it is not really treated as law at all, but rather as evidence. Yet the Supreme Court of Canada has urged us to take Indigenous law more seriously than that. In R v Marshall, the Supreme Court of Canada quotes with approval this statement by legal scholar John Borrows: Aboriginal law should not just be received as evidence that Aboriginal peoples did something in the past on a piece of land. It is more than evidence: it is actually law. And so, there should be some way to bring to the decision-making process those laws that arise from the standards of the indigenous people before the court. Indeed, the Federal Court recently stated in Pastion v Dene Tha’ First Nation that: Indigenous legal traditions are among Canada’s legal traditions. They form part of the law of the land. Chief Justice McLachlin of the Supreme Court of Canada wrote, more than 15 years ago, that “aboriginal interests and customary laws were presumed to survive the assertion of sovereignty”… Canadian courts have recognized the existence of Indigenous legal traditions and have given effect to situations created by Indigenous law, particularly in matters involving family relationships. The Court in Pastion added that: “The Truth and Reconciliation Commission of Canada pointed out that the recognition of Indigenous peoples’ power to make laws is central to reconciliation.” Furthermore, the ruling of the BC Court of Appeal in Saik’uz First Nation and Stellat’en First Nation v Rio Tinto Alcan Inc confirmed that Aboriginal title and other Aboriginal rights “…exist prior to declaration or recognition. All that a court declaration or Crown acceptance does is to identify the exact nature and extent of the title or other rights.” The Supreme Court of Canada is clear that Aboriginal title is bound up with the application of Indigenous law, stating in Delgamuukw that “aboriginal title originates in part from pre-existing systems of aboriginal law.” In other words, Indigenous law – and the constitutionally-recognized Aboriginal title and rights with which it is intertwined – applies right now. If, as the Coastal GasLink decision says, Indigenous law is ineffectual in Canadian domestic or common law unless recognized by the state or a court, how does it infuse Aboriginal title and rights that exist regardless of court declaration or state recognition? How is it, in a meaningful sense, “part of the law of the land”? It is not enough to say that an Indigenous nation must simply prove its title and rights in Court and then its laws will become “effectual.” As noted on this blog and elsewhere, the Wet’suwet’en are a classic example of how the Crown and the Canadian legal system have overseen a long-term and continuing failure to give effect to the promised recognition of Aboriginal title and Indigenous law. After millions of dollars spent on some 13 years in court, including 318 days of presenting evidence at trial, the Wet’suwet’en together with the Gitxsan won a landmark title victory in the Supreme Court of Canada’s 1997 Delgamuukw decision. The Court ordered another trial due to the trial judge’s improper rejection of important Indigenous evidence, but explicitly encouraged good faith negotiation rather than further litigation. More than two decades later, it is undeniable that the provincial and federal governments (i.e. the Crown) have not done enough to advance such negotiations. As we have previously detailed, the Crown in fact continued to make legal arguments to minimize and weaken the meaning of Aboriginal title, such as the arguments that were rejected in the Supreme Court of Canada’s 2014 decision in Tsilhqot’in Nation v British Columbia. It is manifestly unfair to expect the Wet’suwet’en, and Indigenous nations across the land, to continue assembling the overwhelming financial, organizational and emotional resources needed for marathon litigation before their laws and jurisdiction will be taken seriously as required under Canada’s constitution. In this context, the implication of the CGL decision is that the Indigenous laws underlying Aboriginal title and rights are left in an indefinite state of limbo, with their practical application in the Canadian legal regime denied. 2. The Court considers lack of unanimity among members of an Indigenous nation to decrease the weight of Indigenous law Even when considered as evidence, the Court holds that Wet’suwet’en law “is of limited assistance” in reaching its decision in Coastal GasLink because the Court finds that (i) there are disagreements among Wet’suwet’en members about whether CGL should be constructed, and (ii) there are jurisdictional tensions within the Wet’suwet’en Nation. For example, the Court quotes Wet’suwet’en members with business interests in CGL who support the project’s construction, and notes tensions between Indian Act Band Councils and the Office of the Wet’suwet’en. In this light, the Court states: [137] All of this evidence suggests that the indigenous legal perspective in this case is complex and diverse and that the Wet’suwet’en people are deeply divided with respect to either opposition to or support for the Pipeline Project. [138] It is difficult to reach any conclusions about the indigenous legal perspective, based on the evidence before me and I tend to agree with the submission of the plaintiff that the defendants are posing significant constitutional questions and asking this court to decide those issues in the context of the injunction application with little or no factual matrix. This is not the venue for that analysis and those are issues that must be determined at trial. The notion that disagreement about a project within a community would reduce the weight of Indigenous law is problematic because it imposes an unfair double standard on Indigenous law. Rarely if ever is a group of people unanimous with regard to a project, or any other proposal for that matter. In Canadian law, disagreement among citizens is not generally recognized as relevant to whether a decision-maker has legal authority to do something. For example, no one would succeed in a legal challenge to the federal government’s approval of the Trans Mountain pipeline on the basis that Canadians disagree about whether to build the project (as we have explored elsewhere, there are other more compelling grounds for ongoing challenges of the Trans Mountain approval). The same must be true for Indigenous law: what is relevant is whether the appropriate legal processes were followed for a decision to be made, regardless of potential disagreement among individuals. However, the Court in Coastal GasLink is also not sure whether the appropriate Wet’suwet’en legal processes were followed. The decision states that it is unclear whether alleged jurisdictional tensions within the Nation result from “an attempt by the plaintiff [CGL] to circumvent the Wet’suwet’en legal process or it part [sic] of the continuing evolution of Wet’suwet’en governance.” The Court is certainly in a delicate and difficult position in this regard, because it is not an expert in Wet’suwet’en law and understandably wishes to avoid making inappropriate or incorrect pronouncements regarding an Indigenous legal regime. However, it is apparent from several decades of litigation that the Wet’suwet’en’s Clan- and House-based hereditary governance system is the Indigenous legal foundation for Wet’suwet’en title. This was accepted by the Supreme Court of Canada in Delgamuukw, which described the system of Clans and Houses with Hereditary Chiefs as “the fundamental premise of both the Gitksan and the Wet’suwet’en peoples.” It was also affirmed in greater detail by the BC Supreme Court in Canadian Forest Products Inc v Sam: [14] … It is the relationship to particular lands that defines the social structure of Wet’suwet’en society, that places the land as the foundation of cultural identity, and that determines the structure of governance. [15] The Wet’suwet’en occupation and use of land is organized by the clan and house system upon which the law and essential social structure is ultimately based. The five Wet’suwet’en clans are each composed of several houses, 13 in all. A house is a matrilineage of people related through their mothers. Each house has one or more territories which together comprise the Wet’suwet’en territory. Each house has a chief and a sub-chief who collectively make up the head chiefs of the Wet’suwet’en. Each Wet’suwet’en chief has rights and responsibilities specific to the particular territory over which that chief is given a duty to protect. The rights and responsibilities are confirmed, coordinated, and directed to the common good, in other words, governed, through the feast. [16] The feast is central to Wet’suwet’en society and government. As acknowledged in Delgamuukw at para. 14, the feast has a ceremonial purpose but is also used for making important decisions. Today, it is used to make clear who has succeeded to the chiefs’ titles, which are associated with jurisdiction over discrete Wet’suwet’en territories. Importantly, the feast confirms the relationship between each house and its territory and confirms the boundaries of each territory (Delgamuukw v. British Columbia (1993), 104 D.L.R. (4th) 470 at 608 (B.C.C.A.) [Delgamuukw BCCA]. It operates as a forum in which Wet’suwet’en law is both enacted and upheld. It is through the feast that the various houses and clans interact at an official level. Territories are important to the feast as the host clan gathers goods and food for the feast from its territories. [17] Each chief is responsible for the lands and resources within his or her territory. Since those Hereditary Chiefs have clearly expressed opposition to the CGL project, this should presumably be given significant weight as an expression of Wet’suwet’en governance, in light of the existing legal recognition of that system. It would certainly be open to the Court to consider evidence about whether the Wet’suwet’en had, using Wet’suwet’en legal processes, decided to change its previously-recognized governance system. However, it is concerning for the Court to simply assign little weight to Wet’suwet’en law as a factor in its decision and defer the issue to another day, as a result of the cited tensions, since this ultimately negates the application of Wet’suwet’en law in the circumstances. 3. The Court says that controlling access to territories through a blockade is not condoned by Indigenous law The Court further finds that the actions of the defendants are not an expression of Indigenous law because “[t]here is also no evidence that blockades of this kind are a recognized mechanism of dealing with breaches of Wet’suwet’en law.” Instead, the Court characterizes the actions as “…self-help remedies, which are not condoned in Canadian law or indigenous law.” As a result, the Court concludes that: An injunction order will not directly impact the ability of the defendants to enjoy the use of the lands or in any way restrain Chief Knedebeas’ exercise of authority in terms of traditional Wet’suwet’en governance. On the contrary, such an order would merely restrain the defendants from engaging in self-help remedies that are contrary to the rule of law and which do not appear to be part of Wet’suwet’en legal tradition, according to the affidavit materials before me on this application. While it is true that blockades are rarely a preferred outcome from anyone’s perspective, to suggest that a nation’s decision to control access to its territories is “not condoned” by its own law does not accord well with the existing Canadian law on Aboriginal title. Indeed the legal test for Aboriginal title established in Delgamuukw requires proof of “the intention and capacity to retain exclusive control” of the land at the time of the Crown’s assertion of sovereignty. The Supreme Court of Canada summarized in Tsilhqot’in that, for the purposes of meeting this aspect of the legal test for Aboriginal title, “Exclusivity can be established by proof that others were excluded from the land, or by proof that others were only allowed access to the land with the permission of the claimant group.” How is it that an action to exclude others from the land in the past would be a legal foundation for establishing Aboriginal title, which as noted above is inextricably linked with the exercise of Indigenous law, while according to the Court in Coastal GasLink any such action in the modern day is not condoned by Indigenous law and must instead be an unlawful “self-help remedy”? Furthermore, the Supreme Court of Canada is clear in Tsilhqot’in that Aboriginal title “confers the right to use and control the land” and that “Once Aboriginal title is established, s. 35 of the Constitution Act, 1982 permits incursions on it only with the consent of the Aboriginal group or if they are justified by a compelling and substantial public purpose and are not inconsistent with the Crown’s fiduciary duty to the Aboriginal group.” How is it that an action to prevent others from accessing the land without consent could be a valid exercise of Indigenous law in the modern day, if a court had declared Aboriginal title, whereas without such a court declaration the action can only be an unlawful self-help remedy? These questions raise serious doubts about the notion that controlling access to territories, for example through a blockade, is not condoned by Indigenous law generally or Wet’suwet’en law specifically. In this light, it is troubling for the Court to conclude that granting CGL its injunction and thus overriding the refusal of Wet’suwet’en consent would in no way impact Wet’suwet’en hereditary authority and governance. The Wet’suwet’en assert title over their territories based in no small part on their system of laws and governance. The ability to control access to the land is a key part of exercising Aboriginal title. Therefore to override a Wet’suwet’en decision about access to the land is to impact its exercise of legal authority and governance. 