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stillness-in-green · 3 years

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MVA In Memoriam (3/5)

The Comprehensive Account of the Butchering of My Villain Academia

(Introduction and Part One, Episode 108: My Villain Academia) (Part Two, Episode 109: Revival Party)

Part Three, Episode 110: Sad Man's Parade

Chapter 229 – All It Takes Is One Bad Day

• The full first page, of Jin getting mobbed by Puppet!Jins, them tearing his mask off, and flinging it and then him away. Saved them a bit of budget, I suppose, but it’s a shame to lose the drama and the violence of Twice having his mask pulled away, since it’s decent foreshadowing (indeed, possibly intentionally so, on Skeptic’s part) for the violent bewilderment he’ll be subject to shortly.

• Re-Destro’s line, “Not when he’s using his meta-ability to puppeteer, unless you want another nagging lecture.” They didn’t keep the first nagging lecture, so of course they wouldn’t keep this. I’m still annoyed, both on general principle and at the loss of RD’s implication that these nagging lectures are a regular occurrence, especially if one tries to bother Skeptic when he’s using his meta-ability. Has RD himself been on the receiving end of one? Possibly so! But you’d be less likely to think so just from the anime.

• Re-Destro’s line, “This allowed our warriors to momentarily hold back and stay out of danger.” Because why would the audience need to know that Skeptic planned for and Re-Destro cares enough to observe something like that lol?? Obviously the MLA is perfectly content to just throw their peoples’ lives away because, whatever, more where that came from! Dammit, anime, the fandom believes this enough as it is without confirmation bias from your cuts!

• Skeptic’s “fufufu” laugh, because the anime is allergic to the MLA having fun.

• The police officer’s line, “Sure, but in a case like this, you’re still to blame.” The rest of the exchange hints at it, of course, but there’s a horrifying callousness to a police officer just saying straight to the face of a teenaged orphan facing his first offense, “Yes, you were obeying the law perfectly and this guy just ran out in front of you, but it’s going on your criminal record anyway, whatever.” A weight the anime lost, and another that makes me very suspicious of the patterns behind what, precisely, was put on the chopping block.[1]

• Jin’s narration, “That police officer couldn’t have known. Me neither.” Demonstrates that Jin doesn’t really hold his fall against the one policeman. It’s a consistent thread with Jin’s character that, while he’s very jaded, he’s not actually vengeful, nor is he looking to enact systemic change. While he’s very defensive of his friends, people who hurt Jin himself are never in any real danger of him coming to collect his pound of flesh in return; he just rolls with it as part of how the world works, in the way of someone who was never given reason to believe any different. This line is a good example of that.

• From Jin’s old employer’s angry rant, deletes the note that the client that called is angry, and that the client said, “That young punk of yours did this!” It’s nothing that wasn’t obvious from the rest of the conversation, but I do I think cutting it loses a sense that this guy is just unloading all of his frustration and fear on Jin. The length of the screed, the extra details—it clearly communicates that Jin’s boss is so angry and upset he’s not paying any real mind to filtering, but just recounting every point of contention the moment they come into his mind.

• In modern society, when you’re someone without roots… Well, not a lot of people can relate to that.” It isn’t just the police that failed Jin; it’s a whole society that’s distrustful of people who don’t have a place in the fabric, and thus are unwilling to try and bring them into it. Like Tenko, there are a thousand little places where someone could have reached out a hand, but no one ever did. The audience can intuit this, but I feel it’s better to be clear about it—it’s not just the legal system that screwed Jin over; it’s every other person that never tried to help him because they were afraid of his eyes or distrusted a guy who had no connections. When Shigaraki comes, he’s not going to be coming for heroes alone; he’ll be coming for this entire tapestry of indifference and timidity.

• Skeptic’s lines, “Hrm? Fighting back? I was sure he’d either flee or cower in place... We didn’t anticipate such unity between them.” This gets at two things. Firstly, and once again, that the MLA did their research; that they came into this with educated expectations and a definite plan. Secondly, an in-character observation of what the arc has been showing the audience all along: that the League isn’t just a disparate gang of hoodlums anymore; that they’re developing real bonds. Those bonds mark them as unusual—Re-Destro comments on it in 223, as did Overhaul in 147; even Mr. Compress remarks disapprovingly on Twice’s “habit” of getting overly attached to people. It’s striking that, even though the MLA knew from Giran’s records that the League was uncommonly well-bonded, Twice’s devotion still fell outside Skeptic’s parameters.[2]

• Again Skeptic’s line, “Now his legs.” The drones don’t actually get this far (though you can see them gearing up for it on the next page), so it’s a reasonable enough cut, but it does emphasize the ludicrous, over-the-top extremes Skeptic in particular is willing to go to in securing what he wants. If, you know, “Kidnap the doubler so we have a method to make copies of the Grand Commander at our leisure,” wasn’t bonkers enough.

• Twice’s line, “Even against Gigantomachia!” It really highlights just how much mental energy Twice has been dedicating to avoiding injury, that he was able to keep it in mind even fighting a foe as overwhelming, and for as extended a period, as Machia. And like, the anime blitzed over the Machia fight so quickly, and with so little visible wear and tear to the League, that it really could have used all the reminders it could find room for about how intense those six weeks were.

• Twice’s line, “I won’t watch a friend die!” Such an important line that the composer named an entire track for it, not that the anime gave us that track in the moment it was clearly scored for. They added in a new line later in the scene which mostly gets the important sentiments back in, but loses out in being slightly less fitting to his breakthrough. See the Additions portion of the write-up on Chapter 230, following.

Framing Shifts

• The policeman in Jin’s flashback looked up at him in the anime, where in the manga, his eyes stay down on his paperwork the entire time. I realize that anime can’t just still-frame every panel of a manga and call it an adaptation,[3] so characters will do things like move and look around in different directions just in the course of inhabiting a room, Still, in this case, it has the effect of making the officer look more alert and engaged than he was in the manga, and given that this whole chunk of backstory is about Jin slipping through the social safety net, it feels appropriate to me that the officer should be completely checked out.

Additions

• A new shot of Jin(s) in his pre-massacre doppelganger army days. Didn’t tell us anything we don’t already know—it’s little more than a new angle of the gang in the truck—but it was nice to see.

Bonus Note

• They left Re-Destro’s phrase, “My company,” alone when he was talking about the micro-transceivers Skeptic was using. That’s accurate to the manga, but I’d like to remind everyone that, at that point in the anime, viewers whose only reference is the anime itself have no idea that Re-Destro is a businessman. The show skipped the commercial, RD’s intro, the dinner scene where his company comes up, and Giran’s association of RD with Detnerat; it will further go on to skip Shigaraki recognizing him from the commercial. The news report mentioning Detnerat was ten full episodes prior to Episode 110, and was followed up on in not the faintest degree. For heaven’s sake, would it have been so hard to have Hirata Hiroaki say, “My Detnerat’s,” instead of just, “My company’s”?

