Bits of text

Benjamin is busy doing something.

How do people who offend us deserve to be treated?

Can someone who has been accused of a crime be said to ‘deserve’ to be arrested, to go to jail, to be punished severely, to be allowed to go free, to be punished lightly, etc.?  It will now be suggested tentatively, without reference to any particular case or set of facts, but with particular emphasis on acts that offend some people, that he/she cannot be: these types of treatment can only be imposed by the law, and the law is not, in this case, concerned simply with desert.

The law is often indifferent to what people deserve or do not deserve.  Thus, for instance, somebody who sees a driver turning suddenly without signalling cannot sue that driver in negligence if no harm was caused, although that driver had indeed been negligent in the sense of being less careful than a driver should be; a person who buys a camera and later discovers that he has paid much more than he can get the camera for elsewhere cannot (in the absence of fraud or misrepresentation by the seller) sue to get his money back, even though we may think the seller to have acted unconscionably in charging such a high price; and, in particular, in a criminal case, the court only asks whether there is sufficient evidence according to the law of evidence to make out each element of the alleged offences as defined by the criminal law, even though one may well feel that people who commit certain acts (such as adultery) ought, though those acts are not criminalised, to be subject to some kind of unpleasant treatment — I do not say ‘punished’, for, by definition, a ‘punishment’ without law providing for it is not properly termed punishment (and often constitutes an unlawful act).  Even when someone is found guilty of a crime, desert is often not the only factor in determining the sentence; other factors such as how best to rehabilitate her or the victim’s desire to see retribution done against her play a role as well.

It is therefore not quite correct to say something like ‘W was not thinking properly when she impulsively grabbed the wallet, and so the owner was overreacting when he made a police report’ or ‘X deserved to get arrested given what he did’ or ‘given how she treated the hostages, Y deserved to have been slammed forcefully against a wall by the police officer who was arresting her’ or ‘Z insulted many people and deserves to be hauled to court to suffer the consequences’.  The problem with all of these is that whether and how someone is arrested or otherwise made the object of action by the police (or, in general, by the state), and what legal action someone faces, are determined according to pre-existing law; what that person deserves or does not deserve is simply not, by itself, relevant.  The example of Z is especially problematic because it presupposes that there exist ‘consequences’ which attach to Z’s action, when, in fact, consequences, by their very nature, flow from someone’s behaviour without any reference to whether the person deserved them.

Of course, it might be that the law directs the state to exercise discretion or make a judgment call, which may well involve asking whether someone deserves something.  This usually comes into play not at the stage of determining whether or not someone is guilty, but rather only at the sentencing stage after a person has been found guilty.  Abd even then, the first port of call, and the focus of the inquiry, is on what the law says; thus, the issue of what someone deserves is not looked at in the abstract, but only in a particular way according to law.  But, that having been said, the law considers other factors other than desert, such as the prospect of rehabilitation of a person who commits a criminal offence; therefore, even if it were possible to say that a person deserves a certain type of treatment, and the person indeed receives that treatment, it does not follow that the person received it because he deserved it.  Desert thus plays a very limited role in criminal law.

In particular, one area in which the criminal law is indifferent to desert is in the treatment of an accused person before and during the trial.  This is potentially tricky because these events can matter if the person is eventually found guilty: hence, a person who was held on remand before the trial instead of being released on bail, and is later sentenced to imprisonment gets to count the remand period as part of the prison sentence — to the (limited) extent (if any) that the prison sentence is based on desert, so too is the period spent on remand retroactively declared to be based on desert.  Before that, however, the law simply does not say that a person whose family cannot come up with bail money deserves to be kept on remand because of what he has done, or that a person who appears to have done some horrible things deserves to be kept in suspense while the police are investigating her, or that a person who acted in a particular manner deserved to be arrested in a more forceful manner than was strictly necessary to bring that person into police custody.  These types of treatment, if they operate in a manner adverse to the accused person, are unfortunate, and are therefore to be minimised wherever possible, viz. they are only to be imposed to the extent necessary to serve pressing needs such as to reasonably deter an accused person from leaving the country — proportionality analyses such as these are of course difficult, but never involve desert.

