UK getting out of human rights - the world celebrates Watch

RandZul'Zorander
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#61
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#61
(Original post by billydisco)
Still waiting for these examples of things which prisoners need voting rights to prevent/obtain...... :rolleyes:
It could be literally anything. Do prisoners get released? Yes. Then why should they not have been able to have a say on events outside the prison walls? Do they have family, who may be supporting them while in prison, who might be affected by such votes? Probably, so why shouldn't they be allowed to vote have a say in such things?

What exactly is your reasoning to justify them not having a right to vote? Is not having the right to vote part of the contract of being subject to the rules (and thus punishments for breaking said rules) of society?
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NYU℠
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(Original post by billydisco)
Still waiting for these examples of things which prisoners need voting rights to prevent/obtain...... :rolleyes:
Any change in the status quo regarding the condition or treatment of prisoners could be seen as a change which political representation could have prevented.

If you're going to ignore the arguments presented to you, then don't waste my time.

(1) The social contract is still being observed, as the person is in prison. Imprisonment is part of the social contract. The social contract has not been violated, it's being observed and followed.

(2) Citizenship without an ability to have political representation is antithetical to democracy. In observing the social contract (we could even change the subject matter to Rawlsian theory and talk about the veil if you prefer), the state is responsible for the transferred sovereignty of the citizen. In disallowing the citizen to have some control over their transferred sovereignty via political representation, the state violates its responsibility to adhere to the social contract.

(3) You have yet to address why, in principle, prisoners shouldn't have voting rights.

(4) If prisoner's rights are dependent on majority approval, since that's clearly a line of argument you're attempting to employ, then we're not arguing about rights, we're arguing about privileges. In which case you think the 'right to vote' is actually a privilege to vote. A privilege to vote can be controlled by the majority and can be deprived according to any rules the majority wishes to impose. Last I checked, voting is considered a right in a democracy for numerous reasons, including checking majority power, preventing tyrannies of the majority, ensuring the political system is actually a democracy and not a quasi-oligarchy, ensuring that the state adheres to the social contract in respecting each individual's transferred sovereignty, etc. etc. etc.

(5) If you wanted to get into the social science aspect of prisoner's voting rights, retributive justice systems are less successful than rehabilitative justice systems. Retributive justice systems, in punishing for the sake of punishment and 'othering' the prisoner decrease that person's incentive or desire to re-enter society as a functional member of the society who is willing and able to contribute to the collective upon their release. Depriving someone of their right to vote alienates them from the political sphere and effectually deprives them of one of the most important aspects of citizenship. It's state alienation by state actors. When prisoners are treated under a rehabilitative justice system, the rate of recidivism is lower - they're more incentivized to participate in the collective because the state, rather than 'othering' them, has offered to help them. In not depriving them of the right to vote, they haven't been alienated away from the political sphere nor effectually denied their citizenship.
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RandZul'Zorander
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(Original post by nulli tertius)
The question of whether we should leave the ECHR is a separate question to whether the ECHR needs updating and refreshing.

One way it which it needs updating is that it is no longer tolerable for the judiciary to radically re-interpret the Convention without those reinterpretations being anchored in democratic legitimacy.

At the moment European consensus means no more than the opinions of the guests sitting around the judges' respective dinner tables.

The ECHR has lost sight of judicial restraint; the recognition that because they are unelected they should only either be applying old principles to new circumstances or creating new principles where clearly the public are ahead of them.
I would question your ideas on the courts needing updating because of their lack of democratic legitimacy. Isn't the entire point of a court, particularly one dealing with human rights, to be a check on the power of democracy? You may not like some of their decisions (i.e. if you are part of the majority whom they rule against) but that is them fulfilling their role is it not? I fail to see your need for them to have the public behind their every decision.
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Rinsed
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(Original post by NYU2012)
...
Don't be absurd. When we imprison people we take away all sort of supposedly inalienable rights. I don't think the right to vote holds a superior status to freedom of association, but the latter is certainly curtailed.

Whether prisoners get the vote or not is not a question of basic human rights, but where the line is drawn on the restrictions it is acceptable to place on offenders. Especially when you consider the court did not rule that all prisoners should get the vote, but that a blanket ban was unjustified. As such, it is a political matter, and the court oversteps itself.
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nulli tertius
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(Original post by NYU2012)
I disagree. The ECHR only needs updating and refreshing if it isn't working; and the ECHR should only be left if it isn't working. The questions are closely linked.
It demonstrably isn't working because the judges are usurping to themselves powers that belong to the political institutions of the member states. The court is also in administrative chaos because of its organisational structure.

