Tuesday, May 17, 2016

repeats: "My husband had sex with me while I was in a drunken state. Should I divorce him?"

Imagine the following case: Two recent college grads meet in a bar, talk, begin kissing, and go to her apartment. After a little more talking, they resume kissing there. He undresses her and initiates sexual intercourse. She neither objects nor resists. He leaves, and they have no further contact. A month later, she files a criminal complaint with police, complaining that this was rape because she never expressed verbal consent and was physically passive.

Under the law as it has been from time immemorial, the woman's complaint would be rejected because her failure to say no or resist would be considered consent.

But under proposals that will be put to a vote on May 17 at the annual meeting of the American Law Institute, the nation's most prestigious drafter of model laws, the man could be charged with of a felony punishable by up to five years in prison.
The new feminism is the old anti-feminism.

Ttranshumanism and Transgender.
The new law isn't concerned with safety but with the demand that the state confirm self-identity. “On the definition of gender identity,  accepts that gender is not a binary.”  Wrong. The law is predicated on the reinforcement of binaries according to ideological commitment.
When she was asked if she had any prosthetics or implants, she explained, “I’m transgender. I have a penis.” The officers then “freaked out” and claimed they needed to go get male screeners, but Richards insisted, “No, I am legally female. I do not want to be screened by a man.
CHESTER, Vt. — The way A J Jackson tells it, he kept his head ducked down and pretended to fiddle with his cellphone as he walked into the boys’ bathroom and headed for a stall at Green Mountain Union High School here.

But the way some of his classmates see it, A J was still Autumn Jackson, a girl in boys’ clothing, who had violated an intimate sanctum, while two boys were standing at a urinal, their private parts exposed.

“It’s like me going into a girls’ bathroom wearing a wig,” Tanner Bischofberger, 15, a classmate of A J Jackson’s, who was not one of those in the bathroom, said this week. “It’s just weird.”
Why does "AJ"'s discomfort with "his" biology take precedence?
The instituting of subjectivism into law undermines the rule of law.

All of the above originates in rationalism which begins with a focus on and faith in the individual imagination. Neoliberalism is liberalism taken to its logical conclusion.

Language is ambiguous by definition, and law is a blunt instrument. Biological distinctions are matters of fact, at least compared to demands founded explicitly in desire.

A comment I tried to post at Opinio Juris
The rule of law is the rule of "rules" written and made public, and includes rules for the amendment and repeal of rules. You could follow rules in deciding to create the office of dictator if you provided rules for the end of his reign. "The end of the war" would suffice. "Until Hell freezes over" would not. The point is a guaranteed return to debate.

Pace Raz and Dworkin, we live in a Rashomon world. That's why we have lawyers, and why lawyers and philosophers have different jobs, and why in a democracy philosophers are much less important. Like the famous story of a panicked Kurt Gödel claiming to have found flaws in the Constitution, the problem wasn't the Constitution it was Gödel's mathematicians' logic. He wasn't wrong, but he didn't understand how language works. 
What's a valid "interpretation"? Words on a page are facts, like rocks and sand. What we debate are meanings and we do that endlessly. The rule of law in a democracy is the rule of public debate, with little points of quasi-solidity: sentences written down for all to see.

"Kurt Gödel meet David Addington". I googled their names together after I wrote that the first time. The relation was obvious but the only reference I found was Balkin and Levinson. I should've guessed. 
Mathematicians and engineers skew far right as to politics. Pedants are horrified by "lawyering". As Joe Jamail says, "Lawyers are the rule of law." Lawyers, not judges, not philosophers, not engineers.
"Kurt Gödel, David Addington" still works.

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