Chapter 230 – Sad Man’s Parade

• Deleted the MLA members that are attacking Compress as they get pushed off by the Twice wave. Not the first time, and not the last, that the anime didn’t animate the random MLA people on the street. It’s hard to take the threat of their numbers seriously when the anime kept deleting them from what are supposed to be crowd scenes, you know?

• Mr. C thinking worriedly about Dabi as he’s mulling over Geten’s strength and disregard for catching his own people in the collateral damage. It’s just a, “Dabi—!” but it’s yet another tiny cut that shaves away at the manga’s clear depiction of Leagues’ concern for one another—even Mr. Compress, who claims that such things aren’t very villainous.

Framing Shifts

• Changed the random MLA’s exhortation to kill all the Twices to a generic, “Damn—!” I know American censors have often taken issue with the words “Kill” and “Die” in kids’ cartoons, but I was never of the impression that that was the case in Japan. And it’s not like the show made any bones about Curious planning to kill Toga. A rephrase to save a second and a half on dialogue, maybe?

• Had Skeptic give his lines about failure on the way over to the elevator instead of stalking over in silence, and then dumping the whole monologue all at once. The manga’s extended silence over three identically sized panels is much funnier and more characterful. I grow ever more confident in my assessment of Skeptic as the second-most ill-treated MLA character in this adaptation.

• The return of the Doom Choirs for the Twice Parade. I really wish the anime would lay off slathering Doom Choirs all over everything, especially a moment like this: a triumph for Twice, and, true to form for Twice, also crammed to the gills with visual and verbal gags. The Doom Choir is out of keeping with both the victory and the comedy—Mine Woman, later on, served the Parade much better.

Additions

• Gave Twice a new line, “I will protect my comrades!” It was nice to make up for his, “I won’t watch a friend die!” but the latter is more characterful, especially since a more literal translation is, “I won’t kill my friends!” Which is, you know, relevant to the fact that Twice has problems telling himself apart from things that just look like him, and he just had to intervene to stop some of those look-alikes from killing one of said friends. At least it got his use of nakama back in.[4]

• A new little cut of animation as the action went back to Geten and Dabi. I suppose the Dabi fans liked it, and it was nice to see more of Geten’s ice dragon, but I’d have much preferred they could keep the scenes we already have before adding new ones.

Chapter 231 – Path

The scene of Hawks wondering why he hasn’t heard from Dabi and his subsequent flashback to the last time they spoke were relocated to the beginning of Episode 102, the first thing the audience saw after the prior episode ended with Shouto inviting Bakugou and Deku to come intern with him at Endeavor’s. In the manga, of course, it’s not “a few weeks ago in Kyushu,” it’s “meanwhile in Osaka.” Also, the order of the scenes was flipped—the episode led with the flashback, then returned to the modern day. It really makes the timeline needlessly confusing—the viewer has no real context for what we’re seeing and when, especially since the anime neglected to specify how much time passed between the two scenes. You have to assume it was enough time for an outcry to be raised over Jeanist’s disappearance, but the random shot of a bird flying over was not at all helpful there.

Alterations included (as usual, outright removed material is in bold text):

1. Cut Hawks’ thought, “That’s why you keep calling,” and his line, “What’s the job?” I know I should give a breakdown here about Hawks’ mentality and training, but I’m afraid I don’t have it in me to complain about any lines Takami Keigo loses. God knows the anime gives him plenty enough bonus material.

2. Spliced in the flashback scene of Hawks reporting to the Commission from Chapter 243, but subtly changed it to suggest that it took place after the phonecall in which Dabi demanded Hawks kill a non-Endeavor top hero, rather than it taking place right after Hawks and Dabi’s first contact, which is what the manga implies.

3. Deleted several key shots in the Jeanist apartment scene, with the effect of making Hawks way less creepy. We got an anime-original shot of his eyes, narrow and serious, but not either of the shots of his big, off-putting grin and widened eyes as he pulls a feather-blade on Jeanist. We also lost a shot of Jeanist turning to face him, framed between extended primaries of Hawks’ Fierce Wings. It’s not like the anime dropped the fake!Dead Jeanist plot, so I’m not sure why the shift, unless it’s just that they wanted to keep Hawks likable for the merch-buying crowd, not creepy and unsettling. And while I personally never believed that Hawks really killed Jeanist, a lot of people thought it was plausible, no doubt based on how off-kilter he comes across in this scene. It loses a real frisson, to just play it straight.

• Shigaraki decaying a missile in mid-air. So Dabi can get those little animation flourishes but Tomura can’t, huh, anime? I see how it is. I. See. How. It. Is.

• Spinner’s little side comment about all the ice everywhere. A nice demonstration that Geten and Dabi’s fight really is affecting huge swathes of the city; that’s certainly apparent already in a bunch of the wide shots showing exactly that, but it’s helpful to have the more zoomed-in moments, too. Also, I do enjoy those little side quips wherever we get them, and the anime often removes them.

• Thinned out the crowd guarding the route to the tower somewhat (it’s particularly noticeable on the mid-distance rooftops) and, as best I can tell, removed Shigaraki and Spinner from the shot. Why keep all the lines harping on the 110,000 number when a) it’s not even accurate to the MLA’s forces, just the League’s assumptions, and b) the studio doesn’t even have the resources to adequately convey the numbers the manga does portray?

• Somebody in the crowd being defiant about Twice’s multiplication and vigorously declaring that the League are all just sacrifices for the MLA’s Revival Party anyway. The background nobodies? Allowed to express even bog-standard over-confidence? Well I never. How dare those people think their lives count enough for them to get dialogue.

• Spinner’s, “This keeps happening!” Of course he couldn’t have that line in the anime, since the anime cut the other big place Trumpet clearly used his power to rile up his followers. What other times were you even talking about when you said, “Every time he talks,” Anime!Spinner? That scene was the first time we even saw Trumpet since he welcomed you guys to town.

• Twice calling Re-Destro a cult leader. He just called him a damn moron (bakayarou) in the anime; he uses the considerably more specific baka kyouso (Google Translate gives “guru”; jisho gives “founder of a religious sect”). He uses the same term again immediately afterward—Viz’s translation gives, “More like chrome dome cult!”—which the anime also deleted.

So here’s another example of the anime doing everything it could to erase the presence of cults in the HeroAca world. The easy assumption to make is that this was tied to broadcast standards about the depiction of what Japan refers to as “new religious movements,” which—and pardon the brief swerve into real life historical horrors here—have been very unpopular in Japan since Aum Shinrikyo and the sarin gas attacks in 1995. But were these elements removed because the anime didn’t want to represent anything that smacks of new religious movements at all, or because the depiction of both the MLA and particularly the CRC are explicitly villainous and calling religious movements, even made-up ones, evil on TV leads to a lot of angry phone calls?

• Re-Destro’s line, “Unlike my good Miyashita, there’s nothing charming about you.” Of course they’d cut this, having cut the Miyashita scene, but I hate it anyway. As I said earlier, RD’s invocation of Miyashita in front of two people who are going to have not the slightest clue who that is tells me that Re-Destro really does miss and feel bad about killing the guy. Cutting the reminder that RD still feels that sting makes it much too easy to assume that Shigaraki’s right about RD hiding up in his tower, uncaring of the blood shed on his behalf, when if you read Re-Destro with even the slightest of attempts at good faith, it’s clear that those losses weigh very heavily on him.

