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May 03, 2007
“I think what we feared were the possibilities, the truth we both know” (Fox Mulder, X-Files)
Extraterrestrial intelligence has fascinated human populations from ancient Greece to modern times. Beginning with Democritus and later supported by Copernican ideology, the concept of potential contact with alien life is certainly not a novel idea. Historical interest has manifested itself through modern mediums such as conspiracy propaganda, science fiction literature, television programming, and Hollywood movies. From Star Wars to my personal favourite the X-Files (my co-author is shockingly a Star Trek enthusiast), there is no escaping the reality that the possibility of extraterrestrial contact has shaped our modern psyche. The truth is certainly out there, and until discovered, precautionary principles dictate that the best way forward is to presume in the interim that alien life does exist and that contact will eventually be made. This article proceeds on the basis that extraterrestrial contact will be made, and that alien life will be accommodating to co-existence with human life. Simply put, we will be dealing here with the friendly green aliens, not the mean ones associated with such films like Predator and War of the Worlds. If harmonious co-existence is to ever be achieved, surely legal instruments will have to be used to regulate extraterrestrial affairs. Can existing legal principles be modified to meet the needs of extraterrestrial law?
Property Law and Aliens – Space Easements, Universal Adverse Possession, and Intergalactic Nuisance:
The easement holds great promise as a legal tool to regulate rights of way in space. Convenient transportation routes take on a new meaning in space, where detours may take on a light years dimension. Black holes would no doubt represent a formidable transportation advantage to those who controlled them, allowing space ships to move quickly to distant galaxies. Assuming that express easements or easements of necessity will not be common because of obvious language differences and the vastness of space, and that the requirements of Re Ellenborough Park  would remain applicable, what form would easements arising by prescription take on? What will constitute long use and acquiescence in space? Perhaps our earthly notion of years will have to be magnified to take into account the time delay in space travel. For example, instead of 12 years of continuous use being sufficient to satisfy a prescriptive easement, easements regulating humans and aliens will require the introduction of a new quantum of light years. Acquiescence requirements will also have to be modified. Space ships and planetary radar technology will surely be able to detect users across wide distances. It may be that acquiescence will be presumed on the basis that the user was not destroyed in space by the ballistic capabilities of the servient owner.
Adverse possession will certainly take on a new dimension in space. Since space represents such a vast area, there will be a strong utilitarian policy impetus to allow for legal regulation that seeks to maximise the use of property in space. If the principles of adverse possession will ever have a legal role to play in regulating alien and human behaviour in space, then the limitation period will have to be adjusted to reflect any necessary temporal enlargement. 12 years will certainly not be enough time to allow for space travel. The implications of the Land Registration Act 2002 will also have to be considered. Although at this time unclear, different languages surely must exist among alien populations, and the Register will have to be multi-lingual in order to accommodate the affected parties. With this said, if alien populations are as advanced as I personally know them to be, then they will presumably be able to speak many languages, including earthly ones. However, us primitive humans will find great difficulty in understanding alien dialect, and translations will have to be provided so that we can effectively assess our positions. A wider consideration is the potential scope of adverse possession. Can aliens and humans gain legal interests in planets or only parts of planets? This may not be very important if there is a proprietary dispute over useless Pluto, but may take on greater significance in more exciting planets, especially if they prove to be resource-rich.
The law of nuisance will probably take on a most exciting role in extraterrestrial law. Will the paradigmatic authority of Bernstein v Skyviews (1978) any longer hold any weight, or will we have to revert back to a strict interpretation of the cuius est solum maxim which holds that he who owns land owns everything reaching up to the very heavens and down to the depths of the Earth. Alien surveillance technology will no doubt be much more invasive, and there are legitimate concerns that surveillance from even long distances may infringe an owner’s right to private and home life. Extraterrestrial law may have to extend existing protections in the light of alien technology. Of perhaps greater significance will be whether the law of nuisance will be able to accommodate situations where aliens and humans live together as neighbours. The encroachment of alien life will likely bring new nuisances such as ‘green slime’ residue, foul smells, and unimaginable noise disturbances. Further, what we may describe as typical will have to be adjusted in the light of complaints brought by alien populations.
From International Law to Intergalactic Legal Principles:
We are limited, not by our abilities, but by our vision. Vision is, indeed, the art of seeing what is invisible to others. Our legal system tends to provide specific and limited responses to particular problems. Moreover, the law tends to be excessively anthropocentric. The product of these inevitabilities is two-fold. First, our legal vision is limited by our human experiences on earth. Second, and despite what natural lawyers may contend, the law is a creation of the human imagination, and is therefore utilised to govern the machinery our very own civilization.
This article invites the reader to contemplate beyond our foundations on Earth. Ask yourself this: what would happen if a human came into personal contact with an extraterrestrial being? One can only speculate the various answers to this question. However, in the US, The Extraterrestrial Expose Law 1969 makes it illegal for somebody to have contact with an extraterrestrial being. The Federal Statute states that “anyone guilty of such a contact automatically becomes a wanted criminal to be jailed for one year and fined $5,000. The N.A.S.A administrator is empowered to determine with or without a hearing that a person or object has been extraterrestrially exposed, and impose an indeterminate quarantine under armed guard, which could not be broken even by a court order”. Surely, this sounds odd. Is it in the best interest of humanity to confirm, or disconfirm, the existence of extraterrestrial life? Perhaps for the US, aliens will be the next personification of terrorism. However, remember that this article deals with friendly aliens. What will their rights be? Will we owe duties to them? How will contact with extraterrestrial life affect international/universal law?