4. The Court does not include recognition of Indigenous law and governance as a factor to consider in the broader public interest when making an injunction decision Injunction hearings are a difficult legal forum for Indigenous peoples to have their laws, title and rights upheld (this has been well documented, for example, by the Yellowhead Institute). However, particularly concerning in Coastal GasLink is how the Court approaches consideration of the public interest in weighing the “balance of convenience,” which is part of the legal test for an injunction. The Court begins its analysis of the issue by noting that “Public interest has been found to be a significant factor in weighing the balance of convenience.” On the one hand, the Court considers the economic benefits of CGL and support for the project among some of the Wet’suwet’en, as well as upholding the rule of law with respect to the permits that CGL has already obtained from the Crown. On the other hand, the Court considers the defendants’ submission that “the issuance of an interlocutory injunction will restrain Chief Knedebeas from exercising his lawful power and authority over Dark House territory.” Ultimately, the Court concludes: “In my view, public interest must [be] viewed more broadly than the public interest to specific to [sic] Dark House and the public interest in this case weighs heavily in favour of granting the interlocutory injunction.” Yet the recognition of Indigenous governance within the Canadian legal system is emphatically not an issue specific to Dark House or the Wet’suwet’en. We all have an interest in the recognition of Indigenous governance, both to address colonial injustices and to uphold the law in its fullest sense (including the Canadian constitution). This broad public interest is evident in the federal and provincial governments’ commitments to implement the UN Declaration on the Rights of Indigenous Peoples. It is also apparent in the rallies and actions supporting the Wet’suwet’en that have occurred across British Columbia, Canada and indeed internationally. This is a responsibility that concerns us all. Meaningfully recognizing Indigenous law within the Canadian legal system is assuredly not a simple undertaking, but one thing is absolutely clear: we cannot afford to delay any longer. Gavin Smith is a staff lawyer and a resident on Wet’suwet’en territories in Smithers, BC. [1] Justice Beverley McLachlin, as she then was, wrote in dissent in R v Van Der Peet (i.e. she was not in agreement with a majority of the Court) but the dissent related to different issues, not to her statement about the “golden thread.” The Supreme Court of Canada has been clear in its acknowledgement of Indigenous law.
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LAW
Mar 1, 2021 16:34:53 GMT
Post by Admin on Mar 1, 2021 16:34:53 GMT
Because doing good and helpful things for people isn’t a duty of justice, you can’t force people to be good and helpful. You can force people not to steal or murder, because not stealing and not murdering are duties of justice. We can enforce duties of justice.
– Jason Sorens, "Do Individuals Have a Right to Do Wrong?" [2017]
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LAW
Oct 5, 2021 6:12:07 GMT
Post by Admin on Oct 5, 2021 6:12:07 GMT
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Post by Admin on Dec 16, 2021 20:32:06 GMT
EDUCATION & SOCIETY Does Law Exist to Provide Moral Order? Is social cohesion possible in plural societies? Philosopher H. L. A. Hart weighed in amid debates on abortion and same-sex relationships. daily.jstor.org/does-law-exist-to-provide-moral-order/In 1959, as a response to what was commonly known as the Wolfenden Report, Lord Devlin, an English judge, delivered the Maccabaean Lecture in Jurisprudence at the British Academy. The lecture that would later be published as The Enforcement of Morals. The Wolfenden Report was more correctly called the Report of the Committee on Homosexual Offences and Prostitution. Two years before Devlin’s lecture, the Committee had recommended by a majority of 12 to 1 that, in Britain, “homosexual behaviour between consenting adults in private should no longer be a crime.” Devlin’s objections to this recommendation would spark a passionate public debate between himself and H. L. A. Hart, Professor of Jurisprudence at Oxford University. In his lecture, Devlin countered the Wolfenden Report, arguing that law should both be and is used “to achieve uniformity” in society. He went further, stating that the laws against homosexuality were there because the strong feeling of “disgust” was “deeply felt” in society. The presence of disgust, he claimed, “is a good indication that the bounds of [tolerance] are being reached… No society can do without intolerance, indignation and disgust; they are the forces behind the moral law.” “It is generally accepted,” he continued, “that some shared morality… is an essential element in the constitution of any society. Without it there would be no [social] cohesion.”
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LAW
Jan 12, 2022 11:29:38 GMT
Post by Admin on Jan 12, 2022 11:29:38 GMT
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LAW
Jan 15, 2022 11:03:58 GMT
Post by Admin on Jan 15, 2022 11:03:58 GMT
THE RULE OF LAW MUST FINALLY EVOLVE INTO THE RULE OF JUSTICE By Alfred De Zayas, Counter Punch . January 14, 2022 CREATE! popularresistance.org/the-rule-of-law-must-finally-evolve-into-the-rule-of-justice/Many politicians, academics, media pundits are wont of invoking the “rule of law”, a “rules-based international order”, “values diplomacy” etc. But what do all these benevolent-sounding slogans actually mean in practice? Who makes the rules, who interprets them, who enforces them? What transparency and accountability accompany these noble pledges? In a very real sense, we already have a “rules based international order” in the form of the UN Charter and its “supremacy clause”, article 103 of which grants it priority over all other treaties and agreements. The norms established in the Charter are rational, but effective enforcement mechanisms are yet to be created. We also have humanistic “values” that should guide diplomacy and peace-making – including the principle “pacta sunt servanda” (treaties must be implemented, art. 26 of the Vienna Convention on the law of treaties). Let us not forget the general principles of law, including good faith (bona fide), the prohibition of abusing rights (sic utere tuo ut alienum non laedas), and the principle of estoppel (ex injuria non oritur jus) – you can’t have your cake and eat it. Alas, both in domestic and international law there is a high level of bad faith and the tendency to apply double-standards. Major powers make agreements and then break them with impunity. Major powers undermine diplomacy by brazenly lying, by making promises and not keeping then. This subverts the credibility of the entire system of norms and mechanisms. Politicians often forget that keeping one’s word is not only a matter of personal honour – it is an indispensable element of trust in the conduct of public affairs. Among other crucial values that we should promote are Christian values such as compassion, empathy, forgiveness, solidarity. It is axiomatic that the rule of law functions as a pillar of stability, predictability and the democratic ethos in modern society. Its object and purpose is to serve the human person and progressively achieve human dignity in the larger context of freedom. Because law reflects power imbalances, we must ensure that the ideal of the rule of law is not instrumentalized simply to enforce the status quo, maintain privilege, and the exploitation of one group over another. The rule of law must be a rule that allows flexibility and welcomes continuous democratic dialogue to devise and implement those reforms required by an evolving society. It must be a rule of conscience, of listening. Throughout history law has all too frequently been manipulated by political power, becoming a kind of dictatorship through law, where people are robbed of their individual and collective rights, while the law itself becomes the main instrument of their disenfranchisement. Experience has taught us that law is not coterminous with justice and that laws can be adopted and enforced to perpetuate abuse and cement injustice. Accordingly, any appeal to the rule of law should be contextualized within a human-rights-based framework. Already in Sophocles’ drama Antigone we saw the clash between the arbitrary law of King Creon and the unwritten law of humanity. Enforcing Creon’s unjust law brought misery to all. In Roman times the maxim dura lex sed lex (the law is hard, but it is the law) was mellowed by Cicero’s wise reminder that summum jus summa injuria (extreme law is extreme injustice, de Officiis 1, 10, 33), i.e. the blind application of the law may cause great injustice. The contention that, irrespective of what it stipulates, “the law must be obeyed” has been challenged by human rights heroes for thousands of years. Spartacus fought against the Roman slave laws and paid with his life. Slavery remained constitutional and legal in the Western hemisphere until the mid-nineteenth century; colonialism was deemed constitutional and legal by the colonizers until the decolonization processes of the 1950s, 1960s and 1970s; Nazi Germany’s racist Nuremberg laws of 1935 were constitutional and legal, as were those of South Africa’s Apartheid; Stalin’s laws, the Holodomor in the Ukraine and the purges of the 1930’s were all based on Soviet laws and decrees; segregation in the US was constitutional and legal (see, for instance, the US Supreme Court judgment Plessy v. Ferguson) until overturned in 1954. Civil disobedience by Henry, David Thoreau, Zaghioul Pasha, Michael Collins, Dietrich Bonhoeffer, Mahatma Gandhi, Martin Luther King, Nelson Mandela, Ken Saro Wiwa, Mohamed Bouazizi was legitimate and necessary to give example and initiate reforms – but they all suffered the consequences of having opposed the fetishism of the “rule of law”. Democracy in the twenty-first century requires that the rule of law cease being the rule of power, of might makes right, geopolitics and economics. The rule of law must incorporate human dignity into the equation and enable people power, self-determination and referenda. The rule of law must evolve into the rule of social justice and peace. Indeed, civilization does not simply require society to have a set of laws and a powerful police force to enforce them. Civilization means ensuring the real welfare of people, creating the conditions necessary for their pursuit of happiness. The true indicators of civilization are not an expanding Gross Domestic Product, ever-growing consumption, and aggressive exploitation of natural resources – but rather respect for human and animal life, sustainable management of the environment, local, regional and international solidarity, social justice and a culture of peace. Unortunately, our civilization does not measure up with its noble ideals. Our governments continue to sabotage the rule of law by instrumentalizing norms to destroy justice, e.g. by weaponizing extradition law to persecute whistle-blowers like Julian Assange and keep them bottled up for decades. Similarly, the extradition of Alex Saab from Cape Verde in 2021 to a kangaroo trial in the United States is a travesty of justice, as was the prosecution and imprisonment of the “Cuban 5”, victims of gross political injustice by a Miami tribunal. We have witnessed the increased use of “lawfare” to destroy political adversaries, e.g. the frame-up of Dilma Rousseff in Brazil, making the way free for “regime change”. Similarly, the subversion of election monitoring by the Organization of American States resulting in the coup d’état against Evo Morales of Bolivia in 2019. We have witnessed lawfare in Ecuador against former President Rafael Correa and former Vice-President Jorge Glass. Considerable responsibility for the corruption of the rule of law is borne by the corporate media that systematically dis-informs the public about the facts and imposes a “managed narrative” that essentially cripples any chance for an objective debate. Over the past decades the corporate media has engaged in brazen propaganda to create a false “perception” of the law, including international law, that is very distant from any conception of justice. By suppressing information, dis-informing and whitewashing, the corporate media has become complicit in the war crimes and crimes against humanity perpetrated in Afghanistan, Iraq, Syria, Libya, Yemen etc. The media has even attempted to create an impression that the 2003 Invasion of Iraq, which the then UN Secretary General Kofi Annan repeatedly called an “illegal war”, actually was a “just war” in keeping with the UN Charter. Bottom line: in order to help the rule of law evolve into the rule of justice, we must demand our right to access to information, we must adopt a Charter of Rights of Whistleblowers, demand transparency and accountability from our governments, and ensure that Parliaments revisit obsolete laws that perpetuate injustice. We must remain vigilant to ensure that the rule of justice is built day by day and that our courts and tribunals apply the existing legislation in good faith and not in the service of corporations and special interests, who do not want rights – but only privileges.
