The social and legal implications of forensic DNA are paramount. For this reason, forensic DNA enjoys ample attention from legal, bioethics, and science and technology studies scholars. This article contributes to the scholarship by focusing on the neglected issue of sameness. We investigate a forensic courtroom case which started in the early ’90s and focus on three modes of making similarities: creating equality before the law, making identity, and establishing standards. We argue that equality before the (...) law is not merely a principle but a practice. In the context of DNA research, equality refers to using standardized technology and procedures to identify the criminal suspect. Our case shows the work at stake in introducing a new technology into the courtroom and serves as a lens, magnifying how contingencies and uncertainties are managed and ordered in everyday court practices to arrive at an equal treatment of the suspect. (shrink)

This paper sets out to chart the fortunes of one of the most significant moral propositions in Mu'tazilite moral theory — namely, that it is evil to lie, and it is evil irrespective of the consequences of so doing. The reasons which promote this principle to significance relate to the broader context of Mu'tazilite theological orientation, which aims to vindicate God's justice through demonstrating that moral value does not derive from revelation. Yet this principle suffers the difficulties which commonly afflict (...) deontological precepts, particularly the challenges posed by their conflict with teleological moral demands in certain situations, as well as the difficulty of empirically ascertaining that a moral principle has in fact given the agent his reason for action, as the Mu'tazilites attempt to do. These were difficulties which Aš'arite critics of Mu'tazilite moral claims were quick to pick up on, and it is in the light of such hostile fire that the coherence of the Mu'tazilite position on the evilness of lies is examined. This is the principal focus of this essay, and it is complemented by an examination of how the principle carries over to the realm of divine morality: can God tell a lie? If not, why not? And what does this reveal about the ordering of moral values in Mu'tazilite thought? (shrink)

This article argues that Hannah Arendt’s controversial essay “Reflections on Little Rock,” when situated within her analysis of Jewish assimilation, has an astute insight: racial integration and the decrease of the racial gaps in material inequality, without taking seriously the political project of building a world in common, only intensify racism in racist polities. This occurs because attempts to extend formal equality to the racially dominated give rise to the rule of racial common sense, a result of a clash (...) between the political structures of equality and the racial inequality practiced in quotidian interracial exchanges occurring in civil society. Though Arendt’s work on racism echoes criticisms of racial integration leveled by racial realist and pessimistic accounts of the Civil Rights struggle, her work points to a more expansive practice of “the political” that calls for the institutional design of formal politics as an important strategy against racism. (shrink)

Despite the attention equality before the law has received, both laudatory and critical, peculiarly little has been done to precisely define it. The first ambition of this paper is to remedy this, by exploring the various ways in which a principle of equality before the law can be understood and suggest a concise definition. With a clearer understanding of the principle in hand we are better equipped to assess traditional critique of the principle. Doing so is (...) the second ambition of this paper. I will argue that traditional criticisms are unpersuasive, but that there is a different, powerful argument against equality before the law. The third ambition of the paper is to argue that there is a sense, overlooked by both proponents and critics, in which the principle still captures something important, albeit at the cost of shifting from intrinsic to instrumental value. (shrink)

This Article argues that a particular political theory underlies the judicial interpretation of ‘equality before the law’. The Canadian Courts at the date of writing have elaborated two tests for the signification of ‘equality before the law’. The Article traces the two tests to the utilitarian political theory outlined by John Stuart Mill. The one test sets out the ‘greatest happiness of the greatest number’ or ‘social interests’ as the criterion for adjudicating equality. The second (...) test identifies the reasonable relationship of an alleged statutory classification vis-à-vis the statutory purpose. The Article offers an alternative approach based upon democratic theory. Examples of the two tests and the alternative approach are drawn from judicial constitutional interpretations in the USA and Canada. (shrink)

Political activists drive around with bumper stickers proclaiming their commitment to equality. Perhaps the bumper sticker loudly asserts “=!” Oppressed people lament their lack of equality. Political philosophers contemplate equality and try to formulate general principles about it. In recent days, some advocates of marriage rights for same-sex couples argued for their view by claiming it’s just a matter of equality. Indeed, one of their advocacy websites uses the name ‘Equality’.1 They want equal rights. Everyone (...) seems to take it for granted that equality is important. This seems entirely wrong to me. It seems to me that equality is legally (and politically and socially and economically and morally) irrelevant. (shrink)

