Monday, 27 October 2014

07:49 - No comments

Legal Pluralism




§    Legal pluralism is the simultaneous existence and operation of various legal system in the society/societies  meaning having to co-exist together
§    According to Glenn in his book he provided for the 7 major legal systems of the world
v   Chthonic
v   Talmudic
v   Islamic
v   Common law
v   Civil legal tradition
v   Asian legal tradition
v   Hindu legal tradition
§    The three major legal systems would be the common law; civil law and religious or moral legal system

MALAYSIA
§    Malaysia aspect of legal pluralism can be seen where we mix 3 type of different legal system; the common law, Islamic law and customary law
§    Look at the Law Reform Marriage and Divorce Act 1976 issue as example
§    Look at the Malay Adat both pepatih and temenggung as example and issue of polygamous marriage
§    Whether Islamic law or malay adat will prevail if there is contradiction between these two?
§    Malay adat comes from various sources example hindu concepts
§    Malaysia still follow largely the common law legal tradition in constitutional matters

BURMA
§    Burma has 3 combinations as well; the military authorities, British colonial legacy and the customary law which is to protect and applied only to Buddhists in Burma
§    Burma has lesser features of the common law as compared to Malaysia or Singapore or even India especially in constitutional matters
§    Burmese customary law mainly applicable to Buddhist in matters of family law such as marriages, divorce, adoption and succession
§    Can use the example of Maung Kyo Gi case on marriage issues and the scope does not only cover married couples
§    Section 13(1) of Burma Laws Act 1898 says that parties who are Buddhists must be decided based on the Buddhist law and other religion based on their own religious customary law
§    Burma has not make a single family law act that governs everyone generally despite religion unlike Malaysia’s step in the LRMDA 1976
§    Burmese customary law mainly to apply to Buddhist therefore there was previously the official law called ‘Burmese Buddhist Law’ but the chief court of the state provided that it is not directly from Buddhism therefore should not be called so hence they named it later called Burmese Customary law
§    Because Buddhism don’t specifically regulate on adoption, divorce, inheritance and succession what not
§    Burmese customary law applicable to:
(1) Burmese Buddhist citizens of Burma
(2) non-Buddhist man who are married to or cohabitated with Burmese Buddhist women in matters of family law
§    Special Burmese Buddhist Women Marriage Protection Act (SBBWMPA) was enacted to govern on family matters where it provided that the matters are to be decided based on the Dhammathat or Buddhist law
§    Case of Daw Kyi Kyi v Mrs Mary Wain (1971)  - where deceased Christian man here, his second wife is a Buddhist

AUSTRALIA
§    Predominately common law country with less diversity of legal pluralism
§    Australia had aborigines before the British settlement in 1788 and therefore practiced own customary law
§    Australia recognized very few of the customary law example the ‘pay back’ concept for those whose family members were murdered
§    13th September 2007, UN general assembly adopted Declaration on the Rights of Indigenous People where countries such as; Australia, NZ, US and Canada however voted against the adaptation
§    Concerns: customary law of the indigenous people would be or should be accorded full recognition

OTHER EXAMPLES
§    Sri Lanka has mixture of roman-dutch legal system (deriving from civil law) and English common law
§    Philippines mixture of Spanish civil law and common law of the American version
§    Thailand and Japan did not inherit any civil or common law legal tradition because never colonized but have mainly the elements of civil legal system though


07:45 - No comments

Hobbes, Locke & Rousseau







HOBBES
LOCKE
ROUSSEAU
1588 - 1679
1632- 1704
1712 - 1778
Believes in state of nature. (As Prof comment this can probably be in consistent with Garden of Eden.
Disagrees with Hobbes on the state of nature of the negative view Hobbes take on pre-civil society. Locke takes positive view of society calling it the golden age and not state of horror.
French Philosopher.

Form of social contract:
Mystical construct where individual merges into a community and becomes part of general will.
Form of social contract is:
A war of every man against every man where everything is brutal, poor, nasty and poor.