However the test for walking away from something is whether is confers no net benefit, not whether it is in need of repair.


I disagree on this point as well. I see absolutely no reason why a rights instrument needs democratic legitimacy in the sense you're talking about. If rights require democratic legitimacy, then they aren't rights, they're privileges.

Rights don't get to be voted on by the populous. If you can vote on someone's rights, they aren't then rights.
You are conflating the questions of whether a particular right exists with whether a particular individual has that right or has had that right infringed. 25 years ago there was no such property right as "database right". Parliament created that right. Having done so, it is ultimately a judicial question of fact and law whether a particular person possesses a right in a particular database. It is also a judicial question of fact whether someone else (including the State) has infringed that right.

You are referring to the second and third situations. If the executive or legislative arms of the State is to decide whether I have a right in a particular database or whether someone else has infringed that right, you are correct that my "right" is merely a privilege enjoyed at the whim of the State.

However, I am saying that the ECtHR is exerting an exorbitant and impermissible jurisdiction to create new rights. The creation of new rights requires (except in trivial or obvious cases) democratic legitimacy. Anything else is simply judicial tyranny.


Except when we examine the decisions coming out of Strasbourg, when referencing European consensus the judges clearly to point to where this practice is used.
That is an irrelevance. The criticism is not that the practice is not open. The criticism is that the European consensus is asserted rather than proved by evidence. Hence it is a consensus of the the guests at judges' dinner parties, not a consensus of Crimean Tartars, Norwegian fishermen or Welsh florists.

There is a secondary criticism. The ECtHR tends to hide behind state actors in decreeing a consensus. The ECtHR tends to take as the settled position, the legislative position of particular countries at a moment in time, ignoring the fact that something may be the subject of intense political controversy in that country. The Bedroom Tax and Scotland's continued membership of the UK have democratic legitimacy but so say that there is a consensus in their favour is an abuse of language.



This argument is incredibly unpersuasive to me.

(1) I'm a legal constitutionalist, so I think that judges should have strike down powers.
Don't worry. The Home Secretary has just announced that she will take action against non-violent extremists.

(2) Particularly within the UK under the HRA, I've argued that judicial deference should be almost non-existent. Because the HRA can create a dialogic model, there is no reason for an exercise of judicial restraint. In relation to the ECHR, I have yet to see the ECHR produce a 'radical' decision that is so far removed from modern conceptions of rights principle that its just outrageous. In fact, I've yet to see the ECHR move far or fast enough. For example, look at how long it took the ECtHR to allow legally recognized trans identities under Art 8; more recently, the ECtHR ruled that married trans individuals who live in countries without same-sex marriage must divorce, art 8 and art 12 offer them no protection.

Sigurjonsson v Iceland is just jaw dropping. This was an issue that was specifically debated in the discussion leading to the adoption of the ECHR. The states deliberately agreed to leave out a provision that would have resulted in the Sigurjonsson outcome. In the intervening period many state parties had continued to require membership of trde associations in order to carry on particular commercial activities. Furthermore trade guilds were buried deep in the heart of the Ius Commune of Europe.


(3) I'm mostly a Dworkinian and think that there is a 'right answer' to be reached irrespective of political opinion on the subject.
Dworkinian jurisprudence is simply a device to produce a supposedly non-convertible democratic socialist answer to any political question, and should be called out as such more frequently.
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nulli tertius
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(Original post by RandZul'Zorander)
I would question your ideas on the courts needing updating because of their lack of democratic legitimacy. Isn't the entire point of a court, particularly one dealing with human rights, to be a check on the power of democracy? You may not like some of their decisions (i.e. if you are part of the majority whom they rule against) but that is them fulfilling their role is it not? I fail to see your need for them to have the public behind their every decision.
You have fallen into the same trap as NYU. Courts determine whether individuals possess rights and whether those rights have been broken. Legislatures create new rights.

What the ECtHR has been doing has been creating new rights.

Where in the text of the ECtHR does it say that someone has the right to vote? If someone does not have to have the right to vote , it cannot be an infringement of the ECHR to deprive him of it.