The crucial final step is to note that, because of the constraints imposed by law, the legal system or the state authorities who apply the law cannot simply act on the basis of what they think somebody ‘deserves’, then neither can anybody reasonably think that that person ‘deserves’ to be treated in a certain manner at the hands of the law/the state, or to be given treatment that only the law/the state can give.

For similar reasons, neither can we say that somebody deserves to be beaten up, raped in prison, forcibly deported, etc., because, as long as we believe in the rule of law, we cannot simultaneously say that (a) a person deserves to be given treatment X and (b) nobody is allowed to give treatment X to another person.

In summary, when we say that a person deserves to be treated in a particular manner, that type of treatment must be in principle capable of being applied by an actor who is capable of acting based on what the object of the action deserves.  Thus, we cannot say that a person deserves to go to prison, for (a) nobody but the law/the state can send people to prison; and (b) the law/the state do not act based on what people deserve except in (as outlined above) a very limited sense.  We can, on the other hand, say that a person deserves to be censured or to be forgiven by the community, for (a) censuring and forgiving are actions that can be performed by people generally acting on their own instance; and (b) people generally acting on their own instance can treat others for reasons relating to how they deserve to be treated.

Another way to interpret a statement that a person deserves to be (say) imprisoned is to see it as saying that the law ought to be changed such that such persons will be imprisoned.  But we must be careful to note that law is, by its very nature, general.  Hence, we can advocate changing the law based on what a class of persons or persons who engage in a particular type of conduct deserve, but not based simply on what one person deserves.  Accordingly, it is necessary to delineate carefully how that class is to be defined.  Thus, for example, if we are offended by speech and wish for similar speech to be criminalised or punished in a particular manner, we must ask: similar in what sense?  Uttered in a similar tone?  Offensive to a similar group of people?  Likely to incite others to similar consequences? etc.

When, therefore, someone offends people, we cannot coherently say that he deserves to be imprisoned or caned, or to be acquitted or allowed to go free, etc.

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Why study legal history?

Why study legal history?  After all, the law — not only the common law, but also any legal system which values certainty and equality before the law — inherently takes a historical approach in the sense that it takes into account the past.  Thus, in Manchester Corporation v Manchester Palace of Varieties [1955] P 133, the fact that the Court of Chivalry had last sat some time in the 1700s did not prevent the same Court from deciding a case in 1955: ever since the law had established the Court of Chivalry, there had arisen no law abolishing it.  Determining what the law is or how it should be applied is a historical enterprise, whether the history to be looked at is from two centuries ago or from two weeks ago.  Isn’t all the history of, say, constitutional law already part of an undergraduate Constitutional Law course?

But it is not true that all we ever need to do is to compare yesterday’s textbooks and law reports; rewrite them, mutatis mutandis; then rebrand them as today’s.  Looking at, say, a modern textbook on land law would tell us about the history of what we now call an estate in fee-simple absolute in possession, or, at most, the history of the idea of “ownership” of land; but it would not tell us about the nature of land itself: is it an object of legal rights? or is it a device to link together different subjects of legal rights?  A layperson, or even a legal practitioner, may wonder what it is about a large clump of soil that might make it “against the nature of land” (as opposed to merely contrary to law) for land to pass to a heir by will (Re Lord Dacre of the South (1535) B&M 127, 131); but the legal historian starts with the idea that, if law is supposed to, as Raz says, provide a pre-emptive reason for action, then, from the point of view of subjects of a legal system, the nature of any thing is virtually indivisible from the law surrounding that thing.

