For the Courts to Decide: Why Bill C-323 Is neither Unconstitutional nor Substantial Legislation

For the Courts to Decide

Why Bill C-323 Is neither Unconstitutional nor Substantial Legislation

Laws 2501

Nov 16, 2012

            The question of whether An Act to amend the Federal Courts Act (Bill C-323) is constitutional or not lies upon the false premise that the proposed new powers of the federal court would have a jurisdiction in international rather than federal law. In fact, the proposed new powers would be redundant because the federal court already has those powers in existing federal law, both through the criminal code and through the Crimes Against Humanity and War Crimes Act (2000). If such legislation did not exist, it could be created; nor would such legislation not existing in any way limit the legislature's power to create a court of theoretical jurisdiction subject to potential future legislation. Further, international law is in fact judicially binding in Canada anyways, even if it hasn't been legislated yet, making the entire issue a completely moot point; international law is Canadian law, so there is no conflict of jurisdictions to begin with.[1] Lastly, the proposed legislation is actually in the sphere of private international law, meaning all these theoretical arguments about jurisdiction aren't even applicable! It is the court that will decide on a case-by-case basis if it has jurisdiction using the "real and substantial connection test".[2] The argument against the constitutionality of Bill C-323 on the grounds that it is outside of the jurisdiction of federal courts because it is in the jurisdiction of international law, as allegedly presented by Rob Nicholson, is both ignorant of existing constitutional, case, international and federal law and a fallacy in argumentation of type ignoratio elenchi, as well as a textbook red herring. Would we have been wise to expect better from Rob Nicholson? However, despite the bill being fully constitutional, it is not of any serious consequence, and little would change if it were passed.

            Before discussing the actual situation, it would be useful to outline the powers that the constitution gives to the legislature to create new courts. These powers, as stated in s. 101 of the Constitution Act, are very broad and subject solely to the restriction of the court administering the "Laws of Canada".[3] As there is literally no restriction present other than the obvious restriction that Canadian Courts must interpret Canadian Law, there is absolutely no reason to suggest any further limitations exist or were meant to exist. The sole question at hand is how to define "Laws of Canada", but this is not a difficult quandary: the "Laws of Canada" include legislation produced legislatively, unwritten constitutional principles, case law and binding international treaties. However, in context, the question is a little bit more subtle.

           

            Whether international treaties are Canadian Law or not is not a question that is controversial or up for debate. The initial framers of the constitution meant to invest this power in the executive branch through s. 132; however, as we no longer accept the authority of the Monarch, this provision in the constitution is now considered obsolete. Nor has the Prime Minister inherited absolute executive power in domestic issues from the Monarch. The Prime Minister must table domestic legislation and have it pass through the House of Commons like any other Member of Parliament. While the context and meaning of s. 132 intends for International Law to be Canadian Law, the constitution no longer provides for a mechanism to allow this to come into force because we no longer have a comparable executive branch. However, depending on how the legislation is properly interpreted through the division of powers, either the federal or provincial legislatures are legally obligated to legislate on the issue in order to convert their interpretation of the international treaty into domestic statute: this is the existing interpretation of s. 132. It has been left up to the judiciary to protect this constitutional intention and enforce international treaty obligations should the relevant legislatures refuse to carry out their constitutional duty in doing so.[4]

           

            There is a mountain of case law supporting the assertion that international law is not just Canadian Law but a higher law than Canadian Law.[5]  First, consider the case of Pushpanathan v. Canada. A convicted narcotics dealer was scheduled for deportation back to Sri Lanka, and attempted to avoid this using refugee status. Domestic Canadian Law denied him refugee status on the basis of him being a convicted offender, but the Supreme Court overturned this on the argument that the restriction in the United Nations Convention Relating to the Status of Refugees, of which the immigration act was modeled on, did not apply to narcotics dealers.[6] Second, consider the case of Thomson v. Thomson, where a child custody dispute between parents in Scotland and Manitoba was decided by considering the Hague Convention on the Civil Aspects of International Child Abduction rather than the local Manitoba statutes, which were based on the convention.[7] A third example is a little closer to home: R v. Marshall, where the contents of the centuries old treaties signed between the Mi'kmaq and the British overpowered existing provincial law.[8] In R v. Hape, the court stated the following: [9]

One final general principle bears on the resolution of the legal issues in this appeal. It is a well-established principle of statutory interpretation that legislation will be presumed to conform to international law. The presumption of conformity is based on the rule of judicial policy that, as a matter of law, courts will strive to avoid constructions of  domestic law pursuant to which the state would be in violation of its international obligations, unless the wording of the statute clearly compels that result. R. Sullivan, Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at p. 422, explains that the presumption has two aspects. First, the legislature is presumed to act in compliance with Canada’s obligations as a signatory of international treaties and as a member of the international community. In deciding between possible interpretations, courts will avoid a construction that would place Canada in breach of those obligations. The second aspect is that the legislature is presumed to comply with the values and principles of customary and conventional international law. Those values and principles form part of the context in which statutes are enacted, and courts will therefore prefer a construction that reflects them. The presumption is rebuttable, however. Parliamentary sovereignty requires courts to give effect to a statute that demonstrates an unequivocal legislative intent to default on an international obligation. See also P.-A. Côté, The Interpretation of Legislation in Canada (3rd ed. 2000), at pp. 367-68.

The presumption of conformity has been accepted and applied by this Court on numerous occasions. In Daniels v. White, [1968] S.C.R. 517, at p. 541, Pigeon J.

[T]his is a case for the application of the rule of construction that Parliament is not presumed to legislate in breach of a treaty or in any manner inconsistent with the comity of nations and the established rules of international law. . . . [I]f a statute is unambiguous, its provisions must be followed even if they are contrary to international law . . . .

See also Zingre, at pp. 409-10; Ordon Estate v. Grail, [1998] 3 S.C.R. 437, at para. 137; Schreiber v. Canada (Attorney General), [2002] 3 S.C.R. 269, 2002 SCC 62, at para. 50. The presumption applies equally to customary international law and treaty obligations.

            Now that we understand the actual place of international law in the Canadian legal framework, we can discuss the proposed bill. A member of the opposition has produced a bill to modify the Federal Courts Act that would allow foreign citizens to sue Canadian corporations in Canadian federal courts if they are accused of breaking international treaties that Canada has signed, whether the breach has occurred within Canada's geographic jurisdiction or not. This bill also abolishes the statute of limitations for a long list of proceedings, which are explicitly enumerated in the bill, and attempts to clarify existing private international law conventions for determining which court has the proper jurisdiction to hear conflict-of-law cases by writing new rules into Canadian statute.[10] It has been claimed that if the bill happens to pass then the government will argue that it is unconstitutional under s. 101 because the proposed amendments to the court's jurisdiction are not in the sphere of "Canadian Law".

            Now that the proper background has been presented, it is easy to see that this argument is preposterous. Canadian courts have long upheld international law; once Canada signs a treaty, it is judicially enforceable Canadian Law. There simply is no constitutional conflict of jurisdiction.

            However, let us suppose for the sake of argument that there is a conflict of jurisdiction and that Canadian Courts are no longer allowed to overrule domestic law with international law. Would this matter much? While the Prime Minister does not have executive power, she does generally have absolute control of the House of Commons if she has a majority. So, it should be no surprise that Canada has legislated essentially every international treaty that it's ever signed: majority government allows for this privilege, and why else would a Prime Minister sign on? The consequence of this is that when we speak of Canada signing an international treaty, we also speak of Canada enacting domestic legislation that interprets this international treaty; it is not just the case that International Law is Canadian Law, it is also the case that International Law is almost always legislatively enacted Canadian statute law. Now, let us move from the general to the specific.

            It so happens to be that the bulk of Bill C-323 is in fact existing Canadian Federal Law under the Crimes Against Humanity and War Crimes Act (2000), which binds Canadians to international law as a shifting set of norms and conventions, rather than as a static set of statutes.[11] Of course, it would be up to the court to determine what those shifting norms and conventions are, meaning what Nicholson allegedly claims is unconstitutional is already enacted federal law; the purpose of the proposed s. 25.2 amendment is not to create new areas of jurisdiction (these already exist), but to remove certain areas from the statute of limitations, pursuant to the proposed amendment in s. 39.3. So, even if we accept the faulty argument that Canadian courts can only interpret Canadian statues, there is still not a meaningful question of jurisdiction.