The aim of this paper is to analyze a selection of arguments used by the Argentine Supreme Court to reduce the sentence of individuals convicted of crimes against humanity. The focus will be primarily centered on “Muiña´s case”, in which a lenient outdated ruling was made. The questions that this work will try to answer revolve around the court´s merit in issuing this lenient ruling to Muiña´s case and its justification. First, Muiña´s case is analyzed in depth. Then, a critical (...) analysis about the ruling and a decision concerning the existence of a true justification will be developed. Finally, we will discuss the appropriateness of the Court’s decision in Muiña´s case as opposed to the decision made in “Batalla´s case”, in which a less beneficial law was applied retroactively. (shrink)

Bringing these two emergent areas of thought into direct conversation in Before the Law, Cary Wolfe fosters a new discussion about the status of nonhuman animals and the shared plight of humans and animals under biopolitics.

Should Justice be blind or should she instead be capable of seeing everything, even the human heart? José M. González García examines how the iconography of Justice evolved over the course of history. Providing an overview of depictions of Justice in various ages and places, the book mainly focuses on "The Blindfold Dispute" that began to develop during Renaissance. While at first the blindfold was perceived as unjust, precisely because it denied Justice the ability to see everything, it transformed just (...) a few years later into a positive symbol of the equality of all individuals before the law. And other depictions were added: supplementary eyes, transparent blindfolds, the double face of Janus, the returns of Astraea and the "Eye of the Law". The book also analyses important historic moments in which the crisis of the Law went along with a search for new forms of representing the gaze of Justice, as reflections on the art of Dürer, Klimt and Kafka show as well as recent developments in political philosophy"--Back cover. (shrink)

This paper develops a challenge to theism. The challenge is to explain why the hypothesis that there exists an omnipotent, omniscient and all-good god should be considered significantly more reasonable than the hypothesis that there exists an omnipotent, omniscient and all-evil god. Theists typically dismiss the evil-god hypothesis out of hand because of the problem of good–there is surely too much good in the world for it to be the creation of such a being. But then why doesn't the problem (...) of evil provide equally good grounds for dismissing belief in a good god? I develop this evil-god challenge in detail, anticipate several replies, and correct errors made in earlier discussions of the problem of good. (shrink)

ObjectiveStress can play a role in the onset and exacerbation of psoriasis. Psychological interventions to reduce stress have been shown to improve psychological and psoriasis-related outcomes. This pilot randomised study investigated the feasibility of a brief interaction with a Paro robot to reduce stress and improve skin parameters, after a stressor, in patients with psoriasis.MethodsAround 25 patients with psoriasis participated in a laboratory stress task, before being randomised to either interact with a Paro robot or sit quietly for 30 (...) min. Raman spectroscopy and trans-epidermal water loss were measured at baseline, after the stressor and after the intervention as indexes of acute skin changes. Psychological variables, including self-reported stress and affect, were also measured at the three time-points.ResultsNo statistically significant differences between the two conditions were found for any of the outcomes measured. However, effect sizes suggest significance could be possible with a larger sample size. Changes in the psychological and Raman spectroscopy outcomes across the experimental session were found, indicating the feasibility of the procedures.ConclusionThis pilot study showed that a brief interaction with a Paro robot was a feasible intervention for patients with psoriasis, but future trials should broaden the inclusion criteria to try to increase recruitment rates. Studying people who are highly stressed, depressed or who are stress-responders may increase the power of the intervention to show effects using a longer-term intervention. (shrink)

This is a short paper covering my own views on the methods and reasons behind the teaching of medical ethics. All the whys and wherefores are discussed and some conclusions reached. This paper is given from a junior doctor's viewpoint but could equally apply to many others.

Before the law sits a gatekeeper. To this gatekeeper comes a man from the country who asks to gain entry into the law. But the gatekeeper says that he cannot grant him entry at the moment. The man thinks about it and then asks if he will be allowed to come in sometime later on. “It is possible,” says the gatekeeper, “but not now.”—Franz Kafka..

