God’s law and the law of the State

What happens when you have a particular group in society who are not minded to follow the law of the State, but prefer to follow God’s law as they interpret it?

Recently this question has come up in relation to Sharia law, particularly after the Archbishop of Canterbury said that some aspects of sharia law would inevitably be adopted in Britain. But the question doesn’t just arise in relation to Islam. Many religions have a group within who prefers the laws of God to the laws of the State. For example, orthodox Jews in Australia may take some disputes between one another to the Beth Din, a religious court where rabbis hand out judgment. And some indigenous Australians may prefer that a dispute be dealt with under traditional law rather than “whitefella law”.

My personal opinion is that as long as the law of God does not transgress fundamental human rights, then parties can consent to that particular law binding their actions. It is rather like an agreement to arbitrate in a contract where any disputes are referred to a mutually agreed arbitrator. The problem occurs when a particular practice or punishment which is said to be required by the law of God or tradition is illegal under the laws of the State: eg, stoning, spearing through the leg, promise of child brides etc. My personal opinion is that such things should not be allowed. The issue is slightly more vexed with indigenous tradition than it is with other religious laws because indigenous people didn’t “choose” to move here and to be subject to our laws, they were imposed upon them from colonisers. Nonetheless, as I have explained in one of my very early posts, as a feminist, I just cannot countenance the assault and rape of a teenage “promised bride” by her tribal husband, for example. Cultural relativism be damned.

It is a difficult question however, because it is a balance between religious tolerance and universal human rights (which should apply to all, regardless of race or religion or anything else).

Consequently, I was really interested to read this article in Slate about the American legal system and the Amish and the Mormons. I hadn’t really thought deeply about the conflict that would arise between State law and the traditions and laws of these two groups.

Amish are Anabaptists of Swiss-German origin who live in separate communities. They dress in conservative dress, do not use much modern technology and do not educate their children beyond 8th grade because of the “worldly values” they might learn. Study is focussed on the Bible, and children are expected to work in the fields with their parents once they leave school. They do not believe in Social Security, and do not either make payments or accept payments from the government. The educational practices and expectation that children will work in the fields has brought them in to conflict with US education and child labor rules. In Wisconsin v. Yoder 406 U.S. 205 (1972) three Amish parents were fined by the Wisconsin authorities for taking their children from school before the age of 16, but the US Supreme Court ultimately upheld the right of the parents to do this. Amish refuse to participate in wars, and their conscientious objection has also gotten them into trouble. As the article in Slate observes, the Amish have been given a fair degree of latitude, in part because they are peaceful and because they have managed to broker compromises with the State.

Mormons are members of the Church of Jesus Christ of the Latter Day Saints. They believe in the Book of Mormon. The Church of the Latter Day Saints officially abandoned polygamy after pressure from law enforcement in 1890, but some other fundamentalist groups continue to practice polygamy. The practice of taking multiple wives and taking child brides has brought the Fundamentalist Mormon Church into conflict with the law. In the last few weeks, Texan authorities raided a Fundamentalist Mormon compound after a 16 year old girl called authorities to say that she had recently borne a child to her 50 year old husband. Other US States are concerned that this raid may ruin their efforts to make Fundamentalist Mormons trust them and cooperate with them. As the Slate article outlined, a large raid on a Short Creek Fundamentalist Mormon community in 1953 was ultimately counterproductive. The Slate article concludes that the Mormon groups are in a different situation to the Amish:

But the fundamentalist Mormons groups are in a state of evasion. The ban on bigamy functions as a zoning ordinance: Plural marriage is fine in isolated communities, but not in Salt Lake City, and certainly not on TV talk shows, as Tom Green found. So long as the fundamentalists remain in hiding, the extreme ugliness of conducting raids creates a form of tolerance. They are thus in a “don’t ask, don’t tell” state of legal limbo that could break open at any time. They are outside the law in a different way.

It will be interesting to see whether the Texan raid is counterproductive or forces the Fundamentalist Mormon church into submission.

These situations remind us that the conflict between God’s law and the law of the State has many facets, and there are different ways of resolving the issue. Have a read of the Slate article and see what you think.

Not just monkey business

What happens if a person is brought up in a way that is more likely to cause them to act violently? Should they be criminally responsible for their actions? That’s a difficult enough question, but what happens if the perpetrator of a crime is a monkey? These questions are raised by the case of Chico the delinquent pet macaque.

Chico had already been in trouble with the law previously. When US Federal agents had visited the home of his owner some years ago, Chico had acted aggressively and threw faeces at the agents (although he was not the subject of their investigation, of course). This probably didn’t help his cause in the eyes of the law.