The history course I studied last year was officially titled “History of English Law”, but perhaps it should have been called “English Legal History”, for legal history is not only the history of the law, but also a type of History (in the sense that one may be said to ‘be interested in history’ generally), as are, say, military history and social history.  Thus, the rule in Hadley v Baxendale (1854) 156 ER 145 (which is the leading rule on remoteness of damage in all contract law cases in Singapore) is not only a statement of legal principle, but also one of economic policy as it was in England in 1854: on the account of Danzig, ‘Hadley v Baxendale: a study in the industrialization of the law’ (1975) 4 Journal of Legal Studies 249, Mr Baxendale’s business was a common carrier to whom applied “a politic establishment, contrived by the policy of the law, for the safety of the persons, the necessity of whose affairs oblige them to trust these sorts of persons” (Coggs v Bernard (1703) 92 ER 107, per Holt CJ) — but, given the way the case was pleaded, no higher duty than was “necess[ary]” for the “affairs” of merchants.  The true foundation of the rule in Hadley v Baxendale, which the Singapore Court of Appeal said was required for the technical reason of “distinguishing between the rules and principles relating to remoteness in the law of contract and those in the law of tort, respectively” and preventing a “confusing conflation between contract and tort” (Robertson Quay Investment v Steen Consultants [2008] 2 SLR(R) 623, [71]), thus lies not only in law and the history of law, but also the history of England — in social fact.  Might the law on remoteness be different today — would, perhaps, the Singapore Court of Appeal have been less critical of the reasoning in The Achilleas [2008] 3 WLR 345 in a case like MFM Restaurants v Fish & Co Restaurants [2011] 1 SLR 150 — if it had been either less common for merchants to outsource the task of delivery or so much more common that the law of agency was not, on Danzig’s account (at 260) “underdeveloped” in 1854?

Perhaps not if we take the “law on remoteness” to consist purely of statements such as “either arising naturally, i.e. according to the usual course of things, from [the] breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties… as the probable result of the breach of it”, and classify “naturally”, “usual”, “reasonably be supposed”, and “probable result” as matters of fact.  But this would be artificial and not very useful, for, if such a general statement could be termed ‘a law’, then we may as well say that all law may be distilled into a single very general principle (which will probably contain words such as “justice” and “equity”).  Rather, when we study law, even contemporary law, we do not study only the words of statutes and judicial decisions; we study all the details of the operation of the law.

“[C]ommunis opinio among lawyers”, too, after all, “is evidence of what the law is” (Manchester Corporation, 149) — in particular, it can evidence custom, and “[i]f custom is a law-creating fact at all, then even the validity of statutory law can be abolished by customary law” (Kelsen, Pure Theory of Law (2e, 1967, trans. Knight), 213).  And even if common practice does not amount to customary law, it still plays a role in the development of the law.  The opinion in Re Lord Dacre that “no land is devisable by will, except by custom, since it is against the nature of land to pass in such a way”, was due not only to the function of the system of inheritance in preventing “greedy and covetous persons” from defrauding people who were “visited with sickness in their extreme agonies and pains” or who lacked “good memory or remembrance” (preamble, Statute of Uses 1536, B&M 132) — wouldn’t such a risk have existed in relation to valuable chattels as well? — but also (rather more spuriously) because King Henry VIII was losing revenue because the widespread practice of using schemes involving what are now called trusts to avoid what was essentially a system of inheritance tax.

Thus, the statement that “the highest authorities have always recognised that the subject is entitled so to arrange his affairs as not to attract taxes imposed by the Crown, so far as he can do so within the law” (IRC v Fisher’s Executors [1926] AC 395, 412, per Lord Sumner) is not only not strictly true; it is not even a simple application of the principle of the rule of law; and it not only represents particular historical facts that influenced tax law, but also a particular historical view of what “the law” is, viz. that it is (at least in the context of tax law) the words contained in the statute books rather than the ‘spirit of the law’.  Can section 15AA of Australia’s Acts Interpretation Act 1901, which mandates that “In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation,” and the virtually identical section 9A(1) of Singapore’s Interpretation Act, really be said to be progressive (as they were suggested to be by their respective legislatures), as opposed to just different?  Should such interpretation rules apply in different ways to different types of written laws, e.g. penal statutes and tax statutes?  If so, why?

