05 February 2011

Faith-based jurisprudence

US jurist Potter Stewart in Jacobellis v. Ohio (1964) famously stated that he couldn't define pornography but knew it when he saw it. Justice Gary Sharpe of the US Federal District Court in Albany appears to have reversed that dictum, condemning an offender on the basis of an "as-of-yet undiscovered gene".

A contact has kindly pointed me to NY Times coverage of Sharpe's decision, overturned on appeal. He had imposed a six-and-a-half-year sentence in a child pornography case, being quoted as saying "It is a gene you were born with. And it's not a gene you can get rid of" before sentencing defendant Gary Cossey (formerly of the Cambridge/Greenwich Rescue Squad) in December 2009. Sharpe commented that court did not "have a lot of faith in [the psychology] profession in the first place" because the profession is "all over the board on those issues". "I'm not gonna be surprised that it is not what happened to you as a child, ... but I'm not going to be surprised instead but that it is a gene you were born with. And it's not a gene you can get rid of." It is unclear whether Sharpe believes in a jaywalking gene, an internet addiction gene, a shoe-shopping gene (prevalent among some female law undergrads?), a white collar crime gene [PDF] or a graffiti gene. Presumably I have the footnote gene (not, as far as I'm aware, a criminal defense).

His idiosyncratic assessment - redolent of eugenicism highlighted in works such as The Criminal Brain: Understanding Biological Theories of Crime (New York: New York University Press 2008) by Nicole Rafter, Criminals and their Scientists: The History of Criminology in International Perspective (Cambridge: Cambridge University Press 2006) edited by Becker & Wetzell or Inventing the criminal: a history of German criminology, 1880-1945 (Chapel Hill: University of North Carolina Press 2000) by Wetzell - is of concern. Are people with such a gene - a gene that isn't recognised by science - freed from responsibility, or merely regarded as "unsalvageable", to adopt a phrase used by some Nazi jurists.

The United States Court of Appeals for the Second Circuit in United States v. Cossey, 09-5170 [PDF] considered Cossey's claim that -
the sentence imposed by the district court was procedurally and substantively unreasonable. He alleges that the sentence imposed by the district court was unreasonable because the court failed to properly consider the factors under 18 U.S.C. § 3553(a), disregarded mitigating facts, relied on clearly erroneous facts, depended on suppositions unsupported by the record, imposed a sentence that was greater than necessary under the totality of the circumstances, and mistakenly presumed that a within-Guidelines sentence was reasonable.
The Court indicated that "It would be impermissible for the court to base its decision of recidivism on its unsupported theory of genetics". Sharpe had improperly found that Cossey would return to viewing child pornography "because of an as-of-yet undiscovered gene". The Appeals court ruled that the sentence's reliance on findings not supported in the record "seriously affects the fairness, integrity and public reputation of judicial proceedings" and ordered that Cossey be resentenced by a different judge.

Cossey had pleaded guilty to one count of possession of child pornography. The Appeals court noted that Sharpe had rejected two psychological evaluations assessing Cossey as "at a low to moderate risk to reoffend. Sharpe reportedly told Cossey that the "opinions of the psychologists and the psychiatrists as to what harm you may pose to those children in the future is virtually worthless here", apparently going on to comment -
I’m not sure there's any answer for what I see here beyond what I’m about to tell ya.
In predicting that in 50 years Cossey's conduct is likely to be found to have been caused by a gene, Sharpe stated that -
You are what you're born with. And that's the only explanation for what I see here.
In overturning Sharpe's decision the superior court commented that -
it would be impermissible for the court to base its decision of recidivism on its unsupported theory of genetics. For Cossey’s challenge to survive, there must be error and it must be plain. Where a district court relies on its own scientific theories of human nature to sentence a defendant, as it does here, a finding of plain error is warranted. The court's belief that Cossey was genetically incapable of controlling his urges affected the court's decision to sentence him to imprisonment, to impose a prison term that is lengthy, and to order him to submit to supervised release for life, all of which affect Cossey's substantial rights. Once plain error affecting substantial rights has been established, an appellate court may exercise its discretion to correct it if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. ... It is uncontroversial to conclude that a sentencing decision that relies on factual findings that were unsupported in the record, and thus could not possibly have been established by a preponderance of the evidence, seriously affects the fairness, integrity, and public reputation of judicial proceedings.