2 branches of the social contract:
(1)          Pactum Unionis – where man entered a pact to respect each other’s life and property
(2)          Pactum Subjectionis – where obey the government which are elected by the people in consideration of protection of the property and lives.
Theories influenced the founding fathers of United States and America Revolution (where it influenced the drafting of United States Declaration of Independence by Thomas Jefferson)

Prof comment: those chthonic views are of early humans may be found in Marx’s time or primitive communism.

Marx believed in having no class = no personal/private property. Not consistent with Locke’s argument.  

Locke argues that lack of protection of  personal property with lead to social contract
Law is the register of general will and governments can only be tolerated so long as it accurately reflects the general will.

Whoever refuses general will shall be compelled by force.

He believes that disobedience is illegitimate and that it is a failure to discharge moral obligation of a citizen.

Compare this position to Socrates & Acquinas.
Believes in the concept of self-preservation as the greatest lesson of natural law.
Form of social contract: giving up his liberty to sovereign and the government to protect the entitlements.
Rejected theory of representative government (agreed by both Hobbes and Locke)
Citizen must give absolute and unconditional obedience to the law.
Locke see it that pre civil society man in contrast to Hobbes – have both natural right and duties as creatures of God.

Men have the responsibility to hold other men responsible for breaches under his natural law which example right to property.  

Locke is worried for the increase of coercive power and danger off abuse of power through this concept of social contract giving entitlement to sovereign (give today’s situation as example)
Every law the people has not ratified is null and void. Meaning here he requires direct participation of the law and the people.

If one doesn’t accept and follow the law will be considered to be null and void.

His theory of general will if that is the case would replace the natural law standard making it even higher. Natural law requires unconditional obedience to sovereign.
His general will argument would make the strongest argument for democracy and totalitarianism.
Sometimes also known an authoritarian therefore the conflict against the theory of natural law because there should be a higher law.
Book of Two Treaties on Government:
-      Men put trust on sovereign to rule and if trust betrayed would amount to overthrown.
-      Meaning Locke agree to revolution when there is the issue of just and unjust law  to overthrown the sovereign if there is clear threat of  estates(properties), liberties (general rights) and lives of majority (people)
-      Can cross refer to Acquinas view similar
-      And cross refer to Fuller’s view
-      Example Russia, France  
Representative government:
A form of government when the powers of the sovereignty are delegated to a body of men, elected from time to time, who exercise them for the benefit of the whole nation.
Compare Antigone’s and Hobbes attitude
Locke said disturbing government is breach of law of nature but can do so when people are oppressed because of the unjust tyrants = therefore it becomes a right to every human in such scenario to resist and revolute.

Revolution is not the act of revenge but restoration of political disorder.

Hobbes doesn’t want to recognize the legitimacy of civil rebellion and taking it as invalid and illegitimate. Meaning people cannot rebel against the state
See example of American & French revolution both did not restore old order of the system.

Later:
The Great October incident of Russia (1917)   Chinese Revolution (1949)
Ayotallah Khomeini Revolution in Iran (1979)
See influence of Locke incorporated in 1948 Universal Declaration of Human Rights adopted by UN GA.

Natural Law element:  Innate sense of self-preservation – refer to division of social contract.
Locke believes that rights more basic than property which is right to physical subsistence. Earth belongs to God who has given it to human beings in common for them to enjoy. (therefore should have their own right to property)

Men acquired property through labour = has right to what he has acquired through his labour. Those who labour has to right to decent living. (similar to current situation)

This idea is also used for environmental protection.

Believes that every authority belongs to a sovereign  and the sovereign is circular and one must submit himself to the state.
It was God and not the sovereign whom provided so therefore should not be taken away from men by the sovereign.


Lays down seed of natural rights despite his idea of being an authoritarian
The right of property has a certain extend of application where; not that someone who is starving come and ask for food and sell it at the market price. Seek for balance.