Think about it, when the Charter was signed, the majority of British citizens did not have the right to vote, because they did not live in the United Kingdom. It is inconceivable that we would have drafted a Charter that would have obviously and immediately have put us in breach.
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RandZul'Zorander
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#67
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(Original post by nulli tertius)
You have fallen into the same trap as NYU. Courts determine whether individuals possess rights and whether those rights have been broken. Legislatures create new rights.
I take it you don't believe in any kind of intrinsic rights then? What about derivative rights?

I would disagree with you because States have bound themselves to an authority which limits their own powers in accordance to certain things, in this case human rights. If that is the case then the courts are there to make sure states do not violate that which they have agreed to (even if that has come about by democratically legitimate means).

What the ECtHR has been doing has been creating new rights.

Where in the text of the ECtHR does it say that someone has the right to vote? If someone does not have to have the right to vote , it cannot be an infringement of the ECHR to deprive him of it.
It depends on how you look at it really. Generally the basis of a right to vote is derivative from one's citizenship. That intrinsic in being a citizenship in a democracy/republic that you implicitly must have the right to vote. The ECHR recognizing this, and other rights 'created', tends to fall in line with this idea of derivative/implicit rights.

Think about it, when the Charter was signed, the majority of British citizens did not have the right to vote, because they did not live in the United Kingdom. It is inconceivable that we would have drafted a Charter that would have obviously and immediately have put us in breach.
Yes but the point is that it is supposed to be a living document. The ECHR is supposed to grow and change as is necessary/appropriate with the progress of society.
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nulli tertius
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#68
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(Original post by RandZul'Zorander)
I take it you don't believe in any kind of intrinsic rights then? What about derivative rights?
I believe that certain rights are intrinsic, but because I believe that, I believe that they were intrinsic last week and the week before. The idea of a new intrinsic right is an oxymoron.


It depends on how you look at it really. Generally the basis of a right to vote is derivative from one's citizenship. That intrinsic in being a citizenship in a democracy/republic that you implicitly must have the right to vote. The ECHR recognizing this, and other rights 'created', tends to fall in line with this idea of derivative/implicit rights.
Eight years ago, it was estimated that there were 13.1 million British nationals living abroad of whom about 3 million had the right to vote. The numbers would have been far higher in 1950 when the ECHR was entered into. There were 37.8 million British citizens in Nigeria alone. None would have had a vote. It was never implicit that British citizenship carried the right to vote. We lost the American colonies on this argument.

Yes but the point is that it is supposed to be a living document. The ECHR is supposed to grow and change as is necessary/appropriate with the progress of society.
Where does it say that in the ECHR? Why isn't it subject to the same canons of construction as every other treaty?
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RandZul'Zorander
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#69
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(Original post by nulli tertius)
I believe that certain rights are intrinsic, but because I believe that, I believe that they were intrinsic last week and the week before. The idea of a new intrinsic right is an oxymoron.
It wouldn't be saying that the right is new, just newly recognized.

Eight years ago, it was estimated that there were 13.1 million British nationals living abroad of whom about 3 million had the right to vote. The numbers would have been far higher in 1950 when the ECHR was entered into. There were 37.8 million British citizens in Nigeria alone. None would have had a vote. It was never implicit that British citizenship carried the right to vote. We lost the American colonies on this argument.
As I said above, it may not have been recognized, but that does not necessarily mean that it didn't exist. However, conflicts (like the American revolution) could have brought some of these issues to light (not that they did).

Where does it say that in the ECHR? Why isn't it subject to the same canons of construction as every other treaty?
This has been the practice since very early on. (http://papers.ssrn.com/sol3/papers.c...act_id=2021836) It is a form of political/legal thought that such agreements (particularly in regards to human rights) shouldn't be stagnant as they may become obsolete or may not make sense of society evolves. I would suggest looking at the US second amendment as an example of an antiquated right that could benefit from this sort of interpretation.
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nulli tertius
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(Original post by RandZul'Zorander)
It wouldn't be saying that the right is new, just newly recognized.
That would be sophistry. The common law, far more than continental traditions, moves by progressive judicial development, yet it recognises that naked judicial law-making of this kind is illegitimate.


This has been the practice since very early on. (http://papers.ssrn.com/sol3/papers.c...act_id=2021836) It is a form of political/legal thought that such agreements (particularly in regards to human rights) shouldn't be stagnant as they may become obsolete or may not make sense of society evolves. I would suggest looking at the US second amendment as an example of an antiquated right that could benefit from this sort of interpretation.
It has not been the practice from the very early days. The earliest case cited by that Article is 1978, 24 years after the setting up of the Commission and 19 years after the establishment of the Court.