Incidentally, and not to harp on the art again, but in the manga, Stress is still visibly spread down from RD’s temple to the ridge of his brow over his eye socket. The anime returned it back to its normal resting state, again suggesting that the death toll mounting in the streets below (as well as, possibly, the new stress of confronting a quirk as powerful as Double) left RD completely unmoved. The spread was back in the following shot, so it was probably just an art error, but it would be nice to have had fewer of those, especially when they impact characterization as much as what RD’s Stress blots are doing at any given time.

Framing Shifts

• Had Machia doing this weird cannonball skim just over the ground, when in the manga, he’s still half-buried, spraying earth and stone everywhere. The manga never namedrops Machia’s Mole quirk during the story itself, but it’s important to know for later that Machia can not only tear through obstacles, he can tear through obstacles extremely quickly.

Additions

• Gave Hawks a few new lines about how too many unexpected things happened for their last arrangement, and that Dabi should have given him more warning. Largely seemed to be there to give the anime an excuse to flashback to the High End fight, in case the viewers had completely forgotten about Hawks and Dabi having a clandestine meeting and sniping at each other in the aftermath of that event. An understandable addition, but deeply frustrating in the context of all the lines that got cut.

Chapter 232 – Meta Abilities and Quirks

• Dropped a third instance of Twice calling Re-Destro a cult leader. I don’t know what the S&P restriction is on this, but given that the movie was allowed to create and villainize an entire international terrorist cult, it is really incomprehensible that the MLA doesn’t get to keep their designation as such. Why?? Because the movie involves going out and defeating its cult, but the series is going to engage in a more sympathetic treatment?[5] Because the self-selecting movie crowd is less likely to complain than the TV audience? Did they just not want to draw attention to how much the movie was ripping off the MLA’s whole shtick? What??

• Missed that RD’s swole arm swipe wipes out the puppets Skeptic left behind; they just vanished from the scene entirely after Twice’s arrival. It’s hard to blame the anime for this; the manga also seems to lose track of the fact that they’re right there in between RD and the elevator—they’re nowhere to be seen anywhere between the end of Chapter 231 and the aforementioned arm swipe, where you can see them getting obliterated. Both versions could have stood to be more attentive to this; indeed, the anime could have fixed it, small error though it is.

• A sort of twitchy sparking around Shigaraki’s hand right after he decays the tower. This is foreshadowing that Shigaraki’s big AOE decay attacks are hard on his body, which will become extremely apparent after he unleashes it on the city at large during the climax, and factors into his decision to accept the mysterious power Ujiko offers. The damage Shigaraki sustains there doesn’t come out of nowhere; Horikoshi is, on the whole, extremely good at layering in foreshadowing many chapters before the foreshadowed elements come fully to light. It makes the writing look much messier than it actually is—more convenient, more pat—to delete this stuff.

• Shigaraki recognizing RD from the Detnerat commercials. Well, they ditched the Detnerat commercial, so of course they ditched this. Still, it lost one of the indicators that Shigaraki is, despite not receiving a formal education, actually quite up to speed on current events—even, apparently, when those current events are happening while he’s been fighting Machia in an isolated stretch of mountains for six weeks! I already suffer enough through fanon characterizations of Shigaraki in which he’s a basement-dwelling feral manchild glued to his gaming console whom AFO bans from accessing information about the outside world, anime! I don’t need you dropping the scenes that most clearly demonstrate otherwise!!

• In the anime, Baby!Chikara’s face was unmarked, just a normal infant face—you’d never even know the kid had a meta-ability just to look at him. In the manga, the skin of his face is clearly darker, contrasted against the paleness of his mother’s hand. It’s obvious that he’s not “normal” looking, and thus equally obviously would have attracted negative attention in his era.[6] Also had his mother smiling; her face in the manga is too shadowed and vague to make out an expression, befitting the murky tragedy of her story and the fear she must have been living with.

Framing Shifts

Additions

• A little thing: they had Twice echo, “Cushion?” when Clone!Shigaraki told him to get ready to cushion Giran’s fall. If anything, Re-Destro and his little thought-bubbled question mark is probably the one who should have had this reaction line.

• Added a visual for Clone-araki catching himself on the window. A perfectly reasonable way to fill screen time while a dialogue beat was ongoing.

• Added a panning still over a reaction shot from a bunch of Twice clones when the tower came down. It had a few good faces in it.

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So, generally, this episode was better. I definitely still had issues with it, but compared to what came before, when they were trying to cram 5+ chapters into the episodes, there were far fewer cuts, and what cuts and tweaks there were, were relatively minor. Definitely nothing that made me want to throw chairs Jerry Springer-style the way 108 and 109 did.

Sadly, I can't say the same for the remaining two episodes. Come back next time for Part Four, Episode 111: Shimura Tenko, Origin.

FOOTNOTES

[1] After witnessing the massacre that was Episode 108, I was convinced they were going to cut the policeman scene entirely, and just go right to Jin getting fired for hitting someone with his bike, letting the audience think it was his fault completely rather than cast aspersions on police and the justness of the law. I was pleased they kept it at all, but less pleased with the steps taken to soften the sharpness of its accusation.

[2] Of course, it’s not like the MLA themselves don’t understand the willingness to give everything for the people who matter. They just label those feelings Devotion To The Cause, and don’t think the League is capable of such resolution.

[3] Netflix’s Way of the House Husband, be told.

[4] Nakama is, of course, a shonen standby, but, to the best of my knowledge (which is admittedly limited; I don’t follow a lot of shounen series), it’s pretty rare to hear the word coming out of a villain’s mouth! Jin calling the League his nakama ties into how the League are both sympathetic villains in the larger story and also the protagonists of the current arc, thereby operating under a lot of protag tropes for the duration��foreshadowed by Spinner’s earlier talk of Shigaraki and his boyish, dream-chasing eyes.

[5] Sometime after the mass arrests, one hopes.

[6] This could well be a coloring error in the manga, but if so, you’d think they’d have corrected it for the volume release. Especially given that, again, the color is in a different shade/screentone than the shadow that covers most of his mother’s face, and her hand stroking Chikara’s chin isn’t shadowed at all.

#my villain academia #bnha #bnha meta #boku no hero academia #my hero academia #my writing #stillness has salt

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human-enthusiast · 4 years

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One Piece “isms” - #1

--Episode 2/ Chapters 3 + 4

Theme: Abusive Authority

Details: When Luffy and Coby dock in a town named Shells Town, they quickly learn about their troubles with authority. The mention of Roronoa Zoro and Marine Captain Morgan’s name expels fear in the citizens for some similar reasons. Later, after meeting the Pirate Hunter tied to a post, they learn about Morgan’s tyrant ruling over people. Specifically, those that openly defy his rules and authority, treating them like inhumane scum.