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Feb 15, 2022 12:10:38 GMT
Post by Admin on Feb 15, 2022 12:10:38 GMT
In a landmark verdict, the High Court has today found that the process leading to the appointments of both Dido Harding and Mike Coupe was unlawful. It held that Matt Hancock broke the law in appointing Dido Harding as Chair of the National Institute for Health Protection (NIHP) and in appointing Mike Coupe as Director of Testing at Test and Trace (NHSTT). The High Court was also clear that the Prime Minister broke the law in appointing Dido Harding as Chair of Test and Trace. The Court declared: “The Secretary of State for Health and Social Care did not comply with the public sector equality duty in relation to the decisions how to appoint Baroness Harding as Interim Executive Chair of the NIHP in August 2020 and Mr Coupe as Director of Testing for NHSTT in September 2020.” (paragraph 138 of the judgment) While the formal declaration reflects only the appointments made by Matt Hancock, the High Court is clear that the process adopted by the Prime Minister was also unlawful (paragraph 116 of the judgment). All three appointments breached the public sector equality duty. In reaching this conclusion, the Court accepted the argument made by race equality think tank the Runnymede Trust and Good Law Project that the recruitment process adopted by the Prime Minister and the Secretary of State ignored the need to eliminate discrimination against the country’s disabled and ethnic minority communities, and to ensure they have equality of opportunity. In appointing the wife of Boris Johnson’s Anti-Corruption Tsar John Penrose MP to Chair the National Institute for Health Protection, the Government failed to consider the effects on those who, the data shows, are too often shut out of public life. The Government also ignored its own internal guidance, which requires Ministers to consider how discrimination law will be complied with. The Runnymede Trust and Good Law Project brought the case to highlight what it means to disadvantaged groups for the Government to push its associates and donors into key jobs. The Court’s declaration will have a real impact on how public appointments are made in the future. The Government must now take seriously its legal and moral obligations to narrow the disadvantages faced by people with disabilities and those of colour. Public appointments must not be made without taking steps to eliminate discrimination and to advance equality of opportunity, even when normal processes don’t apply, for instance during a public health emergency. The Government will now have to be much more careful to make sure its recruitment processes are fair, equitable and open to all. We want to thank you for your continued support of this case. Without you, we simply couldn’t have done this. We are the arrow, but you are the bow. Thank you, Jo Maugham - Good Law Project You can read the full judgment from the High Court here - drive.google.com/file/d/14GRzznPPBsXpMbELZt_9Jf8FZu8R02SG/viewGood Law Project only exists thanks to donations from people across the UK. If you’re in a position to support our work, you can do so here: goodlawproject.fundraise.tech/campaigns
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LAW
Mar 1, 2022 15:36:37 GMT
Post by Admin on Mar 1, 2022 15:36:37 GMT
Why translating ‘God’s law’ to government law isn’t easy Published: March 1, 2022 1.37pm GMT theconversation.com/why-translating-gods-law-to-government-law-isnt-easy-177310The relationship between certain interpretations of the Bible and public life in the U.S. continues to be in the headlines. During the March for Life anti-abortion rally in Washington, D.C., on Jan. 21, 2022, the Bible featured prominently, with passages from the books of Jeremiah and Proverbs, among others, on display. The Museum of the Bible in D.C., located near the site of the rally, offered free admission during the March. A prominent speaker at the event was the Catholic priest Mike Schmitz, who hosts a popular podcast called “The Bible in a Year” and has published articles on his website pertaining to the Bible and abortion. Some religious groups take the relationship between the Bible and American law and society even further. A movement called “dominionism” and a particular version of it called “theonomy” in Christianity have become prominent in part through politicians associated with the movement, such as Michele Bachmann and Sens. Ted Cruz and Josh Hawley. Many Christian dominionists want, in some fashion, to apply God’s law and Christian principles to American politics. Yet few readers of the Bible realize that the laws then were not practiced in the way many think of laws functioning today. Legal collections in the ancient world In my research on the Bible and its legal material, I have come to the conclusion that much of the modern debate about the Bible in American society could be ascribed to mistaken literary genres. Ancient texts that might look like law codes today were not necessarily enforced as the law of the land in biblical times. For example, laws from the Code of Hammurabi, an often-cited legal collection from King Hammurabi of ancient Babylon, have the familiar structure of modern, practiced law: If someone does something wrong, then that person is guilty according to the details of the law. However, Hammurabi himself rarely referenced the collection. At times his own royal decrees were in violation of what the inscription says should happen. The Code of Hammurabi was not simply a reflection of law in everyday Mesopotamia. Instead, it was likely a collection of possible legal cases and scenarios assembled by royal scribes. These cases demonstrate a range of hypothetical legal responses that could ensure maximal justice in society. They may resemble real law, but they are not a direct representation of what happened in every case. The laws were placed on a rock monument that contained an image of King Hammurabi seated before the god of justice, Shamash. The presentation of these laws on the inscription was for the purpose of making the king look good through propaganda, but, as research shows, not in order to codify practiced law. Scholars believe that the Code of Hammurabi influenced some of the legal collections in the Bible, such as in the book of Exodus, the second book of the Bible traditionally attributed to Moses. T here is evidence that, like Hammurabi’s law code, laws in the Bible were not necessarily practiced. For example, a law in the book of Deuteronomy, the fifth book of the Bible, also believed to have been written by Moses, says that if a son is persistently rebellious against his parents and gets drunk, the parents will bring the son to the town elders. The men of the town then stone the son to death. But what counts as “rebellious,” and how drunk would qualify the son to be deemed guilty. The Bible does not say. Ancient rabbis viewed the passage as not able to be practiced at all. The prophet Jeremiah applied the law metaphorically to Jerusalem’s destruction in 586 B.C., but there is no evidence that the law was actually practiced. There is another story of one ancient rabbi, Hananiah ben Hezekiah, who locked himself in his room, burning 300 barrels of oil to keep his light on in order to figure out how the laws of the Bible worked together. This incredible amount of exertion highlights how different these laws actually are and how they cannot be reconciled into one simple legal vision. Laws, the Bible and ancient Israel While there is evidence that some sense of legal reality in ancient Israel looked like some of the biblical laws, the relationship was not exact. It seems, instead, that the genre of legal collections in the Bible functioned according to the literary conventions of its day. The fact that laws in the Bible look like other ancient Near Eastern laws does not mean that the laws in the Bible have no unique features. Scholars have noted an innovation that occurred in the laws in the Bible: There is no king who acts as the lawgiver. All of the other laws in the ancient Near East were given by the king. The Mesopotamian god of justice, Shamash, endowed Hammurabi with wisdom, but Hammurabi himself derived the laws. Yet the earliest legal collection in the Bible, in the book of Exodus, lacks the role of the king as a lawgiver for the first time in the history of the ancient Near East. The biblical laws, instead, come directly from God. The original intent of some of these legal collections may have been to emphasize the need for freedom against larger dominant imperial forces. They were used as statements expressing convictions about justice, divinity and society, but without recourse to ancient Near Eastern kings. In fact, one law in Deuteronomy relegates the king to a much smaller role than royalty otherwise occupied in ancient society. This law stipulates that the primary job of a king is to study the legal material in the Bible. It also commands that the king not act arrogantly toward other Israelites. And given how the distinct collections in the Bible differ and change over time, the legal material shows a remarkably adaptable sense of how ancient Israelite society constantly evolved in its response to historical events. But one can only see such functions of these laws when understood in their ancient context.