On the present occasion, he escaped from his home in Spokane and bit three people shortly thereafter. He was then taken into custody and held at a local humane society. Because he had bitten people, there was a chance that he could have infected them with rabies or herpes B, both of which are fatal to humans. The only way of testing for rabies is a post mortem test of brain tissue, and accordingly, it was decided that he should be put down.

One can’t help feeling sorry for poor old Chico. Apparently it’s a very bad idea to keep monkeys as pets, and they commonly become aggressive and violent. The bottom line is that in many cases, they can’t be “domesticated”, but nor can they then readapt to normal primate society either. Further, some monkeys carry diseases which can be transferred to humans. Many macaques carry Herpes B.

Should a primate like Chico have “quasi-human” rights or “primate rights”? Some might argue that we show no qualms about putting down dogs who bite humans, so a monkey is no different. However, monkeys are much closer to humans genetically speaking. Should they be given more of a chance than a dog?

Here it seems that Chico was put down primarily because of the health concerns involved, but it doesn’t seem fair that he has to pay the ultimate price for that: his misbehaviour is a direct consequence of his owner’s behaviour in treating him as a pet. Incidentally, it appears that his owner will be charged with keeping a dangerous animal. She is already awaiting sentencing for fraud proceedings in relation to a false college degrees sold over the Internet.

I can’t help wondering what would happen if a larger primate (such as an orang utan or a chimpanzee) killed a person. Should it be determined if the primate had understanding of its actions if it was proposed to put the animal down? To establish criminal liability, it is required to establish that there was an actus reus (criminal action) and a mens rea (criminal intention). It has been argued that chimpanzees could potentially be more rational than human beings (in an experiment involving the economist’s ultimatum game). Do chimpanzees and other great apes have the moral agency required to be prosecuted for a crime? I am sure I have seen a documentary where a grieving chimpanzee mother carried around her dead baby for days, until some other chimps from the group took the baby away. It was actually very distressing to watch. Clearly the mother and the other chimps had a concept of death, and what is more, the mother had a very human reaction to her child’s death.

On the other hand, having a “quasi-trial” for an animal could become farcical. There is a long and dishonourable tradition of animal trials. The most common animals which were the subject of such trials were pigs, bulls, cows or horses, or pests such as rats, mice and weevils. Edward Payson Evans wrote a book called The Criminal Prosecution and Capital Punishment of Animals in 1906, which cited a variety of cases, including the prosecution of a number of moles in the Valle D’Aosta in 824, the charges against a cow by the Parliament of Paris in 1546 and the conviction of a Swiss dog for murder in 1906. It’s well worth reading this article in Cabinet Magazine for more details of the book – I think I need a copy.

Back to Chico: a case such as this does raise serious issues as to how we deal with criminal offences, whether committed by human or primate.

• How much should ill-treatment and bad upbringing explain criminal conduct?
• If monkeys can become aggressive through a particular kind of upbringing, is the same true of humans?
• How genetically close should an animal be to a human being before it is treated like a human before the law? (if at all)
• What if it can be shown that a particular kind of animal has some sort of moral understanding akin to human understanding?
• What if a human perpetrator has very little moral understanding of the consequences of his or her criminal actions? Does this make them able to be treated like an “animal”? (I would argue not – that’s what universal human rights are all about – but it’s an interesting question)

It’s a pretty sad case all in all. It sounds to me like the US is in dire need of some laws with regard to keeping primates as pets – primates are very like us in some ways, but they are not substitute children, and they do badly in a domesticated environment.

(Via Short Sharp Science blog, from New Scientist)

(Hat tip to Dave Bath for bringing this case to my attention)

“You have to die, so that I can live.”

Last night, I watched a rather depressing documentary on SBS called The Anatomy of Evil. It was about people who perpetrate genocide. I’ve been morbidly fascinated with this question for a while now, as I’ve explained in an earlier post. I’ve never quite been able to fathom how people could shoot/gas/blow up an innocent civilian.

This documentary consisted mainly of interviews with former members of the Einsatzgruppen and Serb paramilitaries, each of whom conducted ethnic cleansing of villages by lining up people and shooting them at point blank range. Some interviewees were unrepentant, and said they’d “do it again if it was necessary”. Some still regarded the people whom they had shot as sub-human. A few regretted their actions and felt less than human.