The Universal Declaration of Human Rights (UDHR) emphasises that the “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace of the world.” By undertaking a rather straightforward literal construction, it is clear that aliens are left out of the human rights equation. Will we detain them and conduct cruel experiments on their frail little green bodies? Surely Article V, which prohibits torture, cruel, inhuman or degrading treatment, will not be of any use to the little green creature. Article IV of the UDHR provides that ‘no one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.’ Extraterrestrial beings, however, are not privileged enough to benefit from this provision: under international law, it is arguable that an alien would be considered ‘less than human.’ We all know that this form of overt discrimination, or even hierarchical categorisation, has been the cause of many catastrophes in the past. Just think about the potential for future conflict that such treatment may cause. We abuse their innocence and generosity, benefit from scientific experiments, dishonestly appropriate their futuristic space ships (would that count as theft?), only to later find out that those species are part of a wider civilization which has the ability to destroy planets and even galaxies. Thus, we ought to grant them rights – Alien Rights – so that human beings and aliens can co-exist peacefully. This may, however, cause juridical difficulties. If an alien decides to bring an ‘Alien Rights’ claim before a human court, we ought to have a judicial bench composed of a mixed panel: human and alien judges sitting alongside each other.
Once extraterrestrial contact becomes frequent, the creation of an ‘Intergalactic Court’ may prove to be the only judicial mechanism to govern disputes between civilizations in different galaxies. The court will be empowered to interpret future sources of law such as the Prevention on Inter-Galactic Genocide, The Treaty on the Protection of Space Minorities, and the Universal Intellectual Property Treaty. The formulation of such intergalactic laws will certainly pose drafting difficulties. Aliens may have a different interpretation of justice, or perhaps they don’t even strive for such a concept. An ultramodern legal profession could emerge, with intergalactic lawyers holding LL.BTs (Legum Baccalaureus Terra). Legal education will be transformed. Warwick may even have a campus on Mars.
The use of force provisions in Art 2 (4) of the UN Charter may have to be extended and modified to encompass the ‘territorial integrity or political independence of any Space State.’ Jus Cogens principles will have to adapt to the universal values of the day. Our understanding of self-defence in international law, and particularly the concept of pre-emptive strike, will have to reflect the respective technologies of the time.
How could trusts law become relevant in our relationships with aliens? Hopefully, the basic tenets of trusts law will change so that human beings will be able to hold planets on trust for the benefit of aliens, and vice versa. Furthermore, the inhabitants of a planet will be able to hold the planet on trust for the benefit of future generations. Most of the tidal effects seen on the Earth are caused by the Moon’s gravitational pull. Before somebody sells the Moon to an evil alien who plans to deprive us from our lunar benefits, there should be a general principle of international trusts law providing that our generation ought to hold the Moon on trust for the benefit of future generations.
Blaise Pascal once wrote “through space the universe encompasses and swallows me up like an atom; through thought I comprehend the world”. Although this article may seem, and quite rightly, a work of fiction, it nonetheless challenges our limited, anthropocentric vision of law. We ought to initiate a journey, beyond our planetary frontiers, to consider the extraterrestrial application and justiciability of our laws before it becomes too late.
The inspiration for this article came from a paper published by our own Gary Watt entitled “The Soul of Legal Education”, which called for greater imagination within the fabric of legal matriculation. From the student perspective, imagination can provide not only a useful tool to complement our legal studies but can also serve to breed some much needed life into law, which may help us to overcome the banality of revising legislation and memorising key decisions. In this sense, the article is intended to attempt to move in the direction intimated by Gary Watt, and to demonstrate that the scope for imagination in law, although latent, can be potentially wide reaching. Although our ideas were meant to be lightly received, there are some important material considerations resulting from our fictional analysis. It is clear that it will be extremely difficult to import existing legal principles to govern relationships in new jurisdictions between parties who share little in common. The better way forward may focus instead on Rawlsian first principles and mutual negotiation from an original position. In this way, prejudice can be removed from legal principle, and affected parties can instead work from a clean slate, so that everyone can leave the party with an equal slice of cake. Although this may always remain a pipe dream at the global level, the future prospects within Europe may be more promising. With enlargement into new areas with vastly different cultures and legal traditions, perhaps lessons can be learned from a fictional exercise which seeks to simulate the inherent difficulties of legal harmonisation across cultures, States and even space.
- The authors would like to acknowledge Jabba the Hutt, Dana Scully and Spock for their helpful comments on earlier drafts. Any omissions or mistakes are of course our own.
June 24, 2005
Writing about web page http://www.warwickboar.co.uk/boar/opinion/respect/Article published in the Warwick Boar, please click link above to view article.
Shortly after the Second World War, international law has been developing in many directions. International legal rules have been subject to extensive and even radical criticisms throughout its evolving childhood. However, it was not until this generation that the debate of whether international exists gained momentum. There is a continuing tension between those rules already established and the constantly evolving forces that seek changes within the international system. One of the major problems of international law is to determine when and how to incorporate new standards of behaviour and new realities of life into the already existing framework, so that, on the one hand, the law remains relevant and, on the other, the system itself is not too vigorously disrupted. This is indeed what any legal system endeavours. However, international law (and bearing in mind its international character) poses many unanswered questions. Is international law just a set of documented treaties and agreements? Does it have any binding force? How should it be enforced? Or ultimately, who should enforce it? Virtually everybody who starts reading about international law today does so having learned or absorbed something about the principal characteristics of ordinary or domestic law. Such identifying marks would include the existence of a recognised body to legislate or create laws, a hierarchy of courts with compulsory jurisdiction to settle disputes over such laws and an accepted system of enforcing those laws. Without mentioning a legislature, judiciary and executive, it would seem that one does possess the right vocabulary to start talking about a legal order. Indeed, international law does not fit this model. International law has no legislature. For instance, the General Assembly of the United Nations comprising delegates from 191 member states exists, but its resolutions are not legally binding save for certain of the organs of the United Nations for certain purposes. Moreover, there is no adjudication system. The International Court of Justice does exist at The Hague but it can only decide cases when both sides agree and it cannot ensure that its decisions are complied with! Above all, there is no executive or governing entity. The Security Council of the United Nations, which was intended to have such a role in a sense, has at times been effectively constrained by the veto power of the five permanent members. Thus if there is no identifiable institution either to establish rules, or to clarify them or see that those who do no comply with them are punished accordingly, how can what is called international be in any way or form, law? However begging for elaboration and further discussion, this question we will leave to omit, inasmuch as it is foreign to the present inquiry. The principal purpose of this article is to inquire into the historical development of ‘international law’, because it is by understanding its history that perhaps the reader may contemplate about its present and eventually wonder into its uncertain and promising future.