During renaissance period, natural law thinkers impose duties on man where he has to conform
Zakat concept
Tithes concept

When stating that humans have right to self-preservation = concept of natural rights.







07:37 - No comments

Veil of Ignorance - John Rawls





§    Anatole France’s statement: The majestic equality of law which forbids rich and poor alike to steal bread and sleep under bridges  - discuss how it can relate to the principle of “veil of ignorance”
§    It needs to be the kind of system deprived by people who didn’t know it might apply to them
§    It’s a kind of thinking which accommodates difference without your specific interests entering
§    You’re not aware o what you are going to get, that is fairness
§    Rawls here developed the concept of “justice as fairness” considering the situation if you are required to draft a social contract, you can never exclude all personal biasness and prejudices
§    Therefore, Rawl here suggests that you should imagine yourself in an original position (original actor) behind the veil of ignorance. Behind this veil, you know nothing of yourself and your natural abilities, or your position in the society, morally equal beings
§    In this position, you would look into fair principles and don’t know whether you are going to be deprived from the law, and so will look into the highest minimum standards of justice in the projected society
§    Take the example when you are cutting the cake and the portion (let me further explained in person)
§    Two types of ignorance; ignorance of personal characteristics & ignorance of condition of society
§    Based on general rational self interest psychology of the original actors’ their principles of justice would be “those person would choose for the design of a society in which his enemy is to assign him his place
§    Look into the application of Freud’s statement (on dreams and unconscious mind) and Copernicus statement (sun is in the centre) compare these and apply to the theory of veil of ignorance


07:35 - No comments

Nazi Laws Regarding Jews, German Nationality & Properties




§    Under Section 2 of Citizenship law, a Jew loses German citizenship when he moves out abroad
§    In 1968, the Federal Constitutional Court of West Germany rules that they intend to deprive the Nazi laws of its validity because they so evidently clear contradicting fundamental principles of justice and to recognize them, its legal consequence would lead to injustice (so in this matter as compared to Berlin wall shootings case, here validity of law was put to question)
§    Section 3 of Decree provides that property of Jews who have lost their nationality becomes property of the Reich
§    Jewish German women who migrated to Switzerland in 1939 had left securities in a deposit in a German bank can be restored her property due to this retrospective effect
§    Positivist thinking: retrospective legislation should be made to make an old law invalid but the Nazi’s la cannot take a retrospective stand from positivist point of view as thy cannot make their deduction from laws properly made (legislation or any other forms of enacted law through a normal law making process)

1993-1994 (First wave of legislation which focus on limiting the participation of Jews in German public life)
Ø   Laws for the Restoration of the Professional Civil Service April 1933 provided that Jews and politically unreliable civil servant and employees were to be excluded from State service
Ø   Also restricted the number of Jewish students at German School and universities
Ø   Then another legislation to curtail Jewish activity in Medical and Legal professions
Ø   Nazi government revoked the licenses of Jewish Tax Accountants, imposed a 1.5 percent quota on admission of non-aryans to public schools and universities
Ø   Fired Jewish civilian workers from the Army
Ø   Forbade them from performing on stage

1935
Ø   Lawful protection of German Blood and German Honour at the party rally in Nuremberg, announced that they are prohibited from marrying or having sexual relations with persons of German or German related blood

1937-1938
Ø   Government set out to impoverish Jews and remove them from German economy by requiring them to register their property
Ø   Known as First Decree of Reich Citizenship laws
Ø   Cannot be citizen, not entitled to right to vote, cannot hold public office


For Jews who manage to emigrate, manage to save small portion of assets and for others, property and money kept in specified financial institution can only withdraw living expenses.