The theological energies released by Martin Luther in 1517 created a set of theological insights and problems that eventually led to the development of kenotic Christology. This article traces how kenotic Christology originated in the Eucharistic Controversy between Luther and Zwingli, before receiving its first extensive treatment in the debate between the Lutheran theologians of Tübingen and Giessen in,the early seventeenth century. Attention then turns to the nine-teenth century, when doctrinal tensions resulting from the enforced union of the Prussian (...) Lutheran and Reformed churches created the conditions for a new flowering of kenotic Christology in the theologies of Ernst Sartorius and, subsequently, Gottfried Thomasius. Kenotic Christology ultimately originates with Luther, however, for it owes its existence to the creative theological energies he unleashed and which remain his lasting legacy. (shrink)

America’s legal system harbors serious, widespread injustices. Many defendants are sent to prison for nonviolent offenses, including many victimless crimes. Convicts often serve draconian sentences in crowded prisons rife with abuse. Almost all defendants are convicted without trial because prosecutors threaten defendants with drastically higher sentences if they request a trial. Most Americans are terrified of encountering any kind of legal trouble, knowing that both civil and criminal courts are extremely slow, unreliable, and expensive to use. This book explores the (...) largest injustices in the legal system and what can be done about them. Besides proposing institutional reforms, the author argues that prosecutors, judges, lawyers, and jury members ought to place justice before the law – for example, by refusing to enforce unjust laws or impose unjust sentences. Issues addressed include: · The philosophical basis for judgments about rights and justice · The problems of overcriminalization and mass incarceration · Abuse of power by police and prosecutors · The injustice of plea bargaining · The appropriateness of jury nullification · The authority of the law, or the lack thereof Justice Before the Law is essential reading for everyone interested in legal ethics, the rule of law, and criminal justice. It is also ideal for students of legal philosophy. (shrink)

Beazley, Margaret Australia rightfully places itself amongst democratic countries governed by the rule of law. It is a tradition in which I hold a firm belief. An essential aspect of the rule of law is its non-arbitrary application, and its guarantee of equality before the law. When describing the rule of law, A. V. Dicey stated that the rule of law meant: the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and (...) excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of the government. (shrink)

Animal studies and biopolitics are two of the most dynamic areas of interdisciplinary scholarship, but until now, they have had little to say to each other. Bringing these two emergent areas of thought into direct conversation in _Before the Law_, Cary Wolfe fosters a new discussion about the status of nonhuman animals and the shared plight of humans and animals under biopolitics. Wolfe argues that the human­­­-animal distinction must be supplemented with the central distinction of biopolitics: the difference between those (...) animals that are members of a community and those that are deemed killable but not murderable. From this understanding, we can begin to make sense of the fact that this distinction prevails within both the human and animal domains and address such difficult issues as why we afford some animals unprecedented levels of care and recognition while subjecting others to unparalleled forms of brutality and exploitation. Engaging with many major figures in biopolitical thought—from Heidegger, Arendt, and Foucault to Agamben, Esposito, and Derrida—Wolfe explores how biopolitics can help us understand both the ethical and political dimensions of the current questions surrounding the rights of animals. (shrink)

Mr Jarvis, a Christian, was asleep in bed, dreaming of the Last Judgement. In his dream, Jarvis found himself seated next to God in a great cloud-swept hall. God had just finished handing down judgement on the drunkards, who were slowly shuffling out of the exit to the left. Angels were now ushering a group of nervous-looking men through the entrance to the right. As the men were assembled before Him, God began to speak.

This chapter contains sections titled: Feudalism Magna Carta28 The Basic Idea: No One Is Above the Law The Modern West Takes Shape From Law to Commerce Equality Before the Law Conclusion Discussion Acknowledgments.