            However, again, let us suppose that there is: let us suppose that this enabling federal legislation does not exist. Would the law then be unconstitutional? Well, if we wrongly deny that the court has the ability to enforce international law then the only possible interpretation of the bill is that the expanded jurisdictions are within the context of Canadian law. While the bill may consequently be more or less useless until the proper statute is enacted, that does not make it unconstitutional, it merely makes it unenforceable. The constitution does not specify what the "Law of Canada" is or ought to be, nor should it have as law is constantly shifting and constantly being redefined. A constitution is meant to be a set of rules that shape how law evolves over time, not a means of self-inflicting societal stagnation or arrested development.

            So, it's quite clear there is not a valid constitutional issue at play here in relation to the question of jurisdiction. International law is constitutionally enforceable in Canada. If it were not, existing federal statues that mimic international law would be. If international law was not enforceable and these statutes did not exist, the bill would be properly interpreted as pre-empting the construction of those statutes and would consequently not be unconstitutional: it would be providing enhanced jurisdiction to a court of theoretically unlimited jurisdiction in an area of law in which in no statutes yet exist, with the clear aim of pushing legislators to legislate further in this area.

            However, there is a valid constitutional problem, namely the removal of the statute of limitations, which is likely meant to allow for the prosecution of past wrongs but is not likely to get past s. 11(g) of the Charter of Rights and Freedoms. As any action taken under the proposed amendments would be against Canadian Citizens, such an amendment would likely not be enforceable as it is meant in a Canadian court. While I cannot find a reference in the constitution that explicitly protects the statute of limitations, the fairness of removing it only for crimes against foreign citizens is dubious at best; a s. 15 challenge from a Canadian citizen to remove the statute of limitations would likely result in the court ordering the legislature to even things out. Further, I would expect that a challenge based on the statue of limitations being an "unwritten principle of democracy" would be successful. Should the amendment to s. 39.3 be removed, the amendment to s. 25.2 would no longer serve a purpose and should therefore be removed along with it. That would leave only the amendments to s. 25.1 and s. 50.4, which together seek to regulate private international law within Canada.

            There are two wide branches of international law: public and private. Public international law describes relationships between states. Private international law describes relationships between private parties in differing states. When court action occurs between individuals in different jurisdictions, the result is called a conflict of law. Canadian law has gone through a long evolution of thought on this point, but has recently settled upon a "real and substantial connection" test with a complex series of clauses.[12] The most recent precedent-setting Canadian court decision in the matter is in Club Resorts Ltd. v. Van Breda (2012),[13] which clarified the existing procedure to determine jurisdiction. It is the court that will decide if it has jurisdiction by determining if there is a real and substantial connection between the jurisdiction and the case. While the test provided for some examples of a real and substantial connection (the defendant is domiciled or resident in the province, the defendant carries on business in the province, the tort was committed in the province, a contract connected with the dispute was made in the province), it explicitly pointed out that such a list is not exhaustive. Further, it provided some instruction in determining whether any new connections are "real and substantial". In most cases, the defendant being a Canadian citizen would qualify as a real and substantial connection, which would be enough to allow the court to declare it has jurisdiction. In other words, the Supreme Court has, though precedent and case law, recently constructed essentially the same thing that C-323 meant to erect, rendering C-323 largely pointless.

            The legislation does not attempt to take away the court's ability to decide if it has jurisdiction, but it does attempt to guide it in doing so. The amendments to s. 50.4, together, state that the court will only deny it has jurisdiction if the defendant convincingly argues that a better court exists to hear the case in. This is not, together, substantially different than the "real and substantial connection" test, but it does provide a few difficult points for the courts to work out - specifically the (d) clause that states that jurisdiction can only be denied if it's in the "adamant" interests of justice. Does this respect the independence of the judiciary?

            Putting the constitutionality and redundancy of the legislation aside, there are legitimate questions to be raised regarding the eventual efficacy of the proposed legislation. While I have very strong feelings about the negative effects of Canadian Colonialism in the global south, and would argue strenuously that our government should be taking strong actions against criminal actions as defined by existing federal law such as the Crimes Against Humanity and War Crimes Act (2000), it is not at all clear that allowing civil litigation will lead to anything resembling justice. Will the relevant victims have the financial means to access our distant federal court system, or will such a remedy be restricted only to those who do not need access to it, rendering it more of a political symbol than a functioning dispute-resolution mechanism? Will corporate governing structures continue to make it difficult to hold them accountable?[14] Will the mining companies the legislation is meant to curb the behaviour of perform cost-benefit analyses that lead to the conclusion that the crime is worth the price of settlement, or to actions that produce even greater loss of life in order to avoid court battles? Ought issues such as genocide and murder be restricted to civil proceedings and financial settlements in the first place, or ought the criminal elements embedded within the corporate elite face consequences that affect them on a more substantial and personal basis? Upon analysis, the member's motion truly seems more like an attempt to gain political points than an attempt at bringing corporate Canada to its long overdue justice; this bill would not create a useful tool to clean up our corporate sector of criminality and corruption, and even seems to be based on the silly classical liberal idea of contract law as the basis of an ordered society. In order to solve the problems that currently exist, we need to enforce our existing criminal laws, not provide inaccessibly expensive means of civil litigation to the poorest and most exploited peoples of the world. What many of our mining companies do in Latin America and Africa on a day-to-day basis is already subject to life imprisonment under Canadian Law, yet the CEOs of these companies continue to live with impunity and luxury. Inevitable extradition problems aside, many of these governments are routinely massively bribed by the precise interests that the legislation is meant to hold accountable, making local enforcement a virtual impossibility. Why isn't the RCMP doing its job and giving these mass murderers the life sentences that they deserve?

            There are currently a number of attempts in process to bring Canadian mining concerns to justice, but they are still in the trial stage. Should these cases by accepted under the new test for jurisdiction, they will undoubtedly set significant precedent for future action. This is currently happening with or without the aid of Bill C-323.[15]

            It should also be pointed out that the government's recent Justice for Victims of Terrorism Act, no doubt championed by Rob Nicholson as a great victory for justice, attempts to provide Canadians with the ability to sue foreign terrorist organizations.[16] The bill also lifts the statute of limitations back to 1985. It is remarkably difficult to argue that the widow of a murdered Ecuadorean miner is any less of a victim of terrorism or should not have the same access to justice that the family of a Canadian terror victim should, or at least it is without resorting to open and crude displays of racism. It is consequently foreseeable that this act may help in easing issues of jurisdiction; it is easy to see the court making the argument that if the Government of Canada feels its citizens can sue foreign organizations for terrorism then it must also feel that foreign citizens can sue Canadian organizations for similar reasons. Of course, the court is likely to interpret such legislation as subject to the norms of existing private international law and any legislation to the contrary as an attack on their independence.

           

            The proposed bill is certainly not unconstitutional under s. 101; in fact, it's completely redundant, offering no substantial change to existing jurisprudential norms. However, there are legitimate problems with the bill: the removal of the statute of limitations is unlikely to withstand a charter challenge, it is questionable whether it respects the independence of the judiciary and it's not likely to be very effective in accomplishing its long overdue goal of bringing Canadian Colonialism to justice.