Characteristics:

1. Authoritarian Leadership - (Dictatorship quality)

2. Inferiority (Superiority) Complex

3. Obsession with “treacheries”, insubordination, or lack of power over even small matters.

4. Alignment: Lawful Evil

5. Unfair imprisonment - Zoro and the existence of a Crucifixion Yard.

Very early on in the series, we have, what I would describe as a mild introduction to certain conflicts the protagonists face. Now whether or not you ever watch movies or read books centered around pirates, it’s common sense to know they are enemies to the world’s government(s).

It’s not to say pirates don’t have their own form of government or authority -- any society or civilization has one that was structured around those who first joined-- but they separated themselves from the one governed by kings/queens/emperors/ or anyone who governs with written or traditional laws.

So, if being introduced to a character, who begins his journey as a pirate, we would expect his enemy to be the Marines right off the bat.

Not so unusual. Luffy has shown to have a gray morality or chaotic neutral personality, but this isn’t well defined until way later on. He does what he wants, with a mindset that says ‘consequences be damned’. That is pretty much his motto at this point. That being said, the opposite to what Luffy’s side of the story represents would be lawful and justice.

Captain Morgan is actually the first official Marine we see in the series. By that, I mean he’s the first one actually named and given a personality to judge on. Though technically, Helmeppo would be the first to be seen, but it’s his father whose been alluded to since they arrived. Right off the bat, they both show case the worst possible outcome of authorities: power trips, abusing the system, respect is demanded, and rules are absolute.

Both the anime and manga illustrate Morgan’s delusions of control and megalomaniac personality quite well, and how Helmeppo thrives in it by hand-me-down powers.

Something to note, I just started reading the manga, but I have watched the anime for a few years now (English dub), and I’m now just starting the Dressrosa arc. While the anime is good (not perfect) at adapting from the manga, there are more intriguing details to me that do better in narrating the story (at least with the first few chapters).

Here the manga shows tax exploitations:

Some are fairly easy to miss, but the walls and metal gate show signs of poor treatment, or degradation. The anime does something similar with the gate, having more advantage with coloring:

The door used to have what I believe was a darker green color. But now it’s rusted fairly much, even a little on the hinges, and the paint for the symbols looks a little faded. Now, this may just be a way to give texture to surfaces, which is initially true and what I thought when I first watched/read the series. However, the kicker we learn is a little ways after.

It’s explained that the people are under heavy taxation to the point that it depletes a living wage for everyone. Morgan refers to the people as peasants, so he’s clearly aware of their indigent state. It would explain a little about the state of everything and how he could’ve paid for the erected statue of himself.

The red-circled speech bubbles are especially important, and I think highlight Morgan’s character. It’s my favorite detail with him. I’m not saying I like the character all around; if I ever meet someone like this, I’d probably pull a Luffy and straight take a swing at their throat/junk (although I tend to think of the consequences, so I’d more likely take a legal/other direct action if need be).

No, it’s just...characters with this kind of mindset are fun to observe and explain.

There’s another character that is like a mirror image from this Marine: Azula from Avatar: The Last Airbender.

Both are high ranking members of their society, wealthy, completely power hungry, apathetic, and fear inducing to their subjects. There are plenty of complications with Azula, but it definitely shows in her first introduction and later on in Season 3 when she has a psychological break down.

Direct conversation from Season 2 Episode 1:

[Ship Captain]: “Princess, I’m afraid the tides will not allow us to bring the ship into port before nightfall.”

[Azula]: “I’m sorry, captain, but I do not know much about the tides. Can you explain something to me?”

[Captain]: “Of course, your highness.”

[Azula]: “Do the tides command this ship?”

[Captain]: “I’m afraid I don’t understand.”

[Azula]: “You said the tides would not allow us to bring the ship in. Do the tides command this ship?”

[Captain]: “No, princess.”

[Azula]: “And if I were to have you thrown overboard, would the tides think twice about smashing you against the rocky shore?”

[Captain]: “No, princess.”

[Azula]: “Well, then maybe you should worry less about the tides, who have already made up their mind about killing you, and worry more about me, who’s still mulling it over.”

I included the exchange between her, the bat-shit crazy royal, and the captain, who has better acknowledgement of the forces of nature, because it’s fairly similar to the exchange between Morgan and the marine he’s talking to about the people’s wealth. The marine and captain regard their authority’s title, and probably have similar worries over their inability to reason maturely.

Any good villain can be vindictive, selfish, and have no regard for others (a lack of empathy), but the one underlining similarity is their negligence with reality. And in order to get like that, there is a deep obsession with control.

Azula wants to disregard nature, specifically ocean tides, rather than change her course and plan. This is a frightening aspect because of her complete ignorance on the mod of reality. She wants to maintain control of her ship, and she is very much willing to sacrifice the safety of others just to feel superior.

While Morgan also wants to keep an iron fist over the citizens. He has this more monetary greed, spending it more in lavish purposes for him and his son. He’s a little more aware of the fact that the people don’t have much money, but to him, it’s no excuse to pay the taxes in full. There’s absolutely no regard for other matters in reality, that including personal finance.

The obstacles or personal matters of those “below” him fly over his head. Because what he believes to be a level of respect is absolute obedience. I almost have no doubt that if Luffy and Coby never made it to Shells Town, it may undergone an actual dictatorship like life. When the people have seemingly ran out of money, an alternative subjection-- or showcase of loyalty--probably would have been enslavement and unpaid labor. Assuming that the money Morgan and Helmeppo spend remains on the island at a high fixation.

Maybe that’s too extreme and would also have economic downfall on the Marines as well, but I wouldn’t put it pass Morgan to come up with anymore extreme ideas.

One other similarity with Azula and Morgan is the insane notion of loyalty. This mental state is compromised more with Azula during the final episodes. At that point, she is given the responsibility of being Fire Lord, and with it, comes absolute hysterics and paranoia about maintaining control over everyone. The slightest missteps from her servants enacts a banishment for them, leaving less people to remain under her control. This may have also been a product of Mei and Ty Lee’s betrayal in the Boiling Rock Part 2 episode, completely warping her sense of trust.

There isn’t much known about Morgan before he was head of the Marine Base that is explanatory of his own behavior, but he has the same obsession over the concept of loyalty and traitors. Whether the actions are from citizens or his own subordinates, there is no excuse for anyone to disobey him. Hell, he found it perfectly acceptable to kill a marine who accidently bumped a part of his statue, that probably didn’t do anything minor to it.

That being said, he has no room to let anyone ignore his orders. When the Lieutenant was ordered to kill Rika because she helped Zoro while tied up, he refused. In response, Morgan went for the kill (he’s very much alive in the anime).

He and Helmeppo also show case this behavior in ways that are actually more foreshadowing for later arcs.

In the manga:

The citizens are bowing as the brat saunters by all high and mighty. This is the earliest render of how Celestial Dragons are introduced. While maybe this isn’t necessarily required for the Marine official, it’s more of a by-product on fear-induced situations. A psychological reaction if anything.