It is this sort of debate that the study of legal history helps us to appreciate more richly.  It is one thing to imagine that there could conceivably be an alternative to our system of law, but quite another to know that there used to be such an alternative — and on the very same land which we now occupy, too — which was taken seriously by judges and lawyers.  Indeed, the latter reveals that inherent in the word “alternative” is the idea that our present system is ‘normal’; whereas, in fact, it is sheer arrogance to believe that something that is normal is therefore perfect for all time.  The requirement that conveyancing fees be paid to Singapore’s Housing and Development Board (as opposed to merely administrative fees to the land registry) to transfer a government-developed flat may be said to be at odds with saying that the flat is “owned”, but there was a time when there was nothing odd about the practice of charging money for permission (as opposed to just recompense for administrative trouble) to transfer one’s interest in land; and, besides, why should ownership of an HDB flat be the same kind of ownership as ownership of private property?  The truth we risk forgetting is that contemporary law — even judge-made law — is, at least in part, a product of social fact, and is often, even if ostensibly absurd or illogical, only as ‘absurd’ or ‘illogical’ as history itself is.  Studying legal history reminds us that, whenever the law appears to neglect principle, perhaps we should begin by reconsidering our idea of the principles.

Moreover, a law is not just a statement of what the law is; a law is a historical source to be studied, whether it dates from 1535 or from 2014.  The modern practice of law is inevitably the creation of legal history; it may well be beneficial for the contemporary lawyer to bear this in mind.  Someday, legal history lecturers in universities in England might conclude that Gregg v Scott [2005] 2 AC 176 was decided the way it was because of the developments leading up to the present rules of civil procedure to the effect that (to put it loosely) once someone pleads certain facts and makes a claim of a particular type on those facts, he/she is stuck with them as the case goes up to the senior courts (as noted in Fordham, ‘Loss of chance — a lost opportunity?’ [2005] SJLS 204, 207, fn 9, Baroness Hale opined at [206]-[208] that, had Mr Gregg’s “extra pain, suffering, [etc.]” been “explored before the [trial] judge”, he might have recovered for these — but they could not have been so explored as, according to the doctors’ estimates, Mr Gregg would more likely than not have passed away by the time the case went up to the House of Lords).  They might discuss the policy reasons behind these procedural rules.  Some of their students might wonder who on earth could ever have come up with such a system.  Some might go on to embark on extensive studies of the interaction between rules of procedure and tort law.  They might publish books which, a few decades later, might in turn be read by legal historians who wonder why on earth people picked a few topics in law, seemingly at random, and titled them collectively ‘tort law’.  And so on.

The study of legal history, in short, is not just about the substance of the law as it was in the past; it is not just about the past; it is equally the study of the present.  It therefore assists us in refining our ideas about jurisprudence and of legal method.  It teaches us not only to answer legal questions, but also to question legal answers and, indeed, legal questions themselves.

Divine justice

Following Evensong today, the following, in the light of the reading of three passages from the Bible, and on the assumption of their usefulness, came to mind:

1. Psalm 93:1 states that “the world… is stablished, that it cannot be moved”.  Perhaps the world as a whole cannot be moved: but what comfort is that to the victim of an earthquake or a flood, or of theft, i.e. one to whose detriment parts of the world or things in the world have been moved?  It may be that, as Psalm 93:4 states, that “The Lord on high is mightier than the noise of many waters”, but this is true only in the sense that deficits can be remedied by re-arranging the contents of the world.  What is sometimes termed divine justice is not necessary satisfied by trivialising material distributive disparities in favour of some divinity-related value system; rather, it is a matter of noting what exactly divinity does promise and what it does not.

2. Thus, for instance, while the story in 2 Kings 4:1-7 of Elisha telling the widow to borrow jars from her neighbours, then pour what turned out to be a seemingly limitless supply of oil into them and sell them to pay off her debts may be told in a manner that focuses on the widow’s faith, God’s generosity, etc., the crux of the story is perhaps actually the willingness of members of the community to hand over their property for seemingly no reason and with little hope of getting it back.

3. Similarly, little attention is drawn to the fact that, in the story of Jesus changing water into wine in John 2:1-11, the water was held in pots which were used for ritual purification, such that the servants were told to do something that went against not only logic, but also social norms.