It is generally accepted that the foundations of international law as it is perceived today lie firmly in the development of Western culture and political thought. While the modern international system can be traced back some 500 years in the writings of Francisco Vitoria, Alberico Gentili and Hugo Grotius, certain of the basic concepts of international law can be discerned in political relationship thousands of years ago, around 2100 BC. At that specific point in time a solemn treaty was signed between the rulers of Lagash and Umma, the city-states situated in the area commonly known as Mesopotamia. It was inscribed on a stone block and concerned the establishment of a defined boundary to be respected by both sides under pain of alienating a number of Sumeria gods. Next on the agenda was an international treaty concluded between Ramses II of Egypt and the Kink of the Hitties for the establishment of eternal peace and brotherhood. Since then, many agreements between the rival Middle Eastern powers were concluded, usually aimed at embodying in a ritual form a state of subservience between the parties or attempting to create a political alliance to contain the influence of an over-powerful empire.
Following the chronological bar, the next main achievements worth noting were materialised by the Greek and the Romans. The era of classical Greece, from about 6th century BC and onwards for a couple of hundred years has been of overwhelming significance for European thought, with the writings of Socrates, Aristotle and Plato. However, Greek awareness was limited to their own competitive city-states and colonies. Those of different origin were barbarians not deemed worthy of association. The value of Greece in a study of international law lies partly in the philosophical, scientific and political analyses bequeathed to mankind and partly in the fascinating state of inter-relationship built up within the Hellenistic world. Numerous treaties linked the city-states together in a network of commercial and political associations. Rights were often granted to the citizens of the states in each other’s territories and rules regarding the sanctity and protection of diplomatic envoys developed. Certain practices were essential before the declaration of war, and the horrors of war were somewhat ameliorated by the exercise, for example, of religious customs regarding sanctuaries. The Greeks, however, had no sense of world community in spite of the growth Greek colonies throughout the Mediterranean area. However, this Greek handicap was not associated to the able administrators of the Roman Empire.
The Romans had a profound respect for organisation and the law. The law knitted together their empire and constituted a vital source of reference for every inhabitant of the far-flung domain. The early Roman law, the jus civile, applied only to Roman citizens. It was formalistic and reflected the status of a tiny, unsophisticated society rooted in a unfertile soil. It was unable to provide a relevant background for an expanding, developing nation. This need was served by the creation and progressive augmentation of the jus gentium. The jus gentium was the common universal law based on the doctrine of the universal law of nature (otherwise referred to as the Natural Law) and thus overrode the narrow jus civile until the latter system ceased to exist. It provided simplified rules to govern the relations between foreigners, and between foreigners and citizens. One of the most influential of Greek concepts taken by the Romans was the idea of Natural Law. This was formulated by the Stoic philosophers of the 3rd century BC and their theory was that it constituted a body of rules of universal relevance. Such rules were rational and logical, and because the ideas and precepts of the ‘law of nature’ were rooted in human intelligence and discoverable by reason, it followed that such rules could not be restricted to any nation or any group but were of international relevance and application. In addition to being a fundamental concept in legal theory, Natural Law is vital to an understanding of international law, as well as being an indispensable precursor to contemporary concern with human rights. The classical rules of Roman law were collated in the Corpus Juris Civilis, a compilation of legal material by a series of Byzantine philosophers completed in AD 534. Such a collection was to be invaluable when the darkness of the Middle Ages, following the collapse of the Roman Empire, began gradually to evaporate.
At this period in time, Islam also played an important role in the international legal system. Its approach to international relations and law was predicated upon a state of hostility towards the non-Moslem world and the concept of unity, Dar al –Islam, as between Moslem countries. Once the period of conquest was over and power was consolidated, norms governing conduct with non-Moslem states began to develop. The law dealing with diplomats was founded upon notions of hospitality and safety (aman), while rules governing international agreements grew out of the concept of respecting promises made.
The Middle Ages were characterised by the authority of the organised Church and the comprehensive structure of power that it commanded. All Europe was of one religion, and the ecclesiastical law applied to all, notwithstanding tribal or regional affiliations. For much of the period, there were struggle between the religious authorities and the rulers of the Holy Roman Empire. These conflicts were eventually resolved in favour of the Papacy, but the victory over secularism proved of relatively short duration. Of particular importance during this era were the authority of the Holy Roman Empire and the supranational character of canon law. Nevertheless, commercial and maritime law developed apace. English law established the Law Merchant, a code of rules covering foreign traders, and this was declared to be of universal application. Throughout Europe, mercantile courts were set up to settle disputes between tradesmen at the various fairs, and while it is not possible to state that a Continental Law Merchant came into being, a network of common regulations and practices weaved its way across the commercial fabric of Europe and constituted an embryonic international trade law. Similarly, maritime customs began to be accepted throughout the Continent. Founded upon the Rhodian Sea Law, a series of commonly applied customs relating to the sea permeated the naval powers of the Atlantic and Mediterranean coasts. Such commercial and maritime codes, while at this stage merely expressions of national legal systems, were amongst the forerunners of international law because they were created and nurtured against a backcloth of cross-national contacts and reflected the need for rules that would cover international situations.