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LAW
Mar 10, 2022 12:11:40 GMT
Post by Admin on Mar 10, 2022 12:11:40 GMT
What is a law of nature? Laws of nature are impossible to break, and nearly as difficult to define. Just what kind of necessity do they possess? aeon.co/essays/natural-laws-cant-be-broken-but-can-they-be-definedIn the original Star Trek, with the Starship Enterprise hurtling rapidly downward into the outer atmosphere of a star, Captain James T Kirk orders Lt Commander Montgomery Scott to restart the engines immediately and get the ship to safety. Scotty replies that he can’t do it. It’s not that he refuses to obey the Captain’s order or that he doesn’t happen to know how to restart the engines so quickly. It’s that he knows that doing so is impossible. ‘I can’t change the laws of physics,’ he explains. We all understand Scotty’s point (although the Enterprise does somehow manage to escape). He cannot break the laws of nature. Nothing can. The natural laws limit what can happen. They are stronger than the laws of any country because it is impossible to violate them. If it is a law of nature that, for example, no object can be accelerated from rest to beyond the speed of light, then it is not merely that such accelerations never occur. They cannot occur. There are many things that never actually happen but could have happened in that their occurrence would violate no law of nature. For instance, to borrow an example from the philosopher Hans Reichenbach (1891-1953), perhaps in the entire history of the Universe there never was nor ever will be a gold cube larger than one mile on each side. Such a large gold cube is not impossible. It just turns out never to exist. It’s like a sequence of moves that is permitted by the rules of chess but never takes place in the entire history of chess-playing. By contrast, if it is a law of nature that energy is never created or destroyed, then it is impossible for the total energy in the Universe to change. The laws of nature govern the world like the rules of chess determine what is permitted and what is forbidden during a game of chess, in an analogy drawn by the biologist T H Huxley (1825-95). In our science classes, we all learned some examples of what scientists currently believe (or once believed) to be laws of nature. Some of these putative laws are named after famous scientists (such as Robert Boyle and Isaac Newton). Some are generally called ‘laws’ (such as the laws of motion and gravity), while others are typically called ‘principles’ (such as Archimedes’ principle and Bernoulli’s principle), ‘rules’ (such as Born’s rule and Hund’s rule), ‘axioms’ (such as the axioms of quantum mechanics), or ‘equations’ (such as Maxwell’s equations). Laws of nature differ from one another in many respects. Some laws concern the general structure of spacetime, while others concern some specific inhabitant of spacetime (such as the law that gold doesn’t rust). Some laws relate causes to their effects (as Coulomb’s law relates electric charges to the electric forces they cause). But other laws (such as the law of energy conservation or the spacetime symmetry principles) do not specify the effects of any particular sort of cause. Some laws involve probabilities (such as the law specifying the half-life of some radioactive isotope). And some laws are currently undiscovered – though I can’t give you an example of one of those! (By ‘laws of nature’, I will mean the genuine laws of nature that science aims to discover, not whatever scientists currently believe to be laws of nature.) What all of the various laws have in common, despite their diversity, is that it is necessary that everything obey them. It is impossible for them to be broken. An object must obey the laws of nature. In this respect, a law of nature differs from the fact that all gold cubes are smaller than a cubic mile, the fact that all the apples currently hanging on my apple tree are ripe, and other so-called ‘accidents’. Although this fact about gold cubes is as universal, general and exceptionless as any law, it is not necessary. It could have been false. It is not inevitable or unavoidable that all gold cubes are smaller than a cubic mile. It just turns out that way. But although all these truisms about the laws of nature sound plausible and familiar, they are also imprecise and metaphorical. The natural laws obviously do not ‘govern’ the Universe in the way that the rules of chess govern a game of chess. Chess players know the rules and so deliberately conform to them, whereas inanimate objects do not know the laws of nature and have no intentions. For 4 to be a prime number would require more than merely a violation of the laws of nature Furthermore, there are lots of things that we would describe appropriately (in a given conversational context) as ‘impossible’ but that do not violate the laws of nature. It is impossible for me to wish you ‘Good morning’ in Finnish because I do not speak Finnish, to borrow an example from the philosopher David Lewis (1941-2001). But my doing so would not violate a law of nature: I could learn Finnish. My car cannot accelerate from 0 to 60 mph in less than 5 seconds, but that impossibility is not the same as the kind of impossibility involved in my car accelerating from 0 to beyond the speed of light. Now we are using the laws of nature to help us understand the kind of impossibility that is supposed to distinguish the laws of nature. We have gone around in a tight circle rather than put our finger on what makes a fact qualify as a law rather than an accident. Moreover, although accidents lack the kind of necessity that laws of nature possess, there are other facts that possess the kind of necessity that laws possess but are not laws – or, more accurately, they are not merely laws. While accidents are too weak to be laws because it would have been too easy to make them false, certain other facts are too strong to be merely laws because they are harder to break than even the laws themselves. For instance, the fact that all objects either contain some gold or do not contain any gold is a fact that has even more necessity than a law of nature does. It is still a fact even in the Star Trek universe, where the laws of nature are different (since starships routinely accelerate beyond the speed of light). For 4 to be a prime number is likewise impossible even in the Star Trek universe. It would require more than merely a violation of the laws of nature. The laws of nature, then, fall somewhere between the accidental facts (which lack the laws’ necessity) and the facts that possess a stronger variety of necessity than the laws do. The laws are distinguished by having the variety of necessity that distinguishes the laws. But we must do better than that if we are to understand what a law of nature is. Philosophers do not aim to discover the laws of nature. That’s a job for scientists. What philosophers aim to do is to figure out what sort of thing scientists are discovering when they discover the laws of nature. The philosopher’s aim is not to help scientists do their job. Instead, the philosopher’s aim is to better understand the job that scientists are doing. For instance, when scientists explain why something happens by appealing to a law of nature that they have discovered, what makes a law able to answer such a ‘Why?’ question? To understand scientific understanding is a job for the philosophy of science. Of course, it can be difficult to reach this philosophical understanding, and I will ask you to bear with me as I guide you – step by step – towards understanding what a law of nature is. I hope that as a useful byproduct, you will also enjoy seeing how a philosopher utilises a few bits of logic (paging Mr Spock!) to grapple with the question ‘What is a law of nature?’ Hold on: I hope you will find the final result to be elegant and illuminating. To begin understanding the variety of necessity that distinguishes the natural laws (which, for simplicity, I will call ‘natural necessity’), let’s unpack the laws’ necessity in terms of the fact that the laws not only are true, but also would still have been true under various hypothetical circumstances. For instance, since it is a law that no object is accelerated from rest to beyond the speed of light, this cosmic speed limit would still have been unbroken even if the Stanford Linear Accelerator had now been cranked up to full power. On the other hand, since it is merely an accident that every apple currently on my tree is ripe, this pattern would have been broken if (for instance) the weather this past spring had been much cooler. I have just compared two ‘conditionals’ (that is, two if-then statements) that state facts about what would have happened under various circumstances that did not actually occur – that is, two ‘counterfactual’ conditionals. We often assert counterfactual conditionals, as in ‘If I had gone to the market today, then I would have bought a quart of milk.’ (That I went to the market today – the falsehood in the ‘if’ position of the conditional – is the ‘counterfactual antecedent’.) The laws, having natural necessity, would still have been true even if other things had been different, whereas an accident is less resilient under counterfactual antecedents. An accident is invariant (that is, would still have been true) under some counterfactual antecedents. For instance, all of the apples on my tree would still have been ripe even if I had been wearing a red shirt this morning. But an accident seems to have less invariance in some respect than a law. After all, we use the laws to figure out what would happen if we were to pursue various possible courses of action – for instance, what would happen to an object’s acceleration if we doubled the object’s mass or doubled the force on the object. We can rely on the laws to tell us what would have happened under various hypothetical circumstances because the laws are invariant (that is, would have remained true) under those circumstances. No matter what, the laws would still have held. (As Scotty says, nothing can break the laws of physics) Of course, we can find some counterfactual antecedents under which the laws are not invariant. Obviously, the laws would not still have remained true under counterfactual antecedents with which the laws are logically inconsistent (that is, under antecedents contradicting the laws). For example, the laws would have been different if an object had been accelerated from rest to beyond the speed of light. But presumably, the laws would still have held under any counterfactual antecedent that is logically consistent with all of the laws. No matter what circumstances permitted by the laws may come about, the laws would still have held. (As Scotty says, nothing can break the laws of physics.) By contrast, for any accident, there is some hypothetical circumstance that is permitted by the laws and under which that accident would not still have held. After all, if it is an accident that p, then not-p (ie, that p is false) is a circumstance that is permitted by the laws and under which p would not still have held. I’ll use lower-case letters for statements that make no reference to lawhood, necessity, counterfactual conditionals, and so forth – what I will call ‘sub-nomic’ claims. (For instance, p could be the claim that all emeralds are green, but p could not stand for ‘It is a law that all emeralds are green.’) We have arrived at the following proposal for distinguishing laws from accidents: m is a law if and only if m would still have been true if p had been true, for any p that is logically consistent with all the facts n (taken together) where n is a law. Let’s step back and take a look at what this means. This proposal captures an important difference between laws and accidents in their resilience – that is, in their range of invariance under counterfactual antecedents. However, this proposal cannot tell us much. That is because the laws appear in it on both sides of the ‘if and only if’. The proposal picks out the laws by their invariance under a certain range of counterfactual antecedents p, but this range of antecedents, in turn, is picked out by the laws. (It consists of the antecedents that are logically consistent with the laws.) Therefore, this proposal fails to tell us what it is that makes m a law. This proposal also fails to tell us what makes the laws so important. The laws’ invariance under the particular range of counterfactual antecedents that the proposal mentions makes the laws special only if there is already something special about having this particular range of invariance. But the laws are what pick out this range. So if there is no prior, independent reason why this particular range of counterfactual antecedents is special, then the laws’ invariance under these antecedents fails to make the laws special. They merely have a certain range of invariance (just as a given accident has some range of invariance). In short, we have not yet managed to avoid the circularity that hobbled our initial thoughts about the laws’ particular brand of necessity. But we have made progress: now we can see precisely what problem we have to overcome! There is a way to overcome this problem. Our proposal was roughly that the laws form a set of truths that would still have held under every antecedent with which the set is logically consistent. In contrast, take the set containing exactly the logical consequences of the accident that all gold cubes are smaller than a cubic mile. This set’s members are not all invariant under every antecedent that is logically consistent with this set’s members. For instance, if a very rich person had wanted to have constructed a gold cube exceeding a cubic mile, then such a cube might well have existed, and so not all gold cubes would have been smaller than a cubic mile. Yet the antecedent p that a very rich person wants such a cube constructed is logically consistent with (that is, does not contradict) all gold cubes being smaller than a cubic mile. Let’s capture this idea by defining what it would be for a set of facts to qualify as ‘stable’. Suppose we are talking about a (non-empty) set 𝚪 (gamma) of sub-nomic truths that is ‘closed’ under logical implication. (In other words, the set contains every sub-nomic logical consequence of its members.) 