You mention the US Second Amendment. Frankly that demonstrates why such judicial law-making is impermissible. It is nonsense to suggest that there is any consensus in America about the right to bear arms. A large proportion of the American population wish that right to be significantly curtailed by the the imposition of stricter gun controls and another large proportion of the American population regards that as an anathema. It is an issue that divides the country. Interpreting the Second Amendment on the basis of a consensus of the American people, inevitably involves a lie.

The problem with the Second Amendment is that it contains a premise that is factually untrue. A well regulated militia isn't necessary to the security of a free state. Intercontinental ballistic missiles will do a far better job. As importantly, the founding fathers knew damn well that there were nations that were secure and not tyrannies (Scotland for one) that had no militia. Accordingly the Second Amendment is built upon a political and not a factual truth.

Most of the Constitution and Bill of Rights should be given a common law interpretation, to establish the "true intent" of the documents. It is obvious that is the tradition in which the founding fathers were raised and how they accepted it should be interpreted; neither fixed at birth nor liable to be re-invented by judges sitting as the later Roman Emperors whose word was law.

However, the Second Amendment is incapable of such interpretation because of the false premise and therefore should be given a strictly originalist interpretation. If it existed in 1791, you have the right to bear it; and if it didn't, you don't. So, flintlocks, cannon and muzzle-loading rifles may be freely borne by US citizens but revolvers, sub-machines and surface to air missiles may not.
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Observatory
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#71
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(Original post by Fullofsurprises)
There are many negative aspects to this (Chris Grayling's proposals were just rubbished by Dominic Grieve, former Tory Attorney General, who says the document contains many outright lies about how European Human Rights operates), but I thought it was worth a pause to consider who will be offering the Tories congratulations from around the world when this gets done and the news goes global.

China
North Korea
Islamic State
Burma
Venezuela
Cuba
Zimbabwe

EDIT I removed Russia - they are in the convention, however sloppily implemented in reality. I'm sure Putin will be sending personal congratulations to Cameron though for this bold move.
There are countries in the ECHR system which do not respect human rights and countries that are outside of it that do. Doesn't that suggest that the ECHR - which ultimately has no enforcement mechanism that can compel states - is not an important factor in whether countries respect human rights?

(Original post by nulli tertius)
However, the Second Amendment is incapable of such interpretation because of the false premise and therefore should be given a strictly originalist interpretation. If it existed in 1791, you have the right to bear it; and if it didn't, you don't. So, flintlocks, cannon and muzzle-loading rifles may be freely borne by US citizens but revolvers, sub-machines and surface to air missiles may not.
How about blankets laced with smallpox?
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Observatory
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#72
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(Original post by RandZul'Zorander)
This has been the practice since very early on. (http://papers.ssrn.com/sol3/papers.c...act_id=2021836) It is a form of political/legal thought that such agreements (particularly in regards to human rights) shouldn't be stagnant as they may become obsolete or may not make sense of society evolves. I would suggest looking at the US second amendment as an example of an antiquated right that could benefit from this sort of interpretation.
If you believe that then you don't believe in human rights. This is the fundamental problem of all human rights law: who defines human rights, and what makes them different from a legislature? If the proposal is that human rights should be defined by a closed circle of men who appoint their own replacements, in what sense are we not living in a dictatorial oligarchy?

The concept of human rights is similar to the Islamic Shariah. It proposes a single unchanging correct mode of governance which is either a revealed truth, or which can be derived from objective principles. This proposition is unsupportable nonsense.

As it seems many of the ECHR supporters accept in the case of the US Bill of Rights, for no better reason than that they disagree with the US Bill of Rights.
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RF_PineMarten
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#73
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(Original post by NYU2012)
Why shouldn't they? Does the political climate of the country affect them? Yes. Since they are citizens of the state and are complying with the social contract in going to prison and so remaining there until such time as the state deems it appropriate to release them, why should they not have the ability to vote?
They shouldn't get the right to vote because they are criminals who have committed a crime serious enough to get a prison sentence - people don't get sent to prison for "minor" things.

Prisoners should not get the vote because they lose that "right" when they commit a crime and get sent to prison. Voting is not a human right in the way some people think of it as - it can be withdrawn from some groups of people, and that includes prisoners, and this is not a human rights issue. Prisoners are imprisoned and therefore not involved in civil society, so denying them certain "rights" like voting is perfectly reasonable. And prisoners aren't the only group of people not allowed to vote.

