Showing posts with label philosophy. Show all posts
Showing posts with label philosophy. Show all posts

Science is not value-neutral

Thursday, July 15, 2010





And so does social ‘sciences’ and the law.

Picture: Taken from The Copenhagen National Museum

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Four Ways to Fix a Broken Legal System?

Thursday, May 6, 2010

From Ted:


1. You've got to judge law mainly by its effect on the broader society, not individual disputes.

2. For law to be the platform for freedom, people have to trust it.

3. Law sets boundaries, and on one side of those boundaries are all the things you can't do or must do. But those same boundaries are supposed to define and protect a dry ground of freedom.

4.To rebuild the boundaries of freedom, two changes are essential: (i) simplify the law and (ii) restore the authority to judges and officials to interpret and apply the law.

Philip continued:

We have to simplify the law. We have to migrate from all this complexity towards general principles and goals. The constitution is only 16 pages long. Worked pretty well for 200 years. Law has to be simple enough so that people can internalize it in their daily choices. Here is the hardest and biggest change. We have to restore the authority to judges and officials to interpret and apply the law. interpret and apply the law. (Applause) We have to rehumanize the law. To make law simple so that you feel free, the people in charge have to be free to use their judgment to interpret and apply the law in accord with reasonable social norms. As you're going down, and walking down the sidewalk during the day you have to think, that if there is a dispute, there is somebody in society who sees it as their job to affirmatively protect you if you are acting reasonably. That person doesn't exist today.

You know what, I asked futurist David Brin once, and he told me that the law of the future will only have one or two articles.

With a little reflection thanks to Star Trek, I think the law of the future will only have one article.

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The rivers are our brothers

Tuesday, August 11, 2009

Here's a quote from what is believed to be a speech of the Indian Chief, Seattle. If you are familiar with property rights theories and the tragedy of the commons, this speech offers another perspective in looking at the environment.

How can you buy or sell the sky, the warmth of the land? The idea is strange to us. If we do not own the freshness of the air and sparkle of the water, how can you buy them?

Every part of this earth is sacred to my people.

Every shining pine needle, every sandy shore, every mist in the dark woods, every clearing and humming insect is holy in the memory and experience of my people. The sap which courses through the trees carries the memories of the red man.

The white man's dead forget the countryof their birth when they go to walk among the stars. Our dead never forget this beautiful earth, for it is the mother of the red man.

We are part of the earth and it is part of us.

The rocky crests, the juices in the meadows, the body heat of the pony, and man--all belong to the same family.

So, when the Great Chief in Washington sends word that he wishes to buy land, he asks much of us. The Great Chief sends word he will reserve us a place so that we can live comfortably to ourselves.

He will be our father and we will be his children. So we will consider your offer to buy our land.

But it will not be easy. For this land is sacred to us.

This shining water that moves in the streams and rivers is not just water but the blood of our ancestors.

If we sell you land, you must remember that it is sacred, and you must teach your children that it is sacred and that each ghostly reflection in the clear water of the lakes tells of events and memories in the life of my people.

The water's murmur is the voice of my father's father.

The rivers are our brothers, they quench our thirst. The rivers carry our canoes, and feed our children. If we sell you our land, you must remember, and teach your children, that the rivers are our brothers, and yours, and you must henceforth give the rivers the kindness you would give any brother.

This part criticizes the "white man":

We know that the white man does not understand our ways. One portion of land is the same to him as the next, for he is a stranger who comes in the night and takes from the land whatever he needs.

The earth is not his brother, but his enemy, and when he has conquered it, he moves on.

He leaves his father's graves behind, and he does not care.

He kidnaps the earth from his children, and he does not care.

His father's grave, and his children's birthright, are forgotten. He treats his mother, the earth, and his brother, the sky, as things to be bought, plundered, sold like sheep or bright beads.

His appetite will devour the earth and leave behind only a desert.

I do not know. Our ways are different from your ways.

The sight of your cities pains the eyes of the red man. But perhaps it is because the red man is a savage and does not understand.

There is no quiet place in the white man's cities. No place to hear the unfurling of leaves in spring, or the rustle of an insect's wings.