During the Renaissance period, we could observe that the rise of nation-sates of Enlgand, Spain and France in particular characterised the process of the creation of territorially consolidated independent units, in theory and doctrine, as well as in fact. This led to a higher degree of interaction between sovereign entities and thus the need to regulate such activities in a generally accepted manner. It was the evolution of the concept of an international community of separate, sovereign, if competing, states, that marks the beginning of what is understood by international law. The Reformation and the European religious wars marked the decline of a continental system founded on religion and the birth of a continental system founded on the supremacy of the state. Natural Law continued to have a profound effect on the creation of international legal rules but the subject was somehow distinct and underived from any other, and it was with such an intellectual background that Renaissance scholars approached the question of the basis and justification of a system of international law. The British historical lawyer Maine characterised the birth of modern international law as the ‘grandest function of the law of nature’.
Following a number of Spanish and Italian scholars in the 16th century, such as Vitoria and Gentili, it was Hugo Grotius, a Dutch scholar born in 1583, who towered over this period and has been celebrated as the father of international law. His primary work De Jure Belli ac Pacis, excised theology from international law and emphasises the irrelevance in such a study of any conception of a divine law. Grotius conceived of a comprehensive system of international law and his work rapidly became a university textbook. However, in many spheres he followed well-trodden paths. He retained the theological distinction between a just and an unjust war, a notion that was soon to disappear from the treaties on international law, but which in some way underpins modern approaches to aggression, self-defence and liberation. One of his most enduring opinions consists in his proclamation of the freedom of the seas. Grotius opposed the ‘closed seas’ concept of the Portuguese that was later elucidated by the English writer John Selden and emphasised instead the principle that the nations could not appropriate to themselves the high seas: ‘they belong to all’.
Moving along the chronological bar, it appears that the eighteenth century was a ferment of intellectual ideas and rationalist philosophies that contributed to the evolution of the doctrine of international law. The nineteenth century by contrast was a practical, expansionist and positivist era. The Congress of Vienna, which marked the conclusion of the Napoleonic wars, enshrined the new international order which was to be based upon the European balance of power. International law became Eurocentric, the preserve of the civilised, Christian states, into which overseas and foreign nations could enter only with the consent of and on the conditions laid down by the Western powers. The Industrial Revolution mechanised Europe, created the economic dichotomy of capital and labour and propelled Western influence throughout the world. All these factors created an enormous increase in the number and variety of both public and private international institutions, and international law grew rapidly to accommodate them. The development of trade and communications necessitated greater international co-operation as a matter of practical need. In 1815, the Final Act of the Congress of Vienna established the principle of freedom of navigation with regard to international waterways and set up a Central Commission of the Rhine to regulate its use. European conferences proliferated and contributed greatly to the development of rules governing the waging of war. The International Committee of the Red Cross, founded in 1863, helped promote the series of Geneva Conventions beginning in 1864 dealing with the ‘humanisation’ of conflict, and the Hague Conference of 1899 and 1907 established the Permanent Court of Arbitration and dealt with the treatment of prisoners and the control of warfare. The nineteenth century also saw the publication of numerous works on international law, which emphasised state practice and the importance of the behaviour of countries to the development of rules of international law.
In the twentieth century, the First World War marked the close of a dynamic and optimistic century. European empires ruled the world and European ideologies reigned supreme, but the Great War undermined the foundations of European civilisation. The most important legacy of the 1919 Peace Treaty from the point of view of international relations was the creation of the League of Nations. The League consisted of an Assembly and an executive Council, but was crippled from the start by the absence of the United States and the Soviet Union for most of its life and remained a basically European organisation. Nevertheless much useful groundwork was achieved by the League in its short existence and this helped to consolidate the United Nations later on in 1946. The Permanent Court of International Justice was set up in 1921 at The Hague and was succeeded in 1946 by the International Court of Justice. The International Labour Organisation was established soon after the end of the First World War and still exists today, and many other international institutions were inaugurated or increased their work during this ‘institutionalist’ period.
In 1946 the League was succeeded by the United Nations Organisation, which tried to remedy many of the defects of its predecessor. It established its site in New York, reflecting the realities of the shift of power away from Europe, and determined to become a truly universal institution. The advent of decolonisation fulfilled this expectation and the General Assembly of the UN currently holds 191 member states.
Many trends which first came to prominence in the nineteenth century have continued to this day. The vast increase in the number of international agreements and customs, the strengthening of the system of arbitration and the development of international organisations have established the essence of international law as it exists today.
What is next for the international law? This question we will leave open to interpretation. However, it is difficult to plan an answer. This is because international law has developed an ambiguous, and to a certain extent, ‘ghostly’, character. On the one hand it is perceived and acknowledged as ‘law’, reflecting a body of rules governing certain types of behaviour or activities. On the other hand, closer analysis demonstrates how ‘international law’ does not encompass a legal definition, let alone a legal character. As we have explored at the very beginning of this article, international law has no legislature and no adjudication system. The modern international system necessitates powerful changes if greater respect for international law is to materialise. As George Bernard Shaw put it ‘we learn from history that we learn nothing from history’. History is, in fact, the only laboratory we have in which to test the consequences of thought. By analysing the historical development of international law, we learn that international law is, to a certain extent, merely an embodiment of the strong’s policies to rule the world and enforce their ‘rights’ by disregarding their duties. We learn that modern international law will not survive the rebellious future if changes do not materialise. The world as we see it today lacks the strength of a truly representative and respectable governing body which would enforce decisions in order to secure and promote peace, justice and global prosperity. Until this concretises, the world will remain a dynamic arena where the rich rule the poor while the weak serve the strong.
