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Law and Justice
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It doesn't need to be original in order to 'contribute to any form of public debate capable of furthering progress in human affairs'. 95% of any public debate is not about advancing original material but it's about propagating the same material in new contexts or to new people. And that kind of contribution is definitely meaningful.
And I don't really see why its detailedness falls short making it significant. It was probably a bullet-point part in a longer argument about why 'Islam is wrong' in general. For someone who hasn't come across pedophilia claim before, it will have significant effect on their thoughts about Islam and Mohammad, and for some it will be a starting point for further inquiry if they are puzzled how that might be case.
And it's especially bad for atheists in Muslim majority countries under ECtHR's jurisdiction that this paragraph you quote doesn't qualify its argument's scope to protection of minorities. It almost permits Turkey to ban atheists from defending their views and discuss it with people in most contexts.
And I don't really see why its detailedness falls short making it significant. It was probably a bullet-point part in a longer argument about why 'Islam is wrong' in general. For someone who hasn't come across pedophilia claim before, it will have significant effect on their thoughts about Islam and Mohammad, and for some it will be a starting point for further inquiry if they are puzzled how that might be case.
And it's especially bad for atheists in Muslim majority countries under ECtHR's jurisdiction that this paragraph you quote doesn't qualify its argument's scope to protection of minorities. It almost permits Turkey to ban atheists from defending their views and discuss it with people in most contexts.
Flin Flon
The Barbie legal paradox.
In the hours after the defense pleaded its case, the jurors would have to decide whether Klaus Barbie was guilty and if so, to what degree. What had started as a simple trial of a man who was blatantly guilty had turned into a four-year war of legal attrition and, in the process, had acquired an entirely new nature. On the night of the verdict, it seemed as if the original issue, the justice of Klaus Barbie, had been lost in a sea of unwanted questions and discomforting moral dilemmas. Vergès asked the jury to remember the Africans who died defending France in World War II and the French army’ killing of civilians during Algeria’s war for independence, particularly 15,000 killed in eastern Algeria during a series of uprisings. Thus, the Barbie trial gave rise to an unexpected possibility that his defence explicitly threatened: namely, if Barbie were convicted of crimes he had committed as part of the Nazi occupation on French soil, against French people, the analogy between his conduct and France's conduct in Algeria would result in French defendants being deemed to have committed crimes against humanity in Algeria in the name of France. The price for punishing Barbie would be high; France could either face the ambiguities of the past head-on or face decades of moral discomfort. The French judicial response was to nullify this threat by redefining and delimiting the crime against humanity so as to avoid this previously unforeseen possibility. The Cour de cassation thus stated that crimes against humanity within the meaning of Article 6(c) of the Charter of the Nuremberg International Military Tribunal annexed to the London Agreement of 8 August 1945, which are not subject to statutory limitation of the right of prosecution, were limited to: inhumane acts and persecution committed in a systematic manner in the name of a State practicing a policy of ideological hegemony, not only against persons by reason of their membership of a racial or religious community, but also against the opponents of that policy whatever the form of their opposition [emphasis added].1
France would not be subject to inclusion in that definition because its scope was deemed limited to fascisttotalitarian states. Ten minutes after midnight on Saturday, July 4, 1987, the jurors emerged from their chamber with a verdict. After more than six hours of deliberations the jurors found Klaus Barbie guilty of “crimes against humanity” and for that act sentenced him to spend the rest of his life in prison, France’s highest punishment. After hearing the verdict, Barbie addressed the court in French for the first time: “I have some words to say, in French,” began Barbie, “I did not commit the raid in Izieu. I fought the Resistance and that was the war and today the war is over. Thank you.” The verdict stood, and the trial was over, but neither the prosecution nor the defense walked away satisfied.
DISSENTING OPINION
From my Law & Ethics course. Thought this was cool.
