From: andie nachgeborenen
My paper started from the observation that many strongly antislavery judges wrestled mightily with the issue -- Justice Story, for example, whose Amistad opinion, among others, condemns slavery in the strongest possible terms -- and found themselves unable to reject the FSA on _legal_ grounds. Lincoln, too, btw (remember he was a lawyer) -- before the Emancipation Proclamation, based on his executive powers as CiC. So starting from the real world fact that good judges thought the FSA were utterly immoral and still legally binding, I wondered, how can this be? The paper is an attempt to answer that. "Legally legitimate," btw, isn't legitimate tout court; a law may be legally legit and still not morally legit -- at least in my view. In fact that was the puzzle that got me going.
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CB: You don't have to persuade me that there are bad laws and that the police and military stand behind those bad laws, and so the average person, including judges, can't avoid their enforcement.
"Legal" means backed by the police and military.
^^^^^ CB: My paper for Don Regan in philosophy of law was on civil disobedience by a judge against an immoral , racist law. It was based on an essay by Rawls
^^^^^^ There are circumstances on which I think that would be fine. Nazi Germany or Apartheid SA for sure. Antebellum America-- well such an action might be morally justifiable. (The "might" is because judges in particular have special institutional obligations that have a moral dimensions -- it is at least arguable that they are required make a noisy withdrawal from the bench rather than knowingly violate the law.) But not, I think, _legally_ justifiable. And you seem to agree, or you wouldn't call such action, civil disobedience -- otherwise it would just be legal interpretation.
^^^^ CB: Yes , I am agreeing. What I mean by "legal" is that the repressive apparatus of the state stands behind it, will enforce it.
The judge could give a judgment and issue and order, but the appeals court would overturn .
I'm not catching what you are saying is unexpected or unusual about something being "legal".
^^^^^ CB: Nah, Cuba has democratic mechanisms as democratic as the U.S. , especially the U.S. antebellum. The U.S. model of the core democratic procedures is not the only legitimate one. It is not accurate to describe Cuba as a dictatorship in comparison with the U.S. Flat out: calling Cuba a dictatorship is slander.
Democracy's first principle is popular sovereignty. A country's democratic level must be tested against this principle first.
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Cuba is a one party state where dissidents get thrown in the can, are not permitted to publish their views, and where the political police keeps the populace in line. These are _facts_, Charles -- they are facts you support, matter of fact.
^^^^^^^ CB: Some of what you say is _some_ of the facts. There are billions of other transactions that go on there that are democratic, such that it is also a fact that it is a democracy. Your focus is not the whole truth. The "facts" must be the whole truth. You are abstracting from the whole situation and thus give a distorted conclusory characterization. You leave out the ways in which the population does participate in decisionmaking and self-governance.
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And truth, as you know, fellow counselor, is an absolute defense against a charge of slander. ;_>
^^^^^ CB: And of course, the truth is the whole, for both law and philosophy.
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That makes Cuba a dictatorship in my book.
^^^^^ CB: As a whole , it is a democracy.
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As I said, I am not sure that the Cubans have a very good alternative to this, given that if they established a liberal democracy the US would abuse it to destroy the revolution the way it did in Nicaragua. And that would be bad. But if Cuba has to be a dictatorship, that doesn't mean its laws are legally illegitimate -- it's only where lib dem is a real possibility that it is also a requirement for legal legitimacy in my book.
^^^^^^ CB: I wouldn't measure countries' democracy quotient in isolation from the rest of the world and history. It's like the descendants of a mafia don who have gone legitimate. NOW theyre fine people. But their abiliity to be nice now is built on the bones of their ancestors' victims. They owe reparations.
JKS: So? This is irrelevant to my point, which is that if one supported capitalism, which I don't, particularly, there are now much nicer versions of it to support than the American sort.
^^^^^ CB: Present day Holland's "niceness" is tarnished by its history.
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CB: Venezuala: So the liberal proceduralism is premised on military strength, which is not liberal proceduralism.
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Liberals aren't necessarily pacificists. I've already said it took lots of fighting to win LP, and it's still worth fighting to keep. Sometimes LP fails and you have to fight. That doesn't mean that among the alternatives for government, LP isn't, otherthings being equal, the best form we know.
^^^^^ CB: The way you discuss LP it doesn't sound like you have to have military strength (which is not in its use liberal procedure, but rather dicatatorship) to establish and maintain the LP. LP isn't all LP , but rather LP + military dictatorship.