𝚪 is ‘stable’ if and only if for each member m of 𝚪 and for any p that is logically consistent with 𝚪’s members, m would still have held if p had held. In short, a set of truths is ‘stable’ exactly when its members would all still have held under any counterfactual antecedent with which they are all logically consistent. In contrast to our previous proposal, stability does not use the laws to pick out the relevant range of counterfactual antecedents. Stability avoids privileging the range of counterfactual antecedents that is logically consistent with the laws. Rather, each set of truths picks out for itself the range of counterfactual antecedents under which it must be invariant in order for it to qualify as stable. The fact that the laws form a stable set is therefore an achievement that the laws can ‘brag about’ without presupposing that there is already something special about being a law. Had the price of steel been different, the engine might have been different. This ripple effect propagates endlessly In contrast to the set containing all and only the laws, consider the set containing all and only the fact that all gold cubes are smaller than a cubic mile (together with its logical consequences). That set is unstable: its members are all logically consistent with some very rich person wanting a gold cube larger than a cubic mile, and yet (as we saw earlier) the set’s members are not all invariant under this counterfactual antecedent. Let us look at another example. Take the accident g (for ‘gas’) that whenever a certain car is on a dry flat road, its acceleration is given by a certain function of how far its gas pedal is being pressed down. Had the gas pedal on a certain occasion been depressed a bit farther, then g would still have held. Can a stable set include g? Such a set must also include the fact that the car has a four-cylinder engine, since had the engine used six cylinders, g might not still have held. (Once the set includes the fact that the car has a four-cylinder engine, the counterfactual antecedent that the engine has six cylinders is logically inconsistent with the set, so the set does not have to be invariant under that antecedent in order to be stable.) But since the set includes a description of the car’s engine, its stability also requires that it include a description of the engine factory, since had that factory been different, the engine might have been different. Had the price of steel been different, the engine might have been different. And so on. This ripple effect propagates endlessly. Take the following antecedent (which, perhaps, only a philosopher would mention!): had either g been false or there been a gold cube larger than a cubic mile. Under this antecedent, is g preserved? Not in every conversational context. This counterfactual antecedent pits g’s invariance against the invariance of the fact about gold cubes. It is not the case that g is always more resilient. Therefore, to be stable, a set that includes g must also include the fact that all gold cubes are smaller than a cubic mile (making the set logically inconsistent with the antecedent I mentioned, and so the set does not have to be invariant under that antecedent in order to be stable). A stable set that includes g must also include even a fact as remote from g as the fact about gold cubes. The only set containing g that might be stable is the set of all sub-nomic truths. (Let’s call it the ‘maximal’ set.) Every non-maximal set of sub-nomic truths containing an accident is unstable. We have now found a way to understand what makes a truth qualify as a law rather than an accident: a law belongs to a non-maximal stable set. No set containing an accident is stable (except, perhaps, for the maximal set, considering that the range of antecedents under which it must be invariant in order to be stable does not include any false antecedents, since no falsehood is logically consistent with all of this set’s members). We saw earlier that the sub-nomic facts that are laws should be distinguished from two other sorts of sub-nomic facts. On the one hand, accidents are easier to break than laws. Unlike the accidents, laws possess natural necessity. On the other hand, some facts are even more necessary (harder to break) than the laws, such as the fact that all objects either contain some gold or do not contain any gold. Such a fact possesses an even stronger variety of necessity than natural necessity. (Let’s call it ‘broadly logical’ necessity.) By thinking of natural laws in terms of stability, we can understand how the laws differ from both the accidents and the broadly logical necessities. Let’s investigate whether there are any other non-maximal stable sets besides the set of laws. Consider the set of all and only the sub-nomic truths possessing broadly logical necessity. It includes the truths of mathematics and logic. This set is stable since its members would all still have held under any broadly logical possibility. For instance, 2 plus 3 would still have been equal to 5 even if there had been a gold cube larger than a cubic mile – and even if there had been a means of accelerating an object from rest to beyond the speed of light. There is a nice little argument demonstrating that, for any two stable sets, one of them must entirely contain the other. The stable sets, however many there are, must fit one inside the other like a series of matryoshka dolls. The argument’s strategy is to consider a counterfactual antecedent like the one involving g (concerning the gas pedal) and the fact about gold cubes – namely, an antecedent pitting the invariance of the two sets against each other. Here’s how the argument goes. First, assume that there are two stable sets, 𝚪 and 𝚺 (sigma), where neither set fits completely inside the other. In particular, suppose that t is a member of 𝚪 but not of 𝚺, and s is a member of 𝚺 but not of 𝚪. Now we can show that this assumption must be false because it leads to a contradiction. (Ready? Here we go…) Let’s start with 𝚪. Since s is not a member of 𝚪, the counterfactual antecedent not-s is logically consistent with 𝚪, and hence so is the counterfactual antecedent (not-s or not-t). Therefore, since 𝚪 is stable, as we have assumed, every member of 𝚪 would still have been true, if (not-s or not-t) had been true. In particular, t would still have been true, if (not-s or not-t) had been true. So t and (not-s or not-t) would both have been true, if (not-s or not-t) had been true. Hence, if (not-s or not-t) had been true, then not-s would have been true; s would have been false. Laws of nature can explain why something failed to happen by revealing that it cannot happen Now we can make the analogous argument regarding 𝚺. Since t is not a member of 𝚺, the counterfactual antecedent not-t is logically consistent with 𝚺, and hence so is the counterfactual antecedent (not-s or not-t). Therefore, since 𝚺 is stable, as we have assumed, no member of 𝚺 would have been false, if (not-s or not-t) had been true. In particular, it is not the case that s would have been false, if (not-s or not-t) had been true. But now we have arrived at a contradiction with the result reached at the end of the previous paragraph. So we have proved that the initial assumption is impossible: there cannot be two stable sets, 𝚪 and 𝚺, where neither fits completely inside the other. What we have just demonstrated is that the stable sets must form a nested hierarchy. There are at least three members of this hierarchy: the truths with broadly logical necessity (the smallest of the three), the set of laws (which also contains all the broadly logical necessities), and the maximal set (which contains all the sub-nomic truths). There are no stable sets larger than the set of laws but smaller than the maximal set, since any such set would have to contain accidents, but we have already seen that no set containing accidents (except for the maximal set) is stable. We can now understand what makes the natural laws necessary and how their variety of necessity differs from broadly logical necessity. By the definition of ‘stability’, the members of a stable set would all still have held under any sub-nomic counterfactual antecedent with which they are all logically consistent. That is, a stable set’s members would all still have held under any sub-nomic counterfactual antecedent under which they could (ie, without contradiction) all still have held. In other words, a stable set’s members are collectively as resilient under sub-nomic counterfactual antecedents as they could collectively be. They are maximally resilient. That is what makes them necessary. There is a one-to-one correspondence between non-maximal stable sets and varieties of necessity. A smaller stable set is associated with a stronger variety of necessity because the range of antecedents under which a smaller stable set’s members are invariant, in connection with that set’s stability, is wider than the range of antecedents under which a larger stable set’s members are invariant, in connection with that set’s stability. Stability associated with greater invariance corresponds to a stronger variety of necessity – that is, greater unavoidableness. Scientists discover laws of nature by acquiring evidence that some apparent regularity is not only never violated but also could never have been violated. For instance, when every ingenious effort to create a perpetual-motion machine turned out to fail, scientists concluded that such a machine was impossible – that energy conservation is a natural law, a rule of nature’s game rather than an accident. In drawing this conclusion, scientists adopted various counterfactual conditionals, such as that, even if they had tried a different scheme, they would have failed to create a perpetual-motion machine. That it is impossible to create such a machine (because energy conservation is a law of nature) explains why scientists failed every time they tried to create one. Laws of nature are important scientific discoveries. Their counterfactual resilience enables them to tell us about what would have happened under a wide range of hypothetical circumstances. Their necessity means that they impose limits on what is possible. Laws of nature can explain why something failed to happen by revealing that it cannot happen – that it is impossible. We began with several vague ideas that seem implicit in scientific reasoning: that the laws of nature are important to discover, that they help us to explain why things happen, and that they are impossible to break. Now we can look back and see that we have made these vague ideas more precise and rigorous. In doing so, we found that these ideas are not only vindicated, but also deeply interconnected. We now understand better what laws of nature are and why they are able to play the roles that science calls upon them to play.