In the hours after the defense pleaded its case, the jurors would have to decide whether Klaus Barbie was guilty and if so, to what degree. What had started as a simple trial of a man who was blatantly guilty had turned into a four-year war of legal attrition and, in the process, had acquired an entirely new nature. On the night of the verdict, it seemed as if the original issue, the justice of Klaus Barbie, had been lost in a sea of unwanted questions and discomforting moral dilemmas. Vergès asked the jury to remember the Africans who died defending France in World War II and the French army’ killing of civilians during Algeria’s war for independence, particularly 15,000 killed in eastern Algeria during a series of uprisings. Thus, the Barbie trial gave rise to an unexpected possibility that his defence explicitly threatened: namely, if Barbie were convicted of crimes he had committed as part of the Nazi occupation on French soil, against French people, the analogy between his conduct and France's conduct in Algeria would result in French defendants being deemed to have committed crimes against humanity in Algeria in the name of France. The price for punishing Barbie would be high; France could either face the ambiguities of the past head-on or face decades of moral discomfort. The French judicial response was to nullify this threat by redefining and delimiting the crime against humanity so as to avoid this previously unforeseen possibility. The Cour de cassation thus stated that crimes against humanity within the meaning of Article 6(c) of the Charter of the Nuremberg International Military Tribunal annexed to the London Agreement of 8 August 1945, which are not subject to statutory limitation of the right of prosecution, were limited to: inhumane acts and persecution committed in a systematic manner in the name of a State practicing a policy of ideological hegemony, not only against persons by reason of their membership of a racial or religious community, but also against the opponents of that policy whatever the form of their opposition [emphasis added].1
1 Law Number 64–1326 of 26 December 1964 (‘1964 Law’), which in just one sentence aims to incorporate the
Nuremberg conception of crimes against humanity into the domestic penal code reads: Crimes against humanity as
defined in the Resolution of the United Nations of 13 February 1946, that took note of the definition of crimes against
humanity as set forth in the Charter of international tribunal of 8 August 1945, are not subject to any statute of
limitations by their nature.
Nuremberg conception of crimes against humanity into the domestic penal code reads: Crimes against humanity as
defined in the Resolution of the United Nations of 13 February 1946, that took note of the definition of crimes against
humanity as set forth in the Charter of international tribunal of 8 August 1945, are not subject to any statute of
limitations by their nature.
France would not be subject to inclusion in that definition because its scope was deemed limited to fascisttotalitarian states. Ten minutes after midnight on Saturday, July 4, 1987, the jurors emerged from their chamber with a verdict. After more than six hours of deliberations the jurors found Klaus Barbie guilty of “crimes against humanity” and for that act sentenced him to spend the rest of his life in prison, France’s highest punishment. After hearing the verdict, Barbie addressed the court in French for the first time: “I have some words to say, in French,” began Barbie, “I did not commit the raid in Izieu. I fought the Resistance and that was the war and today the war is over. Thank you.” The verdict stood, and the trial was over, but neither the prosecution nor the defense walked away satisfied.
DISSENTING OPINION
The sentence of the Cour de cassation relies on a formulation of crimes against humanity that has no
legal basis in the text of Article 6(c) of the IMT Charter. The judges of the Cour de cassation used their
ingenious ability to devise some quibble by which by which the defendant could be deprived of his
rights where the public thought it was wrong for him to assert those rights. But I believe that judicial
dispensation does more harm in the long run than hard decisions. Hard cases may even have a certain
moral value by bringing home to the people their own responsibilities toward the law that is ultimately
their creation, and by reminding them that there is no principle of personal grace that can relieve the
mistakes of their representatives. Deciding whether what this man did was “right” or “wrong,”
“wicked” or “good” is irrelevant to the discharge of the office of a judge sworn to apply, not their
conceptions of morality, but the law as it reads. Since the sentence is based on an erroneous reading
of the law, it is legally void and it should be set aside.
legal basis in the text of Article 6(c) of the IMT Charter. The judges of the Cour de cassation used their
ingenious ability to devise some quibble by which by which the defendant could be deprived of his
rights where the public thought it was wrong for him to assert those rights. But I believe that judicial
dispensation does more harm in the long run than hard decisions. Hard cases may even have a certain
moral value by bringing home to the people their own responsibilities toward the law that is ultimately
their creation, and by reminding them that there is no principle of personal grace that can relieve the
mistakes of their representatives. Deciding whether what this man did was “right” or “wrong,”
“wicked” or “good” is irrelevant to the discharge of the office of a judge sworn to apply, not their
conceptions of morality, but the law as it reads. Since the sentence is based on an erroneous reading
of the law, it is legally void and it should be set aside.