The director, Ove Nyholm, concludes that the trigger which compels ordinary people to behave like this is anxiety and fear of a threat. In such circumstances, people put aside normal feelings and become ruthless. This is a survival mechanism, and can actually be a positive thing. People can survive in terrible circumstances through sheer willpower. But in the scenario where a group of people who live alongside you are identified as the threat, there is a risk that you will become ruthless towards those people and cease to see them as human. Add to that a wartime context where violence and killing is condoned and people are forced to follow orders, and the results can be deadly. And there’s the notion of retaliating for past wrongs. One of the most unpleasant interviewees featured in the documentary cited the fact that his family had been driven from Kosovo by Albanians in the past, and that he felt satisfied and a sense of righteous revenge when killing villagers and burning down their houses. Another interviewee said that he became a member of the paramilitary group after his own parents had been brutally killed.

It occurred to me too that this analysis can also help explain other wars and ethnic and religious conflicts which do not involve genocide as such, but where innocent civilians are killed.

Take, for example, terrorist attacks. The way in which terrorists become galvanised to kill innocent people is by considering wrongs done to their own people, and desiring to take revenge. I recall that during the Israeli incursion into Lebanon, someone forwarded a Powerpoint slide of dead Lebanese civilians, including a young boy. The purpose was obviously to provoke outrage against Israel. If I was a radical Hezbollah supporter, I am sure that such pictures would be used to whip me into a state of righteous indignation and revenge. And I am sure that an Israeli defending the incursion into Lebanon would ask me to consider Israeli civilians injured or killed by Hezbollah rockets, or Hezbollah terrorist bombs. They might also point to the suffering of Jewish people in the past in Europe as a reason as to why Israeli territory should be staunchly defended. Personally, I consider the loss of life on both sides to be tragic. Neither side can be said to be blameless, but by the same token, the natural human propensity for revenge makes the outraged response of each side understandable. This is why I am so reluctant to “take sides” in discussions on the Middle East, although I am a firm believer that the State of Israel has a right to exist in its original boundaries.

Conflict is fuelled by the notion that the other group represents a threat to the way of life or security of the group. Sometimes, as in Israel, Northern Ireland or Cyprus there are settlers and occupying forces. Sometimes there are competing claims to the same piece of land, or the same holy site (as with some mosques which are targeted by Hindu militants in India). Sometimes the particular ethnic group wants to be separate from the rest of the country, as with Basques in Spain, Kurds in Turkey, Iraq and elsewhere and Tamils in Sri Lanka, because they feel that their way of life and culture is not adequately represented by the government of the particular country of which they are a part. Sometimes, the victimised group is a minority who have been made a scapegoat for a nation’s ills (as with Jews and Gypsies in Nazi Germany, who were targeted because they were different).

When terrorist attacks are mounted, there are retaliatory attacks, often by armed forces. So the US felt justified in attacking Afghanistan because its innocent citizens had been killed by a terrorist plot which had been planned from Afghan territory. One can understand this. The perpetrators had been sheltered by the Taliban regime. But the problem with attacking terrorist or guerilla groups with military force is that they tend to blend back into the normal population, so when you attack them, there is a risk of killing and wounding innocent civilians, which further fuels the fires of righteous outrage.

I don’t know what the answer to all this is, I just know that we should be wary of those trying to whip up moral outrage, whatever side they are on. Take the Cronulla riots in Sydney. Those organising the rally whipped up moral outrage against young men of Middle Eastern background who had been harrassing beachgoers. Yes, it’s true, harrassing innocent people at the beach is a bad thing. As a result of the rally/riot, several people “of Middle Eastern appearance” were beaten and attacked. Bashing people who happen to look like they come from the Middle East is also a bad thing. Then young men in Lakemba whipped up moral outrage to fuel a retaliatory attack. Attacking the houses and cars of people in Maroubra is another bad thing. The thing is that it’s all bad, and it’s mostly innocent people on both sides who suffer.

Perhaps it’s just instinctive that the “ruthless” switch is tripped when we feel that our safety, territory or way of life is under threat. Perhaps we need to recognise that it’s all just part of the way we’re hardwired. Of course one is outraged by injustice suffered by one’s family, friends or compatriots. How much worse would it be if someone in your family or friendship group is killed by a particular group? I’m not sure how I would cope in those circumstances. As Nyholm said in the documentary, he had to acknowledge that he had doubt as to how he would behave. I don’t know either. I’ve never known how I would behave if I were in the Milgram experiment, although I hope that I’m ornery enough to disobey orders. I do hope that if my “ruthlessness” switch was tripped, I would be able to recover my reason and morality. As one of the interviewees said, the scary thing is not that man becomes a beast, but how long he remains a beast.

Perhaps we need to consider that old piece of Klingon wisdom: “Revenge is a dish best served cold”. (Seriously, its first recorded use in that form is in Star Trek II: The Wrath of Khan…the things you learn from Wikipedia!) When our moral outrage switch is tripped, perhaps we need to be aware that our “ruthlessness” switch may also be switched on at the same time, and guard against taking out our anger against anyone who is or may be associated with the group who is said to be morally outrageous. It is difficult to look into the heart of human darkness, but I am glad that I had the courage to watch this documentary.