Many scholars have suggested that Aristotle’s famous aphorism ‘treat equals equally, unequals unequally’ is a formal, and thus impractical, theory of equality. This dissertation aims to criticise the popular view that Aristotle’s theory of equality is purely formal and to develop and defend an interpretation which will pay attention to the substantive elements. The first chapter argues that Aristotle provides us with a spectrum from formal to substantive equality. At the formal end, we have the abstract principles (...) of formal fairness and proportionality, while at the substantive end we can find information for the designation of the appropriate variable of comparison between people or treatments in various domains of social interaction. The second chapter argues for an account of commensurability based on Ph. VII.4. I claim that, in any comparison, the term ‘equal’ should be predicated synonymously of the people or treatment compared, while at the same time they should not admit to difference in species; such an account, I suggest, is also compatible with Aristotle’s theory of economic value in EN V.5. The third chapter presents the Aristotelian account of equality in distributions. I focus on Aristotle’s theory of political distribution in Pol. III, where he puts forward two distinct criteria: political capacity and contribution to the polis. I also examine Aristotle’s moderate suggestion for equalisation of property by the means of public property and taxation. The fourth chapter criticises the popular line that Aristotle holds an inconsistent theory of corrective justice, because in EN V.4 he suggests that people should be treated as equal before the law, while in the first lines of EN V.5 he allows for hierarchical considerations. I eliminate this apparent inconsistency by claiming that the former deals with the compensatory, while the latter with the punitive element of corrective justice. The fifth chapter explores the role of equality within the private domain, mainly in the household and in various types of friendship. I propose that Aristotle offers two types of superiority, one based on actuality and a second based on function, which are not mutually exclusive. To summarise, by examining Aristotle’s responses to various problems about equality and hierarchy I conclude that although he possesses the theoretical tools to argue for ‘inalienable’ metaphysical equality of human beings which will make equality an individual entitlement or right, based on his principle of individuation in Metaph. Z.8, he prefers not to utilise this thesis for political purposes. Instead, he reduces equality to justice (inequality is unjust, since it violates principle of formal fairness which is fundamental for justice) and a set of pragmatical considerations (e.g. concord and the optimal outcome for the polis). He prefers to argue that equality or hierarchy of people or treatments is related to, and defined by, the particular institution that we examine. (shrink)

Lord Rabinder Singh has been one of the leading lights in the recent development of the common law, most notably in the field of human rights and the law of privacy. Here, for the first time, he reflects on the defining themes of his career as advocate and judge. Combining his trademark originality of thought and impeccable scholarship, he selects previously published and unpublished writings to track the evolution of his approach to the common law. A substantial introduction gives context (...) to the book, while opening introductions to each piece reflect on their relevance to contemporary legal thought. The essays explore themes as diverse as judicial review, equality, and privacy and personal autonomy. Insightful, erudite, and thought-provoking, this collection is a must read for all those interested in the law and its role in society. (shrink)

Proceedings of the 1982 Colloquium in Cerisy-la-Salle, France.

What do we mean when we refer to people as being equal by nature? In the first book devoted to human equality as a fact rather than as a social goal or a legal claim, John Coons and Patrick Brennan argue that even if people possess unequal talents or are born into unequal circumstances, all may still be equal if it is true that human nature provides them the same access to moral self-perfection. Plausibly, in the authors' view, such (...) access stems from the power of individuals to achieve goodness simply by doing the best they can to discover and perform correct actions. If people enjoy the same degree of natural capacity to try, all of us are offered the same opportunities for moral self-fulfillment. To believe this is to believe in equality. This truly interdisciplinary work not only proposes the authors' own rationale but also provides an effective deconstruction of several other contemporary theories of equality, while it engages historical, philosophical, and Christian accounts as well. Furthermore, by divorcing the "best" from the "brightest," it shows how descriptive equality acquires practical significance. Among other accomplishments, By Nature Equal offers communitarians a core principle that has until now eluded them, rescues human dignity from the hierarchy of intellect, identifies racism in a new way, and shows how justice can be freshly grounded in the conviction that every rational person has the same capacity for moral excellence. (shrink)

