“We can only truly respect highly the man who is not seeking himself” Goethe to Rat Schlosser.
The substance of a civilized person is to be found in a noble soul. The nobility of one’s soul is not an inherited trait nor is it conditioned by formal things – like dress, manners and titles.
In my view, no one is born noble. Civilization is cultivated attitude. It is inherent in a person’s attitudes towards life and towards others. It is an intrinsic part of a person’s being. It is a self reflective attitude that makes one examine one’s reasons for being alive. A person who understands his purpose for living and who has empathy for others begins the journey towards being civilized.
People who have lived comfortable lives cannot even begin to understand the essence of nobility. The Guatama Buddha proved this. He had to forsake everything that is material to find himself. The cloak of materialism obscured and hid reality from him. Not the reality of the external world – of others. But the reality of what was within him. It was in suffering he confronted himself. Nobility does not come from rank or position – it comes from within. Friedrich Nietzsche in his book “Beyond Good and Evil” wrote something very profound that has influenced me greatly,
“The spiritual arrogance and disgust of every man who has suffered deeply — how profoundly men can suffer almost determines their order of rank — his chilling certainty, with which he is thoroughly soaked and coloured, that thanks to his suffering he knows more than the cleverest and wisest can know, that he has known and at some point been “at home” in many terrible far-off worlds, about which “you know nothing!” . . . this spiritual and silent arrogance of the sufferer, this pride of the one chosen to know, of the “initiate,” of the one who has almost been sacrificed, finds all kinds of disguises necessary to protect himself from contact with prying and compassionate hands and, in general, from everything which is not his equal in pain. Profound suffering ennobles; it separates.
One of the most sophisticated forms of disguise is Epicureanism and a certain future courageousness in taste adopted as a show, which takes suffering lightly and resists everything sad and deep. There are “cheerful men” who use cheerfulness because it makes them misunderstood — they want to be misunderstood. There are “scientific men” who use science because that provides a cheerful appearance and because being scientific enables one to infer that the man is superficial — they want to tempt people to a false conclusion. There are free, impudent spirits who would like to hide and deny that they are broken, proud, incurable hearts; and now and then even foolishness is a mask for an unholy, all-too-certain knowledge. Hence, it follows that it’s part of a more sophisticated humanity to have reverence “for the mask” and not to pursue psychology and curiosity in the wrong place.”
I say without reservation and equivocation that he is right. Only those who have suffered and endured difficulty will understand the pain of others. It takes our soul to a different plane and enriches it. It rebrands our view of the world and of others and despite our other shortcomings, makes us feel in a more real way. But even those who have suffered, have a choice. To find the nobility within their soul, and live an enriched live. Or to succumb to the mask. Respect for the mask. That has been the history of human civilization. It is an altogether sad indictment of the human condition – we must strive towards a better existence. One that is rooted in the substance of what is civilized and great.
“Civilization is the progress toward a society of privacy. The savage’s whole existence is public, ruled by the laws of his tribe. Civilization is the process of setting man free from men.”
AYN RAND, The Fountainhead
What is freedom? What does it mean to be free? How civilised are we in a world where there exists such great wealth and yet we allow such devastating suffering to exist?
A person cannot claim to be civilized if they do nothing to improve the conditions of life of the destitute and the downtrodden. Most people I know believe themselves to be civilized. Because they speak politely, dress well, eat with etiquette and generally are unoffensive. They spend their lives lamenting the ordinariness of their accomplishments and brood over why some have it so good, like the Sultan of Brunei or the Queen of England.
They aspire towards a better life for themselves – don’t they deserve it! I find such people despicable – and I am afraid may be one of them. Just juxtapose these two images and see if you can find what wrong with the picture that emerges.
What noble ideas I had when I was younger. I believed and still do that to be civilized one has to believe in a ‘human race’. One in which each and every human being has the opportunity to live a free from poverty. Empowered to pursue their dreams and realise their full potential as individuals. A world in which each individual is treated with the same respect for his individuality and enjoys the same quality of life. People are uncivilized and vulgar to the extent that they allow others to suffer without rendering any assistance – regardless of how polite they are, how they dress or how they eat.