The record supports a finding that plain error occurred insofar as the court decided to sentence Cossey based on its conclusion that he would re-offend due to its prediction as to the state of the science of genetics "fifty years from now".

Melly

From the Oxford National Dictionary of Biography entry on George Melly (1926-2007) -
In 1974 Melly resigned from The Observer and joined Chiltern's band full time, adopting his trademark razor-sharp 1930s suits and outrageous fedoras. It was a pop cultural silhouette, ironic and self-referential. Nor did age abate his sense of anarchy. He fell out with Roland Penrose, surrealist and founder of the Institute of Contemporary Arts, when Penrose invited the duke of Edinburgh to open a Picasso exhibition. He subsequently turned down a CBE: 'I didn't see the point of accepting an honour from a Hanoverian sovereign of a former empire' (The Guardian, 18 Feb 2004).

Melly had published his first volume of memoirs, Owning Up, in 1965. A rumbustious, picaresque account of his town and provincial jazz tours, the book was both filthy and hilarious. It was followed by a prequel in the shape of Rum, Bum and Concertina (1977), which dealt with his disreputable naval service and offered such memorable scenes as Melly, the put-upon rating, being defended below decks by a tough seaman: '"Anyone who says a word against f-- Picasso", he murmured gently, "gets f-- done over"' (Owning Up, 320). A third volume, Scouse Mouse (1984), retold his Liverpudlian upbringing and underlined, in a wonderfully unsentimental yet nostalgic manner, how far he had travelled. In all three books he was at pains to strike a deliberately outrageous tone, one that enhanced rather than concealed his essentially humane and affectionate personality.

Melly also wrote a witty account, with Barry Fantoni, of his milieu in The Media Mob (1980). His sensitive biography of the outsider artist Scottie Wilson, It's All Writ Out for You, appeared in 1986 - a theme pursued in Tribe of One: Great Naive and Primitive Painters of the British Isles, with Michael Wood, in 1991. He edited Edward James's Swans Reflecting Elephants: My Early Years (1982), an evocation of the great surrealist patron; and in 1997 published Don't Tell Sybil: an Intimate Memoir of ELT Mesens. Hooked! (2000) was enlivened with a passage about m-- over a trout. 'I put that bit in early because not many people are interested in reviewing a fishing book unless something startles them' (Scotland on Sunday, 1 July 2001).
Editorial amendment in the Picasso anecdote, of course, so that this blog doesn't get sin-binned

04 February 2011

Student employment

As UC Vice Chancellor Stephen Parker commented at the Commencement Ceremony earlier this week, many university students need to work in order to support themselves during their studies.

A new 46 page report by Rezida Zakirova & Cain Polidano of the National Centre for Vocational Education Research on Outcomes from combining work and tertiary study [PDF] comments that -
Working in some capacity is almost considered de rigueur for tertiary students. The reasons for working and the impact this has on both an individual's ability to complete their studies and on their post-study labour market outcomes are only recently receiving attention.

This is the first study in Australia to use multivariate analysis to examine motivations and education and employment outcomes from working while studying for both vocational education and training (VET) students (excluding apprentices and trainees) and higher education students aged 25 years and under. It is important to try and eliminate the effects of confounding factors — factors that are related to both working and outcomes—that distort the relationship between outcomes and work while studying. In contrast to descriptive statistics, the use of multivariate analysis allows us to determine whether any observed relationship between hours of work and course completion, for example, is due to hours of work or a third variable, such as socioeconomic background.

Using the 1995 and 1998 cohorts of the Longitudinal Surveys of Australian Youth (LSAY), this study investigates the motivations for and the education and employment outcomes from working while studying for both vocational education and training (VET) and higher education students.
The authors conclude that income is "an important motivating factor" -
those in receipt of income support are less likely to work while studying, although this is dependent on whether the student is still living at home.
They argue that -
• For those studying full-time, working impacts on completion — the more hours worked, the greater the effect. For example, working 16–24 hours a week reduces the completion rate by eight percentage points, while more than 24 hours reduces it by 14 percentage points.