But perhaps it is because I am a savage and do not understand.

This part is teological prediction:

One thing we know, which the white man may one day discover, our God is the same God. You may think now that you own Him as you wish to own our land; but you cannot. He is the God of man, and His compassion is equal for the red man and the white.

This earth is precious to Him, and to harm the earth is to heap contempt on its Creator.

This one, predicts the fall of the "white man":

The whites too shall pass; perhaps sooner than all other tribes. Contaminate your bed, and you will one night suffocate in your own waste.

But in your perishing you will shine brightly, fired by the strength of God who brought you to this land and for some special purpose gave you dominion over this land and over the red man.

That destiny is a mystery to us, for we do not understand when the buffalo are all slaughtered, the wild horses are tamed, the secret corners of the forest heavy with scent of many men, and the view of the ripe hills blotted by talking wires.

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Hyperregulated Society and Its Discontents

Sunday, July 5, 2009

I have been reading Habermas theory of Juridification and the colonization of lifeworld. I came across my old article arguing in the same line.

Hyperegulated Society and Its Discontents
Mohamad Mova Al ‘Afghani*

The Jakarta Post,
Opinion and Editorial - June 28, 2005.

The recent National Legislation Program (Prolegnas) meeting listed 83 (eighty three) draft Laws to be enacted in the year 2006 and 53 draft Laws for the year 2007-2009. Interestingly, plenty of these draft Laws refers to non substantial issues.

Since 1999, there has been a trend toward “regulating everything”. Creating plenty of Laws or Undang-Undang is regarded as some sort of achievement and thus, promoting a step toward a modern and sophisticated society.

What went wrong with this paradigm is judging the modernity of a society by the number of regulations it creates. Laws can be plenty, but the question is, will enacting more laws guarantee its compliance? The more important question that should be raised is, do we actually need those Laws? Will those laws benefit the society if enacted?

Indonesian legal system recognizes hierarchy of rules ranging from the Constitution, Laws (Undang-Undang) and Government Regulations in lieu of Law (Perpu), followed by Implementing Regulations that consists of Government Regulation (Peraturan Pemerintah), Presidential Regulation (Perpres) and Regional Regulation (Perda). There had been around 8,000 something of such regulations so far. That figure still excludes bilateral treaties to which Indonesia is a party and sectoral regulations. A note must be taken that with the wake of decentralization, regions will enact regulations more often. If there are 400 cities/regencies in Indonesia and each of them creates 10 regional regulations per year, then there might be an addition of up to 4,000 regulations per year.

We should not be proud of enacting plenty of laws Laws. Every creation of new law – irrespective of its forms -- is basically limiting human’s liberty, as what is previously unregulated becomes regulated and restricted. Today, we find that everything that can be regulated will be regulated. There is a Law for everything, from Advocate to Notaries to Medical Practice to Road to Water Resources. If the Prolegnas goes as planned, we will have Laws on Agrarian Resources, Land Rights, Mass Organization, Auction, Fishery Court, Postal Service, Technological Audit, Trade, Precursor, Nurse Practice, National Heroes, Pharmacy Practice, Protection of Personal Data and Riverbanks, just to name a few. Perhaps in 30 years, the question will no longer be “what is the regulation”, but, “what is not regulated”.

What kind of society that wishes everything to be regulated? This question can only be answered by sociologist and social psychologist, but, what can be inferred from this phenomenon is that there is a tendency which assumes that legal certainty and social justice will be materialized if the rule of the game is written on paper.

Writing and defining things on paper does not ensure the materiality of social justice. The more something is defined, the more loopholes it creates. One does not need to study linguistic to know that words will be never be sufficient to describe reality. Laws attempts to limit an understanding through its provisions but what it failed to describe becomes a loophole for those who wish to bend the law.