Capitalism without conscience has perverted human condition and what is happening on Wall Street today is a vindication of those who believe this to be the case. It is a case of ‘false’ wealth created by the greedy for the even more greedy. A case of an edifice without a base. How easily it crumbles. These people have led enterprises that have derided the human condition.
What is it that makes us civilized? Is it the way we dress, good manners, our aesthetics or things like that? Or is it our profound respect for others. We always talk about respect as being an important part of our own self esteem. So why are we less circumspect when it comes to others. Why do our views and values take precedence over those of other people? Is it arrogance that makes us think that somehow our position in any given matter is better. Does that fact that many people agree with our views make our views any better compared to a view that has little or no popular support? This is what I am thinking about these days. I have been accused by many of being arrogant. I think it is because I always think my views are superior. But is it arrogance to believe in ones own position on any subject, to be steadfast in defending it and to be generally happy with that?
I return to the question – What is it to be civilised? I think a civilised human being is one who accepts that nothing about his existence is permanent. Empire builders are not civilised. They have no concept about the meaning of their existence. We meet empire builders of every description daily. They are the politicians who cannot quit power and overstay their welcome – building material wealth for themselves, their children, their grandchildren and so forth for posterity until the end of time. They are the corporate giants, who don’t realise that in the entire scheme of things their contribution will be measured by different benchmarks. They are all the people who yearn for and seek dominion and control over the lives of others – seeking to imprint (by compulsion if necessary) a part of their values and ideas. To shape the destiny of others, failing to realise how little control they have on their own destinies. Whether you are a pauper or a billionaire your impact on your own life is determined by your own mortality and the lessons you are willing to learn during your tenure on Earth.
Let me begin by examining the various juristic traditions and their justifications and possible motivations. I think a good starting point is a theory that asserts that LAW IS POWER.
John Austin’s Positivism
Austin more than any other jurist provided a compact and systematic formulation of a conception of law which allowed an escape from the tradition bound theory implicit in classical English common law thought. He offered a way of looking at law that made legislation central rather than peripheral. Perhaps an indication of the times in which he lived, the gradual secularization of the state and the ascendancy of Parliament over the King and the Church. His legal theory recognized the reality of the modern state as a massive organization of power. Tearing down mercilessly pretensions about justice and its relationship with law.
I repeat a sentiment expressed earlier,
“The science of jurisprudence is concerned with positive laws, or with laws strictly so called, as considered without regard for their goodness or badness.”It is important to understand that the primary motivation for Austin in his jurisprudence was his disenchantment with the English common law. He was generally hostile about judge made law. His teacher, Jeremy Bentham, once wrote that judge made law is like waiting for one’s dog to do something wrong and then beating it. The common law had a reactive focus rather than a pro-active one. It was not a progressive system of law. By contrast, Austin saw Roman law, especially as interpreted and developed by continental civil jurists as the epitome of a rational legal order vastly superior to the English common law in its organization and coherent development. He says of it, “ Turning from the study of the English to the study of the Roman Law, you escape from the empire of chaos and darkness, to a world which seems, by comparison, the region of order and light.”
The Command Theory
The proper “Province of Jurisprudence” is positive law and the ‘key in the sciences of jurisprudence and morals’ is the ‘command’, Austin claimed. For this reason his theory is referred to as ‘The Command Theory of Law’.
“A law in the most general and comprehensive acceptance in which the term, in its literal meaning, is employed, may be said to be a rule laid down for the guidance of an intelligent being by an intelligent being having power over him.”Hence put succinctly: “LAW IS THE COMMAND OF A SOVEREIGN”
The command is basically an order that is validated by the political system and enforced by the use of sanctions. Hence the idea of command is closely linked to the force that is used to compel compliance.
Austin defines law as a species of command, like Hobbes before him. Austin is direct and straightforward in his characterization of law. For him power is central to law. Thus the sanction is an important part of the command. Austin says that the must be an actual likelihood of a sanction being imposed. This is because for Austin it is the sanction, which supplies the motive for compliance.
Therefore what Austin is saying is that people obey laws because of their fear of sanctions. Austin goes on to say that ‘the greater the sanction and the greater the likelihood of it being applied, the greater the obligation’ under the law. This is essentially a simple idea – Austin is saying that because the penalty for murder is life imprisonment and the penalty for a traffic offence is a fine, people feel under a greater obligation not to commit murder. Similarly he is saying that people are more likely to stop at the red traffic light at 12 noon, then at 2am in the morning because the likelihood of detection is greater at 12 noon.