4. Therefore, it is not true that mere faith, without more, will bring about distributive justice.  Nor is God the only proper object of such faith; so, too, is others’ conscience (which, one may go on to say, God inspires).  Might (taking as an assumption that a certain state of divine action, viz. the in-principle (only) willingness to perform the miracles, is a given) a different result have occurred if the neighbours had dismissed the widow as one who would use the jars to make drugs, or if the servants had refused to use the jars for a private celebration for fear of disapproval by religious elders or divine wrath?

5. But, on the other hand, their fears would not have been unfounded.  And so, while there is a need to exercise cautiousness in undertaking activities that seek to bring about justice, there is equally a need to ensure that risk-aversion does not unduly, as the Compensation Act 2006 puts it, “prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or discourage persons from undertaking functions in connection with a desirable activity”.  (The concept of microcredit comes to mind.)  While an element of faith in other people is necessary, and may sometimes turn out to have been misplaced, faith in the divine is unintelligible without the idea of faith in people, for the hands of God are the hands of humankind.

“Is this the right practice?”

“Is this the right practice?”

1. I heard this gem of a sentence a few years ago, and since then its significance has made itself clearer to me each time I see it, especially now that I have put it up on my wall.

2. For, in the first place, it implies that there is only one right practice; although there may be more than one, the sentence compels one to question whether ambiguity is always a difficult reality of life or whether it is instead merely illusory. In general, in evaluating for correctness, too often is the need to strike a balance between ostensibly competing factors cited, as though it is always a neat way to conclude an argument by invoking a clever synthesis that a clever synthesis is required; this rests on the fallacious assumption that a multiplicity of factors automatically leads to the need for a balancing exercise, when in fact there may well be principled reasons that demand that certain classes of factor must automatically override others.

3. And, second, it emphasises practices, not principles. For, while results do not necessarily justify acts, acts alone can never justify results. The focus on practices ensures that there is a rational nexus between ideas and reality. Note, too, that the focus is on practices and not acts: for every wilful act should be nothing less than a manifestation of a discipline.

4. And, finally, because the referent of “this” need not be a practice per se, but rather a state of affairs, the sentence emphasises the role of human agency in shaping events. It militates against the denial of responsibility.

5. Let us all, then, constantly take up this call to procedural propriety.

Peace

1. Peace does not really exist.  It is not a default state; it comes about through great effort, through numerous civilian supply systems, constant monitoring, and the provision of adequate deterrence: and this applies not only to inter-state military threats, but to threats posed by every individual agent of the sort which anyone would instinctively say falls under the purview of the Home Office, Ministry of the Interior, etc.; threats to the person; and threats to the personality.  But the mechanisms which create peace are fundamentally warlike; it is the threat of war which upholds peace.

2. For instance, to be at work is to be at war.  Any work consists of engagement in a feedback loop; it requires one to be on constant standby for input, and gives no respite, for kopi must either be drunk at the desk or with the desk in mind.  One may enjoy work, but only so long as one is prepared never to give it up.  For each period of non-work is simply an interim period framed by work.

3. Again, the same applies to the manner in which one must necessarily carry out one’s life, for life is simply a workflow system with less of a code of conduct.

4. Happy, therefore, is the person who has given up on peace, who knows that there is only better-managed war or more-poorly-managed war.

Silence

1. The act of kissing is not a sensual act.  It is, rather, a mutually imposed silence, though sensuality be deployed and appropriated to that end.  It may be both an act of enjoyment and an act of war, but it is always an act of war.  Accordingly, the act of kissing somebody in a moment of sobriety — not in the sense of lucidity, but rather in that of the absence of a challenge to gravity — must be a terrifying thing, for it is in sobriety that the utter meaninglessness of formlessness and silence reveals itself, and thus drives many to engage in senseless acts, as a chamber with purely blank walls may, in time, induce the frantic making of markings.

2. For love, as the song goes, is a battlefield, and it is therefore a fortiori subject to a strict security regime.  It therefore stands to reason that silence, when attention is drawn to it, as when a secret has been discovered and stripped naked, is cause for the most intense and exquisite of panic.

Good Friday and Easter

1. He begins to feel the poison of his sin, and he has been told that Christ has died for his sins: but what good will that do?