• Finding work in a job considered a 'career' job while studying has a significant and positive impact on course completion for both VET and higher education students.

• For all tertiary students, being employed in the final year of study improves the chances of finding full-time employment, even three years after completing the course.

• For both full- and part-time students, the longer they have been employed in a job, the greater the likelihood of course completion, while past work experience also increases the likelihood of completion for full-time students (2.5 percentage points per year of employment). Perhaps this reflects that these students have better time management skills.
More specifically -
After controlling for differences between VET and higher education students, including academic ability, we find that full- and part-time VET students aged 25 and under in their first tertiary course are around ten percentage points more likely to complete than their higher education counterparts. The higher completion rates among this group of VET students may be due to a number of reasons, including the shorter duration of the courses, differences in the academic demands of the courses and differences in the flexibility and modes of course delivery. In general, the modularised nature of VET means that courses can be better tailored to individual training needs and are delivered in a greater range of modes, especially off-campus delivery modes.

After controlling for differences between those who choose different work and study combinations, including academic ability, course load, courses types and field of study, we find that for those aged 25 and under in their first tertiary course, working while studying can reduce the chances of completing, but it depends on the hours worked. For full-time students, we find that compared with those who do not work while studying, those who work up to eight hours (roughly a day) a week on average while studying are just as likely to complete, while those who work more than eight hours are less likely to complete; that is, those working 8.1 to 16 hours (roughly two days) a week, 16.1 to 24 hours (roughly three days) a week and those working more than 24 hours a week are five percentage points, eight percentage points and 14 percentage points less likely to complete, respectively. For part-time students, due to the small number of observations, the only comparison is between those who work fewer than 32 hours per week (part-time workers) and those who work more than 32 hours (full-time workers). We estimate that part-time students who work full-time are around 12 percentage points less likely to complete than those who work fewer than 32 hours per week. From tests performed, we find no evidence that these results are affected by self-selection bias — the presence of unobserved factors that affect both the choice of average hours worked and course completion.

We find that, generally speaking, there are no differences in the ability of full-time VET students and full-time higher education students to manage work and study. However, we find that part-time VET students who work full-time (work more than 32 hours per week on average over their course) are around 15 percentage points more likely to complete than part-time higher education students who work full-time. To complete a qualification part-time while working full-time requires considerable effort and application and the longer duration of higher education courses may make the required commitment more taxing. The relatively long commitment required to obtain a higher education qualification part-time may also mean that employers are less likely to support full-time employees who choose this education pathway.

Importantly, we find that, for both VET and higher education students, the type of work performed while studying has a significant bearing on completion. Full-time students who find a job they would like as a career while studying (around 12% of both VET and higher education students) are estimated to be around four percentage points more likely to complete study than those who work in a job that is not a career job, while the same effect for part-time students is around ten percentage points. A possible explanation is that most of those who find a career job while studying find work in professional jobs, especially in the areas of information technology, engineering, and architecture and building, which tend to require the attainment of a qualification for post-study employment. Therefore, the prospect of converting their jobs to ongoing employment after study may give them an added incentive to complete over those who work in non-career jobs. If this interpretation is correct, this result underlines the importance of creating more opportunities for students to gain experience working in jobs that they would like as a career.
Their modest assessment?
combining study and work does have significant effects on completion and future employment prospects. Too much work negatively impacts on study completion, but on the other hand work experience does benefit future job prospects. The ideal combination would be modest hours of work in a job relevant to a future career — but this will be difficult to achieve for many students.

Drug Law Enforcement metrics

The Australian Institute of Criminology has released 'Measuring the effectiveness of drug law enforcement' (Trends & issues in crime and criminal justice no.406, 2011) by Katie Willis, Jessica Anderson & Peter Homel.

The authors comment that -
Seizing drugs and arresting those who import, manufacture, grow and/or distribute these drugs is often viewed as the most important purpose of drug law enforcement. This view is certainly strong in popular media depictions of organised drug criminals. Unfortunately, the reality is perhaps far less entertaining or straightforward, although just as, if not more, important. While there is no doubt that a key role of drug law enforcement is to remove drugs and high-risk offenders from the community, the most critical factor is what this actually achieves in the longer term. That is, a community that is less burdened by the impact of drugs, such as crime, illness, injury and death.