April 24, 2005
Writing about web page http://www.warwickboar.co.uk/boar/opinion/imagine_this_scene/
Imagine this chilling scene. You’re nine years old. You’re scared. You have just woken up in war-torn capital Monrovia in Liberia. You’ve lost your brothers and sisters during the brutal civil wars, and your parents died from AIDS way before you had the chance to show them your toddling skills. You soon discover that you don’t have a home, a family, a school to go to. All you have is yourself, and literally, nothing else. All you know is that other children around the block are stuck in the same horrific situation. Your options are limited. If you’re a boy, you can become a soldier to gain respect from your comrades. If you’re a girl, you may become subject to prostitution, sex trafficking or even sex slave. Shocked, you assume this is all a nightmare, one of those that feels so real that you even try to pinch your skin to wake up. But you don’t wake up. You can’t. It is real. How would you feel? What would you do?
The truth is that this scene is far from a dream, illusion, hallucination, head-trip. It is in fact almost a reconstruction of the lives of millions of genuine, real, innocent children in the world today. ‘Almost’ because reality can never be truly characterised into words. And as reality is always far from illusion, not only are they far from us in a physical sense, but so are their lives ridiculously different from ours. I do not pause to consider in detail the realities of the horrific lives of those unfortunate children. I leave this open to interpretation. But before you even consider imagining the horrors those kids have been though, the brutal sexual experiences they have been forced to participate in, or the disheartening conditions that they live in, I beg you to contemplate the following facts.
First things first: the key problems. One in three of the world’s children live without adequate shelter, one in five has no access to safe water, and one in seven has no access to health services. Furthermore, 121 million primary school aged children are out of school, the majority of them girls. Oh! Also, 1.6 million children have been killed in armed conflicts since 1990, while another 20 million have been forced from their homes by conflict or human rights violations. If that wasn’t more than enough, around 2 million children are recruited each and every year (the number is increasing) to work within the sex industry. In total, more than 1 billion children are living in families with a daily income of approximately £1.50. Hold on. That’s not even how much you spend on a pint, is it not?
If you believe in your future, you must believe in the future of children. No matter how much of a cliché this sounds, its nonetheless an accurate statement. You were a child once, right?
There has been much talk on terrorism, human rights, global warming and American politics in the past few years. There exists extensive literature on these topics, as well as other interesting subjects such as Newton’s gravity theory, Shakespeare’s plays, Chomsky’s commentaries etc. and I will not undermine their importance to the world today. But what purpose will it serve if more than 200 million children in the world today cannot read it, let alone understand it, because they don’t have a school to go to? Ultimately, you may ask yourself, why should we co-operate to eradicate not only child poverty, but also help the other 2.6 billion people living below the poverty line? Well that question shall also be left open. However, think about the scene in Monrovia, Liberia, where you had no help, no hope and no future. You were begging for help. Well, right now, they are crying for hope. And its people like you and me that can make a difference. We were born in what they regard as abundant luxury. The pint that you drink could buy them the food for a day, if not a week. I’m not asking you to jump on the next flight to Liberia or any other country and rescue those children nor am I asking you to donate your ‘binge’ money to charities. Far from that. I only beg you to genuinely contemplate that ‘scene’ in Monrovia and share your thoughts, ideas or even projects with others in the community, because it is through great ideas, and great people, that truly good and amazing things are achieved.
Between 1503 and 1660, 185 thousand kilos of gold and 16 million kilos of silver were shipped from Latin America to Europe. Were the indigenous people of Latin America to charge compound interest on this 'loan', levied at a modest rate of 10 percent, Europe would owe a stack of gold and silver which would exceed the weight of the planet. Yet curiously, many of the 'first-world' nations speak of 'third world debts' as if they didn't owe a single penny.
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Christopher Columbus Langdell, Dean of the Harvard Law School and originator of the “Case Method” of teaching law, famously advocated that Law was a science, whose principles and doctrines could be ‘discovered’ in cases, much as biologists discover the principles of their science in their laboratories. To Langdell ‘science’ conjured up the ideas of order, system, simplicity, taxonomy and original sources. The science of law involved the search for a system of general, logically consistent principles, built up from the study of particular instances. Once the general principles have been found, it is then the task of scholars to work out, in an analytically rigorous manner, the subordinate principles entailed by them. When these subordinate principles have all been stated in propositional form and the relations of entailment among them clarified, they will, Langdell believed, together constitute a well-ordered system of rules that offers the best possible descriptions of that particular branch of law – the best answer to the question of what the law in that area is.
This ‘mechanical jurisprudence’, often criticised by American realists, resembles at first the methodology used in mathematics in deriving conclusions from basic axioms and logical deductions. When a lawyer writes a brief for a case in which he has to convince the judge that his argument should prevail, he structures it just like a geometric proof. He starts with all the given facts, then states the relevant laws and precedents that relate to the case. Then he makes his argument based on these facts using deductive logic, exactly as if he were doing a mathematical proof.
Mathematicians have the ability to analyse problems and principles just as lawyers have the ability to dissect dictums and rules from cases. Comprehending certain laws, for example taxation law, is as challenging as understanding some of the most complicated mathematical theories you will encounter. Most solicitors involved in civil cases, in which people are suing others, must be able to calculate percentages, interest rates and the like to determine what is or isn't a fair settlement for the parties involved. Likewise, lawyers involved in tax or corporate law have to perform a lot of computations involving money, interest rates, percentages and proportions. Patent lawyers who work on behalf of inventors generally must also have a degree in engineering because they must be able to understand the inventions and the mathematical formulas involved in the physics or chemistry applications of the product.
