By Carolina S. Ruiz Austria

The word "Heresy"

was used by Irenaeus in Contra Haereses to discredit his opponents in the early Christian Church. It has no purely objective meaning without an authoritative system of dogma.

Thursday, September 27, 2007

A Room with a View


My room at Knox Residence does have a great view of the courtyard. September is about to end but it isn’t quite “autumn” weather just yet and the contrast of brightly emerald green grass and summer flowers of violet and fuscia are still here, lingering a while longer and picture perfect.

But to get this view (for this picture), I had to clear away assorted toiletries and remove clothes hanging from the closet door. It’s my first week here and I haven’t quite settled in yet, and my stuff is sort of everywhere now in this little nook I’ll be calling “home” for seven months.

Now that I am here, my thoughts turn to everything at “home,” in Manila, more specifically, Quezon City, where my family is.

Getting here of course was no picnic. Let’s just put it this way: I was patted and pricked (medical examination), required to demonstrate I could listen/speak and write in “passable” English (IELTS) which at times felt like a casting audition, waited anxiously for my student visa, (which was delayed for a number of reasons, among them two typhoons that hit Manila in mid August that prevented me from completing my medical examinations earlier), and harassed by the courier who finally delivered the visa. (Not only did he insist on keeping the change, he demanded more- as a “tip.”)

A nice Filipino woman based in Vancouver made pleasant conversation with me on the plane from Hong Kong to Vancouver but she turned out to be after my pillow. When I came back from the lavatory, she was already snoring snugly using two pillows, one of them, mine.

But I’m not complaining. I am all but slightly amused at what it took to get here and do something I have wanted to do for quite some time now: reflection --- that is, graduate studies of course.

I’ve missed some classes but I hope to make up for them soon. There are a number of things I still have to do and one of them is get my room organized. People who know me though, realize that that itself may be THE greatest challenge of all.

My First Day as a Graduate Student

September 27, 2007
The first task I have before me, having missed almost two weeks of classes is to catch up on the readings for my three classes. The first class I had lined up for the week was Reproductive and Sexual Health Law so while there was a lot to read, I have to confess (at the risk of sounding like the nerd my friends accuse me of being), I thoroughly enjoyed it. I took notes (pen on paper) because that’s just the kind of thinking/reflecting/memory keeping I do.

At times I grew anxious about how classes would be conducted by the Professor. Would it be like law school all over again? A lot of fretting over facts of the case with little understanding or insight? Gladly, this didn’t turn out to be the case.
I have to admit I had a bit of difficulty finding my voice again (after so many days without intellectual discussions, let alone decent conversations like the ones I always had with my favourite peer, friend and partner rolled into one: my husband). So I did falter, hesitate (choked more likely) more than once in mid -sentence, ever so conscious about my inflections, the difference of my accent and manner of speaking apart from everyone else. Writing is a much easier way of thinking I guess in this painfully new and foreign setting.

Because I often felt unsure of myself though, not really because I doubted my ideas but my own courage to speak up and seek attention, I reigned in a number of thoughts and questions and merely scribbled them onto my already voluminous notes. (Maybe later?)

At RHSL class we talked about legal systems and health systems, how they differ in ways of doing and the resulting conflicts that arose when “medical practices” came up against legal standards.

Interesting for me was how we approached the assigned cases in the interests of “legal strategy,” noting how legal arguments could be framed in a variety of ways (not at all necessarily mutually exclusive, though often contrasting ways), to pursue a particular interest in health, in this case, sexual health. This was something that felt familiar. It was like being at the other end of my class in law school – somewhat.

When the Professor (quite young) reminded the class about the quality of paper assignments being submitted, including the length and size of text to use, she was very soft spoken, firm but also quite a bit self conscious, in a way that young professors often appear to be.

Merrily, I noted that even as I didn’t have the course books yet (my check hasn’t come in yet), my notes apparently were on the mark. Even the comparison/similarity I noted between the case of over regulation of EC in some Canadian territories and the case of condoms in UK prisons was one of the first things my Professor noted as well.

The second class I had today was the Alternative Legal Approaches Class which gives a sort of a broad view of many different legal theories. I already missed one lecture on economics mainly but this second assignment set proved to be a challenge in more ways than one.

It was not the most difficult piece to read I suppose but it was, quite unlike so many “typical” pieces I have read in quite a while, with post modern theory coming into vogue of recent years. Come to think of it, the last piece I remember reading with a similar “style” and frame was John Rawls, veritably the royalty of Positivism himself.

While I realized the difficulty I had stemmed from my own “scepticism” with things associated with legal positivism, I soon realized these authors had a lot to say worth noting, especially when it came to the linkage between legal philosophy and the doing of comparative law.

“Comparative Jurisprudence” was coined by William Ewald but further expounded on by Prof. Catherine Valcke, who delivered a lecture based on her paper.