JURISPRIDENCE

Club Resorts Ltd. v. Van Breda [2012] S.C.C. 17,

online: <a http://canlii.ca/en/ca/scc/doc/2012/2012scc17/2012scc17.pdf>

Pushpanathan v. Canada [1998] 1 S.C.R. 982,
online: <http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/item/1627/index.do>

R. v. Hape, [2007] 2 S.C.R. 292,

online:< www.canlii.org/en/ca/scc/doc/2007/2007scc26/2007scc26.pdf>

R v. Marshall [1999] 3 SCR 533,

online: < http://www.canlii.org/en/ca/scc/doc/1999/1999canlii665/1999canlii665.html>

Thomson v. Thomson [1994]  3 SCR 551,

online: <http://www.hcch.net/incadat/fullcase/0011.htm>

LEGISLATION

Bill C-323, An Act to amend the Federal Courts Act (international promotion and protection of human rights), First Session, Forty-First Parliament, 2012, online: Parliament of Canada <http://parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&DocId=5160018&File=4>

Crimes Against Humanity and War Crimes Act, SC 2000 c. 24,

online: Department of Justice Canada  < http://laws-lois.justice.gc.ca/eng/acts/C-45.9/>

Constitution Act, 1867, R.S.C. 1985, s.101, online: Canadian Legal Information Institute

< http://www.canlii.org/en/ca/const/const1867.html>

Justice for Victims of Terrorism Act, SC 2012 c. 1, s.2,

online: Department of Justice Cana <http://laws-lois.justice.gc.ca/eng/acts/J-2.5/page-1.html>

SECONDARY SOURCES

Ert, Gib Van. "Chapter Six: Canada", in David Sloss, ed, The Role of Domestic Courts in Treaty Enforcement (Cambridge: Cambridge Press, 2009).

online: < www.litigationchambers.com/pdf/vanErt-domestic-courts.pdf>

Ovsep, Afarian et al. "The SCC Clarifies the 'Real and Substantial Connection' Test" Mccarthy-Tetrault (April 23, 2012) online: Mccarthy-Tetrault <http://www.mccarthy.ca/article_detail.aspx?id=5845>

Tetley, William. "Current Developments In Canadian Private International Law" in 79 Canadian Bar Review (Saskatoon: University of Saskatchewan, 1999).

online: <http://www.mcgill.ca/maritimelaw/conflicts/canprivtintl>

"Courting Justice: Victims of mining abuses sue in Canada", Mining Watch Canada (February 11, 2012) online: Mining Watch Canada < http://www.miningwatch.ca/article/courting-justice-victims-mining-abuses-sue-canada>

---

[1] Gib Van Ert, "Chapter Six: Canada", in David Sloss, ed, The Role of Domestic Courts in Treaty Enforcement (Cambridge: Cambridge Press, 2009), p. 6-20.

[2] Club Resorts Ltd. v. Van Breda [2012] S.C.C. 17 at para 0.

[3] Constitution Act, 1867, R.S.C. 1985, s.101, online: Canadian Legal Information Institute

< http://www.canlii.org/en/ca/const/const1867.html>

[4] Gib Van Ert, "Chapter Six: Canada", in David Sloss, ed, The Role of Domestic Courts in Treaty Enforcement (Cambridge: Cambridge Press, 2009), p. 2-20

[5] ibid, p. 18-20

[6] Pushpanathan v. Canada [1998] 1 S.C.R. 982 at para 51-77

[7] Thomson v. Thomson [1994]  3 SCR 551

[8] R v. Marshall, [1999] 3 SCR 533

[9] R. v. Hape, [2007] 2 S.C.R. 292, at para 53-56

[10] Bill C-323, An Act to amend the Federal Courts Act, First Session, Forty-First Parliament, 2012

online: Parliament of Canada <http://parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&DocId=5160018&File=4>

[11] Crimes Against Humanity and War Crimes Act, SC 2000 c.24, s.4, online: Department of Justice Canada

< http://laws-lois.justice.gc.ca/eng/acts/C-45.9/>

[12] William Tetley, "Current Developments In Canadian Private International Law"  in 79 Canadian Bar Review (Saskatoon: University of Saskatchewan, 1999), p. 152-199. online: <http://www.mcgill.ca/maritimelaw/conflicts/canprivtintl>.

[13] Afarian, Ovsep et al, "The SCC Clarifies the 'Real and Substantial Connection' Test" Mccarthy-Tetrault (April 23, 2012) online: Mccarthy-Tetrault <http://www.mccarthy.ca/article_detail.aspx?id=5845>

[14] "Courting Justice: Victims of mining abuses sue in Canada", Mining Watch Canada (February 11, 2012) online: Mining Watch Canada < http://www.miningwatch.ca/article/courting-justice-victims-mining-abuses-sue-canada>

[15] "Courting Justice: Victims of mining abuses sue in Canada", Mining Watch Canada (February 11, 2012) online: Mining Watch Canada < http://www.miningwatch.ca/article/courting-justice-victims-mining-abuses-sue-canada>

[16] Justice for Victims of Terrorism Act, SC 2012 c. 1, s.2,

online: Department of Justice Cana <http://laws-lois.justice.gc.ca/eng/acts/J-2.5/page-1.html>

http://dghjdfsghkrdghdgja.appspot.com/thoughts/essays/conflictoflaw.html

Pulling a Swift One: Confusing Philosophy with Science.

English 2107

13 July 2009

Pulling a Swift One:

Confusing Philosophy with Science.

            Swift’s satire of science so little resembles a satire of science that it’s actually very difficult to understand it as a satire of science at this far a date removed from it. It reads off like a straight attack on Pythagorean philosophy, one that could have been written at just about any point up to the year 1800. It is only through studying Swift’s life that it becomes clear that when it seems blatantly obvious that he is attacking philosophy, he is really attacking what he has confused with philosophy, namely science. Furthermore, it is only through studying a vague “meta-history” of European culture that Swift’s view that science and philosophy are interchangeable and therefore equally evil can be fully understood within it’s proper context.

             Labelling periods of history is both ambiguous and arbitrary, but it’s also often convenient when attempting to compare events that appear to occur in cycles. European history could be arbitrarily broken down into the following five periods, a violent or non-violent revolution occurring between each and with each change being the result of the import of new ideas. The first period could be dubbed the Homeric period and would comprise of the period between the third Indo-European invasion of Europe, as described by Marija Gimbutas, and the rise of philosophy on the Ionian coast. This period is not relevant to this essay, nor is the fifth and current post-WWII era of technology. The three time periods that are to be discussed are the Pythagorean or Platonic period (c. Pythagoras-Justinian, often referred to as “Antiquity”), the Christian Period (c. Justinian – Bacon, often referred to as “Medieval”) and the Scientific Period (c. Bacon – Heisenberg, which combines the Renaissance, Enlightenment and Romantic periods into one period).

The Pythagorean period is characterized by the viewpoints of Pythagoras and Parmenides, the writings of Plato and the mathematics of Archimedes and Euclid. It was a time when deductive thought was assumed to be the ideal and correct means of understanding the natural world. While Democritus may have correctly deduced an atomic theory, and Anaximander may have correctly deduced a rough theory of evolution (without natural selection and with undoubted influence from Chaldean mermen), these deductions followed from nothing but arbitrary axioms and were certainly not conclusions stemming from the results of experiments that were repeatedly demonstrated to be repeatedly demonstrable. Consequently, the leading philosophers of the day routinely discarded superior theories – such as the heliocentric system or the fact that the earth is roughly spherical – over inferior theories because they preferred the axioms that led to the inferior theories over the ones that led to the superior theories. Nonetheless, there is a rough continuity of thought between the Pythagoreans and the Scientists in the sense that they agree that the search for answers is through studying natural explanations to observable phenomena. It is therefore understandable how a Christian living in the beginning of the scientific era may have confused the new system of Science with the old system of Philosophy and managed to attack science by characterizing it as no different than the old and discredited system of philosophy.

Christianity, of course, has little in common with either Science or Pythagorean philosophy in regards to it’s methodology, despite Christianity’s clear cultural inheritance of Platonist ethics and symbolism. Christianity is based neither on inductive experiment nor on deductive thought but on an argument from authority, the authority being the scriptures. Where philosophy and science both attempt to construct consistent systems of thought based on either axioms or experiments, i.e. systems without logical paradoxes or contradictions, Christianity makes no attempt to be consistent whatsoever, as such an attempt would necessarily require a suspension of scriptural authority. In truth, Christianity even goes so far as to assume a set of logical contradictions – singular is identical to plural, life is equivalent to death, etc – and then attempt to draw deductions from these contradictions. This is not the place to criticize Christianity’s entirely conscious deficiencies of rigour; the point is that the epistemological approaches of philosophy and religion are and always have been wholly incompatible with each other, regardless of whether or not the dominant view amongst the philosophers of the era was inductive or deductive. An anonymous and now unknown Platonist of late antiquity may have even gone so far as to define philosophy and religion as cosmic opposites of each other.

So, then we have Jonathan Swift. Born in the midst of an intellectual upheaval, and yet rooted in the theories of the past. The time he spent studying for his doctorate in theology, in a time where doctor and theologian in the same phrase did not create an oxymoron, would have been more than enough time for him to stumble across entire books full of information about that strange old nemesis to Christianity, those heathens and heretics, the ones that Justinian had to shut down by force, the ones that wrote lengthy discourses on how frivolous Christianity really is[1]. What theology student wouldn’t find that fascinating? Yet, the histories obtainable to Swift would have read off like cartoons, with superhero bishops and evil villains running the academies[2]. Now, a scientist may have questioned these writings more rigorously, but Swift was not a scientist, he was a deeply religious man who was taught to take information on authority. To Swift, science was evil because it was pagan, it represented an uprising of the forces that Christianity had spent it’s entire existence fighting against, which he knew was true because he was told it was true.

