CLP: Collectivism and the Law

We didn't really discuss the chapter on Japanese law this week, so I thought a question would be worth mentioning on the blogs.  The collectivistic society has less individually exclusive intellectual property laws, and more restrictive economic law (price fixation, nationalizing industries, ect.) all in the name of the 'betterment of society.'

A gain by the society is preferred to, and acutally better than, individual gain.  Just as western thought champions the idea that every player on the team plays his best, and therefore, makes the team better, eastern thought (Japan in this case) tells the story of the team members that sacrifice personal gain for incremental benefits of the team.

Could we in the United States use more of a collectivist attitude towards the law, and our economy?  Could Japan use more individualistic notions in theirs?  Is this a matter of exclusive theories, or degrees?

WR: Shame vs. Guilt

We talked a lot this week about the aspect of shame in Confucian thought, versus the nonexistent (in Confucian thought) notion of guilt.  For example shame implies public image, versus the inner corruptness associated with westernized notions of guilt.

Moreover, punishments differ- if one stipulates that a primary goal of punishment is correction, than it follows that shame would not need correction, but prevention- one does not need to correct what is not broken in the first place.  Conversely the broken or corrupt "guilty" person would require corrective or retributive measures to return to society.  With that being said, if a society holds the notion of shame over guilt, and therefore, no retribution is needed for one's crimes, then where do they stand as/or not as a fully functioning member, and can they return (without retribution) or do they never loose their status to begin with?

My question is, should shame or guilt make a difference as to whether or not a convicted criminal member should be a represented member in society?  I am operating under the assumption that the society is democratic and representation constitutes voting rights.

WR: The Pragmatic Value of the Power of Li

We discussed today several miscalculations of Confucianism.  In some cases, the interpreter saw the importance of ceremony not as a the magic of human interaction and harmonious living, but as a society with rigid, unrelenting social structure.

Ideas of good, and idealistic intent are different in many ways than formalist legal theory, largely because, laws are partially defined by their function.  For example, Confucianism in principle is very principled and if understood charitably, has very positive implications for human interaction.  However, a law with great ideological intention is not considered to be a good law if it's function does not produce those same positive results.  My question is this:  Should Confucian thought stay in the realm of philosophical theory, applied by it's believers, or should it be integrated (legally) into a given society?

CLP: Honore and Locke

Today in class, I asked the question:

Does Honore's refutation of Nozick serve as a strong, logical argument for commonly shared natural resources, and a substitute for the similar conclusion reached by theologically based assertion of John Locke?

 Nozick's presuppositions on acquisition and  of property are not justified, nor are they based in an objective claim about the nature of labor and natural goods.  Honore, in short, says that Nozick's theory lacks not only moral high ground, but historical accuracy as well.

1.  Moral Contention:  Nozick's theory states that ownership of property is not only completely exclusive, yet indefinite.  This would not allow for consensual transfers of property.  In other words, if the original acquisition of property by a person involves consensus from a society, than it would make sense that good intentions come with that agreement, hence, the availability of certain proviso's that Locke suggests, and much more robust ones (than Nozicks's interpretation of them).  Nozick does indeed comment on the impossibility of everyone in a given society to consent to one's acquisition of a product, especially one that has until recently been hidden from discovery.  However, if one begins with the premise that all natural goods are commonly shared by all, than would not tacit agreements suffice?  In this event, acquisition would be accompanied by the subsequent assumptions that the eventual property would be utilized in its entirety, provisos included, of course.

2.  Historical Accuracy:  Honore suggests that Nozick's core premises, discussed earlier, are based in Roman Law, through the lens of western societal bias.  Why shouldn't societies which are closer to nature be examined for their own treatment of property?  Honore makes a compelling case for some eastern oriental societies, and some older pre-European American societies in which property is very much viewed similarly to Locke's theory of commonly shared goods.

WR: Myths and the Truth

The words spoken by Jesus, as recorded and interpreted in the gospels, as Crossan has asserted, may not be literally true, to varying degrees, and in different passages of text.  However, might these words, in some sense, reflect with great accuracy the intent of Jesus, or at the very least, the impressions he had on his followers?

Operating on Crossan's core premises, would the "true myths," in the gospel be more effective at conveying the intent of Jesus?  Of course, I realize that the authors may have misinterpreted Jesus' teachings, so I guess my question is more along the lines of, simply, assuming that there is no amount of substantial misinterpretation, can "true myths" be more powerful and directive than say, a literal and recorded dialogue?

CLP: Smith on Roe v. Wade

Seeing as we didn't get into the details of the chapter on Smith today, I just wanted to pose a question:  

She observed that the "right to privacy," was heavily leaned on in the decision Roe v. Wade.  From a feminist perspective, would it be more beneficial to cite the equal protection clause, as it pertains to gender?

Even from a practical standpoint, grounding precedent in the equal protection clause is surely a better way to ensure permanence than grounding it in a "right to privacy," which is not explicitly in the Constitution, and for better or worse, is not even recognized as legitimate by some judges.