Over-simplification

High office might induce people to recognise that the answers to some questions are not simple and indeed that sometimes we don't ask the right questions.

Last year I pointed to Anthony Fisher's crude simplification - crying out for derision - that atheism resulted in the horrors of last century. (Presumably demonic possession or other excuses got sundry religious organisations off the hook for their misbehaviour during that period and sundry wars of religion were attributable to bad weather, bad parenting or reading too much Martin Luther and Irenaeus).

Alas, Fisher The Simplifier - aka the Most Rev Anthony Fisher OP, DD, BA (Hons), LLB, BTheol (Hons), DPhil - is at it again. During his sermon at St Mary's Cathedral yesterday he explained that "Bad laws are mostly made by bad people and in turn make people bad".

Unabashed by sharing that insight (albeit apparently without suggesting that we should remove the "bad people"), he warned that "state-sanctioned killing" undermined the legitimacy of the state and its criminal law. Oops, let's not talk to the armed forces during times of war (or the blessing of those forces by the righteous).

Bishop Fisher noted that Pope John Paul II went so far as to deem such laws "lacking authentic juridical validity" and requiring lawyers and health professionals to refuse conscientiously to follow them. How things have changed.

There's a more nuanced and fruitful analysis in 'Kelsen's Reception in Australasia' by Iain Stewart, an account of the Kelsen Stone dispute at pages 311-352 of Hans Kelsen Anderswo/Hans Kelsen Abroad (2010) edited by Robert Walter et al.

Stewart's chapter, founded on his 2006 conference paper regarding that dispute -

Reviews the reception of Hans Kelsen's Pure Theory of Law in Australasia, with particular reference to: Kelsen's dispute with Julius Stone over the "Grundnorm" concept; use (or misuse) of that concept in legal argument during the constitutional crisis in Fiji, 2000-2009; applicability of the "Grundnorm" concept to Australia; and the author's own work in facilitating access to, and departing from, the Pure Theory.

He comments that -

difficulty with the idea of a basic norm prevents him from getting further with that of dynamic legal order. A pity, since the distinction between static and dynamic ordering of norms is today central to Kelsen’s legacy, while that between static and dynamic approaches in the study of law has passed away along with its functionalist social-scientific counterparts.

The difficulty was never overcome. Kelsen and Stone pursued their courses like ships in the night, of which one speaks the other with basic miscomprehension. The position remained that set by Kelsen on the final page of Professor Stone and the Pure Theory of Law. According to Stone, Kelsen had written, with reference to the American legal realists: "Sociological jurisprudence presupposes normative jurisprudence, since until the latter has determined what are legal norms sociological jurisprudence has no defined province". Kelsen does say "sociological jurisprudence presupposes normative jurisprudence", but not the rest – although the rest is a reasonable summary of what he also says. Stone then remarks: “Yet the truth may be exactly the reverse"; "it would be truer to say that Kelsen’s normative jurisprudence presupposes 'sociological jurisprudence'". Kelsen contents himself with remarking: "But Professor Stone does not prove it".

Stewart later indicates that -

I would like to take a break now and a nice place for a holiday is Fiji. The country is also known to journalists as "coup-coup land": since independence from Britain in 1970, it has had no less than five military coups – two in 1987 and one each in 2000, 2006 and 2009. It has had three constitutions – in 1970, 1990 and 1997 – and today none of them is in operation. This instability makes it difficult to apply the Pure Theory of Law without simple fictionality, yet it has been tried.

I do wonder what Kelsen, of for that matter Dr Fisher, would make of the Greeting Card For The Year of the Rabbit animation on the LRB site.

The commentator notes that Beijing recently moved against that animation, in which a group of oppressed rabbits overthrow an abusive government of tigers.

The cartoon claims to be 'meant as an adult fairy tale', with 'no connection to real life', but most of the events it depicts will be familiar to a Chinese audience. It begins with baby rabbits being fed bottled milk: 'Little rabbit, be good, open your mouth, open it up quickly, and drink up your happy future'. They turn green, their eyes pop out and their heads explode. In 2008, six infants died and more than 300,000 fell ill after drinking contaminated formula.

When one of the rabbits tries to protest at a political meeting, he is beaten by the tigers. 'Build a Harmonious Forest', the tigers' banner says, echoing the government's talk of 'Building a Harmonious Society'. Then the tigers bulldoze the rabbits; houses.

And on it goes, in a less than aesopian rendition of human rights abuses that are unsurprising to people who have for example looked at blog posts here and here.