The distinctive feature of law is that it law is the command of the ‘Sovereign’ not anyone else.
He says, the sovereign is “a determinate human superior, not in a habit of obedience to a like superior, (and who) receives habitual obedience from the bulk of a given society…..that determinate superior is sovereign in that society, and that society…..is a society political and independent.”
Austin’s concept of the sovereignty is highly controversial. Positive law is the command of the sovereign. The sovereign is an actual person or an assemblage of persons who do not habitually obey anyone but who are habitually obeyed by everyone in an independent political society.
Austin says there are two marks of sovereignty: first, the sovereign must be ‘habitually obeyed’ by the ‘bulk’ of the society (a condition of general efficacy), this being the positive mark of sovereignty, second, the sovereign does not habitually obey anyone else, this being the negative mark of sovereignty. He says two consequences flow from this definition, the sovereign is legally indivisible (the positive mark) and the sovereign is not capable of being legally limited (the negative mark).
Something to think about
Although it appears that commands flow from the sovereign, when Austin’s definition of the Sovereign is closely analyzed, it becomes clear that it is the ability to command habitual obedience that makes someone the sovereign. Therefore the question is: Is it because a person is habitually obeyed that he is able to command, or is it because he is able to command that he is habitually obeyed?
(To be continued)
The history of the world is a history of conflict. Marx conceived this conflict as a ‘class struggle’. The struggle for the emancipation of the workers – the struggle towards an egalitarian society. Marx looked up law as an instrument of class oppression, it functioned to bolster the position of the capitalist and keep in check class antagonisms. Whilst there is some measure of truth in what Marx says, I do not think that even Marx could have rationalised the wholly irrational world that has come into being over the past 50 or so years. Today, we live in a world defined by conflict and limited by ignorance.
A CONFLICTED WORLD
Recent events around the world have prompted me to reexamine the question – what is law? Does the liberal claim that law is a purposive activity have any merit, and if so, what exists in countries where the law is not purposive but is used as an instrument of tyranny. There is always the status quo and that is juxtaposed against forces that what to change the system.
Some of the major conflicts around the world today are:
1. Sri Lankan civil war
2. War in Afghanistan
3. Iraq war
4. War in Darfur
5. War in Somalia
6. Conflict in Burma
7. Arab-Israeli conflict
8. Armed conflict in Colombia
9. Communist and Islamic insurgency in the Philippines
10. Internal conflict in Peru
11. Turkey-PKK conflict
12. Somali civil war
13. Kashmir conflict (India/Pakistan)
14. Casamance conflict (Senegal)
15. Conflict in the Niger Delta (Nigeria)
16. Ethnic conflict in Nagaland (India)
17. Insurgency in Oganden (Ethiopia)
18. Kivu conflict (Congo)
19. Chechen War (Russia)
20. Insurgency in the Maghreb (Algeria, Mauritania & Morocco)
21. Balochistan conflict (Pakistan)
22. Sa’dah insurgency (Yemen)
23. South Thailand insurgency
24. War in Chad
25. Mount Elgon insurgency (Kenya)
26. Fatah-Hamas conflict
27. Tuareg rebellion (Mali)
All of these conflicts cannot be examined by reference to any one juristic tradition. Their causes are manifold and the political and ideological backdrop ever changing. So what is law and can it exist in these circumstances? And can there be a duty to obey law in such conflicted systems and if so, what is legal obligation.
In International Law there seems be little problem in trying people for large scale genocide under the broad umbrella of ‘crimes against humanity’. In 2002, the International Criminal Court (ICC) was established in The Hague. The Rome Statute provides for the ICC to have jurisdiction over genocide, crimes against humanity and war crimes. The definition of what is a “crime against humanity” is stated in Article 7 of the treaty as follows:
“Crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder;(b) Extermination;(c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;(f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.