The other foreshadowing is the distinction of what the Marines and the World Government consider justice. What is right to them means following the laws-- obedience and purity are absolute. That’s a whole other topic in of itself. But it sets up the fight that Luffy finds himself in with the Marine. Morgan thinks he’s wrong and worthless, fighting on the grounds while yelling “I am Marine Captain “Ax-Hand” Morgan!”

Names carry power. Titles govern rank and superiority. Morgan believes this should be enough to make Luffy crumble over. It’s not. This is a revelation that goes beyond what someone holds in status. And thus, making Morgan a rather incompetent leader.

It’s also rather ironic how, with their battle, it’s very black and white in terms of morality, and the side that views what’s right is on the ‘wrong’ side (pirates). Pirates aren’t lawfully good, or very empathetic. That’s usually not their objective during the Pirate Era. However, if a group of pirates fight against a base leader, and as a result, creates a more balanced, sustainable life for the citizens in the end, there is something drastically wrong with the authority system.

Morgan really sets up as one of the first Marine antagonists, and it’s done using underlining characteristics of higher powers in more tame situations. What one fight could fix within an hour or two, would take more or less years to handle further along in the Grand Line. What One Piece offers is a focus with a type of matter that resurfaces again with different opponents.

~*~*~*~*~*

#one piece #analysis #themes #manga #anime #world issues reflection

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raghavendra-sanjeevarao · 4 years

Text

Anti-Circumvention law (ACL) in India.

An Original or Creative expression of the work by an author in a tangible form is protected under copyright law. “Work” means any literary, dramatic, musical or artistic work, cinematograph film, sound recording. The author is entitled for exclusive rights such as Reproduction, Compilation, Adaptation and Translation.

Said Exclusive Rights has certain exceptions in the form of fair use, first sale, compulsory licensing etc. And the rationale seems behind these exceptions is to maintain balance between the exclusive rights of authors and the rights of public to use such copyrighted work.

Advent of Digital Technology has created vibrations in the copyright laws across the globe and has given rise to new concept called ‘digital copyright’ which has come to stay, and flip of the other side the internet and computer technology allows doing anything to said digitised contents instantaneously, thus giving raise to uncontrolled piracy and laws almost became ineffective to contain piracy and infringements of copyrighted works. Hence DRM technology was popularised by the content industry as an effective measure to secure the digital content, its management, distribution and promotion on the cyberspace. Thus the same is termed as Digital Rights Management ('DRM')

DRM or TPM engrosses the description, layering, examining, appraising, trading & scrutinising of the rights over an individual or organisation's property; both in substantial and digital form.

In this regard one of the major international instruments is Trade Related Intellectual Property Rights [TRIPs] Agreement, which has emerged as a basic framework for ensuring minimum set of rules for global IPR protection under the system of world trade organization [WTO]. Other major treaties like WIPO Copyright Treaty [WCT], WIPO Performances and Phonograms Treaty (WPPT) (called as Internet Treaties) not only recognizes international Intellectual Property but also provided legal recognition of said DRM measures adopted to prevent circumvention of digital works of the copyright owners.

Invariably the said International treaties were adopted by several countries including India. Though India had not signed said Internet Treaties, but gave effect to said treaties and passed Copyright (Amendments) Act, 2012, among other amendments, one of the key amendment is introduction of S.65A and 65B which prohibits circumvention of effective technology measures and misuse of information management systems. However on 4.7.2018 the Union Cabinet did proposed to accede the said Internet treaties. Lets read the said sections as it is:

Section 65A.Protection of technological measures.

Any person who circumvents an effective technological measure applied for the purpose of protecting any of the rights conferred by this Act, with the intention of infringing such rights, shall be punishable with imprisonment which may extend to two years and shall also be liable to fine.

Nothing in sub-section (1) shall prevent any person from (a) doing anything referred to therein for a purpose not expressly prohibited by this Act: Provided that any person facilitating circumvention by another person of a technological measure for-such a purpose shall maintain a complete record of such other person including his name, address and all relevant particulars necessary to identify him and the purpose for which he has been facilitated; or (b) doing anything necessary to conduct encryption research using a lawfully obtained encrypted copy; or(c) conducting any lawful investigation; or(d) doing anything necessary for the purpose of testing the security of a computer system or a computer network with the authorisation of its owner; or(e) operator; or (f) doing anything necessary to circumvent technological measures intended for identification or surveillance of a user; or (g) taking measures necessary in the interest of national security.

Section 65B-Protection of Rights Management Information.

Any person, who knowingly,—

(i) removes or alters any rights management information without authority, or

(ii) distributes, imports for distribution, broadcasts or communicates to the public, without authority, copies of any work, or performance knowing that electronic rights management information has been removed or altered without authority, shall be punishable with imprisonment which may extend to two years and shall also be liable to fine:

Provided that if the rights management information has been tampered with in any work, the owner of copyright in such work may also avail of civil remedies provided under Chapter XII against the persons indulging in such acts.

Creator’s Interest Vs Public Interest, and ACL

No doubt DRM and and its legal protection by way of ACL lays down a strong protection to the digital copyright content, at the same time it deprives the free use rights of the public over such copyrighted works and thus demands an effective and practicable solution.

If the content is digitally locked and the public are compelled to subscribe to gain access, will result into a situation where general public may not venture into such access such content and may not contribute their valuable comments, news reports, teaching etc, and other factors which makes difficult for public to access digital content include high cost of DRM content and complication in accessing the content, technical and privacy issues etc, which ultimately affect progress of science and technology and growth of knowledge.

No doubt law provides exceptions to circumvent such DRM contents, but how far those exceptions are feasible and generally no person takes the risk of choosing to circumvent the protected measures by using the circumventing tools, create logs, or seeking permissions, or maintain information etc, which were not the case when compared to copyrighted materials which were made available offline in physical mode, thus right to receive information and free speech which are fundamental rights under the constitution is largely affected. The chilling effect of said laws across the globe was very well felt when researchers like Professor Edward Felten, and arrest of Russian programmer Dmitry Sklyarov faced threat of prosecution when they conducted research and exposed the loopholes in DRMs.

The anti circumvention laws is best suited to developed countries but developing countries like India, ACL may affect access to information, knowledge growth or growth of science and technology as stated above.

No doubt Information is money and copyrighted works needs protections from piracy, in view of presence of hacking tools and Darknet which has made it very easy to access DRM protected works on a throw away price. it is also a relevant factor to consider that even piracy and infringements have its own advantages, such acts have thus created jobs, brought popularity of authors inspiring them to contribute more leading to development of science and technology and benefiting the society and economy.

To conclude, the Legislative Reforms must always be supported by effective policy backing with historical, cultural and democratic considerations, and also comparative approach of different legal jurisdiction across the globe may help in evolving best practice model thus justifies the very purpose of legal reformation, and in the absence of the same, law may fail in passing the Legislative Impact Assessment and may pose new legal and constitutional challenges to accentuate its presence with force fo law.

Hence an effective legal reformation of anti-circumvention law always depends on good policy, research, etc., to suit the changing pace of society and technology without compromising the development of science and technology.

