Received: by alpheratz.cpm.aca.mmu.ac.uk id JAA12200 (8.6.9/5.3[ref pg@gmsl.co.uk] for cpm.aca.mmu.ac.uk from fmb-majordomo@mmu.ac.uk); Sat, 7 Apr 2001 09:14:21 +0100 Message-ID: <3ACEC8A4.5444C707@clara.co.uk> Date: Sat, 07 Apr 2001 08:58:29 +0100 From: Douglas Brooker <dbrooker@clara.co.uk> Organization: University of London X-Mailer: Mozilla 4.5 [en] (Win95; I) X-Accept-Language: en To: memetics@mmu.ac.uk Subject: Re: taboos References: <E14j0vU-000GsE-00@gaea> <002901c0bbb0$f2000660$b902bed4@default><3AC8E1B1.33BCD878@clara.co.uk> <001101c0bc77$1fa65b20$0307bed4@default><3ACA3B58.F9D77350@clara.co.uk> <002101c0bd40$443d5280$820abed4@default> <001101c0be06$a97a0000$1908bed4@default> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: fmb-majordomo@mmu.ac.uk Precedence: bulk Reply-To: memetics@mmu.ac.uk
Hi Kenneth
Kenneth Van Oost wrote:
> > Hi Douglas,
> > You wrote,
> > I'm interested in how public myths survive in societies even when
> > they are contradicted by empirical evidence. An example - the American
> > self-myth about themselves as the most democratic nation in the world -
> > but there is evidence to suggest they aren't a democracy at all, at least
> in
> > the way they see themselves. Outsiders can see a society's
> contradictions,
> > which those within a society cannot.
>
> << I wish to come back on this issue, because in a way I do the same
> research as you do. But, like you started off in the field of law, I like to
> work on a more philosophical/ psychological level.
> Are you also interested in contradictions tout court !?
This interest started with neglected areas of law and this has led me into the
areas of abeyances and contradiction. (A good book on abeyances in Michael
Foley's "The Silence of Constitutions.") Maybe it is controversial to say this,
but I argue there are legal rules - rules that are obeyed, that are not
acknowledged to exist. There is a very basic proposition in western legal
systems, both common law and Civilian I think, that the law must be knowable. A
rule cannot be a rule unless those subject to it know exists. Usually this test
is met by formal manner and form requirements specifying how statutes and
regulations should be published, and when these are met all society is deemed to
have knowledge. Sometimes common law courts will determine that a statute is
too vague to be knowable but this is rare.
Responsible government in Canada has been traditionally seen as a matter of
convention, not law, but there are clearly stated legal rules which are
neglected or ignored in favour of reliance on convention. It's complex, very
historically grounded, very much a product of scholarly conservatism, in which
each new generation of writers continue the traditions of the prior
generations. The patriation of the Canadian constitution 1982 breached a
tradition of consensus - Foley would describe it as a breach of issues that had
had been kept in abeyance because there was some form of understanding, perhaps
unconscious, that to raise the issues would precipitate a constitutional crisis,
which is what happened in Canada.
> Let me give you an example of what kind of research I am interested in.
>
> A female lawyer, a ex- Miss Belgium, gets into trouble with the board of
> lawyers because she said in a interview that she likes to wear mini skirts
> en hot pants. The chairman of the board had wished that he could expell
> her from the board as a practical lawyer because she and her actions were
> not in conformity with the boards regulations.
> The discussion went as far as the civil courtroom, she won by the way.
> IMO this is a very interested field for exploration according to use
> memetics as a tool to do so.
>
> To come back on the issue mentioned above, IMO the contradiction is
> here the lawyers ethos/ ethics ( how to behave as a lawyer) and how you
> will present yourself as an individual. As you present yourself as an
> individual
> as the female lawyer did and your work as a lawyer is ok, than I don 't see
> any reason to expell her from the board. But, the board of lawyers has
> presumably other ideas about the situation.
> In the courtroom the lawyer for the defense, and in the end the judges
> themselves did not find any evidence that the female lawyer misbehaved
> herself or that her work has suffered in either way...good or bad.
>
> For the sake of memetics, IMO again this is a very interesting area, due
> to the fact of what evolves, what gets transmitted, how and why.
> These contradictions may not have to be seen by outsiders, maybe by people
> outside the field, we as the public can see them easily and laugh about
> them.
> But, IMO, these are serious matters to deal with if you are in the middle
> of the discussion.
I'd want to read the regulations involved and better understand the exact
details of what each side said. A difficult issue is whether a legal text can
lead to certain outcome in a mechanical way - is their meaning self-announcing,
or do the parties and the court impute meaning to a legal text. Another issue
is whether the person or body charged with enforcing the rules have discretion
that is wide enough for them to use the rules for their own agendas. Was the
Board of Lawyers in your example simply trying to enforce the law or was it
pursuing a more personal agenda. Exercise of legal discretion in common law
system usually cannot be 'capricious.'
Did the Board of lawyers enjoy wide public support for their action? The
specific question I was hoping memetics might shed some light on is how courts
'read' the values of a society so as to reach judgements that are acceptable
and, as Luhmann say, find an 'echo' with the people. Theoretically a court has
the power to reach any decision it pleases. But common law courts must give
reasons and in these reasons they are implicitly seeking approval from society,
and the immediate parties. Courts have power by law but law cannot confer
legitimacy. They must earn this and maintain it, judgement by judgement.
How would memetics explain how the competing values in your example become
resolved through a court's decision? How much of the competition is actually
resolved by a judgement and how much of it just goes uncover, waiting for
another opportunity to express itself?
best wishes
Douglas
===============================================================
This was distributed via the memetics list associated with the
Journal of Memetics - Evolutionary Models of Information Transmission
For information about the journal and the list (e.g. unsubscribing)
see: http://www.cpm.mmu.ac.uk/jom-emit
This archive was generated by hypermail 2b29 : Sat Apr 07 2001 - 09:17:05 BST