Although a comparative study of the relationship between the Law and Mathematics wouldn’t result in any offspring, there exists nonetheless methodological devices used in mathematics which corresponds to those used in the application of the Law. From its birth in ancient Greece, and for over two thousand years, mathematics has been viewed a body of collective truth, being the basis of innumerable scientific theories which describe the world around us. To achieve such powerful results, early mathematicians employed deductive reasoning in their examination of new hypotheses. This logical methodology created the assumption that mathematics is a certain science. But more recent realisations in the world of mathematics have revealed that it is not the body of truths once assumed to be, and further, that the very deductive reasoning used to create and develop these truths contain flaws.
In his book Mathematics: The Loss of Certainty, Morris Kline claims that ‘the current predicament of mathematics is that there is not one but ‘many’ mathematics and that for numerous reasons each fails to satisfy the members of different schools. Uncertainty and doubt concerning the future of mathematics have replaced the certainties and complacency of the past. The disagreements about the foundations of the 'most certain' science are both surprising and, to put it mildly, disconcerting. The present state of mathematics is a mockery of the hitherto deep-rooted and widely reputed truth and logical perfection of mathematics.’ However disorganised the world of mathematics may be today, contradictions have always existed in bodies of knowledge – especially in the Law – just after periods of major revision in which inevitable periods of uncertainty follow, new ideas are allowed to reach fruition.
Accordingly, although the promulgation of the law claims to guarantee its certainty and consistency, its application is a different matter. The courts, and indeed judges, play a significant role in applying the law in the real world in real situations, thus making the ambiguity of the Law vulnerable to ultra vires interpretation. ‘Statutes are not laws by virtue of their enactment. They only become law when applied by a decision of the courts’ argued J C Gray, 20th century American realist. Thus instead of being regarded as a body of abstract rules and principles, the law shall be understood from a broader angle. Legislation is therefore no more than a source of law: it is the courts that ‘put life into the dead words of the statutes’.
Likewise, mathematical laws and principles are no more than an instrument to an end: it requires real-world situations in order for its true efficacy to be understood. The efficiency of symbols and numbers in mathematics only becomes evident when assembled in theories and applied to real problems. Although both disciplines endeavour to be certain, they are both subject to the creative interpretation and ambiguity of human minds. In other words, they are both subject to the concept of relativity. Searching for the Truth in mathematics mirrors the search for Justice in the Law; objectives which appears to be unattainable for sceptics. Unfortunately, the ordinary citizen fails to contribute to this quest for Truth and Justice, as both disciplines remain perceptibly ‘inaccessible’ by the populace at large.
Perhaps I place too narrow a definition upon Truth and Justice – for despite the seeming contradictions of mathematics and the disagreements which characterise its past, one evident theme remains. Mathematics has always been and remains to be a remarkably effective method of describing the mechanics of the world around us. Accordingly, the Law has always been and remains to be the fundamental element that holds society together. Both disciplines are of respectable value and utility, even complementary at times, and both are consistently evolving towards the same uncertain future. Even if one is to disregard absolute certainty in mathematics, the Law, or in any body of knowledge, we must not give up the search for Truth and Justice, or allow our limitations to overcome us.
February 10, 2005
Palaeontologists at the University of Washington have discovered that the biggest mass extinction in history was caused not by an asteroid or comet, but by intense global warming resulting from volcanic eruptions on a gigantic scale. The ‘Great Dying’, as geologists call it, wiped out 95 per cent of marine species and three-quarters of land-based species about 250 million years ago. Could a similar natural catastrophe occur in the future due to global warming caused by human activities?
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On December the first 2004, French legislators passed a bill legalising what they claim to be a "passive" form of euthanasia, with proponents stressing its differences from the practice now permitted in some other European countries. Unlike the situation in the Netherlands and Belgium where doctors aren’t criminally liable for actively ending the life of a patient, the French legislation deals mainly with acts of omission. Described as the "patient's rights" bill, provisions will empower doctors, acting at the request of patients (or a written order to be followed in case they become unconscious) and their families, to end medical treatment that is maintaining the patient’s life artificially.
Under this new law, doctors wouldn’t be penalised for administering – at the request of patients suffering from extreme pain – excessive doses of medication, even if the drugs have a secondary and subsequent effect of hastening death. The bill further seeks to limit ‘unreasonable persistency’ in treating the terminally ill. “When medical acts appear useless, disproportionate or serve no other purpose than the artificial support of life, they can be suspended or not undertaken” said Philippe Douste-Blazy, current French health Minsiter. In the rare event that the patient and the doctor disagree, "the law gives patients the option of appealing to a board made up of other doctors in order to reach a decision".
With 548 votes out of 551 in favour (3 abstentions), the draft bill successfully passed in the National Assembly at the end of last year and will go for a final vote in the Senate before April this year. The French health minister stressed to the deputies earlier that the proposed legislation would not "legalise the right to give death" as he argued that "a humane and dignified death is possible without having to fall back on euthanasia". Jean Leonetti, a centre-right deputy who headed the parliamentary commission responsible for the draft bill, admitted that the part dealing with patients refusing life-sustaining treatment was the most controversial. However, draftsmen included safeguards requiring additional medical consultation and a period of reconsideration by the patient. "The debate was timely because we have been asking ourselves questions about the technical advances of medicine" Leonetti said. "This legislation is one that allows dying but does not allow killing. That is how it is different from euthanasia," argued Leonetti, who visited Belgium and the Netherlands earlier to study their euthanasia laws and their applicability within the medical and social dimensions. It could therefore be contended that what French legislators are trying to achieve is a law that gives patients the right to die over the choice to live.
