Thursday, November 03, 2005

Can there be a will of a group?

Oxford Jurisprudence Discussion Group: Richard Ekins:

Jeremy Waldron argues that legislative intent cannot exist because the legislative assembly is a group rather than an individual. He suggests we should conceive of legislation by assembly to have been produced by a voting machine rather than chosen by a reasoning agent capable of forming and acting on intentions. I argue instead that the assembly does form and act on intentions, which may be termed the legislative intent. Purposive groups in general form and act on intentions, not by summing the intentions of each member of the group but instead by forming plans of action that coordinate the action of the members of the group to the shared end that defines the group.

This is an interesting topic. Can a group of people intend something? I don't know what I think quite yet. But I tend to disagree. How can two wills intend the same thing? Further, how can 100 people will the same thing? Sure, it is easy to will something as simple as wanting to buy some bottled water. But when it comes to legal codes, where interpretation is often a very grey area, can there be any discernable will at all?

The idea of a legislative intent is, interestingly, derived from the Judeo-Christian idea of rule. The sovereign is the king; the king's will is law. Thus, Aquinas' famous defense of this, de monarchia, idealizes the perfection of king-rule, as a reflection of divine rule. Hobbes and Locke replaced the idea of a king with the idea of a representative king, the leviathan. The point of this historical tracing? To show that the idea originally began with a real will, with real intent. However, the idea seems to be detached, the further the idea has gone away from this "ideal." Why is this ideal...impossible?

Well, I think the idea's idealism goes back to platonic dialogue. In order to find out "knowledge," one can engage in a dialectical conversation with someone. From that, we can find out their "intent." For instance, if person X establishes that there be "freedom of speech" in the law, does that include the freedom to be nude in public, for example? A dialectical conversation can answer that.

How, on the other hand, can a group engage in "dialect" with a court who interprets this. One, could, conceivably pass laws that reflect the will of the legislature on an ad hoc basis. However, with a revolving door of constantly changing members in the legislature, how would this ever be possible? It would be like asking your friend's family to interpret what the intent of something your mother's family once wrote -- often people can be so unaware of the original circumstances surrounding the creation of certain rules that "intent" is actually just guesswork.

Finally, from a person's perspective, how difficult it is to interpret laws taken into consideration "intent." The average person can not possibly discern the intent of laws, let alone a judge. There is too much uncertainty. It is guesswork. All that can be reasonably taken as law is the words that are written. People are bound by intent, not will. That is how the rule of law operates; it operates given the principle that people are not subject to arbitrary will, but by preexisting text.

As Beccaria said,

There is nothing more dangerous than the common axiom, the spirit of the laws is to be considered. To adopt it is to give way to the torrent of opinions. This may seem a paradox to vulgar minds, which are more strongly affected by the smallest disorder before their eyes, than by the most pernicious though remote consequences produced by one false principle adopted by a nation.

Tuesday, November 01, 2005

Picking a University President - A Survey's Advice.

The Chronicle of Higher Education put out results and an analysis of a survey three days from now entitled, Leaders' Views About Higher Education, Their Jobs, and Their Lives.

One particular quote stood out as I reflected on the presidential picking process that is currently underway at the university I attended.

It "is critical for governing boards and others inside universities," wrote a male president at a private doctoral-level institution, "to remember that the life of a president is one of solitude in a crowd, and to take care that the person in the job is well supported both in her or his personal and professional life."

A second observation is the importance placed on the president's duty to balance the budget. I had told quite a number of people in the past that I thought a person who sees this as their most important duty, could do the job best. Even a "mission-oriented" school like Trinity Western University could do with someone who secretly sees his daily grind to consist of dealing with financial issues - being conscious of how his idea of the university is affecting his work and subsequently making a conscious effort to interpret it to and synthesize it with the visions and the needs of faculty and students.