2. For, in the first place, he has not sinned against God and God alone, but against another who has, too, been poisoned, and is now too distant to make amends with: and, second, what assurance will divine forgiveness give him, save that he may not be cast into fire and brimstone? for, the way he feels now, he may as well already be in hell, and, though he may yet be saved, will still have the agony of having passed through hell before.

3. So if Christ has died that he may sin no more, it is too late.  So is it too late if Christ has died that his sins will be of no consequence during this life, for the pain has already set in.  And if Christ has died that his sins will be of no consequence in the grand scheme of things, when he and the other are both dead, how has Christ made a difference?

4. So Good Friday and Easter are for him not a comfort, but a warning: that, though God himself has conquered death, he yet bears the scars in his side, and how much more, then, might frail fallen man suffer through life, though life be eternal.

* * *

1. He is doing alright, and, though God may be there in the storm or the battle, where is God in the supermarket, in the bar, in the street between the bar and the newsstand?

2. So Good Friday and Easter are for him not a comfort, but a warning: that anything terrible could happen to a man just like him, though that man be the most charitable man and God himself.

* * *

Therefore, at all times, especially around Good Friday and Easter, let no person ever become complacent; let all remember that some of the followers of God were, too, put to death, perhaps as cruelly as Christ himself; let each person take up his cross daily by reminding himself that these are not the end-times; let nobody feel any more or less redeemed as every man has been or is or ever will be, but instead strive constantly for, and pray constantly for, the avoidance of evil.  For the sins of the world are to be taken away not by neutralising the power of sin, but by affirming it, that no person may tread near it, and then sin itself will pass away.

Systems

1. There are two worlds: that of biological humans, and that of systems. The latter assumes and builds upon the former, such that eating, use of restrooms, and performance of child-care are justifiably ignored by the systems. And thus it is that there exist activities — work; sexual activity; sport; driving a motor vehicle — in which ineptitude attracts censure, for these activities are, for all intents and purposes, not reducible to a set of simple physical movements, though the respective domains of activity may be reducible into a series of simple processes, e.g. drafting a memo; setting up a meeting; turning right; loading a rifle. For, though each of these processes may appear to be equal merely to a set of movements — to click here; press these buttons; speak these words — nobody could possibly think so and yet be deemed sane.

2. The former world consists of tasks in which the latter does not impute agency. Hence the restrooms at the office exist, and are used, but nobody uses them; coffee is drunk, and coats taken off, and, even, doctors seen, but nobody does these things. They are merely overheads — quite literally so, for they are constraints to which no right-thinking person pays any attention.

3. For the avoidance of doubt, this does not constitute wilful blindness; it is not even blindness; it is perfectly natural. Neither is it abstraction, for abstraction tacitly acknowledges that which is abstracted, whereas the latter world simply eclipses the former.

4. But to the child, the second world does not exist; mummy carries the plastic bags, or gives a note to the man who gives daddy some coins and a cup, which daddy then opens and drinks from; mummy turns the wheel, takes the telephone from the table, mutes the television, talks.

5. It is ironic, then, that elements within the latter world — highway engineering; supply chains; the legal profession; medicine — support the former. And thus there may be identified an indistinct interface between the two, one in which humanity is in uncertain limbo; may this interface grow only smaller, and quickly, for, though it be tempting, it is where horror and anomie are born.

6. May the former world never show itself when the latter is in operation. For on the day of rapture, for but a moment, it will, and then humanity will be shown to be what it truly is, and this is what will kill everybody.

Thoughts on the ‘Kony 2012’ campaign

1. A video advocating the use of popular action with a view to facilitating the arrest of Joseph Kony through existing structures (viz. action by the state and the ICC) has been making its rounds. I feel compelled to state my views, although, for the avoidance of doubt, this message does not express a view on the substantive merits of any particular type of activist effort or cause, or any mode of communication.