The euthanasia debate in France gained momentum in September 2003, when the mother and doctor of the 22-year old former fireman, Vincent Humbert, claimed to have “helped him die”. An accident left Vincent a quadriplegic, deaf and unable to speak. His case gained public attention after he wrote to President Jacques Chirac asking him for the right to die. The president responded that he did not have the legal right to do so and instead encouraged him to “regain the ‘taste of life’”. Some may argue that President Chirac’s request was somehow more difficult to achieve than the favour demanded. However, one must understand that these delicate situations should only be perceived subjectively as it may be an extremely difficult –yet achievable- task for a quadriplegic, deaf and mute person to regain an optimistic approach towards life.
Dr Frederic Chaussoy, Humbert's former doctor, admitted disconnecting his patient's life support after the mother Marie Humbert administered a near lethal dose of sedatives. “My true crime was to have admitted in public what many of us [doctors] commit in secret” said Dr Chaussoy, implying that the practice is not uncommon in French hospitals. And it surely is not. The French health Minister, a doctor himself, pledged “an end to the hypocrisy” as he claims that nowadays over “150 000 people are ‘disconnected’ from their machines although there is no legal framework to say how it should be done”. Dr Chaussoy has now been placed under formal investigation over his patient’s death and faces the prospect of a court trial. However, supporters of the Bill denounce his prosecution, and say that it would have been avoided under the new law. They say that the legislation would have enabled Dr Chaussoy to end artificial feeding at M Humbert’s request and give him morphine in the final days of his life.
However, ‘right-to-die’ campaigners say that the Bill does not go far enough. They want France to follow the Netherlands and Belgium, where euthanasia is partially legal, or Switzerland, where doctors can help the terminally ill to commit suicide by procuring lethal medicines for them. Humbert’s mother is among those campaigning for mercy killing to be fully legalised. She said, “Vincent did not want to go slowly, without knowing what was happening to him. He wanted to go at once, on the day he made the decision”. Régis Aubry, chairman of the French Association of Palliative Care, expressly disagrees with the concept of euthanasia as he believes that “there is a fundamental difference between respecting the wishes of someone at the end of their life and the act of helping that person to die”. This conflict of interests between different groups in society makes it extremely difficult for any legal system in a democratic state to legislate on good terms with public policy, especially when the issue is a controversial one.
But how could this law possibly be enacted without causing complications in the criminal law? Well, the French thought it through. Answer: the French penal code will not be modified. The act of ending a person’s life will thus continue to be punishable by law. However, the new law will modify the medical code of ethics and the public health code in order to institute ‘the right to die with dignity’. It is interesting to observe that in a country where 6.5% of the population live below the poverty line no measures are taken to enforce a ‘right to life with dignity’. Although not expressly admitted by legislators, this law would unarguably be of great value economically. From an economic perspective, the monetary cost of an ‘euthanized’ patient would realistically prove to cost considerably less than if the patient were to be kept on artificial life-support. To illustrate this theory, consider the fact that hospitals have limited resources available in a given period of time. It could therefore be suggested that resources that were previously used to maintain patient’s lives artificially could then be redistributed more efficiently towards other patients in greater need.
‘Assisted suicide, mercy killing, euthanasia’ is a controversial issue everywhere in the world, with on the one hand liberals promoting such rights and on the other religious groups loudly disapproving it. However, according to the IFOP, 88% of the French population appear to be in favour of the bill. In England, euthanasia is regarded as murder, a crime that can result in a life sentence, and assisted suicide is punishable by up to 14 years imprisonment. Although it is submitted that the aim of a ‘patient’s rights’ bill is to give more freedom of choice to the patient, it could be argued that there is little choice for a patient facing death. In a moment of despair, the pledge to ‘die sooner’ is actually a cry for help and hope. In my opinion, by accepting euthanasia, one is actually refusing to consider the true demand of a patient: to live!
Human beings are free, independent and autonomous creatures who should treat each other with respect and sympathy. The power of a person over another enslaves, oppresses and limits human life. It gives a psychology of power, based on a pattern of dominance and submission. “Man is born free, and he is everywhere in chains” wrote Jean-Jacques Rousseau in his On Social Contract. And most of us in the world certainly do remain enchained. Proudhon conveyed this concept in one of his most famous diatribes, that “to be governed is to be watched over, inspected, spied on, directed, legislated, regimented, closed in, indoctrinated, preached at, controlled, assessed, evaluated, censored, commanded; all by creatures that have neither the right nor the wisdom, nor the virtue”. Realistically, I believe that individuals do in fact need a governing system to guide them as opposed to control them.
This psychology of power undermines the concept of freedom and destroys the values of unity and equality. Nonetheless it must be contended that some form of power must be exercised in order to guarantee certain freedoms and to enforce and secure equality between individuals. Everything in the world is being globalised – and I believe that there is no need to enumerate – except our freedom and consent. It is true that we all have the right to vote, and therefore decide which political party would suit us best in order to fulfil our demands. However, most of the mechanics that govern us today are dramatically influenced, if not regulated, controlled and commanded, by foreign institutions, foreign governments and foreign interests. We no longer have control of what is decided in our national Houses of Parliament, let alone what is discussed abroad. But then again, have we ever had our voices heard?
