I don't go through many moments in life in which I feel stupid because I am simply that arrogant, but trying to prepare for Jurisprudence is probably one of the hardest things that I've ever had to do. Working in A&G was easier than this (if you don't figure in the long hours and think in terms of the work per se). Doing my Appellant's Case was easier than this.
The main problem isn't the concepts; it's the fucking language that's clunky and weird and non-standard that obscures the concepts. I literally do not understand what the hell I've been trying to read for the past couple of hours because the language literally does not make any sense to me. It's a translation of one of Hegel's works, Phenomenology something or other, and I'm not sure whether the resulting senselessness of the translation is because of the way in which the original work was written; but whatever the case is, I don't understand jack shit.
This is damn annoying because I have to answer some questions in class tomorrow. How am I supposed to prepare my answers if I don't even understand, on a sheer PRIMA FACIE level, what the fuck the passages are saying? I can't even pass the first stage of comprehension, let alone get to the next stage of, you know, analysis, or something.
I just want to kill myself right now. I'm just going to Google this crap and try to figure something out.
I enjoy philosophical discussions, ruminations and debates. I do not enjoy reading obscure texts featuring strange fucking sentence constructions and grammar and made-up words like "thinghood" that impede my understanding of the concepts. Nothing makes me more impatient than bad language. Even Robert Alexy was easier to read than this, and he was the joker who came up with some strange mathematical equation to explain the concept of proportionality in constitutional rights law.
On a happier note, I have this formative essay (i.e. "practice essay" that are not graded) due for Theory of Human Rights Law next Wednesday, which I knew about since last week. I just looked at the questions and I am very happy that there's a question on judicial review. Not only is next week's class on judicial review which means I have to read the articles anyway, I did my Comparative Constitutional Law paper on judicial review in law school so hopefully I can use some of my lousy B-paper for this essay. Obviously I don't remember what I wrote about but in any event, I am a fervent believer in judicial review because I think the democratic process is vastly overrated, no thanks to the inherent flaws of the system and of the electorate (this is me trying to say that a lot of people are stupid in a polite way), so I'm quite happy to do the judicial review question.
I was up till quite late this morning preparing for class and the more I read about proportionality, the more I think it's weird. It's not difficult to see the inherent attraction in the concept of balancing a human right with a legitimate state interest; but I noted with amusement that a censorship case in Austria which went up to the European Court of Human Rights had an outcome that would have been reached in Singapore if something along those lines had occurred there. The case was about the banning of a movie making fun of Christianity; it depicted Jesus as a mummy's boy, it talked about God making a pact with the devil to infect syphillis on the human race or whatever, and it was banned on the basis that 87% of the population in that particular part of Austria were Christians and would be offended by the movie.
It went up to the ECHR for review and the ECHR was all, "Yeah, we agree with the domestic courts because the freedom of expression of the film-makers was exercised to gratuitously offend the religious feelings of the majority of the population, and we are being totally innovative here when we read into the freedom of religion the right not to have one's religious sensitivities offended because it interferes with one's freedom of religion."
In the first place, the very notion that there can ever exist a right not to be offended in any way, shape or form is inherently hilarious. In the second place, what's the point of having the right to free speech if it could be violated in such a manner? There's effectively no free speech in Singapore and that same movie would be banned in a heartbeat if it ever tried to make its way into the theatres there (and no one would bother bringing it up for judicial review 'cause the courts would be all, "Yeah, freedom of expression must yield to the preservation of public order blah blah blah"); in a country where freedom of expression and other human rights are supposedly very very very important, the same outcome was reached, albeit via a different, if questionable, reasoning process. The ECHR even went as far to say that the mere knowledge of the existence of the movie is offensive to the people in that town, so it did not matter that one had to pay to watch the movie.
I came to the LSE with my Dworkinian ideas of human rights as trumps: that they cannot be derogated from to secure an overall political benefit or to appease the majority; that there is a core group of rights with special importance; and that they primarily work to prevent the state from interfering with the individual's personal life and his exercise of his personal autonomy. I thought that was the norm, but I have just learned in the past 5, 6 weeks that it's totally different in Europe.
I guess when I come from a country where the interests of the individual are officially stated to be less important than that of the group, I cannot understand how proportionality does not undermine the force of human rights and the interests that they are meant to protect. Going back to the Austrian movie case, it is absolutely laughable that the movie could be banned in Europe when freedom of speech is supposed to exist, and when the justification for upholding the banning is so questionable. In the first place, the test of "gratuitously offensive" adopted by the ECHR in the first stage of the proportionality exercise - whether the interference with the right pursues a legitimate goal - is incompatible with the philosophy of rights because it dictates how an individual can exercise his freedom of speech. This is in the domain of the individual himself; the state has no say in how free speech can be exercised, except when it's used to incite violence (which is also the only exception I'd accept to the freedom of speech). The threshold to limit free speech necessarily has to be set at a high standard because for it to mean something as a human right, for rights to have any meaning at all, they simply cannot be balanced away without truly compelling and pressing reasons. If the movie is screened free of charge in a public square and tells its watchers to kill all Christians, then I agree it should be banned. But it should not matter whether the exercise of the speech is meant to gratuitously offend (how do you even determine this?), or that it does not contribute to general interest (going by this "test", most people shouldn't be allowed to speak because they have nothing intellectual to say and therefore they do not contribute to general interest or debate). It is, in fact, absolutely irrelevant the manner in which the speaker chooses to express his point, or non-point, as long as the speech does not incite violence.
This case appears to me to be an example of the tyranny of the majority in action, which is precisely the evil of democracy that rights are supposed to prevent. In the first place, there was no legitimate goal here. And yes, my argument would still be the same if the movie made fun of Chinese people.