************************************

Resources::

Foged, T., ‘US v EU anti circumvention legislation: preserving the public’s privileges in the digital age?’ , (2002) EIPR 24(11) 525-542, p527

JE Cohen, ‘WIPO Copyright Treaty Implementation in the United States: Will Fair Use Survive’ [1999] EIPR 21, 236–247.

WW Fisher and W McGreveran, The Digital Learning Challenge: Obstacles to Educational Uses of Copyrighted Material in the Digital Age, a Foundational White Paper, p. 70: http://cyber.law.harvard.edu/media/files/copyrightandeducation.html. Accessed on 23.11.2017.

Dr Kalyan C. Kankanala, Anti-Circumvention laws to Protect Digital Rights: An Indian Perspective, 2007

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shireness-says · 5 years

Text

Swan’s Seven (2/?)

Summary: After two years behind bars, Emma’s out, and she’s got a plan in mind. Now to put together the perfect team… Let’s stage an art heist. (A CS Ocean’s 8 AU) ~3.9K. Rated T for language. Chapter 1. Also on AO3.

~~~~~

A/N: And we’re back! With more players, more action, and more razzing on David. It’s a national sport after all. A certain someone shows up this chapter too...

Thanks as always to my wonderful beta, @snidgetsafan. This doesn’t happen without you, babe.

Tags: @optomisticgirl, @spartanguard, @profdanglaisstuff, @captainsjedi, @thisonesatellite, @thejollyroger-writer, @let-it-raines, @teamhook, @kmomof4, @snowbellewells, @searchingwardrobes, @winterbaby89, @scientificapricot. Shoot me a message if you want to be added/taken off the list.

Enjoy, and let me know what you think!

~~~~~

Regina has always been good at finding the exact right person for any given job, and it seems that hasn’t changed in the two years that Emma has been away. She somehow knows everybody who’s anybody in this business, like the criminal version of a recruiter or HR lady. She’d probably hate being called that, but it’s an apt comparison.

Only days after Emma divulges her plan to Regina, she’s presented with a short stack of manila folders - Regina’s top choices for their needs.

“I think you’ll be pleased,” she says as Emma flips through the top folder. It’s just a cursory glance, really; Emma trusts Regina’s judgement implicitly after all their years as a pair. “They’re the best I could find.”

“I’m sure they are,” Emma replies nonchalantly. “You’ve got them scheduled to come in for an interview or whatever?”

“Later today,” Regina agrees, before fixing Emma with a stern look. “You’re going to play nice, right? We need these people, I can’t have you getting all demanding or treating them like they’re idiots.”

“Ok, first of all, it’s an interview, there’s going to be questions so I can’t really help the demanding thing. Second of all, why the hell am I the one we’re worried about getting uppity? That’s kind of your thing, scaring people off with a condescending sniff.” Emma really hadn’t meant to sound quite so demanding with that list, but that’s the result anyways. Maybe Regina has a point - though Emma still thinks her partner is the one who needs the warning to “play nice”. Whatever that means. Fuck it all, they’re career conpersons, the nice line has already kind of been blown to smithereens.

Regardless, the warning proves unnecessary, since Emma can tell within minutes that Regina’s first candidate is exactly who they’ve been looking for.

“Emma, this is Ruby Lucas. Ruby, Emma Swan.” With the way Regina makes introductions, you’d think they were having some fancy corporate business meeting, not planning an art heist above a nightclub. Emma has the strongest urge to start offering business cards. “Ruby’s a safecracker - the best on the east coast.”

“Well…” Ruby drawls, her red-painted lips twisting into something wry and just shy of wolfish. Emma thinks it kind of suits the brunette, especially paired with her casual sprawl across one of Regina’s stiff backed chairs.

As much as Emma is amused, however, Regina is not. That eye roll could probably be seen from space. “Fine. The best on the east coast who hasn’t decided to retire to some disgusting fairytale in backwoods Maine like a goddamn schmuck. Better? Satisfied?”

“Better. Satisfied is a whole other thing, sweetcheeks,” Ruby winks salaciously. Not that there seems to be any heat behind it; if Emma had to guess, it’s just a flirtatious habit. There are worse habits to have, really. Her flirting accomplished, Ruby focuses her attention on Emma. “So. I hear you have a plan.”

“I do. Did Regina brief you on the specifics?”

Ruby nods. “Brantley 3900, she said. Digital fingerprint system on top of a trio of combo locks, plus an acid failsafe. I could use some info about the big picture plan, though.”

“We’ll get there,” Emma promises. Ruby isn’t at all what she would have expected of their safecracker in her short skirt and high heels and bright red hair streaks - especially when Emma’s used to dealing with her brother for this kind of thing - but she likes the saucy brunette. That flirtatious energy could really come in handy, if they play their cards right. “You think you can break it?”

“No problem,” Ruby replies with her bubbling confidence. “We’ll just need those prints, and the rest is all tumblers. Nothing I can’t handle.”

Emma looks to Regina, who inclines her head in a subtle nod. Excellent; they’re on the same page, then. “You’re hired.”

Their next candidate - a computer whiz and hacker - might as well be Ruby’s polar opposite. Elsa Frost shows up in a neat skirt suit and heels that only emphasize her pale skin and white blonde hair, dressed for all appearances like she’s interviewing at a law firm. For god’s sake, she even brings resumes in a file folder, the two pages paper clipped for maximum convenience. You can’t make this shit up. Emma wonders idly if their prospective keyboard artist has any idea what she’s walked into.

Surprisingly, reading the resume provided is illuminating. Ms. Frost certainly does know what she’s here for (“And this is an art theft, yes?”), but she cut her teeth, so to speak, in providing network security for major banks. Really, there’s no one better to hack past security systems than someone who made a career trying to prevent exactly that.

Emma still has questions, however. Namely: “How exactly did you end up on the less legal side of things?” It’s more than a valid question, considering the formal interview attire. It seems that Elsa doesn’t know how these things usually play out.

“I have a sister,” Elsa explains. “She’s the only family I have in the world, and she just got engaged. To a Central Park carriage driver. Wants the whole big to-do, which of course is very expensive. You know, the big white dress and the massive cake and the three courses and the specialty cocktail. So I’ve been looking into… alternative income streams.”

“Admirable,” Regina drawls, clearly unimpressed. “But there are plenty of other ways to make money. Legal ones. I’m sure you could make a very generous living just off of consulting with your skills. Why this?”

Elsa flushes, the rush of blood especially evident beneath her pale skin. Still, Regina and Emma wait in silence. They don’t need someone on their team who’s a risk, and that kind of motive makes any con with common sense worry their contact will go to the police when all is said and done. So they’ll wait, as long as it takes Elsa to come up with a real answer or prove herself too much of a risk to gamble on.

She cracks, of course. Facing down two such intimidating stares, anyone would. “Maybe I was bored,” Elsa finally says. Her chin lifts with the words like she’s trying to muster all her dignity - not that it works. “I’d done security for Wall Street firms and major banks for years. Eventually, you tire of trying to close all the loopholes that hackers are testing. Your entire career and your entire life becomes reactionary. Working on the other side… I get to exercise a little more creativity and problem solving and thinking outside the box, which is why I fell in love with programming in the first place.”