In a nutshell, “comparative jurisprudence” purports an understanding/notion of “comparative law” as a discipline and lays down the requisites for such an undertaking:

“The creation of its own body of knowledge and a methodology”
A lot of students in our class raised issue with Prof. Valcke’s undertaking (setting up comparative law as a discipline, not just as a methodology for other disciplines) and even raised the question of WHY and HOW comparative law could be useful outside of its “instrumental” value.

As described in the paper, instrumental value can be the interpretation/comparison that goes into informing law reform and constructing decisions whether local or international law.

I tried sharing with my group mates that what I was getting from the lecture/paper’s insistence on setting up comparative law as a discipline was actually its critique of what was happening to the field of comparative law itself. Without any reflexivity, doing comparative law (just as doing law itself) has been taking place devoid of any consciousness of legal philosophy. I cited the judiciary in our country as an example. It seemed to me that more than anything else, the worthy contribution of the “moderate naturalists” (or may I call them new positivists? Would they resent it? Reject it?) is that it brings back notions ethics, philosophy and yes, admittedly, morality, into the notion of LAW itself.

In fact, I find it insists on this connection and seeks to reconnect it where it may have been overlooked and forgotten.

Of course my own issue with the insistence of a parallel between this hybrid “naturalist/positivist” notion and the “scientific method,” is that it seems quite unwieldy an undertaking. Even the Professor herself admitted that absolute neutrality is difficult in the humanities, but definitely the aspiration to be “objective” counted for something and was something she emphasized.

In a way I could see how these philosophical discussions and projects are also in a huge way, connected to and move alongside the current engagements by a myriad of intellectuals, advocates and social movements of notions of “human rights,” and the shaping of the discourse of human rights itself.

Listening to the Professor speak, all I could think of was RAWLS’ theory! Like Rawls, the Professor put forward a view of not equating legal systems with STATES but being open to a concept/notion of legal systems that may arise from non-state settings or communities. (Rawls sought to do this in acknowledging well ordered hierarchical societies with a notion of the common good).

In asking what GOOD could come out of a project (to establish comparative law as a discipline), she simply put forth the classic philosophers’ answer: to know. To understand (to know) is a worthy end itself.

I suppose the ways of thinking which are dominant will always be tempted to ask about UTILITY (in capitalist economic terms, cost/benefit). I think this certainly was the case when the recurring question of “what is the value/importance” of comparative law as a discipline cropped up in almost 3 workshop groups.

The true value of understanding/knowing is in this day and age very much underestimated---unfortunately. (It’s not what you know but WHO you know?) Gaining insight through doing (in this case, the doing of comparative law), is the end itself which it appears is hard to believe.

What I also found interesting was that the critique of contextualism/textualism (in the accompanying reading by Ewald) was more likely an accounting of the tendency to over read and attribute with linear causality, social/societal contextual factors and conflate them with law, from what law is to how it is applied/interpreted.
Ewald notes both (textual/contextual) approaches of law give an external account of what the nature of the law is. I think this is where the insistence of law as autonomous (in stark contrast to realists and post modernists) comes in because this is where the assertion comes in that the “insider” (law practitioner/jurist) is actually one who would be qualified to give an account of what law is internally (that is in ways of conceiving law).

Unfortunately, I didn’t have the guts to raise the clarification of whether she differed with Ewald in hesitating to make the generalization about how “peoples” view or conceive law, and how he described comparative jurisprudence focused on the roles played by the jurist. Often, in the lecture and open forum, the use of examples to compare how “French” have varying “conceptions of law with “English,” gave the impression that this approach readily assumes homogeneity of views even given a particular nation/state demographic, on “law.”

At this point I don’t feel thoroughly qualified to support my reaction regarding the underlying “tensions” between new positivist/moderate naturalist approaches and frames with post modern and realist ones but I could see a variety of ways where the methods made available by cross cultural analysis, and multi-disciplinary approaches come in handy in the case of this comparative jurisprudence project. (I remember one student brought up the possibility of a parallel with legal anthropology).
One recent reading I encountered in a similar vein was a paper on how the CEDAW and its monitoring body/processes constituted a “global law against VAW.” (Sally Engle Merry, 2003) Positivist in its interest of establishing common/universal standards, the article also brought in a variety of approaches, among them the notion of culture as not fixed nor static, and how “this global standards” are being formed in a more “constitutive” manner than merely through linear application of set standards set in text (as if etched on stone). Here I wonder whether the author’s way of discussing the social context/aspect of cases brought before the CEDAW committee would pass the EWALD/VALCKE scrutiny? Notably, the view of law/standards as “constitutive discourse” is verily the hallmark of PM analysis.

One last point that I can’t help but think of is the larger context of this discussion/debate. Interestingly, when I googled (googling after all is now a word), I read that Ewald is one of the staunchest critics of Robert Unger (prince of CLS). Now how about that?


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