Satire is primarily a subconscious stress-relieving response to the fear of a deep fear being actualized in front of you (Zoglin). Hence, satirists tend to go after targets that they feel threatened by – political leaders or ideas, systems of thought, business competitors. Swift may have been deeply conservative, but he wasn’t completely disconnected from his time, he saw what he would have declared as “the rise of paganism” tearing down the ancient barriers, and this would have deeply frightened him. Imagine! Heathens! Heretics! All around us! They will undo the Christian religion and all of England, under the tyranny of the so-called Philosopher Kings, will be bound by chains and worshipping Apollo in the churches in no time!

See, fear is also often irrational. It’s often based on confusion; certainly, Newton wasn’t going around sacrificing mead, even though he was denying the trinity[3], and even though some of the Masonic organizations around at the time actually were doing more esoteric things along those lines.

And, see, this is how ignorance spreads: paranoia fuses all of one’s enemies together into one evil monster, it combines Masonic rituals, experimental methodology, Pythagorean philosophy and it’s superstitious dark age offshoots – such as alchemy, physiognomy and astrology – and the growing rationalist opposition to Christianity into one evil of nearly unthinkable proportions: Science.

The first thing to note is that Swift’s conception of England was of a modern, protestant, business-oriented society – far superior to the pseudo-pagans on the south of the continent. Swift also articulates his disdain for the uncivilized Dutch, whom he accuses of being less merciful than “heathens” (Swift 148). Ridiculing an individual of Dutch ancestry by questioning his religious devotion and then comparing him negatively to “heathens” certainly seems rather unsophisticated at this date, but the juvenility of the discourse was reasonable within the context of the mindset of the era, considering that Dutch and British shipping interests were in the midst of a long struggle. These targeted comments, which appear in the first chapter of the third part of Swift’s text, haphazardly demonstrate the profound racial, religious, linguistic and ethnic xenophobia that characterized the society that Swift existed within and consequently shaped his thoughts and views.

By claiming that the islanders speak an unknown romance language, he immediately sets the reader up to compare the society on the island to one under Roman Catholic rule, which, at the time, could only be a reference to the papacy as the Roman Emperor, King of France and King of Spain were all Germans. However, given the way the story unfolds, it seems more likely that Swift really misspoke here. While Swift knew that most of the arguments he had read about while studying theology were directed at the Romans, particularly the eastern Romans, he did not know that by the time an antagonistic discourse had developed between Christianity and Pythagoreanism, the Roman Empire had adopted the Greek language and taken on a fundamentally Greek identity. Swift appears to have incorrectly thought that Porphyry and Plotinus both wrote in Latin.

If Swift is really consciously satirizing the Pythagoreans, the island could very well be representative of Atlantis, or, more accurately, Francis Bacons’ New Atlantis. Atlantis, the archetypal utopian society, was first described by Plato and was used as the model of utopia throughout the Pythagorean era. Bacon wrote a text entitled “The New Atlantis” that was essentially a plan to construct a workable version of Plato’s ideal society. Laputa, Atlantis and the new Atlantis all share the characteristics of being highly isolated and highly technological societies. Swift’s tract could very well be seen as an attempt to discredit Bacon’s ideas by tying them to evil pagan religion.

Swift’s satire is so heavy-handed that a collection of simple quotes is sufficient to demonstrate his views. Swift makes his intentions clear near the start of the second chapter, when he clearly describes the Laputians in Pythagorean terms. The Laputians, like the Pythagoreans, are obsessed with astronomy and music. Swift even satirizes the Pythagorean oath of silence:

Their outward Garments were adorned with the Figures of Suns, Moons, and Stars, interwoven with those of Fiddles, Flutes, Harps, Trumpets, Guittars, Harpsichords, and many more Instruments of Musick, unknown to us in Europe … It seems the Minds of these People are so taken up with intense Speculations, that they neither can speak, nor attend to the Discourses of others. (Swift 152)

Next, Swift satirizes the philosopher king:    

At last we entered the Palace, and proceeded into the Chamber of Presence; where I saw the King seated on his Throne, attended on each Side by Persons of prime Quality. Before the Throne, was a large Table filled with Globes and Spheres, and Mathematical Instruments of all Kinds. His Majesty took not the least Notice of us, although our Entrance were not without sufficient Noise, by the Concourse of all Persons belonging to the Court. But he was then deep in a Problem, and we attended at least an Hour, before he could solve it. (Swift 155)

Now, swift satirizes ideal forms:

In the first Course, there was a Shoulder of Mutton, cut into an A Equilateral Triangle; a Piece of Beef into a Rhomboides; and a Pudding into a Cycloid. The second Course was two Ducks, trussed up into the Form of Fiddles; Sausages and Puddings resembling Flutes and Haut-boys, and a Breast of Veal in the Shape of a Harp. The Servants cut our Bread into Cones, Cylinders, Parallelograms, and several other Mathematical Figures. (Swift 155-156)

            Now that it is blatantly clear that the victim of Swift’s tirades is not science but Platonist philosophy, it is interesting to point out that Swift even goes so far as to regurgitate the views of Plato’s largest critic, his pupil Aristotle, as can be found in the Metaphysics: 

On the other Side, after having seen all the Curiosities of the Island, I was very desirous to leave it, being heartily weary of those People. They were indeed excellent in two Sciences for which I have great Esteem, and wherein I am not unversed; but at the same time so abstracted and involved in Speculation, that I never met with such disagreeable Companions. I conversed only with Women, Tradesmen, Flappers, and Court-Pages, during two Months of my Abode there, by which at last I rendered my self extremely contemptible; yet these were the only People from whom I could ever receive a reasonable Answer. (Swift 169)

            It is here that we come to the real heart of Swift’s views on philosophy. There is truly little independent thought in what he has written; he is merely regurgitating the established Christian and Aristotelian attacks against Pythagoreanism, which he is unable to distinguish from Baconian science. Swift is clearly widely read; had he taken the time to disentangle Pythagoreanism from science, he may have come to entirely different conclusions. However, he didn’t take the time to disentangle the new system from the old system that it resembled so shallowly and, as such, should be regarded as merely another ignorant voice at the end of an era of ignorance.

Works Cited

1)      Swift, Jonathan. “A voyage to Laputa, Balnibarbi, Luggnagg, Glubbdubdrib and

Japan.” Gulliver’s Travels. Oxford: Oxford University Press, 1977. 147-180.

2)      Porphyry. Against The Christians.  Lost text. c. 300.

3)      Tertullian. “De Spectaculis”. Apology. De Spectaculis.. London: Heinemann, 1931.

Internet Archive. Jul. 12 2009.

<http://www.archive.org/stream/apologydespectac00tertuoft>

4)      Zoglin, Richard. “Harry Shearer on Political Satire.” Time Magazine. 18 Jul. 2008  Time Inc.. Jul. 12 2009. <http://www.time.com/time/arts/article/0,8599,1824482,00.html>

5)      Newton, Isaac. An Historical Account of Two Notable Corruptions of Scripture. London: John Green, 1841. Google Books. 12 Jul. 2009 <http://books.google.co.uk/books?id=cIoPAAAAQAAJ&pg=PA1>

Works Not Cited

1)      Gimbutas, Marija. The Kurgan Culture and the Indo-Europeanization of Europe. Washington: Institute for the Study of Man, 1997.

2)      Berryman, Sylvia. “Democritus.” The Stanford Encyclopedia Of Philosophy. Aug. 15, 2004. Stanford University, Center for the Study of Language and Information. 12 Jul. 2009. <http://plato.stanford.edu/entries/democritus/>

3)      Couprie, Dirk. “Anaximander.” The Internet Encylopedia of Philosophy. 2006. 12 Jul. 2009. <http://www.iep.utm.edu/a/anaximan.htm >

4)      Stevenson, David. The Origins of Free Masonry. Cambridge: Cambridge University Press, 1990.

5)      “Anglo-Dutch Wars”, Wikipedia, 10 Jul. 2009. Wikimedia Foundation, Inc.. 12 Jul. 2009 <http://en.wikipedia.org/wiki/Anglo-Dutch_Wars>

6)      Aristotle. Metaphysics. Tran: W.D. Ross. Internet Classics Archive. 12 Jul. 2009 <http://classics.mit.edu/Aristotle/metaphysics.html>

---

[1] Porphyry, Against the Christians, c 300.