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Mar 31, 2022 13:38:42 GMT
Post by Admin on Mar 31, 2022 13:38:42 GMT
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LAW
Jun 8, 2022 19:27:09 GMT
Post by Admin on Jun 8, 2022 19:27:09 GMT
natural law www.britannica.com/topic/natural-lawnatural law, in philosophy, system of right or justice held to be common to all humans and derived from nature rather than from the rules of society, or positive law. Early formulations of the concept of natural law There have been several disagreements over the meaning of natural law and its relation to positive law. Aristotle (384–322 BCE) held that what was “just by nature” was not always the same as what was “just by law,” that there was a natural justice valid everywhere with the same force and “not existing by people’s thinking this or that,” and that appeal could be made to it from positive law. However, he drew his examples of natural law primarily from his observation of the Greeks in their city-states, who subordinated women to men, slaves to citizens, and “barbarians” to Hellenes. In contrast, the Stoics conceived of an entirely egalitarian law of nature in conformity with the logos (reason) inherent in the human mind. Roman jurists paid lip service to this notion, which was reflected in the writings of St. Paul (c. 10–67 CE), who described a law “written in the hearts” of the Gentiles (Romans 2:14–15). St. Augustine of Hippo (354–430) embraced Paul’s notion and developed the idea of man’s having lived freely under natural law before his fall and subsequent bondage under sin and positive law. In the 12th century Gratian, an Italian monk and father of the study of canon law, equated natural law with divine law—that is, with the revealed law of the Old and New Testaments, in particular the Christian version of the Golden Rule. St. Thomas Aquinas (c. 1224/25–1274) propounded an influential systematization, maintaining that, though the eternal law of divine reason is unknowable to us in its perfection as it exists in God’s mind, it is known to us in part not only by revelation but also by the operations of our reason. The law of nature, which is “nothing else than the participation of the eternal law in the rational creature,” thus comprises those precepts that humankind is able to formulate—namely, the preservation of one’s own good, the fulfillment of “those inclinations which nature has taught to all animals,” and the pursuit of the knowledge of God. Human law must be the particular application of natural law. Natural law in the Enlightenment and the modern era Other Scholastic thinkers, including the Franciscan philosophers John Duns Scotus (1266–1308) and William of Ockham (c. 1285–1347/49) and the Spanish theologian Francisco Suárez (1548–1617), emphasized divine will instead of divine reason as the source of law. This “voluntarism” influenced the Roman Catholic jurisprudence of the Counter-Reformation in the 16th and early 17th centuries, but the Thomistic doctrine was later revived and reinforced to become the main philosophical ground for the papal exposition of natural right in the social teaching of Pope Leo XIII (1810–1903) and his successors. In an epoch-making appeal, Hugo Grotius (1583–1645) claimed that nations were subject to natural law. Whereas his fellow Calvinist Johannes Althusius (1557–1638) had proceeded from theological doctrines of predestination to elaborate his theory of a universally binding law, Grotius insisted on the validity of the natural law “even if we were to suppose…that God does not exist or is not concerned with human affairs.” A few years later Thomas Hobbes (1588–1679), starting from the assumption of a savage “state of nature” in which each man was at war with every other—rather than from the “state of innocence” in which man had lived in the biblical Garden of Eden—defined the right of nature (jus naturale) to be “the liberty each man hath to use his own power for the preservation of his own nature, that is to say, of life,” and a law of nature (lex naturalis) as “a precept or general rule found out by reason, by which a man is forbidden to do that which is destructive of his life.” He then enumerated the elementary rules on which peace and society could be established. Thus, Grotius and Hobbes stand together at the head of that “school of natural law” that, in accordance with the tendencies of the Enlightenment, tried to construct a whole edifice of law by rational deduction from a hypothetical “state of nature” and a “social contract” of consent between rulers and subjects. John Locke (1632–1704) departed from Hobbesian pessimism to the extent of describing the state of nature as a state of society, with free and equal men already observing the natural law. In France Charles-Louis de Secondat Montesquieu (1689–1755) argued that natural laws were presocial and superior to those of religion and the state, and Jean-Jacques Rousseau (1712–78) postulated a savage who was virtuous in isolation and actuated by two principles “prior to reason”: self-preservation and compassion (innate repugnance to the sufferings of others).
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Jun 22, 2022 8:05:25 GMT
Post by Admin on Jun 22, 2022 8:05:25 GMT
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Post by Admin on Jun 30, 2022 14:48:13 GMT
THE RULE OF LAW AND ITS BUILT-IN MARGINALIZING FEATURES abeautifulresistance.org/site/2022/6/29/the-eu-court-of-justice-case-ys-and-others-and-built-in-marginalizing-features-of-the-rule-of-lawIn the wake of the overturn of Roe v. Wade, frustration and disappointment with the Rule of Law is widespread. This isn’t the case just in the U.S., and it’s astonishing that people around the globe still had any hope and trust left to lose in this political philosophy. The Rule of Law is so inherent in our lives, we sometimes forget it’s a political philosophy that is imposed by force, and requires incredible amounts of social and material resources to uphold. Some built-in features of this philosophy which guarantee its scope of social influence are: the law mustn’t be too understandable or too precise. There is a deliberate effort put into making laws and legal texts open for interpretation, and into making interpretation out of reach for the public. Therefore, even if a law protecting a certain right exists, it is not often that we know what it says or how to use legal text to our advantage. This distinction can be seen, inter alia, between a law which protects abortion v. the ability to access abortion (i.e. to exercise the right) — both of which were already weak and became severely weaker. This paradigm is a global affliction, and affects all marginalized peoples. The YS and others case shows how the Rule of Law in Europe, though filled with texts which are presented as exemplary in how civilizations should operate, is an uphill battle for non-Europeans, and exemplifies how even when a law technically exists, the right it proposes to guarantee isn’t always accessible. THE EU COURT OF JUSTICE CASE YS AND OTHERS In 2014, a decision was made in the EU Court of Justice (ECJ in the CJEU) about the rights of asylum seekers to access the personal data in their asylum requests. Access to personal data is a European right, but there are several instances where this access may be restricted or interpretations which lead to it being denied. In the case of these asylum seekers, who are referred to as YS, M and S, their right to access documents, containing the legal analysis behind the decision on their application, was denied in several judicial levels before arriving at the European Union court. At this highest court, the interpretative question was: Does the legal analysis in the file of an applicant constitute as personal data? A large portion of the population of the European Union doesn’t know they have the right of access to personal data. Of the portion that does, not many know which circumstances constitute as exceptions; and of those, there is still the question of how to make an access request, and how to know if the response, lack of response, or manner of response to an access request is lawful. Once a person goes through all these steps and receives access to their personal data, how to know if the data is complete? From the files of YS, M and S, there is no question that the “applicant’s name, date of birth, nationality, gender, ethnicity, religion and language” (CURIA, paragraph 38) are defined as personal data and should be granted access to. However, certain countries in the EU disagreed about whether the documents with the legal analyses of the asylum request of the applicant should also be considered personal data. The Netherlands and France, for instance, did not consider the analysis to fit the description of personal data because it’s not related to the residence permit applicant, instead, it’s related to “a purely abstract interpretation of the law” (CURIA, paragraph 40). But there might be another, obfuscated, reason for it. An interpretation of the law is not purely abstract when it applies to the specific case of a person. And since this interpretation is information which relates to a person, it’s personal data. Beyond that, it could be said that it’s in the interest of the Dutch and French governments to have asylum seekers oblivious to the inner workings of its institutions and their decision-making processes. In Brazil, for example, it’s illegal to sell weed but not illegal to carry for personal use. There is no specific legal amount one may carry, which draws the line between personal use and drug trafficking. The reason for that is to make it harder for drug traffickers to use the law to get away with their crime, by carrying a maximum amount of weed at the time. If someone is caught with weed, it’s up to the cop to decide if the amount constitutes personal use or not. So, the recurring, well-known scenario which ends up playing out is — if a poor black teen or a rich white teen are caught with the same amount of weed, the black kid is seen as too poor to have that much weed, so it must be for sale; while the white kid is wealthy enough to not have to sell weed for a living, so it must be for personal use. That’s a legal interpretation, applied to each individual case relating to a person. One goes to jail while the other is let go, perhaps by paying out a meager bribe. It’s not far-fetched to imagine that the Dutch immigration office (IND) doesn’t want to reveal the reasoning behind their legal decisions, because they don’t want asylum seekers to have information which might help them present their case more effectively. However, that was not stated in the official publication of the decision. Instead, the argument was that, in the M case, access to the document might infringe upon the “freedom of the case worker responsible” for analyzing the application (paragraph 25). This is, indeed, an exception to the right of access to personal data — when access by an applicant infringes upon the rights and freedoms of someone else, more so than the lack of access infringes upon the rights and freedoms of the applicant. In M’s case, I’d argue denying access infringes upon the rights of the applicant more than the granting of the right infringes upon the case worker’s freedom. That’s clearly up to “interpretation”, but it’s not a purely abstract view of the law because it applies to M’s case in particular. The parallel between the rights of abortion in the U.S., of access to personal data in the E.U., and to have weed for personal use in Brazil highlights the global and intersectional nature of the Rule of Law. This political philosophy has problematic built-in features, which are deliberate, though often obfuscated. When it was in place, the right to an abortion improved bodily autonomy in the U.S. to a bare minimum, and it was already not enough to ensure people’s lives were free and healthy. The asylum and data privacy policies in Europe were not and are still not enough to ensure equal access to the rights they claim to offer. And drug possession charges in Brazil are plagued by racist and classist “legal interpretations”. In the eyes of the law, it is the marginalized members of society — women, LGBTQIA+, immigrants, black people — who are guilty until proven innocent. Because, if the society we live in is tainted with racism, sexism and classism, there is no way this stain won’t be reflected in the Rule of Law and its convoluted language designed to give room to the interpretation of an elite. The Rule of Law is not designed to be democratically improved upon, it’s designed to work according to the whims of those already in a position of power, and who have all the interest and resources to retain this power. The Law does not and will not protect those of us who fight every day for scraps of empowerment. Perhaps it’s when we stop hoping the government and its laws will rescue us from the misery they put us in, that we will begin to invest our hope and our trust into an autonomous initiative which makes the Law not only less of a threat, but also obsolete.