07:33 - 1 comment

Marxist Theory Of Law, Morality & Justice




§    Karl Marx is considered one of the most influential philosophers in the 20th century
§    34 years after the Marx death, Vladimir Lenin established the first Communist  State in the Soviet Union in November 1917
§    Mai Ze dong later also established People Republic of China which is known as the Communist China or Red China
§    Both communist state claimed that they follow Marx economic and political doctrines but Marx himself said he is not a Marxist
§    Marx legal theory assumed economics is the basic structure  and politics is the super structure
§    The Slave Owing system developed and the reference could be Hammurabi Code which contain laws on slavery
§    In comparing the Slave system as well as Freudalism, both of it are to protect the property and interest of the ruling class and the benefits from production and exploitation is the source of economics for the state.
§    Claimed religion is used as an opium for the people
§    Marx was wrong to say that under capitalism the working class would get poorer and poorer as the machinery of productive forces develop
§    In most communist societies, not only the state and law does not wither away it become stronger and in many senses even more oppressive than capitalist state
§    An example would be Kerala, which is the first democratically elected Marxist government is better than any other parts in India
§    Marx’s view on morality is a form of ideology and that is arises out of particular stage of development of productive forces and production relations and particular class interest
§    Marx states that morality of law would wither away under communism but Llyod argued that Marxism in this way however does not completely reject morality because this ideology is based on human good and how they come to realised
§    Marx envisages two phases of a future society and Lenin christened them which are socialism (abolishes exploitation) and communism
§    Marx view if law is oversimplified and later Marxists later also realised that the law imposes restraints on the ruling class
§    Marxist argue that law enhances security and moral interest of the family
§    Middle class seems to have monopoly in moral sense and it arises from the ruling classes or the economically more powerful
§    Police etc are also responsible for enforcement of moral legislation as Marxism claims

Short points from internet reading:
1.             Marx rejects the idea of creation of god, and rejected natural law
2.             Marx believed that laws are always the product of human will and more specifically the arbitrary will of a ruling social class
3.             Marx’s dream of equality of wealth has led to gross inequality of powerful government oppression and deification (being treated like a God) have led to equality of poverty
4.             Claimed to have discovered progressive pattern of controlling human evolution that will lead to classless individuals and with this he deprived the state and all laws are merely instruments of class oppression which will disappear when evolution accomplished
5.             His ideas about law expressed mainly in communist manifesto and also talks on morality
6.             Contended dictatorship is the only ideal way for communism to advance
7.             Vladimir Lenin claim that Marx idea do not protect human rights but regard law as a mechanism for holding the other subordinated classes obedient to the one class
8.             His theory of the society is the basic and superstructure
(i)                 Basic structure
-            Concerning and relations of productions
-            On the employer-employee conditions
-            Property relations
-            Technical divisions of labour
-            Where people enter to produce the necessities and amnesties of life

(ii)               Superstructure
-            Concerns matter such as culture
-            Institutions
-            Political power structures
-            Roles
-            Rituals

-            State

07:31 - 1 comment

Berlin Wall Shooting Case & East German Laws




§    Happened during Third Reich 1933-1945
Ø  13.8.1961 – Berlin wall was build
Ø  9.11.1989 – Berlin Wall came down
Ø  11/1992 – Federal Court of United Germany hld EGBG guilty for Berlin wall shootings
Ø  1/12/1984 – Incident
§    So there was questions whether soldiers at that time had valid justification and permission
§    Section 27 Border Law of the German Democratic Republic if felony can use fire arms and to climb the wall is a felony


Berlin Provincial Court (lower court)
German Federal Court (Higher Court)
No proportionality for continuous firing by the soldiers
Said lower court misapplied allowing retrospectively
Preventing crime that is not endangering life of another could never justify the killing of a person
Supported that action of soldiers her is accordance to GDR law and that time it was in force
Only if Section 27 of GDR law is not available at that time then it would be possible to punish
The law can only be invalid if their act had disobeyed the higher order of law or it was a gross offence
Court here decided that the law was just such laws and relied on Section 27
Although it was stated that law was invalid from the outset of gross or fundamental elements of justice and humanities but the validity of law could not be questioned
Fuller might approve
Hart might approve

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