Prisoners not having the right to vote doesn't mean they will become victims of genuine rights abuses - those are already covered by other laws, so you do not need to give prisoners the vote to guarantee human rights inside a prison. The idea that without prisoner voting prisoners would be victims of rights abuses is pure fantasy.
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nulli tertius
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(Original post by Observatory)

How about blankets laced with smallpox?
I think the last supplier was in Birmingham and they went bust!
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Observatory
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#75
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(Original post by nulli tertius)
I think the last supplier was in Birmingham and they went bust!
Touché.
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nulli tertius
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(Original post by RFowler)
They shouldn't get the right to vote because they are criminals who have committed a crime serious enough to get a prison sentence - people don't get sent to prison for "minor" things.

In 2013 320 people were gaoled for stealing pedal cycles, 14382 were gaoled for shoplifting, 106 for stealing from a meter or vending machine, 380 for joyriding, 199 for arson that didn't endanger anyone's life, 55 for simple possession of class C drugs, probably mostly khat, 73 for trades description offences, 486 for possession of obscene material, 55 for a gambling offence, 118 for cruelty to animals, 7 for permitting truanting, 12 for kerb crawling, 26 for fare dodging on the railway, 5 for begging,

Still think everyone who goes to gaol is a serious offender.
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InnerTemple
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#77
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(Original post by RFowler)
They shouldn't get the right to vote because they are criminals who have committed a crime serious enough to get a prison sentence - people don't get sent to prison for "minor" things.
Not everyone who is sent to prison is a monster who must be removed from society.

Just think motoring offences - these prisoners are usually just people who made a mistake committed by almost every other motorist at some point. Except they were unlucky enough to have a cyclist or other road user thrown into the mix.

It doesn't make sense for there to be a blanket ban on prisoner voting. That is what the ECtHR said and I agree.

As for the thread topic in general: I am not surprised. I don't think much will come of it in the end.

It is a shame to see the ECHR ****ged off as much as it is.
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Fullofsurprises
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#78
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(Original post by nulli tertius)
It demonstrably isn't working because the judges are usurping to themselves powers that belong to the political institutions of the member states. The court is also in administrative chaos because of its organisational structure.

However the test for walking away from something is whether is confers no net benefit, not whether it is in need of repair.
I'm not clear - are you saying the court can't be reformed and we should therefore walk away? What about the important point that supra-national legislation based on universal principles sets standards for all people which shouldn't be up to states to interpret and therefore requires an independent supra-national court?

(Original post by nulli tertius)
Dworkinian jurisprudence is simply a device to produce a supposedly non-convertible democratic socialist answer to any political question, and should be called out as such more frequently.
I don't think that's a fair description of Dworkin. Are you talking about his equality arguments? The idea that some humans shouldn't be treated less well by the law because they lack intelligence, money or beauty has spread pretty widely and is hardly Dworkin's invention, nor is it 'social democracy'. There either are universal human rights (which seems pretty self-evident now) or you are a reactionary who argues that only some nations, people or clubs of elderly white rich men (the defence of the interests of the latter is what Tories are really all about) are deserving of them.
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Fullofsurprises
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#79
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(Original post by nulli tertius)
I think the last supplier was in Birmingham and they went bust!
Dang. No current supplier of plague blankets. The UK weapons industry should speedily try to fill this obvious gap in the market. Pringle or Laura Ashley can supply the blankets.
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nulli tertius
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(Original post by Fullofsurprises)
I'm not clear - are you saying the court can't be reformed and we should therefore walk away? What about the important point that supra-national legislation based on universal principles sets standards for all people which shouldn't be up to states to interpret and therefore requires an independent supra-national court?
I think it should be reformed. I don't know whether it can be reformed. We shouldn't walk away regardless of whether it can be reformed because we derive greater benefit from being members than from leaving.

My car has an extremely irritating rattle. It ought to be fixed. I don't know whether the garage can fix it. Even if they can't, I am better with a car that rattles, than shanks' pony.


I don't think that's a fair description of Dworkin.
It may not be fair but I think it is accurate. Compare it with dianetics. You can say dianetics is a philosophical system but in reality it is a process for brainwashing. Dworkinian jurisprudence is a process for producing democratic socialist answers to questions.
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