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LAW
Aug 28, 2022 0:10:57 GMT
Post by Admin on Aug 28, 2022 0:10:57 GMT
What is a law of nature? Laws of nature are impossible to break, and nearly as difficult to define. Just what kind of necessity do they possess? aeon.co/essays/natural-laws-cant-be-broken-but-can-they-be-definedIn the original Star Trek, with the Starship Enterprise hurtling rapidly downward into the outer atmosphere of a star, Captain James T Kirk orders Lt Commander Montgomery Scott to restart the engines immediately and get the ship to safety. Scotty replies that he can’t do it. It’s not that he refuses to obey the Captain’s order or that he doesn’t happen to know how to restart the engines so quickly. It’s that he knows that doing so is impossible. ‘I can’t change the laws of physics,’ he explains. We all understand Scotty’s point (although the Enterprise does somehow manage to escape). He cannot break the laws of nature. Nothing can. The natural laws limit what can happen. They are stronger than the laws of any country because it is impossible to violate them. If it is a law of nature that, for example, no object can be accelerated from rest to beyond the speed of light, then it is not merely that such accelerations never occur. They cannot occur. There are many things that never actually happen but could have happened in that their occurrence would violate no law of nature. For instance, to borrow an example from the philosopher Hans Reichenbach (1891-1953), perhaps in the entire history of the Universe there never was nor ever will be a gold cube larger than one mile on each side. Such a large gold cube is not impossible. It just turns out never to exist. It’s like a sequence of moves that is permitted by the rules of chess but never takes place in the entire history of chess-playing. By contrast, if it is a law of nature that energy is never created or destroyed, then it is impossible for the total energy in the Universe to change. The laws of nature govern the world like the rules of chess determine what is permitted and what is forbidden during a game of chess, in an analogy drawn by the biologist T H Huxley (1825-95). In our science classes, we all learned some examples of what scientists currently believe (or once believed) to be laws of nature. Some of these putative laws are named after famous scientists (such as Robert Boyle and Isaac Newton). Some are generally called ‘laws’ (such as the laws of motion and gravity), while others are typically called ‘principles’ (such as Archimedes’ principle and Bernoulli’s principle), ‘rules’ (such as Born’s rule and Hund’s rule), ‘axioms’ (such as the axioms of quantum mechanics), or ‘equations’ (such as Maxwell’s equations). Laws of nature differ from one another in many respects. Some laws concern the general structure of spacetime, while others concern some specific inhabitant of spacetime (such as the law that gold doesn’t rust). Some laws relate causes to their effects (as Coulomb’s law relates electric charges to the electric forces they cause). But other laws (such as the law of energy conservation or the spacetime symmetry principles) do not specify the effects of any particular sort of cause. Some laws involve probabilities (such as the law specifying the half-life of some radioactive isotope). And some laws are currently undiscovered – though I can’t give you an example of one of those! (By ‘laws of nature’, I will mean the genuine laws of nature that science aims to discover, not whatever scientists currently believe to be laws of nature.) What all of the various laws have in common, despite their diversity, is that it is necessary that everything obey them. It is impossible for them to be broken. An object must obey the laws of nature. In this respect, a law of nature differs from the fact that all gold cubes are smaller than a cubic mile, the fact that all the apples currently hanging on my apple tree are ripe, and other so-called ‘accidents’. Although this fact about gold cubes is as universal, general and exceptionless as any law, it is not necessary. It could have been false. It is not inevitable or unavoidable that all gold cubes are smaller than a cubic mile. It just turns out that way. But although all these truisms about the laws of nature sound plausible and familiar, they are also imprecise and metaphorical. The natural laws obviously do not ‘govern’ the Universe in the way that the rules of chess govern a game of chess. Chess players know the rules and so deliberately conform to them, whereas inanimate objects do not know the laws of nature and have no intentions. For 4 to be a prime number would require more than merely a violation of the laws of nature Furthermore, there are lots of things that we would describe appropriately (in a given conversational context) as ‘impossible’ but that do not violate the laws of nature. It is impossible for me to wish you ‘Good morning’ in Finnish because I do not speak Finnish, to borrow an example from the philosopher David Lewis (1941-2001). But my doing so would not violate a law of nature: I could learn Finnish. My car cannot accelerate from 0 to 60 mph in less than 5 seconds, but that impossibility is not the same as the kind of impossibility involved in my car accelerating from 0 to beyond the speed of light. Now we are using the laws of nature to help us understand the kind of impossibility that is supposed to distinguish the laws of nature. We have gone around in a tight circle rather than put our finger on what makes a fact qualify as a law rather than an accident. Moreover, although accidents lack the kind of necessity that laws of nature possess, there are other facts that possess the kind of necessity that laws possess but are not laws – or, more accurately, they are not merely laws. While accidents are too weak to be laws because it would have been too easy to make them false, certain other facts are too strong to be merely laws because they are harder to break than even the laws themselves. For instance, the fact that all objects either contain some gold or do not contain any gold is a fact that has even more necessity than a law of nature does. It is still a fact even in the Star Trek universe, where the laws of nature are different (since starships routinely accelerate beyond the speed of light). For 4 to be a prime number is likewise impossible even in the Star Trek universe. It would require more than merely a violation of the laws of nature. The laws of nature, then, fall somewhere between the accidental facts (which lack the laws’ necessity) and the facts that possess a stronger variety of necessity than the laws do. The laws are distinguished by having the variety of necessity that distinguishes the laws. But we must do better than that if we are to understand what a law of nature is. Philosophers do not aim to discover the laws of nature. That’s a job for scientists. What philosophers aim to do is to figure out what sort of thing scientists are discovering when they discover the laws of nature. The philosopher’s aim is not to help scientists do their job. Instead, the philosopher’s aim is to better understand the job that scientists are doing. For instance, when scientists explain why something happens by appealing to a law of nature that they have discovered, what makes a law able to answer such a ‘Why?’ question? To understand scientific understanding is a job for the philosophy of science. Of course, it can be difficult to reach this philosophical understanding, and I will ask you to bear with me as I guide you – step by step – towards understanding what a law of nature is. I hope that as a useful byproduct, you will also enjoy seeing how a philosopher utilises a few bits of logic (paging Mr Spock!) to grapple with the question ‘What is a law of nature?’ Hold on: I hope you will find the final result to be elegant and illuminating. To begin understanding the variety of necessity that distinguishes the natural laws (which, for simplicity, I will call ‘natural necessity’), let’s unpack the laws’ necessity in terms of the fact that the laws not only are true, but also would still have been true under various hypothetical circumstances. For instance, since it is a law that no object is accelerated from rest to beyond the speed of light, this cosmic speed limit would still have been unbroken even if the Stanford Linear Accelerator had now been cranked up to full power. On the other hand, since it is merely an accident that every apple currently on my tree is ripe, this pattern would have been broken if (for instance) the weather this past spring had been much cooler. I have just compared two ‘conditionals’ (that is, two if-then statements) that state facts about what would have happened under various circumstances that did not actually occur – that is, two ‘counterfactual’ conditionals. We often assert counterfactual conditionals, as in ‘If I had gone to the market today, then I would have bought a quart of milk.’ (That I went to the market today – the falsehood in the ‘if’ position of the conditional – is the ‘counterfactual antecedent’.) The laws, having natural necessity, would still have been true even if other things had been different, whereas an accident is less resilient under counterfactual antecedents. An accident is invariant (that is, would still have been true) under some counterfactual antecedents. For instance, all of the apples on my tree would still have been ripe even if I had been wearing a red shirt this morning. But an accident seems to have less invariance in some respect than a law. After all, we use the laws to figure out what would happen if we were to pursue various possible courses of action – for instance, what would happen to an object’s acceleration if we doubled the object’s mass or doubled the force on the object. We can rely on the laws to tell us what would have happened under various hypothetical circumstances because the laws are invariant (that is, would have remained true) under those circumstances. No matter what, the laws would still have held. (As Scotty says, nothing can break the laws of physics) Of course, we can find some counterfactual antecedents under which the laws are not invariant. Obviously, the laws would not still have remained true under counterfactual antecedents with which the laws are logically inconsistent (that is, under antecedents contradicting the laws). For example, the laws would have been different if an object had been accelerated from rest to beyond the speed of light. But presumably, the laws would still have held under any counterfactual antecedent that is logically consistent with all of the laws. No matter what circumstances permitted by the laws may come about, the laws would still have held. (As Scotty says, nothing can break the laws of physics.) By contrast, for any accident, there is some hypothetical circumstance that is permitted by the laws and under which that accident would not still have held. After all, if it is an accident that p, then not-p (ie, that p is false) is a circumstance that is permitted by the laws and under which p would not still have held. I’ll use lower-case letters for statements that make no reference to lawhood, necessity, counterfactual conditionals, and so forth – what I will call ‘sub-nomic’ claims. (For instance, p could be the claim that all emeralds are green, but p could not stand for ‘It is a law that all emeralds are green.’) We have arrived at the following proposal for distinguishing laws from accidents: m is a law if and only if m would still have been true if p had been true, for any p that is logically consistent with all the facts n (taken together) where n is a law. Let’s step back and take a look at what this means. This proposal captures an important difference between laws and accidents in their resilience – that is, in their range of invariance under counterfactual antecedents. However, this proposal cannot tell us much. That is because the laws appear in it on both sides of the ‘if and only if’. The proposal picks out the laws by their invariance under a certain range of counterfactual antecedents p, but this range of antecedents, in turn, is picked out by the laws. (It consists of the antecedents that are logically consistent with the laws.) Therefore, this proposal fails to tell us what it is that makes m a law. This proposal also fails to tell us what makes the laws so important. The laws’ invariance under the particular range of counterfactual antecedents that the proposal mentions makes the laws special only if there is already something special about having this particular range of invariance. But the laws are what pick out this range. So if there is no prior, independent reason why this particular range of counterfactual antecedents is special, then the laws’ invariance under these antecedents fails to make the laws special. They merely have a certain range of invariance (just as a given accident has some range of invariance). In short, we have not yet managed to avoid the circularity that hobbled our initial thoughts about the laws’ particular brand of necessity. But we have made progress: now we can see precisely what problem we have to overcome! There is a way to overcome this problem. Our proposal was roughly that the laws form a set of truths that would still have held under every antecedent with which the set is logically consistent. In contrast, take the set containing exactly the logical consequences of the accident that all gold cubes are smaller than a cubic mile. This set’s members are not all invariant under every antecedent that is logically consistent with this set’s members. For instance, if a very rich person had wanted to have constructed a gold cube exceeding a cubic mile, then such a cube might well have existed, and so not all gold cubes would have been smaller than a cubic mile. Yet the antecedent p that a very rich person wants such a cube constructed is logically consistent with (that is, does not contradict) all gold cubes being smaller than a cubic mile. Let’s capture this idea by defining what it would be for a set of facts to qualify as ‘stable’. Suppose we are talking about a (non-empty) set 𝚪 (gamma) of sub-nomic truths that is ‘closed’ under logical implication. (In other words, the set contains every sub-nomic logical consequence of its members.) 