2. The cause advocated by the video appears to be based on the right of self-determination of young people who have been forced to work as soldiers (it cannot be based on a broad anti-war stance, for it is acknowledged that military force has a role to play in effecting the arrest of Kony). It is submitted that this right has a greater claim to unversality than others, being the one implicitly invoked by parties which argue against what is seen as the exogenous imposition of a rights framework on the grounds of the subjectivity of rights-based discourse.

3. It is noted that the fundamental premise of the video is that popular action can be a catalyst for change. This does not itself conflict with established power centres, viz. states, in that the implication is that popular action acts to encourage or influence, rather than compete with, the use of state power. It also generally does not compete on the level of ideology to the extent that its cause has the backing of the ICC, which carries a reasonable degree of impartiality and has the sanction of a significant number of states (albeit not all states) from around the world.

4. It is submitted that this invocation of the idea of popular action would appear to deconstruct itself to the extent that it has taken place through the action of a core of motivated parties, which have made use of techniques not available to the average person (e.g. obtaining footage from Uganda, then communicating it using a rhetorically powerful video which is professional in appearance). The use of popular action as a catalyst for change is thus democratic only to the extent that it has mass blessing, but the cause in question cannot necessarily be said to originate from the same mass. Consequently, there exists the potential for the vehicle of instigation of popular action to be used to advocate a cause which lacks the widespread support, or the degree of legitimacy, of the one in question.

5. Support for the video in question appears to hinge on recourse to an intrinsic sense of rights which happens to subsist within the mass consciousness, or the consciousness of many people. But it is at the edges of rights-based discourse, when the rights which are invoked are those which have less of a claim to centrality than that of self-determination, that there is potential for conflict with other drivers of power, and thus potential for rhetorical opposition to be established between equally legitimate stances or power centres that subscribe to them.

6. It is on these grounds that I would support the cause promoted by this video only on the particular facts; it is submitted that the precedential value of the success of this movement should be restricted to the most universal of causes, and, moreover, that there may arise in time a need for a definition of such causes. It is acknowledged that this would be difficult as previous attempts to do so (e.g. the UDHR) have not met with universal approval.

7. It is acknowledged that this view would appear to advocate the paradoxical idea of the regulation of ground-up movements, and submitted that this will be necessary in the light of power asymmetries between different sections of or members of ‘the ground’ and, in severe cases, the potential for the severe destabilisation of the security of civilisation should multiple conflicting popular movements arise.

Eternal

1. It is submitted that, if God is never-changing, then there is no single legitimate narrative: no salvation, no grace, no mercy but that which was, and is, and ever will be; no localised saviour, nor purveyor of grace or mercy nor fall, nor deliverance, but that which was, and is, and ever will be everywhere. For it is an outrage to claim that a deity which holds all human beings in equal regard should have chosen to reveal itself only to one people, or to make itself accessible through only one human form; for it would then follow that the deity would favour some over others. (Or, in the alternative, it is an outrage to claim that a culturally-bound deity is to be imposed upon the whole world.)

2. It would be wrong to lower the level of generality, such that the quality ‘will make response R when met with particular human behaviour B’ is attributed to the deity. For this would pave the way for people-based or circumstance-based exceptionalism.

3. Nor would it suffice to argue that all human beings are to have access to the deity through some event of chance, whether it be called Grace or any other name. For the narrative of chance is the narrative of denied chances, of the failure of chance.

4. Nor would it be reasonable for an omnipresent, omnipotent being to limit the range of its outreach, though its form may be limited for the sake of facilitating understanding, or the extent of revelation for any reason.

5. Nor, it is respectfully submitted, should a deity allow that emerging temporal factors, such as cultural issues, should at any time necessarily have any effective bearing on that which is said to be universal.

6. It is therefore submitted that texts associated with religions centred around a deity of constancy should be held to have, at most, rhetorical significance, for even their claims to legitimacy, completeness, and centrality derive from historical narrative — they come from a Prophet or a Messenger, and are approved and promulgated by a Council or a Church, and may evidence or give an example of the nature of the deity, but are not themselves complete, or wholly reliable, or exclusively reliable expositions of the deity. Faith must therefore claim legitimacy from first principles, and, in particular, not from any external form or experience, though these things may evidence (but merely evidence) that which is the object of faith.

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