[2] Tertullian, “De Spectaculis”, Apology. De Spectaculis. (London: Heinemann, 1931), 230-304.

[3] Newton, Isaac, An Historical Account of Two Notable Corruptions of Scripture (London: John Green, 1841) , 1-88.

http://dghjdfsghkrdghdgja.appspot.com/thoughts/essays/swift.html

relating classical conservatism to socialism, in dual opposition to liberalism

When interpreted in its most literal and extreme forms, liberalism of the classical variety is the definition of right-wing "anarchism". Anarchism, a collectivist/socialist form of government that lacks hierarchy, is actually a co-opted term in this context. When capitalists claim they are 'anarchists', or 'right-libertarians', what they mean to say is that they are ideologically pure classical liberals. Certainly, these capitalists don't really mean to say that they're anarchists, as anarchists are violently opposed to all systems of exchange, which means that they advocate the abolition of currency and the criminalization of markets - by collectively applied force. As an anarchist in the legitimate sense, I'd appreciate it if liberals would stop co-opting the term; I'm sure that liberals have similar feelings regarding "democratic" socialists, quotes being necessary to acknowledge that representative democracy is a contradiction in terms.

            Marx would argue that liberalism is the necessary antidote to mercantilism, and that the socialist's role is merely to guide liberalism towards its proper end goal of communism, arguing that they are phases of the same system rather than systems in competition, which is an inherently capitalist description. The presented request is consequently rather confusing, as time does not move backwards. The central thesis of modern capitalism in its current, yet evolving, phase of socialism is that the socialization of production renders liberalism as an impossible to actualize contradiction. Liberalism requires individual production; individual production cannot compete with socialized production. Therefore, the market destroys itself, leaving new mercantilist masters, the bourgeoisie, in place of the old ones. The assertion of liberalism as a dominant economic system is consequently only possible with the reversal of industrialization, also an impossibility. The goal of liberalism, self-ownership, can only be salvaged through collective ownership of the means of production. In other words, socialism is the liberalism of the industrial era; attempts to apply liberalism to an industrial economy will backfire into mercantilism, as history records the turn of the last century in America, and arguably the turn of the most recent one as well.[1]

            These changes are consequently not reversions back to a mercantilist era of hierarchical ownership but progressions forward into a new era of collective, mutual ownership, as driven by irreversible technological innovations in production. They can only be understood properly, or even coherently, as the result of this technological march forward. There consequently may be a conflict at work between individual and social concerns, but this is drastically different than the assertion of hierarchical control for the purposes of enforced altruist outcomes; comparisons are largely illusory and circumstantial at best. Specifically, considering the duo of cases, Gillet v. Holt and Yeoman’s Row v Cobbe, there is not much of a conflict between self-interest and altruism at all.

            In truth, in Gillet v. Holt, the court upheld socialistic concepts of labour and property as more valuable than liberal ideas of contractual obligation and self-ownership, especially in relation to labour, as well as propertarianism, while merely using the ideas of 'expectation' and 'reliance' as an excuse. The initial ruling was probably actually the correct one, relative to liberal capitalist ideas about contract law. In Yeoman’s Row v Cobbe, the court awarded a personal remedy to compensate Cobbe for his time and effort rather than a proprietary estoppel, but there wasn't a valid contract to uphold and consequently no liberal contract theory to critique or uphold. Nor can the decision (or it's other possible outcome) be characterized in any particular social context, other than as a clash between two self-interested parties and with an outcome that couldn't have benefited anybody other than themselves. While this presents Cobbe as a case where self-interest was upheld, it is only in the sense of the self-interest of one party being upheld over the self-interest of the other. If there is an illiberal context to the case, it lies in the proprietary estoppel, which is conceptually incompatible with private property rights. In that sense, the cases could be contrasted relative to their conception of property rights, but this wouldn't be a particular deep observation, nor answer the question as interpreted.

            So, I'm not fully following the question. I no longer have time to remedy that problem. I do not feel that I am at fault, either, as the question appears to be based on liberal ideas that were empirically proven false many years ago and are rather difficult to make sense of more than a century later. Unfortunately, democracy seems to have failed science class. So, while I can talk a little bit more about each case, I don't see a proper contrast to draw.

            In Gillet v. Holt, the proprietary estoppel that is eventually granted is very weakly argued for, only enough to come to the correct moral conclusion that enforcing liberal contract law in this circumstance would be unjust. The judge barely even attempts to show a detriment that would stand up in court, opting instead to run through a tear-jerking summary of the case that shows plenty of hardship and unfortunate circumstances but almost nothing of any legal value. He even goes so far as to suggest that should the estoppel not be granted then there would be detriment, but this is a questionable approach, as true as it may be. After this comprehensive and successful attempt to emotionally manipulate the audience is complete, three conclusions emerge. The first is that Gillet was drastically underpaid and is due some compensation for back pay. The second is that there is a strong emotional argument that it would be unjust to deprive him of his property, labour and means of production. The third is that liberal contract law is (in this case) a barrier to justice. From the standpoint of a legal realist, the correct thing to do in this case is ignore the liberal contract law in favour of collectivist ideas regarding property rights and labour, in order to uphold justice rather than some meaningless rules of ideology. The judge wisely took this position.  Once again, it's very difficult to interpret a real conflict of values here, as the just approach (as taken by the judge) is really quite apparent to the point of being virtually inarguable. Any reasonable backer of liberal contract law (and it should be clear that I am not one) would have to immediately concede that this is a case that their ideological assumptions and resulting logical deductions did not come to the right conclusion on, and should be acknowledged as grounds for exception. I may enjoy using this case as a means to poke fun of liberal capitalists with in the future, but it is obvious that no set of assumptions is perfect.[2] The conflict is consequently between justice and injustice, rather than between the liberal and socialist conceptions of property and labour.

            There is no comparable moral issue present in Cobbe that would necessitate the abandonment of liberalism in favour of socialism (at least for the purposes of the case). There was an oral contract involving land that was broken; this contract was not technically legal at the time it was broken. However, it is useful conceptually if we pretend that it was as that would let the judges choose between upholding the contract (proprietary estoppel) and awarding damages as a consequence of breach of contract. While the case also centers around the question of proprietary estoppel, whether the estoppel is granted or not is a purely financial question that cannot be coherently placed within a social context. Should the estoppel be granted, the "contract" is merely "upheld"; should the estoppel not be granted, the other party is "liable" for "breach of contract". These are all liberal concepts. They all have to do with the self-interest of self-interested parties. In the end, the judges opted for "breach of contract" rather than estoppel, and while that may have perhaps had something to do with perceived concepts of property rights, that doesn't place the ruling within a social context, or lack of one, at all.

            These are two very different cases, then, that lack a sound social basis of comparison. One discarded liberal contract law in favour of a just ruling, while the other did not have the opportunity to contemplate such a thing and accordingly followed liberal conventions.

---

[1] Engels, Socialism: Utopian and Scientific

[2] Godel, Incompleteness Theorem

LAWS 2202
Aug, 2012 

http://dghjdfsghkrdghdgja.appspot.com/thoughts/essays/marxwasatory.html

secularizing the foundations of tort law in 250 words or less

The 'Glorious Principle' of negligence liability is presented in the relevant case as an application of the ethic of reciprocity, cited here through the Christian filter of the Parable of the Good Samaritan. It is suggested that this can be converted into legal language by acknowledging the rule that we must take reasonable care to avoid any action, or lack of action, that may produce foreseeable harm to others who ought to be reasonably contemplated as being in the path of any harm that may result from such action or inaction.  Unfortunately, however, Lord Atkin's derivation from the ethic of reciprocity is not logically sound. The concept of negligence developed in the case suggests that we are liable to provide compensation for behaviour that causes foreseeable harm, not that we have a positive responsibility to help our neighbours when in need. In fact, the courts have since largely rejected the Good Samaritan principle as a basis for negligence. The moral concept of a duty of care seems, rather, to trace back to Kant. Something may also be said about negligence as a tort being an application of the social contract, which can establish the principle as an extension of classical negligence. Proudhon's concept of a contract tying us to each other directly is most applicable in context. In its most basic, however, it is simply another restatement of the many diverse harm principles; it simply states that we have an obligation to make an effort to not harm others.