Reflection on good fortune

Last night, I went to a friend’s hen’s night, and after dinner, we went out dancing. I am not sure how many years it is since I have done something like that…a long time, to be sure. Anyway, I caught a taxi home, and my driver was a Somalian man of about my age. He had three children, and the two youngest were either side of my daughter in age. So we had a good laugh about the funny things little kids do, the temper tantrums they throw, their affection and all of that kind of thing. Then he was telling me about how he came to leave Somalia, how he goes back to help kids with medical problems, and the advantages and disadvantages of living so far from home in Australia. “The peace in Australia, it is beautiful,” he said. “If I was at home, I would have all my extended family. I miss that. But the peace here is so good.” We were then talking about the terrible things happening in Kenya, and hoping that civil war doesn’t break out there.

And as I type, I think about the terrible things happening in Pakistan. If I was a lawyer in Pakistan, I wouldn’t be able to speak my mind on a blog. I’d be in gaol, probably.

This is where I am a passionate believer in human rights; unfortunately, the kind of situations where they are most needed are exactly the kind of situations where they are unlikely to be respected. Mob violence, corrupt governments, anarchy, civil war…

How lucky most of us are in Australia. Most of us have clean drinking water, enough food, and do not have to worry about epidemic diseases for which immunisation and treatment is available. Since settlement, we’ve never had a civil war, never had a military coup, and never had a dictator.

The exception to this is of course, indigenous people, some of whom still do not have clean drinking water and suffer from treatable diseases. And the various phases of European settlement have had a devastating impact on indigenous communities and people. But otherwise, we are incredibly lucky. Sometimes it’s worth sitting back and thinking about that. Thank you to that taxi driver for making me reflect on how good my life is. And I wish he and his family all the best here in Australia.

Rights or wrong?

When I was younger, I was very taken with the idea of a Charter of Rights for Australia. I simply couldn’t fathom the fact that Australia didn’t have certain rights in its Constitution. But now that I’m older, I’m not so sure that a Charter of Rights is the panacea for all ills in society. I know that human rights are malleable, and that one human right can conflict with another.

For a particularly thorny and controversial case, see The Queen v GJ [2005] NTCCA 20, a case involving an Aboriginal elder and a young Aboriginal girl aged 14 or 15. The girl had been “promised” to the elder when she was a baby, but did not want to marry him, but her grandmother sent her to his house. In the event, the elder was charged of offences including assault (with a boomerang) and sexual intercourse with a child under the age of 16. The trial judge sentenced the elder to one month imprisonment (with a suspended sentence) because he found that the elder was behaving in accordance with customary indigenous law. However, on appeal, this sentence was overturned. 

Human rights do not provide a clear answer to a case like this. On the one hand, the elder could be said to have a right to continue to practice his own culture in a society where he made up an ethnic minority. On the other hand, the girl could be said to have a right to be free of inhuman and degrading treatment, and to have her rights treated as equal to any other child, regardless of her race or religion, and not to suffer because of her status as a woman.

I’m thinking about these issues because the Charter of Human Rights and Responsibilities Act 2006 (Vic) comes into force in Victoria today. Do I believe in human rights? Of course I do. I think that there should be a certain amount of freedom of speech (whether I agree with what is said or not), and that there should be freedom of religion, and so forth. But I can see that in some circumstances it is not easy. Say there is a group who argue that a certain religious group controls society and that they should be banned from Australia. This is something to which I have a very deep seated revulsion on a personal level. Obviously there is a right on the part of the group to freedom of speech, but there is also a right of the people of that particular religion to be free from vilification and discrimination. How to balance it? I can never quite make up my mind.

Peter Faris QC has written a piece which is extremely critical of the Charter of Rights. He sees it as a gravy train for lawyers, with little real practical benefit for the people.

I am not quite sure that the scenario is quite as dire as Faris QC portrays it. I went to a site for Conservative Lawyers in the UK (a scary concept). There I found a paper by two barristers which outlined the benefits and detriments of the Human Rights Act 1998 (UK) in the United Kingdom. (I had to overcome a personal prejudice – a lifelong dislike of Tories arising from my schooling in England). I found it to be a fair paper. The lawyers made five provisional conclusions:

• There was more uncertainty in the outcome of litigation where public authorities were concerned, particularly concerning the liability of public authorities in tort.
• More time and expense is incurred in arguing Human Rights Act points than is probably justifiable, although this is likely to settle down.
• There has been some “refreshing” of the common law with arguable benefit in some areas although the common law was generally regarded as being sufficiently dynamic to bring about changes absent the Human Rights Act.
• There is greater freedom for judges to make new law in areas where the law is either uncertain or possibly antiquated. 
•  Some cases where claimants would have failed before the Human Rights Act can now succeed. What success means however is still somewhat uncertain. The actual remedies available under the HRA are still a matter for development.