At the beginning of Derrida's ‘Before the Law’, a reading of Kafka's story with that title, is an epigraph from Montaigne's Essays: ‘… science does likewise (and even our law, it is said, has legitimate fictions on which it bases the truth of its justice)…’. Derrida again refers to this quotation in ‘Force of Law’, asking what a ‘legitimate fiction’ might be and what it would mean to establish the basis for the truth of justice. With reference to these (...) writings on the status of narrative and the law, as well as to other texts by Derrida, this paper examines the story of the judge-penitent in Camus' The Fall and, in particular, this ironic reading of the aporetic experience of standing ‘before the law’. What does the narrative, The Fall, entail? Camus writes that the man who speaks in this text is involved in a ‘calculated confession’. How are the borders between truth and fiction, justice and the law, negotiated in this reckoning ‘before the law’? (shrink)

Ever since Plato expelled the poets from his ideal state, the ethics of art has had to confront philosophy's denial of art's morality. In Art before the Law, Ruth Ronen proposes a new outlook on the ethics of art by arguing that art insists on this tradition of denial, affirming its singular ethics through negativity. Ronen treats the mechanism of negation as the basis for the relationship between art and ethics. She shows how, through moves of denial, resistance, and (...) denouncement, art exploits its negative relation to morality. While deception, fiction, and transgression allegedly locate art outside morality and ethics, Ronen argues they enable art to reveal the significance of the moral law, its origins, and the idea of the good. By employing the thought of Freud and Lacan, Ronen reconsiders the aesthetic tradition from Plato through Kant and later philosophers of art in order to establish an ethics of art. An interdisciplinary study, Art before the Law is sure to be of interest both to academic philosophers and to those interested in psychoanalytic theory and practice. (shrink)

Medvedev's intermediate logic (MV) can be defined by means of Kripke semantics as the family of Kripke frames given by finite Boolean algebras without units as partially ordered sets. The aim of this paper is to present a proof of the theorem: For every set of connectives such that the-fragment ofMV equals the fragment of intuitionistic logic. The final part of the paper brings the negative solution to the problem set forth by T. Hosoi and H. Ono, namely: is an (...) intermediate logic based on the axiom (abc) (ab)(a c) separable? (shrink)

The rule of law is a moral ideal that protects distinctive legal values such as generality, equality before the law, the independence of courts, and due process rights. I argue that one of the main goals of an international rule of the law is the protection of individual and state autonomy from the arbitrary interference of international institutions, and that the best way to codify this protection is through constitutional rules restraining the reach of international law into the (...) internal affairs of a state. State autonomy does not have any intrinsic value or moral status of its own. Its value is derivative, resulting from the role it plays as the most efficient means of protecting autonomy for individuals and groups. Therefore, the goal of protecting state autonomy form the encroachment of international law will have to be constrained by, and balanced against the more fundamental goal of an international rule of law, the protection of the autonomy of individual persons, best realized through the entrenchment of basic human rights. (shrink)

This article charts Derrida’s performances in front of the camera and argues that several different film retellings of his 1982 imprisonment in Prague articulate the connections between spectrality and Law. If spectrality disrupts the binary of presence and absence, then we must not only show how there is a ghostly presence within the context of film viewing, but also how being photographed is a matter of embracing blindness and a postal logic. The Prague imprisonment was an intriguing event in Derrida’s (...) life because it seemed to go hand-in-hand with revoking his self-imposed ban on his public image, beginning with his first television interview on Antenne 2. Why does Derrida replay this scene, re-enact it, indefinitely? How does the recurring trope of blindness in his writings relate to both the imprisonment and the experience of being photographed? The television and film retellings in Ghost Dance (McMullen, 1983), D’ailleurs, Derrida (Fathy, 1999), and, finally, Derrida (Dick and Ziering Kofman, 2002) could be a way of changing the ghosts that haunt that scene: from fear and anguish in the first television version to openness towards the other in D’ailleurs, Derrida, where the place and time of the event are not named. (shrink)