LAWS 2202,
aug, 2012

http://dghjdfsghkrdghdgja.appspot.com/thoughts/essays/tort.html

Re: is a passport required for a nexus card? **13-40951**

From: Jessica Murray <death.to.koalas@gmail.com>
To: CBSA-ASFC_CONTACT <CBSA-ASFC.CONTACT@cbsa-asfc.gc.ca>

i appreciate the response, but you didn't come close to answering my questions.

is a passport required to apply for a nexus card? does having a nexus card come with an implicit assumption of having a passport? can a nexus card be used as a replacement for a passport?

maybe i'll give you a call tomorrow...

j

limited liability as class privilege

2) What are the two (2) principles that emerge from the UK House of Lords decision in Salomon v Salomon? 

            The two principles that emerge are that corporations are distinct legal persons and that corporations should have limited liability. In actuality, these already existed in statute; the ruling merely upheld them in case law.

            When we talk about "legal persons", we do not mean living, breathing human beings. These are sometimes referred to as "natural persons". The more general term, "persons", is attributed to anything, living or not, that is "capable" of having rights and duties. The legal fiction of a "legal person" arises from the state artificially assigning "personality" to an entity that is not a "natural person" for the purpose of assigning in "rights and duties" under the law. From a legal standpoint, then, a "legal person" is an entity of some sort that is not a "natural person" but that the law (tentatively) treats as a "person" anyways.

            Limited liability is a principle that states that those who invest within a company are not liable for any losses that the company incurs, excluding loss of dividends. This is meant to protect investors from lawsuits, debts and bankruptcy. It is often claimed that it was deemed desirable by some to protect investors from losses in order to encourage them to take risks in their investments, rather than to give them immunity from questionable business practices. However, the second motive logically follows from the first. There exists some jurisprudence that limits limited liability in certain extreme cases.

            I would like to interject something I've picked up from between the lines of the course material. To truly understand the legal separation between shareholders and corporations, we need not to seek answers in the world of classical economics and classical liberalism but in the world of corporatism, or right-wing collectivism, and if we are entering this world then we must analyze it through a Marxist filter. It is only by recognizing the class dominance inherent in lawmaking that such an arrangement can truly begin to make sense.

            The greater question here ought not to be related to investment but to the rule of law. By providing limited liability to investors and shareholders, and by limiting or eliminating personal accountability for crimes to individuals working within corporations, we are placing an entire class of individuals above the law. Limited liability was initially brought into law by a Liberal government, which in nineteenth century England represented the interests of business, in opposition to aristocratic Toryism and a still slowly developing workers movement. It is consequently a rather blatant enforcement of bourgeois class privilege. How could it come to be that the investor class came to legislate itself above the rule of law? How could it be that the courts could not only ignore the question altogether, but uphold the legislation under a 'supremacy of parliament' argument? Is parliament itself above the rule of law? These answers seem to have their resolutions in an understanding of the state as the protector of the interests of capital, rather than in seemingly contradictory propositions about reducing the role of government in the economy.

LAWS 2201
feb, 2013 

http://dghjdfsghkrdghdgja.appspot.com/thoughts/essays/salomon.html

legal rights for natural objects: de-regulation by stealth

b) Assuming that it is possible to expand our notion of legal persons beyond human beings and corporations, what are the benefits (or challenges) of extending legal personhood to the entities containing common pool resources such as rivers or trees (forests)? Should trees have legal personhood?

            While there are both benefits and challenges of extending legal personhood to common pool resources, I think this discussion needs to actually begin with a comparison of the proposed personhood approach with existing regulatory practices.

            On first glance, it may seem as though the idea of giving trees legal personhood is the ideologically opposite idea of setting up strong regulatory bodies. Legal personhood implies liberal individuality, while state regulation implies collectivist decision-making by a centralized body. The approach of legal personhood is even suggested as a solution to the problems inherent in regulatory bodies, which include co-option by the governing party as well as by the industry that the body is trying to regulate.[1] However, it's not at all clear exactly why it might be thought that a trust fund run by "guardians" would be any less susceptible to that kind of corruption. Would industry not also attempt to gain a controlling interest in the trust fund? Based on the experience we've had with industry influence over our elected bodies[2], not to mention the experience with looted aboriginal trust funds,[3] or the phenomenon of greenwashing,[4] it cannot be stated with much confidence that a democratic and transparent process would act as a buffer against industry influence, either. The possible ramifications of industry taking over these trust funds are actually quite startling. A lumber company would have a strong interest in becoming a guardian of the forest, whereas a drink bottling company would desire guardianship over water sources. Perhaps rules may be erected to disallow these conflicts of interest, but their enforcement depends on the existence of a functioning regulatory system, and if we are to argue that this is a reasonable hope then we have no need to shift to personhood in the first place! If the problem here is that regulation is ineffective, legal personhood is not a solution.

            Stone also points out that legal personhood has implications of responsibilities as much as it has implications of rights and that legal personhood for resources could consequently lead to judgements against the environment for negligence or harm.[5] While he optimistically suggests that this could lead to more equitable restitution and greater infrastructure, he does not contemplate how this could open up legal arguments and tactics that could be used to clear existing regulatory hurdles. It is possible, then, that the trust fund might not just fail to protect these resources from exploitation, but might also open them up to the possibility of even greater exploitation; should industry exploit the trust fund system as fully as it has exploited the regulatory system, the only difference between a trust fund and a regulatory body would be less public oversight.

            Perhaps the key point to this derived equivalency between granting personhood and applying regulation is the existence of a system of control. One of the key concepts to legal personhood - even for legal persons that are not natural persons - is self-determination. It is arguably rationally incoherent - at least linguistically - to give an entity personhood and then deny it self-determination by assigning it to the subservience of some other disconnected sentient will. A corporation can make its own decisions and express it in language that humans can understand; if a forest has a level of consciousness, it is unable to express it to us.[6] Any attempt to protect these resources is consequently going to behave as a regulatory body. The only difference can ever be who is regulating - and who is regulating the regulators.

            Stone also ignores the question of how effective a system of tort would actually be in protecting resources, and even implicitly suggests that it wouldn't be effective at all by salivating over the restitution that such a fund would be able to ensure.[7] A large trust fund held for the resource would be proof that this approach has failed in preventing harm, not something to celebrate. Currently, large companies tend to view litigation as little more than the cost of doing business.[8] If a cost-benefit analysis concludes that the consequences of destroying the river are less than the profit that could be increased by destroying the river then the river will be destroyed and the fine for doing so will be paid.

            While the tone here is so far quite cynical, that should not suggest that the switch to legal personhood may not have benefits. It is likely to give people that use or need resources a greater say in how or whether they are protected.[9] While increasing the costs of pollution may be more likely to increase inflation than decrease pollution, it would still act as a competitive disincentive to pollute more than is necessary.[10] Introducing the language of rights to the environment would likely change our conception of nature for the better.[11]

            However, the actual change in regulatory practices is likely to be minimal - as the regulation of the resource would merely shift from the public to the private domain, giving legal personhood to resources seems like little more than another form of deregulation.

---

[1] Sierra Club v. Morton at Casebook 425

[2] http://www.polisci.ccsu.edu/trieb/InfluGov.html

[3] DeVries, Laura. Conflict in Caledonia: Aboriginal Land Rights and the Rule of Law. UBC Press, 2012. p. 37.
<http://books.google.ca/books?id=0KRGpyO7DncC&pg=PA37&lpg=PA37&dq=six+nations+trust+fund+stolen&source=bl&ots=W3gnCfQtYw&sig=AYfZ3r2dM-uRNc37_rIghSLXV0E&hl=en&sa=X&ei=VDF8UbqqDcnX0gHG94GwBg&ved=0CFIQ6AEwBA#v=onepage&q=six%20nations%20trust%20fund%20stolen&f=false>

[4] http://www.youtube.com/watch?v=iHsIjMPP2M8

[5] Stone at Casebook, 432

[6] http://www.huffingtonpost.com/2012/06/05/do-plants-think-daniel-chamovitz-see-feel-smell_n_1571027.html

[7] Stone at Casebook, 431-432

[8] http://www.maacenter.org/blog/death-the-cost-of-doing-business.html

[9] Stone at Casebook, 430-431

[10] Stone at Casebook, 432

[11] Stone at Casebook, 432

laws 2201
april, 2013 

http://dghjdfsghkrdghdgja.appspot.com/thoughts/essays/standingtrees.html

natural law theory in the context of christian patriarchy

4) Looking at the Susan B. Anthony case, the Myra Bradwell case, and Edwards et al (The Persons Case), discuss the relationship between legal personhood, public rights, and self-determination.