Not only that more Laws mean more restrictions and more loopholes, more Laws also mean more bureaucracy. New Law creates new social institutions, new “councils”, new “boards” and new “committees”. Existing Laws already creates bodies such as the Indonesian broadcasting commission, the Truth and Reconciliation Commission, a National Water Resources Council and the Toll Road Regulatory Agency. Let’s not forget that these new bodies create implementing regulations and oftentimes, approve licenses too. These bodies also needs funds to operate, these funds are allocated from the State Budget. So, more Laws also means more expenses for the State Budget and more expenses for the public, as licenses generally require “administrative fees”.

The law is always one step behind science and technological improvements. If this year we create 83 Laws, in the next 5 years, those Laws would be obsolete and needs to be amended. In that regard, the House of Representative might be required to enact 83 amendment Laws to cover the outdated Laws. This would eventually leads to the inefficiency of the House of Representative’s work.

Also, more Laws means more distance with the people. Lay people generally do not understand legal technicalities and thus tends to be alienated from the Law itself. The happiest people that gained benefit from hyperegulation are of course, the lawyers. More Laws means more jobs for lawyers.

There are solutions that can probably limit the negative effect of or even avoid hyperegulation.

First, enactment of Laws shall be permitted only to address issues that are really necessary or to amend the existing Laws which are deemed to be imperfect. Laws that are enacted should be broad and all-encompassing. Details can be left to Presidential Regulations (Presidential Regulations made as an attribution power under Article 4 of the Constitution) or other Implementing Regulations. In addition to that, enactment of Laws must be accompanied by publication of its preparatory works. Today, when we find ambiguous article in a Law, we look at its elucidation. Unfortunately, oftentimes the elucidation only say “sufficiently clear” and leave us puzzled by what the legislator really meant. To overcome this, The House of Representative’s Secretariat General must prepare the travaux preparatoire (preparatory documentations during HoR member debates in enacting Laws) so that readers will be able to understand what has been discussed during the sessions. This will also be useful for judges as one method in interpreting the provision of the Law.

Second, turn to the court. Let judges ‘make’ law, instead of only citing provisions of a code and decides sentencing. To answer legal questions, one will be required to have adequate legal reasoning capability and understands the methods of legal interpretation. To this extent, the legal education needs to include interpretation theory into its curriculum. What must not be neglected is that the court is not only asked legal questions. Aside from that, the Court are supposed to determine what is just, thus, the Court are supposed to answer ethical question which completely have a different method of reasoning compared to legal reasoning. Judges must then knows methods of ethical reasoning and implement game theories in their decisions, such as “the maximin rule”.

Third, promulgate the Laws, travaux preparatoires and Implementing Regulations. The legal science recognizes the “legal fiction” that everyone is deemed to have known the law. A person cannot say that he shall be excused from his wrongdoing simply because he has no knowledge that his action or omission is forbidden by the law. This is what underlies the creation of the promulgation institution, the public needs to be told what regulations that restricts them. During the kingdom age, the promulgation is done by the king by sending its men to public places, sound the goong or trumpet and announce the king’s newly enacted law. After independence, Emergency Law Number 2 Year 1950 on the Publication of State Gazette (Lembaran Negara) and State Report (Berita Negara) through its article 2 obliges the Laws to be published in the State Gazette in an Octavo-sized Paper, while other important state announcements shall be placed in a State Report in a legal-size paper. This law has been revoked by Law No. 10 Year 2004. Unfortunately, Law No. 10 failed to address clearly on how the dissemination shall be made. However, as governmental offices already uses word processors, it would be reasonable to assume that one method of effective dissemination is by utilizing the internet, through an official-integrated law information website. The government has done so through several websites but this has been done without proper coordination and is rarely updated.

Fourth, instead of making highly detailed Implementing Regulations regulating for how many days an application shall be submitted and the sizes of photographs it should attached, transfer administrative matters such as licensing or approving things to computer software. The era of rubber stamps has nearly ended. Application forms and licenses approvals shall be available on-line. This will cut bureaucratic red tapes and end unnecessary bureaucratic “extra costs”.

Finally, the paradigm shall be shifted, a good society cannot be measured from the amount of regulations it has created. A good society is a society that has few laws but is effective, as it served their philosophical, juridical and teleological purposes. The best society – the civil society -- is in the other hand, a society that can coexist peacefully without law or any other form of coercion that intimidates them.