Common law vs. civil law

Humans form communities – that is one of our defining (and best) characteristics.  In order to coexist peacefully, we must agree on a set of rules to govern our interactions. Yet, different communities don’t always go about it the same way.

Some adopt ‘common law’, which takes the approach that all behaviours are permitted, except for those deemed to be harmful, which are then specificly forbidden under the law.  This suggests an underlying philosophy that each person is a free, independent individual.  People ought to be free to act according to their will, and only those behaviours that infringe upon the rights of other individuals within the community to enjoy thier freedoms are forbidden. The goal of laws is to ensure all individual members of the society are able to exercise their freedoms as much as possible.

Communities which develop one of the forms of ‘Civil law’ have a different point of view.  They specifically list the behaviours which are acceptable to the society and permits them, all others are forbidden.  This suggests a philosophy that it is ‘the society’ which is the ‘basic unit of worth’, not the ‘individual’.  As such, it is the goal for the laws to protect the society.

This is a really big philosophical difference. 

It seems to me that common law promotes individualism, while civil law seems more focused on collectivism.

Of course, this is a major simplification.  Also, there are several forms of civil law. This is not intended to be an exhaustive description…  Rather, it is meant to explore the differences in the philosophical undercurrents between societies which choose to govern themselves under civil or common law.  It is not meant to look at the specifics as they are, but at the patterns of thought that led to the differing attitudes of how we ‘ought to’ govern ourselves.

Common law (in its idealized state) sees the individual as the empowered one, the one with inherrent rights who chooses to lend some freedoms to the state in order to create a society.  The law is loath to interfere with these rights and freedoms of each one of its citizens and will only curb them with great reluctance.  It could be summed up by the sentiment: 

‘Upholding the rights of the one ensures the rights of the many.’

Civil law sees the society as the one with all the power.  ‘These are (or ‘ought to be’)  the customs of our society, thus codified here into law.  Do not stray outside of these behaviours, or you will have to answer to the state.’  And while many countries that practice civil law have accepted that an accused individual has the right to a fair trial, including a presumption of innocence, not all of them do.  It could be summed up by the sentiment:

‘Every one must adhere to these rules, because they are in the best interest of the society.’

Many modern countries do incorporate some aspects of both philosophies.  Rather than opposite sides of a coin, I see these as different ends of a continuous philosophical spectrum.  Most countries fall somewhere within this spectrum, and may move along it in one direction or another with time.

Yet, regardless where along this spectrum a particular state’s legal system lies at any specific time, these underlying philosophies will influence its attitude towards its citizens.

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A letter to my PM

For those of you not following the Canadian struggle for free speech, this letter, which I emailed my Member of Parliament today, may seem a little confusing.  Here is a REALLY quick recap:

In order to provide disadvanteged groups easy and affordable access to legal protection agains illegal discrimination, Human Rights Commissions (HRCs) were established several decades ago:  one federal (Canadian, or CHRC) and one for each province.  These HRCs have, lately, been interpreting their mandate in unforseen ways, asserting that any speech which ‘potentially could’ have negative impact on individuals or groups because of their race, creed, disablitiy, and other reasons, must be censored and that this censorship overrules any rights of freedom of speech, freedom of press, freedom of thought.

Many individuals, and some media organizations, have been going through several years long legal battles in their defense of their inalienable rights.  Even the very people who originally created the HRCs have been apalled at the misuse of their powers in recent years…  What is even worse, recently released tribunal transcripts contain admissions by some HRC employees which suggest that in their zeal to pursue (and entrap) people whom they are investigating, criminal laws are being violated.  That is a serious matter, because no government agency should be allowed to break laws in order to enforce laws…

The Minister of Justice recently said what I understand to mean that as far as the Canadian Government is concerned, all is fine…hence, my letter.

Dear Mr. [MP], 

Thank you for your kind reply, in which you say you will direct my concern over the HRCs and their actions directly to the Minister of Justice.  It arrived at about the same time as the Minister of Justice made his position on this situation known….   