            In the Susan B. Anthony case, the issue before the judge was whether or not the defendant "knowingly" cast an illegal ballot. Try as I may, I cannot find any evidence that women were not considered to be 'legal persons' under American jurisprudence, although archaic common law of the sort no doubt exists in the United Kingdom. Rather, it seems to be that the restriction that kept women from voting was cultural/religious in nature, ultimately stemming from Christian dogma that places women as subservient to men. What I mean to say is that this appears to come primarily from ecclesiastical law and cultural tradition, rather than common law or legislated law. There does not appear to have been any sort of definition on the topic, nor any enacted legislation, that explicitly prevented women from being legal persons. Nor does the fourteenth amendment state that existing cultural traditions should be modified. Further, when the nineteenth amendment was finally constructed, it commanded the states not to deny suffrage on the basis of sex - an admission that the right was always there in the first place, but that it was being unconstitutionally withheld. I consequently see no option but to reject the idea that the Anthony case had anything to do with legal personhood; rather, it seems to have had to do with traditional societal gender roles, as enforced by Christianity - it was against the norms that Christian society upheld, rather than against any secular law.

            That being said, ecclesiastical law certainly places women as subservient to men and, whether the precise language was being used or not, a strong parallel is possible. Can we move beyond the point of acknowledging the parallel abstractly? In later years, Susan B. Anthony would use the same kind of language as in the 'persons' case, but she seems to have either been reading very heavily into the existing legal material, or drawing on ideas taken from overseas. Does that allow a revisionist reading into the case that constructs the language of legal personhood? To do so would be to ignore the greater context of a judicial system that would overrule secular law with ecclesiastical law, citing the supremacy of God. Women were already legally persons, and already legally citizens, but this was irrelevant in the face of church law. Unfortunately, Miss Anthony's own religious leanings had her prefer to study English jurisprudence and import the language of a foreign country rather than confront the religious fundamentalism that denied her the basic rights that the state had granted her. So, taking this approach is illusory and cursory; it obscures the real issue of dogma trumping secular law, in a state where the separation is supposed to be constitutionally protected.

            Whether voting is an effective means of change or not, it is considered a public right. I cannot, however, entertain the idea that there is any connection between voting and self-determination: this is a bourgeois fantasy that cannot be responsibly upheld. So, while the case draws a clear connection between legal personhood and public rights, it is only within the context of taking part in the meaningless ritual of voting, and does not really address self-determination in any meaningful context. Given that Miss Anthony appears to have been upper class, class being the true factor of self-determination, self-determination doesn't seem to be something she lacked, whether she could legally vote or not. Rather, her aim seemed to be to fight for the right of women to be equally complacent in their slavery as men. An anarcha-feminist critique of Susan B. Anthony would argue that she should have been fighting to abolish statist hierarchy, not fighting for the right to periodically validate it.

            There is not really any coherent connection between legal personhood, public rights and self-determination in the Anthony case. In the United States, women were legal persons the whole time and voting has nothing to do with self-determination.

            The Bradwell case deals with a more substantive issue, that of admission to the bar, or, more generally, employment. The right to equal opportunity for employment is certainly connected to self-determination, especially in the context of women living more than a century ago, as denying the ability to raise an income was, at the time, equivalent to enforcing patriarchal dominance; if women could not work, they could not survive outside of marriage. Yet, there is still no connection to legal personhood. At no point does the judge deny that Bradwell is a legal person, or has rights stemming from that. Rather, the judge again enforces Christian patriarchy and natural/ecclesiastical law, rambling away about the proper place of women, who are unfit for serious work by nature of being created unequal. So, again, we cannot see the connection between legal personhood, public rights and self-determination - except to point out that the ability to secure employment is fundamental to self-determination in a society built on labour contracts. We can only see the effects of an incomplete separation between church and state.

            The Canadian "persons case" is another matter altogether. Here, it was claimed that females could not be appointed as senators because they are not legal persons - a clear and unambiguous argument rooted in constitutional law, rather than natural or ecclesiastical law. This was upheld in Canadian courts by a literal interpretation of the constitution. In what was perhaps the first substantive post-modern legal analysis, the Privy Council over-turned it by finding a contradiction embedded within the language of the constitution. Once it was established that women were indeed legal persons, their public right to hold public office followed automatically, constructing a clear connection between personhood and rights. Yet, might things have been different in Canada had it not been populated primarily by loyalists fleeing religious fundamentalism, if there was a weaker separation of church and state or if certain denominations had become established? The connection is legally clear, but seems tenuous in practice, by the American example, at best; beware of the power of natural law theory to overrule positive law.

LAWS 2201
feb. 2013 

http://dghjdfsghkrdghdgja.appspot.com/thoughts/essays/naturallaw.html

socializing corporate responsibility

5) introduce the idea of “piercing the corporate veil”.  What does this mean?  How would it function in the private law model proposed by Neyers?

            Piercing the corporate veil refers to the process of legally regulating and scrutinizing the actions of individuals near the top of the corporate hierarchy, in an attempt to establish personal liability for their actions. Neyers' model seems to be focused on the idea of reasserting liberal contract theory on an absolute basis. He wants to hone in on the individuals responsible for crimes or negligence and ensure that they properly compensate those who need it. The legal fiction of corporate personhood has at times made this difficult, providing a safe haven for guilty or negligent individuals to hide behind.

            While he claims that corporate law is incoherent, his proposals are no more coherent. Is it not well understood that the socialization of production makes individual responsibility impossible? Not one person within the corporate hierarchy can look at a decision and say "this is my decision". Everything happens through a complex chain. The idea of separating all interactions into contracts as he is proposing, then, is literally impossible, as no individual can take responsibility for any specific action or inaction. It would lead to complex chains of co-workers suing each other, cripple the court system with cases and ultimately negate the viability of socialized production altogether. While we're at it, would Neyers like us to uninvent the steam engine?

             Neyers claims he does not understand why the corporation should be treated as a single entity, rather than a collection of parts; the reason for this is the socialization of production. As the socialization of production renders individual production impossible and necessitates collective ownership of the means of production, so too does it render individual liability impossible and collective ownership of all contracts.

            In practice, this is not effectively enforced due to the legal protections that the bourgeoisie has constructed for itself. However, the solution cannot be in pre-industrial social relations; this proposal is simply absurd. We must look to the future for solutions, not the past.

LAWS 2201

Feb, 2013

http://dghjdfsghkrdghdgja.appspot.com/thoughts/essays/corporateresponsibility.html

installation file:
FileFormatConverters.exe

RE: is a passport required for a nexus card? **13-40951**

From: "CBSA-ASFC_CONTACT" <CBSA-ASFC.CONTACT@cbsa-asfc.gc.ca>
To: "Jessica Murray" <death.to.koalas@gmail.com>

You may qualify to participate in NEXUS if you are a citizen or permanent resident of Canada or the United States and have lived in Canada and/or the United States continuously for the last three years.

You may not qualify if one of the following applies:

•    you are inadmissible to Canada or the United States under applicable immigration laws;
•    you intentionally provide false or incomplete information on your application;
•    you have been convicted of a serious criminal offence in any country for which you have not received a pardon (for U.S. background checks you may be questioned about your full criminal history, including arrests and pardons, which may exclude you from NEXUS);
•    you have a recorded violation of customs, immigration or agriculture law; or
•    you fail to meet other requirements of NEXUS.

Effective June 30, 2012, Canadian and American citizens living outside of Canada or the United States or who have recently returned to either country and have not previously been able to meet the three-year residency requirement are now eligible to apply. In addition, certain permanent residents are also exempted from the three-year residency requirement. For further information on any of the above, please visit the NEXUS Web site at:
http://www.cbsa-asfc.gc.ca/prog/nexus/elig-admis-eng.html 

Both Canada and the United States must approve your application for you to become a member of NEXUS. If you do not meet all of the requirements, your application will be denied.