The sentence of the Cour de cassation disregards public opinion and the current morality of society.
This case has aroused an enormous public interest, both here and abroad. Almost every newspaper
and magazine has carried articles about it; columnists have shared with their readers confidential
information as to the next governmental move; hundreds of letters-to-the-editor have been printed.
It is perfectly clear that the public is divided about the case. This makes it obvious, that the Court did
not do what it had to do to preserve between itself and public opinion a reasonable and decent
accord. Declaring this man guilty need not involve us in any undignified quibble or trick. Certainly no
layman would think that in finding this man guilty we had stretched the law any more than our
predecessor did in the past. However, the price for France to follow its own laws could simply be too
high in the future. The sentence shall thus stand but the defendant shall be granted clemency by the
Government and let free.
This case has aroused an enormous public interest, both here and abroad. Almost every newspaper
and magazine has carried articles about it; columnists have shared with their readers confidential
information as to the next governmental move; hundreds of letters-to-the-editor have been printed.
It is perfectly clear that the public is divided about the case. This makes it obvious, that the Court did
not do what it had to do to preserve between itself and public opinion a reasonable and decent
accord. Declaring this man guilty need not involve us in any undignified quibble or trick. Certainly no
layman would think that in finding this man guilty we had stretched the law any more than our
predecessor did in the past. However, the price for France to follow its own laws could simply be too
high in the future. The sentence shall thus stand but the defendant shall be granted clemency by the
Government and let free.
The French government used the trial for its own political and demagogic purposes thereby exploiting
the victims, the public opinion and the defendant. The question that remains is, ‘do crimes against
humanity only deserve the name when they are committed against Europeans?’ Had I the power,
I might prefer an institution that would allow all affected parties a direct voice in determining the
appropriate resolution. The defendant and his victims, the French men (and women) responsible of
the same crimes in Algeria and Indochina and their victims, the French, German, American, Bolivian
and Algerian governments all have knowledge relevant to a just decision; all the victims of heinous
crimes such as those contested to the defendant have concerns that ought, ideally, to be addressed.
We do not, however, have any such procedures in our legal system. A truth and reconciliation
commission is the closest existing equivalent of a process of restorative justice. Had I the power, I
would propose to declare lack of competence of the Cour de cassation, set the sentence aside and
refer the case to a truth and reconciliation commission.
the victims, the public opinion and the defendant. The question that remains is, ‘do crimes against
humanity only deserve the name when they are committed against Europeans?’ Had I the power,
I might prefer an institution that would allow all affected parties a direct voice in determining the
appropriate resolution. The defendant and his victims, the French men (and women) responsible of
the same crimes in Algeria and Indochina and their victims, the French, German, American, Bolivian
and Algerian governments all have knowledge relevant to a just decision; all the victims of heinous
crimes such as those contested to the defendant have concerns that ought, ideally, to be addressed.
We do not, however, have any such procedures in our legal system. A truth and reconciliation
commission is the closest existing equivalent of a process of restorative justice. Had I the power, I
would propose to declare lack of competence of the Cour de cassation, set the sentence aside and
refer the case to a truth and reconciliation commission.
From my Law & Ethics course. Thought this was cool.
https://strasbourgobservers.com/2019/02/25/the-best-and-worst-ecthr-judgments-of-2018-are/
"In the Sinkova judgment, the Court found no violation of Article 10 in a case concerning the criminal conviction of a protester for frying eggs over the eternal flame of the unknown soldier at a war memorial. By considering that the applicant had “only” been convicted on account of the frying of the eggs, rather than for expressing her views, the Court undermined the essence of the freedom of artistic protest."
(a minor sidenote is that the ECtHR had not find it totally fine as a violation of Art.5 ECHR (right to liberty) was found in regards to her pre-trial detention)
"In the Sinkova judgment, the Court found no violation of Article 10 in a case concerning the criminal conviction of a protester for frying eggs over the eternal flame of the unknown soldier at a war memorial. By considering that the applicant had “only” been convicted on account of the frying of the eggs, rather than for expressing her views, the Court undermined the essence of the freedom of artistic protest."
(a minor sidenote is that the ECtHR had not find it totally fine as a violation of Art.5 ECHR (right to liberty) was found in regards to her pre-trial detention)
How not to read the constitution 101, brought to you by the Czech president.