At [50] of their paper, the barristers conclude:

The approach of the Courts to the Human Rights Act has not perhaps been as radical as some feared. But we do venture to suggest that the effect of the Human Rights Act has been considerable in terms of the way in which public authorities organise their affairs. Whilst much of the evidence is anecdotal and perceived, sometimes, through the possibly unreliable medium of the popular press, there nevertheless seems to us to be a significant body of evidence that in a number of areas public bodies fearful of human rights violations are being unnecessarily elaborate and defensive in their response. This is very much a mirror of what was covered by the all party parliamentary enquiry into the so-called Compensation Culture. There it was concluded that the perception of a compensation culture affected the way people behaved notwithstanding the fact that there was no real evidence of an increase in compensation claims.

I am not against human rights per se, but my fear is that incorporating human rights into legislation may actually mean that governmental bodies try to obfuscate their actions from a fear of potential legal action. I would not be as negative as Faris QC, and I can see some benefits in human rights legislation. However, I cannot help thinking of freedom of information legislation, which has led to governmental bodies trying to increase the amount of material which is “off-limits” and exceptional. The case of McKinnon last year (about which I wrote a post) is an example of the way in which FOI can be manipulated to hide information. Similiarly, I worry that the net effect will be an unsavory one: governmental institutions will attempt to circumlocute human rights rather than upholding them.

How the mighty may fall

I’ve never received a speeding ticket. Indeed, until this year, I was such a goody-two-shoes that I had never even received a parking fine, but the exigencies of working, mothering and studying forced me to take parking risks that I would never have previously taken, and I have received 2 parking fines in 2007. It’s depressing when you get the fine. But I paid each off immediately, so that the slate was wiped clean and I didn’t have to think about it any more. Better to get rid of it immediately.

Hence, I have been following the allegations against former judge Marcus Einfeld with interest. Put shortly, the allegations are that in order to get out of paying a speeding fine, he falsely swore statutory declarations that he was not driving his car at the time. The speeding offence was alleged to have occurred on 8 January 2006. He nominated one Teresa Brennan, a US law professor, as the driver of the car, but she had died in January 2003 in a car accident. Clearly she could not have been driving the car at the time.

I understand that he is an intelligent man and was a very good judge. If the allegations are found to be correct, I cannot quite understand how someone who seems to have done so much good as a judge and as an advocate of human rights law could get into such a mess. The prosecution case is that Mr Einfeld was concerned that he might lose his licence as a result: but surely that’s better than being convicted of perjury. Even if he does not stand trial or is not convicted, his name has been tarnished by the allegations.

I tend to take a dim view of speeding because when I was 15, my younger sister was hit by a car when I was standing just behind her. If the driver had been driving 5km faster, she would have been dead. As it was, her leg was broken and she was concussed. That moment when she flew into the air and landed in a crumpled heap on the road still sticks with me today. I think that’s why I’ve never gotten a speeding fine.

The same law applies to all of us, and if we break the law, we should wear the consequences, no matter who we are. Isn’t that a fundamental principle of the rule of law? Perhaps it’s silly of me, but if the allegations against Mr Einfeld are established, I will feel rather cynical about his professed championship of human rights and the rule of law. To err is human: but on the other hand, you have to practice what you preach, even in small matters like speeding fines.

Update

Mr Einfeld has been committed to stand trial.

Playing the race card

Last night when I was driving home, I saw a large group of boys standing on the pavement outside the Housing Commission flats. The boys were predominately of African descent. I was thinking about it when I got home. The boys had been dominating the footpath. Would I have felt nervous if I had been walking on the street and had to push past them? Yes, I would have. Was it because they were African? No, not at all. It was because they were male and blocking the footpath. Regardless of race, religion or class, as a lone woman, I would feel slightly worried about having to pass a large group of boys. I don’t think they were a gang, they were just a group of boys hanging out with nothing better to do, but that’s when boys get up to mischief. It made me think more deeply about the news of the last few days.

It was with a sinking heart that I watched the news the other night with stories of Sudanese gangs terrorising Noble Park and Dandenong. The news release dredged up the crimes committed by Sudanese refugees Taban Gany and Hakeem Hakeem. The implication seemed to be that all Sudanese refugees were lawless drunkards and rapists. Sudanese refugees had become an issue because a young Sudanese man, Liep Gony, was bashed to death at Noble Park railway station by two youths who were not of Sudanese descent. Sudanese people have been victims of crime too.