The rules as we know today in modern societies have their base in the Magna Carta from 1215. In that time people declared that the rights of the king and nobles must be limited and that was the first step toward as we know today “democracy”. The rights incorporated in the Magna Carta defined the limits what a state can do and also set boundaries in order to achieve equality between the state and the individual. The rights proclaimed with (...) Magna Carta found their path in the French Revolution from 1789 as “Liberty, Equality and Fraternity” became symbol of democratic freedom and afterwards gave value in the conventions and other international instruments. The main purpose that was achieved with Magna Carta from today’s perspective is that the rules have been implanted in the conscience of people, so they learn to obey and practice them. The Magna Carta rights are integral part of international conventions and on that way they have been taken from the states on national level so they become inevitable incorporated segment of the constitution and the laws of states. Those rights have achieved their purpose, because 800 years after their proclamation, some of them are still on force and have been provided in the constitutions of many countries including the Western Balkan countries. The rights that derived from Magna Carta concerning the rule of law, independence of the judiciary, equality before the law and prohibition of discrimination are integral part of the Constitution of Macedonia which makes efforts for their implementation into practice – because contrary, words will be just words on paper and nothing else. (shrink)

If someone assaults you, should they get a milder penalty if they are rich than if they are poor? We wouldn't dream of passing a law that formalized such an arrangement. But the design of our legal systems in the US, UK, and elsewhere, which permits people with sufficient money to pay for better lawyers, means that wealth often does make a difference to legal outcomes. Justice, then, depends not only on the substance of the laws we pass, but on (...) the design of the system that administers and enforces them. Philosophers and legal theorists, however, have paid relatively little attention to what justice demands of the general design and structure of the legal system. Equal Justice argues among other things that market principles should not determine access to legal resources. If, for example, a large corporation sues a small startup, either the corporation has to use a law firm of the quality that the startup can afford or--which would be preferable, given the corporation's in-house lawyers--the startup would be given a subsidy to afford a top firm. The author builds on this core idea of equal access to resources to work out how the court system and the legal profession should be structured in order to ensure a generally just legal system. (shrink)

ExcerptAll rational liberal philosophic positions have lost their significance and power. One may deplore this but I for one cannot bring myself to clinging to philosophic positions which have been shown to be inadequate. Leo Strauss, “Existentialism”1The Supreme Court decision on the Patient Protection and Affordable Care Act, the Obama administration's signature legislation on health care, attracted exceptional public attention, and rightly so. Health is a vital concern, and the topic is charged with acerbic party politics. More importantly, the terms (...) of the debate give evidence of a widespread awareness, across the political spectrum, that…. (shrink)

The recent publication of a special number of the SAJP dedicated to a discussion of Samantha Vice’s thoughts on being a white South African prompted this reflection on justice, equity and the modern idea of the state – against the background of moral feelings of guilt and shame, cultural diversity and merging identities. Its aim is to provide a perspective on the unity of the public legal order of the state, the distinct meaning of citizenship and affirmative action in terms (...) of the distinction between constitutive and regulative legal principles also helping white South Africans to understand how affirmative action relates to injustices of the past. The classical understanding of equity will play a key role in this discussion, aimed at showing how we can avoid the apparent impasse of equality before the law and of “fair discrimination.”. (shrink)

This book examines the relationship between the idea of legitimacy of law in a democratic system and equality, conceived in a tripartite sense: political, legal, and social. Exploring the constituent elements of the legal philosophy underlying concepts of legitimacy, this book seeks to demonstrate how a conception of democratic legitimacy is necessary for understanding and reconciling equality and political legitimacy by tracing and examining the conceptions of equality in political, legal, and social dimensions. -/- In the sphere (...) of political equality this book argues that the best construction of equality in a democratic system - which resonates with the legitimizing function of majority rule - is that of equality of political opportunity. It is largely procedural, but those procedures represent important substantive values built into a majoritarian system. In the sphere of legal equality it argues that a plausible conception of non-discrimination can be constructed through a "reflective equilibrium" process, and should reject a thoughtless assumption that the presence of some particular criteria of differentiations necessarily taints a legal classification as discriminatory. Finally, the chapters on social equality explore, in some detail, the currently influential, and presumptively attractive, "luck egalitarianism": the idea that social equality calls for neutralizing the disparate effects of bad brute luck upon a person's position in society. (shrink)