Increasingly, there is both internal and external pressure on drug law enforcement to demonstrate not just how much work they do (the seizures and arrests), but how well they do it (the community impacts)—something that has so far proven very difficult. This paper outlines the nature of these challenges and summarises findings from a national project that shows a practical and effective way forward in measuring the impacts of drug law enforcement.
The paper
summarises key findings, both conceptual and practical, from the second stage of a major national project that sought to test the feasibility of a model performance measurement framework for Australian DLE agencies and to provide advice on its national implementation (Willis, Homel & Anderson 2010). As such, it does not provide an overview of the effectiveness of DLE in Australia. The first project stage involved development and preliminary testing of the initial performance measurement framework. Trends & Issues no. 332 (Homel & Willis 2006) includes a summary of the project’s rationale and development and so this is not repeated in this paper in detail. Both project stages were undertaken by the Australian Institute of Criminology (AIC) on behalf of the National Drug Law Enforcement Research Fund.

The rationale behind the use of the framework as a DLE performance measurement tool is that the framework’s measures address a combination of supply and demand market issues. The framework’s premise is that DLE impacts on both of these. In theory, illicit drug supply is reduced through action such as controls on drug production and distribution, seizures and the arrest (and ultimately incarceration) of those involved in the importation, production and distribution of illicit drugs (for a detailed summary of supply-side controls see Willis, Homel & Gray 2006). In essence, the aim of supply-side DLE is to disrupt the supply or availability of illicit drugs, thereby increasing the costs and risks associated with drug importation and distribution. The aim of demand-side DLE is to reduce the level of demand for illicit drugs within the general community. Demand-side DLE is primarily directed at the drug user. The rationale behind demand-side DLE is that, even if DLE agencies are unable to increase the financial cost of illicit drug use or restrict its availability, they can increase the non-monetary costs associated with its use. So, as the level of inconvenience, time, risk or cost of trying to find a drug seller increases, more drug purchasers are tempted to leave the illicit drug market (for example by entering treatment) while those who remain tend to use illicit drugs less frequently (Weatherburn et al. 2000). This then has clear flow-on effects in terms of reducing public harms.

Deep-frozen wetware

After a night reading the superb God-Fearing and Free: A Spiritual History of America's Cold War (Cambridge: Harvard University Press 2010) by Jason Stevens I sought light relief, in the style of Waugh's The Loved One, by reading Alcor's quarterly magazine [PDF].

Stevens offers an incisive exploration of the reception of the Niebuhrs, Norman Brown, Flannery O'Connor and other figures, along with analysis of works such as Inherit The Wind and The Night of the Hunter. Strongly commended.

The magazine from Alcor, the business that specialises in freezing your head (attached to your body or otherwise) with the expectation that you'll eventually be 'revived' without ill-effects, is a hoot.

It features advice by Ralph Merkle on "Signing Up Your Relatives", ie persuading people that they too should get the big chill (a process that is, of course, not free). Merkle helpfully suggests that -
Well, you’ve tried all the soft sell approaches. You’ve used all the rational arguments. You’ve pointed out all the simple, easy, straightforward reasons why Pat should choose cryonics. They haven’t worked. It’s time to try something with a bit more punch: “How would you feel if I put a shotgun in my mouth and blew out my brains?”

“What?” Pat might well try to evade answering the question. The obvious counter to any attempt at evasion is to simply repeat the question (possibly in shortened form or possibly after acknowledging Pat’s attempted counter but then saying that doesn’t answer the question): “How would you feel if I put a shotgun in my mouth and blew out my brains?” It seems unlikely that Pat would feel at all good in response to your hypothetical action, so we can reasonably assume that Pat eventually provides some variant of the following answer: “Terrible!” At which point you can say: “That’s how I feel about what you’re doing. Look, it’s easy for you to say you don’t want cryonics. You won’t have to grieve over your own death – but I will. Remember when died? Remember how you felt? Well, that’s how I’m going to feel if you aren’t cryopreserved. And I’m going to keep grieving for you for the rest of my life. Is that what you want to leave me, a lifetime of grief?”