How unfortunate that the official Government position is based on a brief by Mr. Tsesis, who is not regarded highly among the experts in this area and whose disregard for supportable facts required to assess causality can clearly be seen in the document he produced. 

For example, Mr. Tsesis claims:  “[Hitler fomented] a mass delusion that Jews were responsible for bad times, and as a result, a Holocaust could be perpetrated against them without general opposition.”   This displays blatant ignorance of (or disregard for) the fact that during the 1930’s, Germany did indeed have ‘hate speech’ laws, which (ironically?) were almost identical to those we have in Canada today!  Jewish leaders in Germany in the 1930’s expressed satisfaction with the protections from persecution which they and their community received under these ‘hate speech’ laws. 

Since ‘hate speech’ laws were present in Germany of the 1930, proposing (as Mr. Tsesis does) that our current ‘hate speech’ laws are the one tool necessary to prevent another Holocaust-like event is an error of judgment at best, intentionally misleading at worst.  Either way, it clearly demonstrates the unsoundness of the conclusions in this document.   Basing our national Justice policy on it would be ill advised.

How embarrassing for our Government, to reveal that this is indeed its intention!  How embarrassing for our Minister of Justice!

 Yet, my original comment was not intended to request a simple review of the policies of the Human Rights Commissions by the Government.  It is essential that the Government maintain its ‘arm’s length’ distance from judicial and quasi-judicial bodies.  That should not change.   

The HRCs answer directly to the Parliament of Canada.  It is essential that the Parliament of Canada ensures that bodies such as the HRCs do indeed perform the tasks for which they had been created, and that they conduct themselves in accordance with the laws of Canada, the very laws they were created to uphold!  

 There is a widespread perception among the citizens of Canada that employees of these commissions may have broken criminal laws of Canada while performing investigations on behalf of the HRCs.  This perception is largely based on the information in legal documents, transcripts of hearings from the HRCs themselves.  These statements were given under oath, and in them an employee of the Canadian Human Rights Commission describes actions he took while acting on behalf of the HRC which appear to be a clear and direct breech of the criminal laws of Canada, as well as a blatant breech of the very ‘hate speech’ laws the CHRC was created to uphold.

 It is not, and must never become, tolerable for an Agent of the State to break the laws of the State while acting on behalf of the State.  In order to assure the integrity of our governance structures, it is essential that a full criminal investigation be launched immediately, to determine whether laws were indeed broken, or not. 

 If it is found that criminal laws were broken, a further in-depth investigation will be required to determine whether some rogue employees broke criminal laws on their own, or if the policies of this public institutions are the root causes of criminal behaviour by its employees – in which case, a full evaluation of all the procedures and methodologies of the HRCs would need to be done.  If a criminal investigation determines that laws were indeed broken, laying criminal charges will be required against every employee who broke our laws as well as against all supervisory personnel (currently or in the past employed by the HRC’s), who, through ignorance or complicity, allowed this illegal behaviour within their department to take place. 

 If the perception that criminal laws are being broken at the HRCs is erroneous, it is important that we, the citizens of Canada, see them exonerated, so that we may again place our trust in our government agencies and institutions.  

 This determination cannot be made without a full criminal investigation of the HRCs, their procedures, methodologies and practices, as well as of the conduct all of its employees, past and present.  Therefore, I ask that you, Mr. Poilievre, as my Member of Parliament to which the HRCs report directly, channel your efforts and energies to launching a full and thorough investigation into this whole mess.

 Thank you.

If you wish to read more on this saga, please see the excellent sites Blazing Catfur, Ezra Levant, Mark Steyn, Small Dead Animals, and many, many more…

Aspergers and writing

Writing is one of the major woes for people with Aspergers

It is difficult to describe the depth of despair most Aspies suffer when trying to put pen to paper.  And it starts very, very early on.  There appear (to me) to be at least three different ‘subsystems’ in the brain that are conspiring to make writing next to impossible for young Aspies.