Emma makes eye contact with Regina and shrugs. “Works for me.”

Elsa stares back, disbelieving. “That’s it? That’s what you needed to hear?”

“We get boredom,” Emma explains.

“And we absolutely understand thinking the criminal side is a little more fun,” Regina adds. Like she knows anything about fun.

(Ok, that’s not fully true; Emma half remembers a few tequila nights. Regina gets rowdy when she has enough to drink.)

“Where we’re going with this,” Emma finishes, “is that you’re in if you want it. I trust that after all that banking experience, you can work your way around their firewalls and whatnot?”

“Sure can. Check the bar’s accounts if you don’t believe me, I took the liberty of going ahead and transferring my $100 consultation fee.”

Well, that’s one way to prove your point.

“So that’s two down. Who’s next?” Emma asks after Elsa and her business suit depart.

Regina smirks. “Field trip.”

The field trip is to the Metropolitan Museum of Art, where they watch a young woman paint a replica of one of the portraits - a particularly unflattering source work featuring a distinctly masculine-looking woman. It makes the reproduction their prospective partner is working on all the more impressive, that she’s able to replicate that particular variety of unfortunate realism.

“Belle French,” Regina explains under her breath. “She should be a rising young artist on the New York scene after graduating from Columbia, but tastes these days run a little more abstract and her style probably leans closest to the romantic or rococo. Instead, she’s stuck teaching intro level courses at a local community college.”

“What a waste.”

“Indeed. She’s absolutely broke and absolutely talented, and absolutely desperate. Teaching shitty freshmen who can’t draw a straight line and want to argue about their grades constantly does things to a person, or so I’d imagine. If we play our cards right, make the right approach…”

“She could be our girl.” Our forger, Emma means, but that’s a stupid thing to say out loud in an art museum.

“She could.”

Emma observes for just a moment longer before nodding decisively and making her move. She’s the one who’s got tact, after all; as good as Regina is about searching people out, she’s a little too blunt for this kind of negotiation.

“That looks beautiful,” Emma comments when she’s standing just behind Belle’s shoulder. “You’re very talented.”

“Thank you!” Where Elsa blushes, Belle beams. Here, it’s a sign of someone who’s been denied warranted validation for too long, and who’s looking to gobble it up even from unusual sources. It’s a good sign for their purpose; even if they’re cons, Emma and Regina can provide the validation she seems to be craving.

“Is this just a hobby, or do you do this for a living?” Emma knows the answer, of course, but that might as well be rule number one of running a con: never show all your cards.

Belle makes a little wistful, frustrated noise. “Oh, I wish. This is just my free time, unfortunately. Hopefully it will help me hone my skills.”

“I don’t know. From where I’m standing, you look pretty skilled already. If this is your dream, I don’t think the talent issue is what’s keeping you from reaching it.”

“Yes, well, my dreams also feature millions of dollars and a functional love life. Some things, unfortunately, just aren’t going to happen, and I’m afraid this might be one of them.”

“I think I can help with some of that, at least,” Emma smiles. “I’d love to take you to coffee, maybe discuss it a little.”

“Like a job? Painting?” Belle’s skepticism is plastered all over her face. Not that Emma can blame her; it probably sounds just a little too good to be true.

“Something like that.”

“You can’t be serious.”

“I absolutely am, if you’re interested in learning more.”

It’s a close thing, Emma thinks, but Belle does show up in the back corner of Regina’s favorite little Italian bakery an hour later.

“Why do I get the feeling this isn’t exactly a legal opportunity that you want to talk about?” Belle asks right away. Still, she seems utterly unfazed by the idea of it as she calmly sips a cappuccino.

“Probably because it isn’t,” Emma replies, equally calm.

“Hypothetically,” Regina makes sure to add. Maybe that’s what she should have been in another life - a lawyer for the mob. Not that it matters, especially since Emma changes her mind every other time Regina opens her mouth.

“Hypothetically,” Emma makes sure to emphasize, “we’re planning a job that would require someone with top notch artistic skills.”

“And you think that someone is me.”

“Hypothetically, yes,” Regina agrees.

“But why me?” Belle argues. “I’m barely good enough to teach a bunch of college students. What makes you think that I’m skilled enough for whatever you have in mind - hypothetically have in mind?”

“Your style, ironically the very thing that’s really kept you from breaking into the art world, is exactly what we need for our purposes.” Somehow, Regina manages to make it all sound completely reasonable, though Emma knows it’s not. They’re talking about forgery and theft, for Christ’s sake.

“And if I say no?”

“Then this conversation never happened,” Emma replies easily. “Look, my partner may be a little over-enthusiastic with the hypotheticallys, but it means we haven’t actually been planning anything in a way that you could take to the police. Look, I’ll be level with you - we can probably find another artist if need be. They’re out there. But they’re not you, Ms. French, and when we say we want the best, that’s you. For better or worse. The payout - sorry, the hypothetical payout would be more than enough to set you up. No more teaching brats with an attitude. We can help your originals find a way to market - legitimate or otherwise. There’s a lot of doors you can open with the kind of money we’re talking about.”

“Think about it and let us know.” Regina slides a card across the table - blank except for a starkly printed phone number. A burner, obviously, and perfect for what they have in mind. “You’re just the woman we need, and I think we’re just the opportunity you need.”

Emma and Regina barely make it to the end of the next block before the phone buzzes.

I’m in.

Two pieces to go.

It’s a relatively short cab ride to Battery Park, where Regina says they’ll find their next crew member. “This is the pickpocket?” Emma asks as they stroll past a particularly fragrant food cart. Ah, New York.

“This is the pickpocket,” Regina echoes back. “Tink Green. Young, but talented. She could easily break into larger jobs if she had the inclination, though I’m not sure that she does.”

“Tink? Seriously?”

“I know.” Regina rolls her eyes. “But yes, seriously. No idea what her real name is, she refuses to tell. If you have to have a stupid nickname, though, might as well make it a bad fairy fingers pun.”

“Yeah, I suppose.” A crowd is gathered up ahead along the railings bordering the river. “So where is she?”

“You see the blonde weaving through the crowd?” Regina asks, nodding in a general direction. “With the bun and the scarf and the headphones?”

“Yeah?” The woman in question looks utterly distracted - just another twenty-something absorbed in her phone.

“Watch.”

It looks like any other passing interaction - a distracted pedestrian not watching where they’re going, despite passerbys’ attempts to step around her. However, Emma’s a thief. She can spot the way that when the blonde bumps into an unsuspecting businessman, only the hand holding her phone comes up to brace on his torso, while the other steals into his coat pocket.

“Smooth,” she mutters. “I wonder if that’s all she’s got.”

Regina smiles a wicked, amused smile. “Let’s go find out, shall we?”

“Just make sure you don’t have anything valuable in your pockets.”

With the leisurely pace Tink saunters along at - just the right speed to feign distraction and avoid any serious attention - it’s easy for Emma and Regina to catch up along either side. “Impressive show,” Emma comments casually.