This is further explained in the Rome Statute Explanatory Memorandum which states that crimes against humanity are particularly odious offences in that they constitute a serious attack on human dignity or grave humiliation or a degradation of one or more human beings. They are not isolated or sporadic events, but are part either of a government policy (although the perpetrators need not identify themselves with this policy) or of a wide practice of atrocities tolerated or condoned by a government or a de facto authority. However, murder, extermination, torture, rape, political, racial, or religious persecution and other inhumane acts reach the threshold of crimes against humanity only if they are part of a widespread or systematic practice. Isolated inhumane acts of this nature may constitute grave infringements of human rights, or depending on the circumstances, war crimes, but may fall short of meriting the stigma attaching to the category of crimes under discussion. On the other hand, an individual may be guilty of crimes against humanity even if he perpetrates one or two of the offences mentioned above, or engages in one such offence against only a few civilians, provided those offences are part of a consistent pattern of misbehavior by a number of persons linked to that offender (for example, because they engage in armed action on the same side or because they are parties to a common plan or for any similar reason.) Consequently when one or more individuals are not accused of planning or carrying out a policy of inhumanity, but simply of perpetrating specific atrocities or vicious acts, in order to determine whether the necessary threshold is met one should use the following test: one ought to look at these atrocities or acts in their context and verify whether they may be regarded as part of an overall policy or a consistent pattern of an inhumanity, or whether they instead constitute isolated or sporadic acts of cruelty and wickedness.
The problem with this is that it presupposes some broad juristic principle calling for the preservation of humanity. This then is based on some preconceived idea of what the ‘legal obligation’ to preserve ‘humanity’ consists of. I for one am unconvinced. Please do not misunderstand my position – clearly there are many individuals who have perpetrated untold tortures and genocide against defenseless people who are richly deserving of condemnation. The problem I have with this is this – invariably all those individuals who are brought to trial are deposed and powerless at the time of their trial –
- President of Nazi Germany Karl Dönitz and Prime Minister Hideki Tojo of the Empire of Japan in the aftermath of World War II.
- Former Yugoslav President Slobodan Milošević was brought to trial for war crimes and genocide, but died in custody on March 11, 2006, before the trial could be concluded.
- Saddam Hussein, who was sentenced to death for the atrocities he committed against the Iraqi people during his tenure as President.
- Radovan Karadzic, the former Bosnian Serb leader.
- Former Liberian President Charles G. Taylor was also brought to the Hague charged with war crimes; his trial was provisionally scheduled to begin in April 2007, but was postponed until June 2007 to allow the defense more time to prepare, and is now ongoing.
The jurisprudence in all this:
The position of many modern day lawyers mirrors the views expressed by the English positivists of the 19th century. The English jurist John Austin famously said, ‘ The most pernicious laws and therefore those which are most opposed to the will of God, have been and are continually enforced as laws by judicial tribunals ……. An exception, demurrer, or plea, founded on the law of God was never heard in a Court of Justice’.
On this view, law is an instrument of political power and it reflects whatever political base exists in a country. Accordingly, when a system loses its political efficacy, it ceases to have any validity and the new system is valid. This means that the people who now have the POWER will call the shots and in my view the many prosecutions for crimes against humanity is an illustration of this fact, rather than any claim based on fairness or morality. The whole idea that ‘justice’ is being served by the work of the ICC is an oversimplification of the forces at work.
A crime against humanity” occurs when there is a widespread or systematic attack directed against any civilian population – isn’t that what happened when the United States and their allies invaded Iraq. When the Soviet Union invaded Afghanistan and more recently when Russia invaded Georgia. When China invaded Tibet. We see this again and again around the world. The United States, the most powerful country in the world and ideologically the most democratic is guilty of many crimes against humanity, the manner in which prisoners are treated in Guantanamo are particularly odious offences in that they constitute a serious attack on human dignity, grave humiliation and degradation of all the human beings held there. The ultimate defense is that they are engaged in a war against terror. What about the terror that they have caused in the world against millions of innocent civilians? Does the death of 3,000 Americans on September 11 in New York justify the actions taken in retaliation for it.
CLEARY WHAT THIS REPRESENTS IS NOT THAT RIGHT IS MIGHT, BUT RATHER THAT MIGHT IS RIGHT. This is essentially the positivist mantra.
Yet justice more than any other concept has been the most closely associated with law. Positivism holds that law and justice sometimes can and is a paradoxical dichotomy.
(TO BE CONTINUED)