The first one to be encountered is the ‘mechanics of writing’.  Many Aspies have less ‘sidedness‘ differentiation, so their ‘writing hand’ is less ‘dominant’ – and thus has less fine motor control – than most peoples.  This is often encountered early on in childhood – as a result, the kids may not enjoy drawing, or they may draw with both hands.  Regardless of drawing, however, Aspie kids usually display severe difficulties when learning the mechanics of writing.  This is more pronounced in cursive writing, where forming letters needs to be combined with smoothly moving the hand along the page, so many Aspies end up printing instead.  

I suspect this is a motor issue, and could be overcome by ‘overdoing’ the practice.  This has, to a degree, been my case:  where I went to school, we started out learning cursive, and we were marked on our handwriting.  I totally sucked at it, for the longest time.  Then, I saw what handwritings the teachers marked as the best, and shamelessly immitated them.  And yes, I spent endless hours practicing, because I was going to be *%$#*^# if those air-headed girls with ‘pretty’ handwriting got better marks than I did.  The result?  I am told I have extremely beautiful, though almost completely illegible, handwrititng!

Another problem which Aspies encounter when writing is – and this is based on my observations, not an expert assertion – a problem with short term memory.  At least six different kids with Aspergers have described it as ‘the ideas going by so fast, by the time I’m done the first letter, I don’t know what word I am writing’.  Now, this is very interesting, but worthy of a post of its own (soon, I hope).

The third major problem I have observed is a little more complicated.  I do not know how frequent it is, but again, I have observed it in very many Aspie kids.  It has to do with language, its use and the very words that make it up.  Also, many Aspies perceive there to be a big difference between what is spoken and written.   Perhaps a little explanation is needed…

Asperger Syndrome is often described as ‘verbally expressive form of Autism‘.  Now,  it is important to make a distiction here:  just because Aspergers falls under the same spectrum of disorders as Autism does, or that the spectrum itself may have the word ‘Autism’ in it, does not mean that it is nearly as crippling as Autism can be.  Comparing Aspergers to Autism (as the Ontario Government recently did, in order to deny Autistic children proper treatment) is about as accurate as comparing a sinus infection to pneumonia – both are respiratory system infections, but they are not the same in severety or affect.  It would be an inappropriate comparison.

While Aspies are usually able to speak extensively on a topic, most have a difficult time writing on a topic.  This is very curious and puzzling to many parents and educators:  it can appear as defiance! So, what is it that makes it OK to say things, but not to write them down?  Perhaps an unusual form of perfectionism could be at play here.

It is my observation that Aspeis, especially children, consider anything that is written down to be much, much more serious, important and permanent than what is spoken.  Even when practicing forming letters, some of these kids will be extremely anxious about not being able to get the shape just perfect.  Not Aspies are this extreme, but I certainly was, and so was one of my sons.  He was so terrified to commit an imperfect letter onto paper, we ended up getting him to practice writing onto clear plastic sheets (of the type you can put through the printer, to use for overhead presentations) with easy-wipe-off markers.  And even thought he could wipe off any letter he did not like, before anyone else could see it (and at first, he wiped off all of them), it was still hard for him.

It is my suspicion that in a similar way, it is difficult for Aspies to write ideas down because they are not sure if their idea is good enough to be commited to paper.  And even if they get over that, and judge the idea worthy – and this is the key here – it is next to impossible to express their idea accurately, using everyday language.

I have often wondered – and would appreciate feedback from those who have observed this – if something similar could be at play with Autism…  Many (not tall) autistic children are said to begin learning language relatively normally, but then at some point, they revert and begin to use language less and less.  Could it be possible that as they learned language, words attained ‘colouring’ – secondary, or implied meanings – unrelated to their ‘object or action definition’…. and that these words became perceived as no longer accuratley describing its original meaning, and therefore discarded?  I don’t know, but I would be curious what others think about this.