In January 2003 I published an article in the Neo-Politics Journal in Oxford introducing the concept of a global revolution. I argued that a global democratic revolution is the only strategy which could deliver us from the global dictatorship of vested interests. Let us not ignore that, according to the OECD, more than one-fifth of the world’s population is living on less than sixty pence a day, that there is over 250 million child labourers worldwide, that 1.2 million underage women are trafficked for prostitution each year, that more than a billion people in developing countries lack access to safe water and more than 2.4 billion lack adequate sanitation, that more than 790 million people are inadequately nourished and 1.2 billion people are counted as income poor. These unfortunate people are the result of the corruption and egocentricity that exists among the richer groups of the world. The oppressed masses clearly need to act against, or even, counter-act, the unequal system they have been submitted to. Their opinions must be taken into consideration when those at the top of the hierarchy make decisions which would, directly or otherwise, affect those at the bottom of the ‘pyramid’.
So why opt for a Democratic revolution? Democracy is, as George Monbiot describes it, “the least-worst system available”. In other words, democracy is more consensual than any other political system because it is the only system which in theory at least, consistently provides us with opportunities for dissent. It enables us to express our disapproval of policies and values that offend us, to vote against them, and overthrow them without bloodshed. Marxist regimes are viciously intolerant of dissenters; anarchist systems appear to offer great scope for dissent within a community, as well as the opportunity to leave that community and join another one, but because they do not protect us from persecution, the only means of eradicating the violence of others is through greater violence of our own. If we happen to possess the less effective weapons or belong to the smaller community, that dissent will be useless. The dictatorship of vested interests offers opportunities for dissent only to those who represent the vested interests: the elite.
However, true democracy is unattainable unless it is brokered by institutions mandated by the people and made accountable to them, whose primary purpose is to prevent the strong from oppressing the weak and prevent people of all stations from resolving their differences by means of violence. Unsurprisingly, the powerful enjoy immunity, while the law treats the powerless ever more harshly, as can be observed in today’s ‘democracies’ (or shall I say ‘modern dictatorships’). L.A Freeman, in one of his earlier publications, criticised the law as being “ a spider web, as it will catch, it is true, the weak and the poor; but it will be torn apart from the rich and powerful”.
It has been suggested earlier in this article that individuals must be subject to some form of guidance by a separate body. Thus it could be argued that by exercising some sort of ‘guidance’, the ‘guide’ would indeed be exercising some form of power, which would lead us back to the whole argument of issues caused by the use of power over others. However, in his book The Age of Consent Monbiot argues that power is as intrinsic to human society as greed or fear and reaches the conclusion that “a world without power is a world without people”. Using Monbiot’s ideology, the question is not how to get rid of power but how the weak first reclaim that power and then hold it to account. Answer: a World Parliament. Forget the biased Security Council of the United Nations. Forget the equivocal purposes of both the International Monetary Fund and World Bank. Forget the unfair World Trade Organisation. Forget about a rich elite leading the world with the aim of enriching themselves even more, while the poor becoming poorer.
There exist one or several such ‘world’ parliaments already with the UN General Assembly and other fora where membership is universal or nearly universal, such as the UN Economic and Social Council. These 'parliaments' have no legislative powers, however, and it could be argued that it is unlikely that we will see the establishment of a parliament with such powers because states guard their sovereign powers (law-making and others) jealously and will continue to do so in the foreseeable future. However, a truly democratic World Parliament would consider policies and decisions from a global humanitarian perspective. By adopting such an attitude, the World Parliament would be able to legislate in the name of those who are nowadays ‘ignored’ by the Law. If the ultimate purpose of the Law is to deliver justice, the existence of a world parliament would deliver a global justice to the whole world. Many theorists have already drafted models of global political, economic and social institutions that could replace the current world system with a novus mundus ordinatio. The only problem for such a system lies in the complexity of its implementation. And complexity undermines legitimacy. It is highly likely that proposals for such a government would be disapproved by many nations in the world, not only because of their lack of political will, but because of other factors such as religion, culture and tradition. It could also be argued that such a system could face difficulties in both the application of policies and in any subsequent accountability issues. Should certain policies be adaptable in accordance to different regions in the world? Who should be responsible for drafting such laws? Where are the safeguards of the system, or as Plato eloquently put it, ‘who guards the guards?’
It is inevitable that many people will criticise what I’ve written and discredit what I believe in. I realise that my message will be received with a certain discomfort by many who read this, who will be inclined to suspect that some hidden sophistry must underlie a demonstration that leads to so many radical conclusions. However, the very act of expressing new ideas and theories activates the mechanics that will eventually permit changes to take place. An illusory veil reflecting the principles of freedom, justice and goodness is masking the world we live in today. Unfortunately, behind this veil is an obscure and egotistical regime of people who are continuously oppressing, controlling and abusing members of their own kind. The concept of a global democratic revolution would uncover this ‘illusory veil’ and enable people to universally contribute for the betterment of world development and global justice. It would allow the ‘weak’ to reclaim the power that they have been refused for many centuries. It would enable the debt that Western nations owe to ‘developing nations’ to be reconsidered and even alleviated. Let us not ignore that between the periods of 1503 and 1660, 185 thousand kilos of gold and 16 million kilos of silver were shipped from Latin America to Europe. The Native American leader Guaicaipuro Cuautemoc argued that his people should see this transfer not as a war crime, but as “the first of several friendly loans, granted by America for Europe’s development”. Were they to charge compound interest on this loan, levied at the modest rate of 10 per cent, Europe would owe the indigenous people of Latin America a stack of gold and silver which would exceed the weight of the planet. Unfair perhaps? Curiously, many of the western nations speak of ‘third world debts’ as if they didn’t owe a single penny.
Amongst the various scopes of many ideologies, I stand by the ‘radical’ views of a global democratic revolution. As Monbiot points out, “we have responded to the Age of Coercion with an Age of Dissent. This is the beginning, not the end, of our battle. It is time to invoke the Age of Consent.”