Art 74 of the Czech Constitution states that: "the President of the Republic shall recall members of the government if the Prime Minister so proposes."
The government is comprised of two parties (the populist catch-all party and the social democrats), with a tacit support of the communists. According to the coalition agreement, both parties manage their own ministers, resulting in the other government party not having a say in who the other party nominates for the seats they got by the agreement. The social democrats decided to change (their) minister of culture. The prime minister, despite being a giant ****, proposed this recall to the president.
The president decided that he wants the guy to stay (despite him having no legal basis for an involvement in the process). His gigantic, mind-blowing and thoroughly genius legal argument, operating on such a level of legal ingenuity that it makes Weiler, Hart or Alexy look like small children, is that the Constitution does not set a time period within which the recall shall be made and therefore he is bound by no limit and can do as he pleases. What is even worse is that apparently certain people seem to listen this argument. After all, if there is such a limit, it would have been expressed in the Constitution.
Social democrats can theoretically withdraw all their ministers which would, according to the Coalition agreement, result in the fall of the government as the other party would be obliged to resign as well. But Coalition agreement has no legal force and since the other party does not want to resign and the president has shown that he is willing to disregard constitutional rules, not to mention agreed-upon rules, the social democrats are ****ed.
Tl;dr:
Mom: "go wash the dishes"
Child: "okay, mom."
Mom (after fourteen days): "why haven't you washed the dishes?"
Child: "Because you haven't told me when."
Art 74 of the Czech Constitution states that: "the President of the Republic shall recall members of the government if the Prime Minister so proposes."
The government is comprised of two parties (the populist catch-all party and the social democrats), with a tacit support of the communists. According to the coalition agreement, both parties manage their own ministers, resulting in the other government party not having a say in who the other party nominates for the seats they got by the agreement. The social democrats decided to change (their) minister of culture. The prime minister, despite being a giant ****, proposed this recall to the president.
The president decided that he wants the guy to stay (despite him having no legal basis for an involvement in the process). His gigantic, mind-blowing and thoroughly genius legal argument, operating on such a level of legal ingenuity that it makes Weiler, Hart or Alexy look like small children, is that the Constitution does not set a time period within which the recall shall be made and therefore he is bound by no limit and can do as he pleases. What is even worse is that apparently certain people seem to listen this argument. After all, if there is such a limit, it would have been expressed in the Constitution.
Social democrats can theoretically withdraw all their ministers which would, according to the Coalition agreement, result in the fall of the government as the other party would be obliged to resign as well. But Coalition agreement has no legal force and since the other party does not want to resign and the president has shown that he is willing to disregard constitutional rules, not to mention agreed-upon rules, the social democrats are ****ed.
Tl;dr:
Mom: "go wash the dishes"
Child: "okay, mom."
Mom (after fourteen days): "why haven't you washed the dishes?"
Child: "Because you haven't told me when."
yeah some stupid Turkish troll constitutional lawyer who is also an MP for the government made the same argument.
The president should be neutral according to the constitution so it says 'The elected president resigns from their political party'. Erdogan didn't, and that buffoon said 'oh the constitution doesn't say when is this supposed to happen'. There were many parodies of his argument 'oh the constitution says the capital is Ankara, but it doesn't specify where is Ankara'
The president should be neutral according to the constitution so it says 'The elected president resigns from their political party'. Erdogan didn't, and that buffoon said 'oh the constitution doesn't say when is this supposed to happen'. There were many parodies of his argument 'oh the constitution says the capital is Ankara, but it doesn't specify where is Ankara'
Sorry mate, I couldn't find that tweet now. Maybe he deleted it.
Came across a translation of Carl Schmitt's Der Führer schützt das Recht.
I do recommend reading it as a great illustration of a values-driven attack on "cold" legalism and an insight into the nazi ideology. You don't really need to be versed in law or legal philosophy to understand what is written there.
https://pdfslide.us/documents/carl-schmitt-fuehrer-protects-the-law.html
I do recommend reading it as a great illustration of a values-driven attack on "cold" legalism and an insight into the nazi ideology. You don't really need to be versed in law or legal philosophy to understand what is written there.
https://pdfslide.us/documents/carl-schmitt-fuehrer-protects-the-law.html