The response of the Federal government was to say that it had limited the intake of African refugees to Australia because of their difficulties in integrating. Various interest groups and Sudanese community groups then said that this was racist.

Neither response is going to resolve the problem. Just because some Sudanese refugees commit crimes does not mean that all Sudanese refugees have integration problems. On the other hand, if there are problems with a small section of the community, they should be faced and people’s concerns should not simply be dismissed as racist. That dismisses the concerns of people who may feel worried. It’s better to actually confront the concerns and see if there’s any valid points.

Sudan is a very troubled area of the world, to put it mildly. It has been involved in successive civil wars and conflicts with neighbouring countries. The conflicts have been partly on religious, ethnic and tribal grounds. Presently there is a terrible conflict in Dafur where it has been alleged that the Janjaweed militia have committed acts of genocide against rebel groups.

The 1951 Convention relating to the Status of Refugees says that a refugee is a person who:

“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality, and is unable to or, owing to such fear, is unwilling to avail himself of the protection of that country…”

Refugee and asylum law only really developed after World War II, where there was a massive number of displaced persons. The idea is that blameless civilians should be granted asylum in other countries which are safe and in which people will be free from war and violence. My attitude toward refugee law is “Do unto others as you would have them do to you.” If Australia were suddenly dragged into a civil war, and I escaped with my family, I would hope that another country would offer me refuge. Some of my dear friends came to Australia as refugees.

Clearly, there would be many Sudanese people who qualified as refugees. Many of those who arrived here would be traumatised and would have seen and suffered terrible things. Many Sudanese would have grown up in a war zone, with little or no laws. Obviously, there are going to be adjustment problems when people who are traumatised suddenly have to adapt to a totally new society. Sometimes, also, ethnic, religious and tribal conflict is also likely to have been brought across to the new country, especially if a person’s family has been killed by another group. That’s just a fact of life (I remember those Serbia-Croatia soccer matches when I was a kid – which turned into mini-civil wars in the stands). Some refugees may be both perpetrators and victims of violence. Furthermore, refugees may have grown up with little or no laws, a very different culture and a different language.

I should think that, given the above factors, it’s clear that at least some Sudanese refugees will have integration problems, and it does no one any good to deny it. It is also true that there are some “bad eggs” within the Sudanese community, as there are within every community. But does that mean the intake of African refugees should be limited? Aren’t integration problems part and parcel of taking in refugees, and to be expected? I don’t think we should exclude Sudanese or African refugees on a blanket basis. That would be unfair to those Sudanese and African people who genuinely wish to live here in peace and harmony with other Australians. It reminds me of times when teachers say “I’m going to give you all detentions because of the behaviour of one person in this class”. I really hated that. The expectation was that the group would discipline the individual as a result – but why should everyone be punished for the crimes of one or a few? I always felt angry, and as if the teacher was abrogating his or her responsibility.

It must be ensured that refugees are given proper support and counselling, as well as education in English language and Australian laws and culture. I have heard of some refugees being dumped in rural towns, with little or no support, and it is hardly surprising that problems then arise. As the UNHCR says, refugees are required to comply with the law of the country which has given them asylum. Refugees must be made aware of our laws and customs (but certainly not in the manner of that really stupid citizenship test). It must also be ensured that community leaders communicate with their members and say that ethnic violence, tribal violence and violent crime are not acceptable in this country.

Also the concerns of shopkeepers and the like in Noble Park should be addressed. They obviously perceive a problem, and while it’s easy just to write them off as “racist”, I think that this actually makes the problem worse and increases resentment. People have a right to feel safe, and there should be a swift response to crime which gives a message that it is not acceptable. I tend to think no excuses should be made on the basis that someone is a refugee.

Thinking back to that group of boys on the pavement yesterday, perhaps boys should be made aware that congregating in a large group can sometimes be intimidating and scary to others, whatever one’s ethnicity or religion. But I suspect it’s just something that naughty, bored boys do, wherever they are from and whatever their culture. And I also suspect that some boys enjoy and cultivate the intimidation factor.

It’s a problem that can’t just be fixed by one side alone. The refugee communities, the police, the government, the social workers and schools have to all work together. And there’s always going to be a few bad eggs. It is a fact of life that there will always be negative aspects to granting asylum to refugees. Some people will have difficulty adapting or will be undesirable or criminal. But there are also immense positives. I think of my dear friend, who came here as a two year old, a stateless refugee. She’s now a success story: a businesswoman with two degrees, a mother and wife, an Australian citizen, an Aussie Rules footy fan (far more than me) and an all-round great person. I couldn’t think of a better addition to Australian society. It’s not worth throwing the baby out with the bathwater. Some common sense from all sides would not go amiss.