𝚪 is ‘stable’ if and only if for each member m of 𝚪 and for any p that is logically consistent with 𝚪’s members, m would still have held if p had held. In short, a set of truths is ‘stable’ exactly when its members would all still have held under any counterfactual antecedent with which they are all logically consistent. In contrast to our previous proposal, stability does not use the laws to pick out the relevant range of counterfactual antecedents. Stability avoids privileging the range of counterfactual antecedents that is logically consistent with the laws. Rather, each set of truths picks out for itself the range of counterfactual antecedents under which it must be invariant in order for it to qualify as stable. The fact that the laws form a stable set is therefore an achievement that the laws can ‘brag about’ without presupposing that there is already something special about being a law. Had the price of steel been different, the engine might have been different. This ripple effect propagates endlessly In contrast to the set containing all and only the laws, consider the set containing all and only the fact that all gold cubes are smaller than a cubic mile (together with its logical consequences). That set is unstable: its members are all logically consistent with some very rich person wanting a gold cube larger than a cubic mile, and yet (as we saw earlier) the set’s members are not all invariant under this counterfactual antecedent. Let us look at another example. Take the accident g (for ‘gas’) that whenever a certain car is on a dry flat road, its acceleration is given by a certain function of how far its gas pedal is being pressed down. Had the gas pedal on a certain occasion been depressed a bit farther, then g would still have held. Can a stable set include g? Such a set must also include the fact that the car has a four-cylinder engine, since had the engine used six cylinders, g might not still have held. (Once the set includes the fact that the car has a four-cylinder engine, the counterfactual antecedent that the engine has six cylinders is logically inconsistent with the set, so the set does not have to be invariant under that antecedent in order to be stable.) But since the set includes a description of the car’s engine, its stability also requires that it include a description of the engine factory, since had that factory been different, the engine might have been different. Had the price of steel been different, the engine might have been different. And so on. This ripple effect propagates endlessly. Take the following antecedent (which, perhaps, only a philosopher would mention!): had either g been false or there been a gold cube larger than a cubic mile. Under this antecedent, is g preserved? Not in every conversational context. This counterfactual antecedent pits g’s invariance against the invariance of the fact about gold cubes. It is not the case that g is always more resilient. Therefore, to be stable, a set that includes g must also include the fact that all gold cubes are smaller than a cubic mile (making the set logically inconsistent with the antecedent I mentioned, and so the set does not have to be invariant under that antecedent in order to be stable). A stable set that includes g must also include even a fact as remote from g as the fact about gold cubes. The only set containing g that might be stable is the set of all sub-nomic truths. (Let’s call it the ‘maximal’ set.) Every non-maximal set of sub-nomic truths containing an accident is unstable. We have now found a way to understand what makes a truth qualify as a law rather than an accident: a law belongs to a non-maximal stable set. No set containing an accident is stable (except, perhaps, for the maximal set, considering that the range of antecedents under which it must be invariant in order to be stable does not include any false antecedents, since no falsehood is logically consistent with all of this set’s members). We saw earlier that the sub-nomic facts that are laws should be distinguished from two other sorts of sub-nomic facts. On the one hand, accidents are easier to break than laws. Unlike the accidents, laws possess natural necessity. On the other hand, some facts are even more necessary (harder to break) than the laws, such as the fact that all objects either contain some gold or do not contain any gold. Such a fact possesses an even stronger variety of necessity than natural necessity. (Let’s call it ‘broadly logical’ necessity.) By thinking of natural laws in terms of stability, we can understand how the laws differ from both the accidents and the broadly logical necessities. Let’s investigate whether there are any other non-maximal stable sets besides the set of laws. Consider the set of all and only the sub-nomic truths possessing broadly logical necessity. It includes the truths of mathematics and logic. This set is stable since its members would all still have held under any broadly logical possibility. For instance, 2 plus 3 would still have been equal to 5 even if there had been a gold cube larger than a cubic mile – and even if there had been a means of accelerating an object from rest to beyond the speed of light. There is a nice little argument demonstrating that, for any two stable sets, one of them must entirely contain the other. The stable sets, however many there are, must fit one inside the other like a series of matryoshka dolls. The argument’s strategy is to consider a counterfactual antecedent like the one involving g (concerning the gas pedal) and the fact about gold cubes – namely, an antecedent pitting the invariance of the two sets against each other. Here’s how the argument goes. First, assume that there are two stable sets, 𝚪 and 𝚺 (sigma), where neither set fits completely inside the other. In particular, suppose that t is a member of 𝚪 but not of 𝚺, and s is a member of 𝚺 but not of 𝚪. Now we can show that this assumption must be false because it leads to a contradiction. (Ready? Here we go…) Let’s start with 𝚪. Since s is not a member of 𝚪, the counterfactual antecedent not-s is logically consistent with 𝚪, and hence so is the counterfactual antecedent (not-s or not-t). Therefore, since 𝚪 is stable, as we have assumed, every member of 𝚪 would still have been true, if (not-s or not-t) had been true. In particular, t would still have been true, if (not-s or not-t) had been true. So t and (not-s or not-t) would both have been true, if (not-s or not-t) had been true. Hence, if (not-s or not-t) had been true, then not-s would have been true; s would have been false. Laws of nature can explain why something failed to happen by revealing that it cannot happen Now we can make the analogous argument regarding 𝚺. Since t is not a member of 𝚺, the counterfactual antecedent not-t is logically consistent with 𝚺, and hence so is the counterfactual antecedent (not-s or not-t). Therefore, since 𝚺 is stable, as we have assumed, no member of 𝚺 would have been false, if (not-s or not-t) had been true. In particular, it is not the case that s would have been false, if (not-s or not-t) had been true. But now we have arrived at a contradiction with the result reached at the end of the previous paragraph. So we have proved that the initial assumption is impossible: there cannot be two stable sets, 𝚪 and 𝚺, where neither fits completely inside the other. What we have just demonstrated is that the stable sets must form a nested hierarchy. There are at least three members of this hierarchy: the truths with broadly logical necessity (the smallest of the three), the set of laws (which also contains all the broadly logical necessities), and the maximal set (which contains all the sub-nomic truths). There are no stable sets larger than the set of laws but smaller than the maximal set, since any such set would have to contain accidents, but we have already seen that no set containing accidents (except for the maximal set) is stable. We can now understand what makes the natural laws necessary and how their variety of necessity differs from broadly logical necessity. By the definition of ‘stability’, the members of a stable set would all still have held under any sub-nomic counterfactual antecedent with which they are all logically consistent. That is, a stable set’s members would all still have held under any sub-nomic counterfactual antecedent under which they could (ie, without contradiction) all still have held. In other words, a stable set’s members are collectively as resilient under sub-nomic counterfactual antecedents as they could collectively be. They are maximally resilient. That is what makes them necessary. There is a one-to-one correspondence between non-maximal stable sets and varieties of necessity. A smaller stable set is associated with a stronger variety of necessity because the range of antecedents under which a smaller stable set’s members are invariant, in connection with that set’s stability, is wider than the range of antecedents under which a larger stable set’s members are invariant, in connection with that set’s stability. Stability associated with greater invariance corresponds to a stronger variety of necessity – that is, greater unavoidableness. Scientists discover laws of nature by acquiring evidence that some apparent regularity is not only never violated but also could never have been violated. For instance, when every ingenious effort to create a perpetual-motion machine turned out to fail, scientists concluded that such a machine was impossible – that energy conservation is a natural law, a rule of nature’s game rather than an accident. In drawing this conclusion, scientists adopted various counterfactual conditionals, such as that, even if they had tried a different scheme, they would have failed to create a perpetual-motion machine. That it is impossible to create such a machine (because energy conservation is a law of nature) explains why scientists failed every time they tried to create one. Laws of nature are important scientific discoveries. Their counterfactual resilience enables them to tell us about what would have happened under a wide range of hypothetical circumstances. Their necessity means that they impose limits on what is possible. Laws of nature can explain why something failed to happen by revealing that it cannot happen – that it is impossible. We began with several vague ideas that seem implicit in scientific reasoning: that the laws of nature are important to discover, that they help us to explain why things happen, and that they are impossible to break. Now we can look back and see that we have made these vague ideas more precise and rigorous. In doing so, we found that these ideas are not only vindicated, but also deeply interconnected. We now understand better what laws of nature are and why they are able to play the roles that science calls upon them to play.
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