Friday, February 6, 2009

Law is an Ass - a sidenote, scroll past this entry to read about ATHENS

Stockholm stillness brought me to a drinking pool of more analysis and better grammar - it brought me wide eyed and wet (from snow) to local libraries and cafes. Amongst other things, in my lap jumped David Runciman's book review, Bouceability in the London Review of Books.

Runciman brings Classical Athens back to relevance. He links current ideas about mass collaboration and knowledge aggregation as manifested in the battle against copyright laws and the creation of Wikipedia for example, with the life in classical Athens. Classical Athens had a form of direct democracy as opposed to representative democracy, and apparantly it was successful.

On my mind is how our legal system can act against our interests. The Rule of Law is an ideal that
"rests upon a strict separation of public power where formal equality reigns from private power generated by disparities in wealth being utilised in the market where hierarches may proliferate freely" (Hugh Collins, Roberto Unger and the Critical Legal Studies Movement).

Legal rules are embedded in context - understanding the context is the way to interpret the rule. The example offered by HLA Hart is a law prohibiting a person taking a vehicle into the park. There are a myriad of factual circumstances that could fall within the scope of this rule : such as - taking a baby in a pram into the park,
-driving a truck over the grass,
-installing a truck as a monument (Hugh Collins, Lon Fuller).

So we see the role of judicial discretion in applying the rule to the facts.
It is Ronald Dworkin who argues that the judiciary refer to the purpose of the law. I suppose one predominant purpose of law is to protect private property. But it is also to promote the common good via dissemination of the benefits of technology and culture.

In the fascinating trial against The Pirate Bay, (Spectrial) we see the powerful confluence of the profit-motivated cultural industry and the legal system. (In a perverse twist one main investigating officer took leave of absence to work for Warner Brothers, a member of MPAA).

and on to Athens