Finally, I wish the press would show some restraint as well. Sensationalised reporting creates the sense of a crisis and inflames tension. I’m sure there are genuine problems, but sensationalising them helps nobody. Let’s look at this logically and calmly. What am I saying? It’s election time – no one can look at anything sensibly during election time… Sigh!

It’s a dog’s life

Apparently there is a booming industry for lawyers in the US who represent animals, particularly in the context of relationship breakdown and estate planning. As the Legal Soapbox commented the other day, a US property development mogul left a substantially larger bequest for her dog than she left for any of her human relatives. And pet custody disputes are increasingly common. According to the article above, vets are called on to say which “parent” the dog prefers.

It is true that dogs often have preferences for one partner over the other. My family dog loves, loves, loves my mother. He honours my father (whom he regards as “top dog”) but he cries when my mother leaves the room to go to the toilet (yes, separation anxiety issues).

The article raises interesting issues. Pets are incredibly important. Before we got our family dog, I never quite understood (yeah, we had three fish and budgie and two hamsters, but they weren’t quite the same). I love our dog, and he has been supportive to me in some hard times. Seriously! He always knows when you are sad and tries to comfort you. When our family friend’s marriage broke down, and she came over to our house and began to cry, the dog immediately got on her lap, whimpered and tried to lick the tears away. He is a bit of a psycho (he’s a Jack Russell – concentrate of dog) but he is a very sensitive soul. The important thing, I suppose, is that he loves you unconditionally.

But…what happens when pets start getting more rights (and better paid legal representation) than some people? I’ve always felt slightly squeamish about those ads for pet food for “picky” pets, just because I’m sure that there’s many people in the world who get food of a lesser quality, and some people who are starving. Don’t get me wrong, I love dogs, cats and all animals, but the concept of gourmet pet food just strikes me as over-the-top, when many people don’t have the luxury of clean water and food at all. So what happens when a dog has a top attorney but an inmate on death row can only get a legal aid attorney? Or, in a less extreme example, a person without assets gets ripped off by a company but can’t do anything about it because he can’t afford legal representation, but the guy next door has a relationship breakdown and his pet gets legal representation? It’s all about whether animals are equivalent to humans. Of course, in one sense we are all animals; but should animals such as dogs get the privilege of a lawyer when some human beings don’t get those privileges?

We ain’t that bad, really!

As a lawyer, my eye was caught by an excerpt from one of The Road to Surfdom’s latest posts:

In a country where the federal cabinet consists of little but grey soulless lawyers, it’s ironic that some of the most admirable characters in the struggle to defend personal liberty and democratic principle are also members of the legal profession. Major Michael Mori showed us the best of the US law fraternity and now along comes Stephen Keim SC, with terrific personal courage, to challenge the government’s contemptible attempts to exploit Dr Mohamed Haneef for political advantage.

On behalf of my species, I wish to reiterate that not all lawyers are grey and soulless. Many lawyers are defenders of human rights and fair process. Stephen Keim seems to be one of these lawyers. But he is not alone. Look at the guys over at A Roll of the Dice in this post here, or Marcellous’ posts and Law Font’s post, just to pick a few. Many lawyers are acutely aware of the power that the law has over people’s lives, which is why I think civil libertarian organisations attract more than their fair share of lawyers.

Just because one is a lawyer doesn’t mean that one is a bad person. On the other hand, nor does it mean that you are better or more moral than other people. Let’s have a look at a few prominent historical lawyers (and/or people who received legal training): Thomas Jefferson, Goethe, Nelson Mandela, Slobodan Milocevic, Gandhi, Bill Clinton, John Howard, Lenin, Franz Kafka, Jeremy Bentham, Abraham Lincoln, Karl Marx, Gough Whitlam. I think you’ll agree that lawyers, like any other group, are a mixed bag.

So many of the mixed bag mentioned above are politicians or involved in political thought. Why is it that lawyers are attracted to politics? As I have explained previously, I think the law is in itself intrinsically political. That is why this blog became political. The law proscribes what people can do, and imposes certain standards of behaviour on society. It is involved with all the important processes of life. Indeed law in the form of legislation is the end product of the democratic process.

Anyway, don’t blame us all for the sins of some of our brethren. Some of us are decent people. Seriously, we are! Wouldn’t you trust this face?