Congress's national-security legislation will often require clear and specific congressional authorization before the executive can undertake certain actions. The War Powers Resolution, for example, prohibits any law from authorizing military hostilities unless it "specifically authorizes" them. And the Foreign Intelligence Surveillance Act of 1978 required laws to amend FISA or repeal its "exclusive means" provision before they could authorize warrantless electronic surveillance. But efforts to legislate clear-statement regimes in national-security law have failed to induce compliance. The Clinton Administration (...) inferred congressional "authorization" for the 1999 Kosovo War from an appropriations statute that failed to specifically authorize the conflict. And the Bush Administration inferred congressional "authorization" for the NSA surveillance program from ambiguous language in the post-September 11th Authorization to Use Military Force. In both situations, executive-branch lawyers employed expansive theories of implied repeal and constitutional avoidance to evade the codified clear-statement requirements, and Congress and the courts acquiesced to the President's actions. Recent proposals to strengthen the clear-statement requirements in Congress's national-security framework legislation are unlikely to be effective without institutional mechanisms, such as points of order, that can deter future legislators from enacting vague or ambiguous legislation from which the executive might claim implicit congressional "authorization," and that can induce Congress to confront Presidents that act without specific congressional authorization. Simply enacting more narrow or explicit clear-statement requirements, or adding funding restrictions to Congress's framework legislation, fails to counter the aggressive interpretive doctrines that executives of both political parties have used to concoct congressional "authorization" from vague or ambiguous statutory language. (shrink)

In Modern Isonomy distinguished political theorist Gerald Stourzh develops the idea of "isonomy" or a system of equal rights for all, as an alternative to the concept of "democracy." The ideal for Stourzh is a state, and indeed a world, in which individual rights, including the right to participate in politics equally, are clearly defined, and possessed by all, as the core of a real democratic system. Stourzh begins with ancient Greek thought contrasting isonomy--which is associated with the rule of (...) the many--with oligarchies and monarchies, pursuing the implications of these different forms for the rights accorded to individuals. He moves on through history to discuss the American experiment with the development of representative democracy as well as the French revolution, after which the idea that rights should not be influenced by the status of the individual became the bedrock of a democratic system. But progress on the creation and protection of individual rights for all has been uneven. Democratic systems themselves often limit the scope of rights, particularly rights to participate in the political system. Stourzh brings this learned exploration forward to the discussions of human rights and democracy in the postwar period, with the end of the colonial empires and the fall of fascist dictatorships. He demonstrates how deeply intertwined equal rights for all, under law, as a concept and practice are with the development of democracy. He then explores the challenges to the idea of equal rights posed by economic inequality and the demands of the "security state" and concludes with a discussion of universal human rights which, under his idea of isonomy, will require bodies superior to nation-states to enforce. (shrink)

On 24th March 2020, the first nationwide complete lockdown was announced by the Prime Minister of India for 21 days which was later extended to 31st May 2020. Consequently, thousands of migrant workers placed in big cities had no other option but to go back to their native villages. Their journeys back to villages- thousands of kilometres on bicycles or foot due to the non-availability of public transport amidst the travel ban- were driven by the compulsions of food and shelter. (...) In one of many heart-wrenching incidents, sixteen laborers were run over by a freight train while they were resting on the railway tracks. The images of the Roti on the railway track strewn across were beamed on the national news channels, as a telling commentary of the unimaginable hardships of these workers. Ironically, in the eyes of law, they were trespassers under the Indian Railways Act, 1989. The Indian Railway did not pay any compensation to the victims. Their act also violated the Indian Disaster Management Act, 2005 and Indian Penal Code, 1860- the law for the breach of lockdown guidelines and the law for disobedience of order by public servants respectively- for having decided to travel amidst a travel ban. The semiotics of law-making acts ‘criminal’ bereft of ‘moral culpability’ are seldom questioned on their supposed amoral foundations. Pandemic exhibited that social fissures not only condition the individual or community actions but also the actions of the State. Minorities especially Muslims were at the receiving end of State’s selective enforcement of lockdown laws in India. The various instances in the wake of the COVID-19 pandemic expose the hollow claims of equality before the law and the equal protection of laws as a constitutional promise to every citizen. This article aims to unravel the ostensible and the actual moral exhibition of such Indian laws through the lens of several incidents during the nationwide lockdown in India. This paper would argue that this constructed positivist amorality needs to be deconstructed to unearth the power imbalance that it seeks to hide. (shrink)