Should you require additional assistance, we recommend that you contact the nearest NEXUS Enrolment Centre. A directory is available at:
http://www.cbsa.gc.ca/prog/nexus/location-eng.html 

Also, you may contact the following NEXUS Canadian processing centres during regular business hours:

•    1-866-496-3987 for British Columbia, Alberta, Saskatchewan and Manitoba residents
•    1-800-842-7647 for Ontario and United States residents
•    1-866-399-5887 for Quebec and Atlantic residents

Should you wish to obtain more information on NEXUS, we invite you to consult the Canada Border Services Agency Web site at:
http://www.nexus.gc.ca

Thank you for your interest in the NEXUS program.

http://phys.org/news/2013-10-power-sea-triboelectric-nanogenerator-energy.html
http://antigoldgr.wordpress.com/2013/10/14/greece-anti-mafia-law-is-used-to-suppress-civil-resistance-to-destruction-of-the-historic-and-natural-environment/?utm_source=twitterfeed&utm_medium=twitter

http://truth-out.org/news/item/19444-another-us-whistleblower-behind-bars-investor-jailed-after-exposing-corrupt-azerbaijani-oil-deal

http://drezner.foreignpolicy.com/posts/2013/10/15/hipster_global_political_economy
http://truth-out.org/opinion/item/19317-the-sad-but-very-serious-tale-of-the-right-honorable-saboteur
http://unsr.jamesanaya.org/statements/statement-upon-conclusion-of-the-visit-to-canada
http://www.washingtonpost.com/world/middle_east/egyptians-try-to-draft-gen-sissi-for-president/2013/10/15/118f52d0-34f0-11e3-be86-6aeaa439845b_story.html

https://www.wsws.org/en/articles/2013/10/14/brig-o14.html
https://www.wsws.org/en/articles/2013/10/14/mod-o14.html
http://truth-out.org/opinion/item/19356-the-answer-to-the-great-question-of-education-reform-the-number-42

hippies were mostly morons, and they screwed a lot of things up with their badly researched, ideologically-driven policies. rather than romanticize this period, we should be working hard to erase it.
http://phys.org/news301057992.html

is a passport required for a nexus card?

From: Jessica Murray <death.to.koalas@gmail.com>
To: contact@cbsa.gc.ca

hi.

i've just moved to windsor. i'd like to get the proper documents to be able to go over to detroit to see some concerts. nothing particularly difficult in the request.

however, i'm finding the reference requirements to obtain a passport to be very difficult. i just don't know a lot of people, nor do i know anybody that could act as a 'guarantor'. finding two references is difficult enough; four is virtually impossible for me. that's not a reflection of my fitness for very short-term cross-border travel, though, it's just a reflection of my social skills.

in searching for alternatives, i've found the nexus card. it seems like this process interviews me directly, rather than asking me to provide references. that's a process that is better suited for me to go through.

i'm just a little confused as to whether a passport is required to apply for a nexus card. i have a valid birth certificate, a valid health card, a valid sin card and various other things (although i never took the time to learn to drive, and consequently don't have a driver's license). i'm unclear as to whether the application is requesting a passport AND a birth certificate or a passport OR a birth certificate.

i'm also a little confused about the longer term usefulness of the nexus card. i've read some things online that suggest that, should i be stopped, i would be asked for a passport. yet, i'm looking to get the nexus card because i can't find the references to get a passport.

so, i guess the question i'm asking is if a nexus card is something i could use as a valid replacement for a passport in the context of just going over for a few hours to catch a show and then coming back.

j

there may be a way around this. there’s a thing called a NEXUS card that’s designed for “low-risk” cross-border travel, and relies on a personal interview rather than a set of references.

Jessica Amber Murray
hi. you guys have passports, right? could i use one of you as a "guarantor"? i just want to be able to go over to detroit to catch the odd concert. the process to be "allowed" to do that seems really ridiculous, but this is how things work... i hope things are going well with you guys. life here has been different. i went into a little bit of a funk when i got here (the whole process of moving here was just really overwhelming, with everything happening all at once), but i'm starting to get out of it. really, i'm glad i had the time away from people and free of external pressure to reflect, heal and adjust - and enough things to d to keep my mind occupied. it's what i needed. but, yeah, if i can use you as a guarantor it would make this process a lot easier. as it is, i'm going to have to rely on some documentation and argumentation...

The Oldest Aunt’s Wife
no passport enhanced driver license would that help

Jessica Amber Murray
no. i don't even have a g-1. thanks anyways...

The Oldest Aunt’s Wife
no will a enhanced help you get a passport

Jessica Amber Murray
no. or at least i don't think so. i should probably check to make sure though.

The Oldest Aunt’s Wife
we can help

is it an identity

you can put us down as knowing you

Jessica Amber Murray
i'm sorry, i'm not understanding the question. i have two choices. i can get a guarantor (somebody with a passport, i'll check to see how flexible that definition is) + 2 references or i can just go with 4 references. reality is i have 0 references, so going with the guarantor would make it a lot easier to further argue with odsp documents, etc.

i could use you as a guarantor, but not a reference, because you're family.

The Oldest Aunt’s Wife
what does a guarantor have to do

Jessica Amber Murray
i'm under the impression that a guarantor is simply somebody with a passport, and that itself is enough to act as a reference. i have to look further into that... very little of this process is making sense to me, so i'm not really expecting to find a valid purpose or explanation.

The Oldest Aunt’s Wife
let use know if we can help

Jessica Amber Murray
i will, thanks.

again, this country of dipshits, the mentally challenged descendants of lumberjacks that we are, can only comprehend the issue in terms of fiscal oversight. we're simply unable to follow the plot.

this was supposed to replace a universal child care system. experts and non-experts alike pointed out that it was probably the dumbest possible way to approach the issue. the handout money couldn't cover childcare costs, it was going to everybody (including people that didn't need help in paying for childcare) and it seemed to come packaged with a barefoot-and-pregnant approach to women's role in society. it was an across the board tax cut that was too small to accomplish any of it's stated and unstated objectives.

a prominent liberal strategist realized how stupid the proposal was and suggested the money would be wasted on 'beer and popcorn'. our zombie press jumped all over the comment as insensitive, without stopping for a moment to analyze whether it might actually be *accurate*.

now, we're standing here wondering where the money went. was he perhaps on to something?

buffoons, the lot of you.

http://www.thestar.com/news/canada/2013/10/15/is_canadas_100amonth_childcare_benefit_being_spent_well.html

none of you understand what he's saying. that's why you don't have nobel prizes and he does.

"It can't be true that homes rise 10 percent a year. If they did, in the long run no one would be able to afford a house."

well, you have to balance that off against inflation and, most importantly, what is now a really devastating level of wage stagnation. suppose wages go up 20% a year, and inflation is around 11%. the 10% rise in housing would merely almost catch up with inflation.

as it is, wages have been shrinking relative to inflation since about 1980. what that means is that, year after year, people have had less and less money. the value of the house may go up and down on paper, but that's precisely what the cause of the bubble was. it wasn't because the banks gave out too many loans. it wasn't because of deregulation (although the lack of regulation helped *burst* the bubble). it's because housing cannot increase while relative wages decrease; stagnating wages necessarily imply collapsing housing costs.

you can sit there and go "but....but...."

...but, no. you're wrong. the younger generation will not be able to afford the price you put down for your house, let alone the magic interest that built up on top of that. you need to realize that and adjust before you get burnt.

http://www.theatlanticcities.com/housing/2013/10/economist-who-just-won-nobel-prize-thinks-housing-terrible-investment/7240/

i really don't have the slightest idea just how big this sprawling metropolis in front of me actually is.

http://dc.streetsblog.org/2013/07/22/how-sprawl-got-detroit-into-this-mess/

(the corporate tax cuts spurred on by neo-liberal nonsense couldn't have helped)

the new ranaldo disc is really stellar, btw.

this is such ridiculous theatre. as if congress is going to not pay the bank.....lol....

http://blog.foreignpolicy.com/posts/2013/10/15/what_happens_to_the_global_economy_if_the_us_defaults_economists

more likely is that he just got bought out and we can expect something along the lines of "alex jones for literate people".

i really wish they'd stop referring to him as left-wing. i know he hates that. and, as a leftist, i find it annoying in the sense that it really narrows the spectrum of acceptable thought.

like, if greenwald is as far left as the spectrum goes....

the sad thing is that that's actually the case and i'm buckling up against a surreal reality.

http://blog.foreignpolicy.com/posts/2013/10/15/glenn_greenwald_leaves_guardian_to_start_news_site