It is often asserted that Aspies use language somewhat rigidly, or sound very pedantic.  Could it be that a similar perfectionism in expressing an idea, a similar subconscious frustration with the inaccuracy of language, is at play when Aspies try to put ideas onto paper?

I love debating, and do it online.  And, people have noted, that whenever I get into a serious debate, I spend most of my time defining the specific and narrow meanings of every word I intend to use (plus a few others, that I exressly will not use).  Many people find it redundant, annoying and boring.  Some think it is a ploy to manipulate the debate.  But I do not intend it as any of these:  before I can express what I mean, I need to ensure that there is no ambiguity in the language I use to express my point.  General language simply cannot do the job!

There is no simple answer to overcoming this.  

Each Aspie may require a completely different approach, what works for one may not work for another.  It will take years.  And it will always take much more time and effort for an Aspie to write something than it would take most people.  (It usually takes me 2-6 hours to write any single post – and some, I have spent 14+ hours composing.)

Yet, Aspies can learn to write.  And when they do, the documents they produce are usually very well researched and accurately expressed!

Symptoms and Causes

Advertizing and politics are some of the most obvious examples of ‘idea bundling’, as I discussed in my last post.  But, these are not, by far, the only fields.  This trend can be seen everywhere around us.

Bundling ideas can be useful by helping us categorize our surroundings, yet it can also hinder us – especially when other people try to do the ‘bundling’ for us.  Sometimes it is intentional manipulation (advertizing, ‘spin’, propaganda), but often, the people doing the ‘bundling’ are not even aware they are doing it…..and these ‘bundles’ are often the hardest to ‘unpack’ into their components, since there is no ‘false note’ to detect!

One of the greatest dangers of this is that when a specific ‘solution’ is a part of a ‘bundle’, it is harder for us to recognize whether it is a ‘symptom fix’ or a ‘root cause solution’.  And mistaking symptoms with causes is so easy…and so unfortunatelly frequent in our society!

Perhaps it is a human characteristic, perhaps there is a lapse in the schooling we received in critical reasoning … but confusing symptoms for causes is just SO rampant!!!!  And so many of us do not even seem to recognize that this is even going on, much less see it as a problem.

The whole ‘banning cellphones while driving’ debate is a case in point: the cellphones are a symptom of distraction, the underlying cause is the apalling disrespect some drivers accord to the act of driving – considering driving an ‘automatic right’ instead of an earned privilege.  And, while bannig cellphones while driving may make us feel as if we are ‘protecting society’, and politicians may get a few extra photops, it does not fix the underlying problem of getting drivers to pay attention to driving….  What’s next:  banning the application of ‘mauve dreams’  shade of lipstick because statistics clearly showe that more people crash while applying that shade of lipstick during driving than any other?

Another example is the alarming attitude in our schools:  volunteers who wanted to help kids who were falling behind in math were turned away, on the grounds that being seen as singled out for extra help would stigmatize a child.  Oh no, the lack of math skills (for whatever reason) was not a problem at all.  No, the problem was being seen getting help!!!  The symptom (potential embarassment) is treated, not the undelying problem (lack of skills).  I would not have believed it if I had not seen it with my own eyes. 

It is part of the same absence of critical thinking that ‘protects’ children from being ‘stigmatized’ by having them repeat a grade when they have not learned material, and instead allows illiterate children to graduate from schools.  They will be completely unprepared to face the challenges in life, but they will not have had their feelings hurt along the way…..  We are teaching our kids that it is OK to be ignorant, but not OK to be seen working hard to improve… What was that about ‘learned helplessness’?

Perhaps it sounds like I’m picking on the educators (and they do make it so easy), but this is just the tip of the iceberg.  Just look around you – the examples aboud! 

We, ‘the Western society’, seem to be rapidly loosing the ability to distinguish between causes of problems – which need remedying, and the symptoms of problems – which can lead us to the causes, but would which it would be pointless and a waste of time and resources to address in isolation.

 …and don’t get me started on separating valid from silly idead which had been ‘bundled’ together!