If Pat has conceded that cryonics has some chance of working you can make an even stronger argument: "Even worse, think about what happens if cryonics is successful and I’m revived and rejuvenated: the rest of my life could be thousands of years or even longer. I’m scared I’ll never stop thinking about you and wishing you were with me, going over this conversation we’re having right now again and again in my mind, and blaming myself for not being more persuasive, for not trying harder, and for eventually giving up."

The primary purpose of the opening question and the essentially forced response is to snap Pat out of the “this is my decision and nobody else has a say in it” mind set. Pat’s decision influences more people than just Pat (if Pat cares about anyone else who supports cryonics, mention them as well). It’s also appealing to an implicit notion of fairness. If there’s some important reason Pat should be buried or cremated rather than cryopreserved, now is the time for Pat to explain it – otherwise Pat is just hurting people for a whim, and most people most of the time try to avoid hurting others, even if it means they can’t do exactly what they want.

The emotional argument being made is quite simple and is based on few assumptions. Stated explicitly, it is: “Pat, if you are buried or cremated your loved ones (at least those of us who think cryonics is a good idea) will suffer and grieve for decades, if not a lot longer. If you’re cryopreserved, we won’t. Is being buried or cremated really so important to you that you are willing to put us through that kind of pain? For what reason?”

This emotional argument is valid regardless of Pat’s skepticism or doubts about cryonics – because it’s your belief in cryonics that makes it work, not Pat’s doubts.
Mike Perry, in a review of The Sociopath Next Door, warns that -
The cryonics movement is small and vulnerable. We need to be concerned about people who could do us harm and may impress us initially with their intelligence, competence, and apparent eagerness to help. One such personality type is the sociopath, a person with no conscience, the subject of the book here reviewed.
Oh dear, sociopaths threatening the "movement" founded on the belief that when the wetware gets thawed the person will still be there (ie the brain will be functioning rather than what one of my more irreverent medical friends describes as a defrosted meat-flavoured icicle).

Lest I be too cruel about "the movement" - where would we be without pasty-faced nerds in true believer mode - I'll quote an explanation from the magazine.
The Alcor Life Extension Foundation is a nonprofit tax-exempt scientific and educational organization dedicated to advancing the science of cryopreservation and promoting cryonics as a rational option. Being an Alcor member means knowing that — should the worst happen — Alcor’s Emergency Response Team is ready to respond for you, 24 hours a day, 365 days a year.
The "worst" is presumably a meeting with the grim reaper, an eventuality that from my perspective is strictly a matter of when rather than if.

The same magazine states that -
Cryonics is an attempt to preserve and protect human life, not reverse death. It is the practice of using extreme cold to attempt to preserve the life of a person who can no longer be supported by today’s medicine. Will future medicine, including mature nanotechnology, have the ability to heal at the cellular and molecular levels? Can cryonics successfully carry the cryopreserved person forward through time, for however many decades or centuries might be necessary, until the cryopreservation process can be reversed and the person restored to full health? While cryonics may sound like science fiction, there is a basis for it in real science. The complete scientific story of cryonics is seldom told in media reports, leaving cryonics widely misunderstood. We invite you to reach your own conclusions.
People who find the prospect of freezing and defrosting passe can presumably savour the writing of transhumanist Charles Tandy, founder of (and apparently sole academic at) RIA University. That no doubt very fine institution is apparently somewhat less substantial than Laszlo's recurrently-hyped-&-rebadged GlobalShift University (aka Giordano Bruno University aka Giordano Bruno GlobalShift University), albeit like the Laszlo institution does not appear to have any students.

Tandy very modestly claims to be "a pioneer in time travel and suspended animation", complete with a Laszlo-style theory about "the omniverse". His 'Entropy & Immortality' in 14(1) Journal of Futures Studies (2009) burbles that -
Work beginning in the 20th century has laid the foundation for eventual realization of the onto-resurrection imperative. Developments have already taken us to the threshold of what has been called "practical time travel" – or what, loosely speaking, we may call "time travel". Once time travel becomes feasible in the 21st century, then we can proceed to more fully implement our common task of resurrecting all persons no longer alive, rather than merely resurrecting some persons via current techniques such as CPR. The first steps (beyond CPR) occurred in the 20th century on several fronts, including steps in the direction of suspended-animation, superfast-rocketry, and seg-communities. ...