[Puss in Boots from Shrek 2]

Carrots that eat milk

When my sister and I were little, we came up with the sentence which is the title of this post (during a trip to Jenolan Caves). We found it hilarious because it made no sense. Carrots are incapable of eating, and even if they were capable, they couldn’t “eat” milk anyway. Yeah, we were strange little kids.

Dave from Balneus has drawn my attention to this interesting linguistic analysis of the US Supreme Court’s recent decision in Morse v Frederick, also known as the “Bong HiTS 4 Jesus” case. The events took place on 24 January 2002 when the Olympic Torch Relay passed through Juneau in Alaska, en route to Salt Lake City in Utah for the Winter Olympic Games. The Torch Relay passed by Juneau-Douglas High School, and the principal, Deborah Morse, decided to let students watch it. As the torchbearers and camera crew passed by the high school, Frederick and his friends unfurled a 14-foot banner which read “Bong HiTS 4 Jesus”. Morse immediately crossed the street and asked the students to take the banner down. Everyone but Frederick complied. Morse then confiscated the banner and suspended Frederick for 10 days. This was upheld by the school administration. Frederick then brought a legal action alleging that his First Amendment right to freedom of speech had been violated. It went all the way to the Supreme Court.

A majority of the Supreme Court upheld the school’s actions, saying the school was within its rights to cause Frederick to take the banner down. Roberts CJ said:

At least two interpretations of the words on the banner demonstrate that the sign advocated the use of illegal drugs. First, the phrase could be interpreted as an imperative: “”[Take] bong hits –” . . .”—a message equivalent, as Morse explained in her declaration, to “smoke marijuana” or “use an illegal drug.” Alternatively, the phrase could be viewed as celebrating drug use — “—“bong hits [are a good thing],” or “[we take] bong hits” — ”—and we discern no meaningful distinction between celebrating illegal drug use in the midst of fellow students and outright advocacy or promotion.

Accordingly, the school had a right to prohibit banners such as that displayed by Frederick.

The minority found that the school did not have a right to prohibit the banner because it did not advocate drug use. In fact, the minority was of the opinion that the banner said very little of sense whatsoever:

To the extent the Court independently finds that BONG HiTS 4 JESUS” objectively amounts to the advocacy of illegal drug use—in other words, that it can most reasonably be interpreted as such—that conclusion practically refutes itself. This is a nonsense message, not advocacy. The Court’s feeble effort to divine its hidden meaning is strong evidence of that. Ante at 7 (positing that the banner might mean, alternatively, “‘[Take] bong hits,’ ‘bong hits [are a good thing]”,” or “”‘[we take] bong hits’”). Frederick’’s credible and uncontradicted explanation for the message— — he just wanted to get on television— — is also relevant because a speaker who does not intend to persuade his audience can hardly be said to be advocating anything. But most importantly, it takes real imagination to read a “cryptic” message…with a slanting drug reference as an incitement to drug use. Admittedly, some high school students (including those who use drugs) are dumb. Most students, however, do not shed their brains at the schoolhouse gate, and most students know dumb advocacy when they see it. The notion that the message on this banner would actually persuade either the average student or even the dumbest one to change his or her behavior is most implausible. That the Court believes such a silly message can be proscribed as advocacy underscores the novelty of its position, and suggests that the principle it articulates has no stopping point. Even if advocacy could somehow be wedged into Frederick’’s obtuse reference to marijuana, that advocacy was at best subtle and ambiguous. … If this were a close —case, the tie would have to go to Frederick’’s speech, not to the principal’’s strained reading of his quixotic message.

The linguistic analysis of the judgment finds the minority opinion more convincing. Bill Poser says:

That an ill-formed or incomplete utterance might have no semantic interpretation is of course completely uncontroversial. Thus, from a linguistic point of view, it is perfectly possible that the words on the banner might have meant nothing at all. Frederick’s explanation of his motivation for displaying the banner provides a plausible account of his use of words that did not mean anything.

It is a silly message. It is deliberately courting controversy by mingling marijuana use with the name Jesus. Nevertheless, if I were a Christian, I suspect I would find it offensive. As a non-Christian, I simply find it ridiculous and childish. But as far as I can see, “Bong HiTS 4 Jesus” has no clear meaning, and makes no more sense than my sister’s and my phrase “carrots that eat milk”.

I can’t help noticing the irony that Frederick’s message (whatever it means) has gotten far more exposure than it otherwise might have done if the school had just told him off and dismissed it as a attention-seeking prank. It reminds me a little of the tantrums thrown my toddler. The maternal health nurse recommends that I ignore the tantrums, because the object is to get attention, and any attention, even bad attention is better than none. Given that the object of the prank was to seek attention and controversy, Fredericks would have been better off rewarded with no attention whatsoever.