anotherlongshot (anotherlongshot) wrote,
anotherlongshot
anotherlongshot

john locke and other stories.

It's the time of the year where Year 3 LL.B. students who qualified for exchange start leaving one by one. Maurice left in July, Kyle left last week, Khel and Co. are leaving next Wednesday, Kel and Allan are leaving September 2, Tris is leaving September 7.

We've been talking a little about how the new semester doesn't quite feel like the new semester because all these people who were always around in the previous semesters are no longer around. And it's a bit strange, a bit disconcerting. Granted, I wouldn't say we're super tight; but it is still a bit strange, a bit disconcerting, like something's missing. And something is missing, except it's someone, and it's a lot of someones.

And yet, for entirely personal and selfish reasons, I am glad it is the exchange season. I am glad that it's going to be a year. And I am banking on the truth of the assertion, "A year is a really long." I need it to be true, because I am tired, I am spent, I am burnt out, and I have nothing new to offer, nothing left to give.

It's been like fighting desperately against a brick wall, being a part of the losing coalition in a war, trying to save yourself from drowning when you can't swim. I don't know how I got through it, how I'm still standing here breathing trying to pick up the pieces.

And I don't know. I am just so unbelievably tired in a way that I haven't truly comprehended until now. I can't take any of this anymore, I no longer have any capacity left in me to take any more of this cruel and unusual bullshit, and the malignant tumour needs to be sliced off - now. Permanently.

And the worst part of all of this? I will always prefer Social State y to Social State x. And I can't see myself feeling the way I felt 7 months ago for anyone else ever again.

I can't see myself loving a guy ever again. Not because I can't love anyone but him, but because it has become an impossibility, the same way it's impossible to satisfy all five conditions for social decision rules as proved by Kenneth Arrow.

I am so unbelievably tired.

**

John Locke's Prerogative is primarily problematic for me due to its rather naive, irresponsible, reactionary nature. He endorses (endorsed, whatever) the use of prerogative power by the Executive in times of emergencies as long as it is for the public good, because he believes that positive law is not adequate to respond to emergencies. In other words, the Executive is given more or less absolute power to act as it wishes during emergencies, and Locke, when addressing the question of who is to judge whether the prerogative power has been exercised properly, asserted that "there is no judge on earth", and that the exercise of the Prerogative can only be reviewed by an "appeal to heaven".

Additionally, he also suggests that there is no check on the Prerogative except for, simply put, revolution. He also says that although approval is not required for the use of prerogative power, the Executive is always answerable for any misuse or abuse of discretion. Essentially, Locke seems to be suggesting that he's willing to risk an abuse of power by the Executive by not installing any preconditions for its usage as long as it would be held accountable after it has committed its atrocities.

What is the use of holding someone responsible after he has abused his power? The detriment has been done, the damage inflicted. What is the use of apologies and sorries and military tribunals?

Locke, in a nutshell, vests absolute power in the hands of what he calls the "wisest and best Princes" whom he believes that the people should trust absolutely to do good for them. While I do see the force in his assertion that these "wisest and best Princes" are most suited to respond to emergencies because positive law is too slow and inadequate in a situation where speedy decisions are needed, I am inherently distrustful of the executive. The very reason why we NEED separation of powers is because the old adage "power corrupts; absolute power corrupts absolutely" is oft-quoted not without reason. No matter how wise and good you are, you are still human, you are still susceptible to the temptation of succumbing to the lure of corruption. We need checks and balances in the system because those with the power to make things happen in a society cannot be trusted absolutely and without question to exercise their power properly. That is why we have judicial review - to ensure that the executive is not abusing its power.

Therefore, when you vest power absolutely in the hands of one person - or in our context, one branch of the government - you are placing an unreasonable and overly-demanding amount of trust and faith in his character. You are taking the off chance that his character is of such high calibre that he will definitely not abuse his prerogative power. The wisest and best princes surely will not err, right?

But too much is at stake when you're talking about an emergency situation. By endorsing the use of prerogative power for the public good, Locke is implicitly sacrificing individual liberties for society's benefit. What happens in a post-911 situation in which the Bush administration has absolute power to do whatever it likes? After all, it is arguable that the USA is in a perpetual state of emergency (we haven't even defined what that means) due to the on-going Iraq war and, less tangibly and more doubtfully, the "war on terror". The very nebulous nature of the latter and how unconventional it is further compels the argument that the USA IS in a state of emergency - they don't know when it's going to end, they don't know when the "enemy" is going to attack, they have to be on their guards all the time.

If Locke is correct, this means that the Bush administration has the prerogative to lock up every single person of Arab descent because it is for the public good - it is done to prevent another September 11. And if Locke is correct, this also means that the Bush administration has a free reign to do WHATEVER it likes, because the courts have no power to review its actions and to strike them down as, inter alia, unconstitutional.

But this is counter-intuitive to our inherent sense of right and wrong. You can't logically, morally, reasonably and humanly argue that every Arab in the USA has to be detained indefinitely until the war on terror is over, because you are depriving an individual of his liberty and perhaps subsequently, his life, based on the mere fact that the perpetrators of 9/11 are of Arab descent. You are assuming that all Arabs are terrorists, when this cannot be and is not true. Are we to sacrifice the liberty of those of Arab descent for the purpose of protecting the country from another terrorist attack?

In short, because I am very sleepy, I still believe in proper adherence to the procedural conception of the rule of law in emergency situations. Call me jaded, but this country has seen too many cases of people arrested for the purposes of preventive detention on the very questionable basis that they threaten national security (therefore, emergency, I suppose) whose personal liberties are curtailed and subjugated to a need to protect society against a weak, uncompelling and even rather fantastical "threat". I believe that the whole concept of separation of powers is inconsistent with Locke's theory of prerogative, and I think I also believe that his Prerogative is inconsistent with the rule of law. The whole idea of the rule of law, at least procedurally, is that there are proper steps to be followed in order for a law, or an executive action, to be valid. The point to this is to prevent the abuse of executive power and all that great stuff, which suggests either a distrust of the executive not to abuse its power, or an acknowledgment of the fact that humans are fallible. This is inconsistent with Locke's idea that the executive can be trusted to act properly, failing which they will be held accountable AFTER shit has been done. The rule of law at least takes proactive steps to prevent the misuse of power, while the Prerogative theory is willing to sit back and wait for shit to happen before doing anything about it.

So this is my take thus far on the Prerogative theory. Presentation on Monday and my partner is super smart, intellectual and well-read. Die die die.

I need to sleep.

Tags: angst, law, law school, love, neb, personal, philosophy
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