But the onto-resurrection imperative demands more than immortality for those currently alive. In extraterrestrial space we can experiment (e.g. via Einsteinian or Gödelian past-directed time travel-viewing) with immortality for all persons no longer alive. Seg-communities (Self-sufficient Extra-terrestrial Green-habitats, or O'Neill communities – e.g., see O'Neill, 2000) can assist us with our ordinary and terrestrial problems as well as assist us in completion of the onto-resurrection project. Indeed, in Al Gore's account of the global warming of our water planet, his parable of the frog is a central metaphor. Because the frog in the pot of water experiences only a gradual warming, the frog does not jump out. I add: Jumping off the water planet is now historically imperative. Indeed, it seems unwise to put all of our eggs (futures) into one basket (biosphere).

I close with these words from Jacques Choron: "Only pleasant and personal immortality provides what still appears to many as the only effective defense against ... death. But it is able to accomplish much more. It appeases the sorrow following the death of a loved one by opening up the possibility of a joyful reunion... It satisfies the sense of justice outraged by the premature deaths of people of great promise and talent, because only this kind of immortality offers the hope of fulfillment in another life. Finally, it offers an answer to the question of the ultimate meaning of life, particularly when death prompts the agonizing query [of Tolstoy], 'What is the purpose of this strife and struggle if, in the end, I shall disappear like a soap bubble?' "

Above it was shown that mental-reality and all-reality are dimensions of reality which are not altogether reducible to any strictly physical-scientific paradigm. A more believable (general-ontological) paradigm was presented. Within this framework, the issue of personal immortality was considered. It was concluded that the immortality project, as a physical-scientific common-task to resurrect all dead persons, is ethically imperative. The imperative includes as first steps the development of suspended-animation, superfast-rocketry, and seg-communities.
Shame that there's no mention of hovercars, jetpacks and proton pills!

Tandy is a Director of the Lifeboat Foundation, concerned with responses to "existential threats" (bug-eyed extraterrestrials and so forth). It has an interest in immortality by - kid you not - 'broadcasting' us into outer space, in the pious hope that artificial intelligence (AI) or benign extraterrestrials will reconstruct us using that information. Oh dear.
A personality could be uploaded or migrated to a computer as well as being broadcast to the universe so a future ET could reinstantiate them in case an existential risk occurs. Instead of an ET, if one is willing to entertain either faster-than-light travel or non-Euclidean-space travel (e.g. wormholes), it may even be possible that our far-future descendants pick up our broadcasts and reconstruct us.
One link points to CyBeRev (Personal CyberConsciousness by Terasem Movement Inc).
CyBeRev means cybernetic beingness revival. The purpose of the CyBeRev project is to prevent death by preserving sufficient digital information about a person so that recovery remains possible by foreseeable technology. Terasem Movement believes that future technology will be able to recover full functionality for CyBeRev people.

The first step toward achieving that goal, and the purpose of this website, is for participants to store digital reflections of their mannerisms, personality, recollections, feelings, beliefs, attitudes and values with as great a fidelity as is possible.

Participants can store digital reflections in a variety of formats, including:
Photos
Videos
Text documents
Audio recordings
Favorites
Personality tests
Participants can then choose to share some or all of their information with others through the Visit Reflections feature of the project.
If you are enthused you can read the following associated statement from "Terasem Movement Transreligion Inc", explained as -
A social movement devoted to diversity, unity and joyful immortality achieved through exponential growth of geo-ethical nanotechnology. Immortality is accomplished by creating consciousness in self-replicating machines that can be distributed throughout the cosmos. The machines use their exponentially growing knowledge and ethical nanotechnology to convert universal random mass and energy into ubiquitous intelligent mass and energy that, networked together, will be a force capable of controlling cosmic physics. Diversity, unity and joy are ensured through machine consciousness and universal adherence to the principles of Terasem. As the collective consciousness becomes increasingly omnipresent, omniscient and omnipotent it will realize the age-old vision of a benevolent God. Until the time of cosmic dispersion, Terasem functions as a trans-religion by educating the public on the practicality and necessity of diversity, unity and joyful immortality.

01 February 2011

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.