She’ll give the pickpocket this - she’s a good faker. Emma only sees the momentary flash of recognition tinged with panic because she’s looking for it. “I don’t know what you’re talking about,” she replies. Tink’s accent is unusual; Australian, maybe, or possibly New Zealander.

“That lift,” Emma continues. “Very well done. Practically seamless.”

“Again, I don’t know what you’re talking about. I think you’ve got the wrong person. Now if you’ll excuse me…” Tink’s eyes flit briefly to either side, looking for an easy escape like any good con.

“Oh relax,” Regina cuts in with that exasperated drawl she’s perfected. “We’re not here to bust you. We’ve actually got a job. Think of this as your interview.”

“You’ve lost me.”

“Regina Mills. This is my partner, Emma Swan.” Tink straightens, almost imperceptibly. “Ah, so you know who we are.”

“Run with a certain crowd, and it’d be hard not to.”

“I’ll take that as a compliment,” Emma replies. “Like Regina said, we’ve got a job. Need someone with light fingers. A little teamwork and big payout.”

“How big?”

“Big enough not to say in such a public place.” Regina produces another card. “If you’d like to know more, come by the Poison Apple the day after tomorrow, around 2pm. We’ll share all the details with the team then. That is, if you’re interested.”

“I might be,” Tink hazards.

“Anything holding you back?” Emma asks. It’s obvious Tink is the woman for the job - talented and just charming enough for a little undercover prep work if need be. If there’s anything they can say to get her on board right now, Emma will gladly do it.

“Who’s the mark?”

Not the question she’d anticipated, but Emma can roll with it. “Zelena West.”

Unexpectedly, the other blonde bursts into a peal of laughter. “That piece of work?”

“The very same,” Regina replies with a wry smile.

“In that case, count me in. About time that bitch got what’s coming to her.”

Who knew it could be so easy - uniting a group of people around hatred of one disgustingly rich woman?

———

The last thing Emma expects to see when she and Regina finally make it back to the loft about the nightclub is a man already waiting outside the door, rocking back and forth on his heels with both hands shoved into the pockets of his leather jacket. As Regina wrangles the lock, the man springs to attention. “Ms. Mills?”

“Yes, yes, come in.” She’s obviously expecting him, as she holds the door wide open for the man to walk through, though her face never changes from mild irritation. Typical Regina. Though Emma can’t imagine why she’s letting him in to start with.

“This one of your vendors, Regina?” she asks, closing the door. The man has come to stand in the middle of the room, looking around like he’s waiting for something.

Regina scoffs. “Don’t be ridiculous, Emma, the bar’s vendors come on Monday. This is our fence.”

Emma isn’t entirely sure what face she’s making, but it’s certainly not good. “Him?” she asks needlessly, earning herself an eye roll.

“No, the other man standing in the corner. Yes, him. This is Killian Jones.”

“It’s a pleasure to meet you, Emma,” he says - warmly enough, she’ll grant - extending a hand to shake.

Unfortunately for him, Emma’s not in a mood for warmly enough. “We are not on a first name basis,” she all but snaps before quickly pivoting to address Regina. “Can I talk with you for a moment?”

“What is your problem, Emma?” Regina hisses once they’re a reasonable distance away. Not that they’ve found true privacy; that doesn’t exactly exist in the loft space.

“He’s a he!” she hisses back.

“How didn’t you know that? I gave you the file.”

“It’s not like I read in-depth or anything! You always give me a little rundown anyways. I saw the name and figured they were a her, not a… him.” The last word is practically spat out like a curse. Absolutely melodramatic, not that Emma cares.

“And is that a problem? It’s not like you told me you wanted only women.”

“Yeah, well, I thought I wouldn’t have to when everyone else you offered up was of the female persuasion. Isn’t there anyone else?”

“No. You want the best, I find you the best. That man can find or sell practically anything, like a modern day pirate. Or something less stupid.”

Emma ignores Regina’s denial. “What about Jasmine? She’s great, she’d be good for this.”

Regina shakes her head. “She and Al just had a baby, so she’s out of the game for a while.”

“I guess I can get that. You send something?”

“Gift cards for take out and a card signed with both our names.”

“Oh, thanks for that. What about Kathryn?”

“Went to prison last year. And you hate her anyways after she flirted with your brother.”

“It’s more because she’s a prissy little rich girl who got into the black market because she thought it’d be fun.”

“No, it’s because she was hitting on David. I very narrowly escaped attending a debutante ball, if you remember, so I’m technically one of those prissy little rich girls,” Regina points out.

“Yeah, but I like you,” Emma sighs. “Bet her daddy bribed someone to get her sentence reduced.”

“Oh, undoubtedly. Still doesn’t change the fact that she’s unavailable.”

“What about —” Emma starts, only to be interrupted.

“Look, I’ll go find you someone else if you insist, someone female,” Regina argues, “but they’re not going to be as good as him. There’s no one else out there who’s got the amount of connections in the black market art world that he does, and he’s got strong footholds in advanced tech to boot. Just what we need. So are you going to quit your tantrum and suck it up, or am I going to have to put out feelers again?” She waits for an answer with arms crossed - never an inviting look.

“Fine,” Emma finally grumbles. “But he’s got a lot of ground to make up.”

“Yeah, and I’m sure you won’t let him forget it,” Regina mutters back under her breath.

Jones does them all the favor of pretending he didn’t hear any of that conversation when the women rejoin him. “Swan, is it?” he asks, extending that hand again. Today, Emma really feels like the last human on Earth who doesn’t feel a pressing need to follow that particular societal convention.

“That’s me,” Emma replies with as much enthusiasm as she can muster. It’s not much. “Regina says you’re the best around.”

“In more ways than one,” he winks. Mistake.

“Let’s get something straight right now: this flirting, or whatever you’re hoping to pull off? It’s not going to work on me,” Emma replies with venom hiding just behind her voice. “We’re here to stage a heist, and all I care about are results. This is about the job, and if you can’t keep it professional, then you can walk back out the door right now and we’ll find someone else.”

They stare at each other for a moment, Emma hoping to establish her dominance right there and then, before Jones finally cracks a closed-mouthed smile and nods. “Won’t be a problem, Swan. I’m at your disposal.”

“Good. We’ll see you in two days for a full overview of the plan and to get this show on the road.”

“As you wish,” he declares, sketching a short bow. After a last nod to Regina, he leaves again, now a problem for another day.

“I still don’t like him,” Emma declares to Regina. The other woman is smiling like the cat who got the canary, and Emma hates it.

“You don’t have to,” the other woman replies, “but he’s going to make this work. You’d be an idiot to fight against that.”

“All I’m saying is he better be as good as you promise.” There’s something about Killian Jones that makes her nervous, something she can’t quite put her finger on. Not his skills; Emma trusts Regina on that front. Something about his attitude, or his confidence. That’s not important right now, though, when there’s plans to make and details to nail down.

Killian Jones may be an unknown variable, but he’s one she can’t deny they need - and for the moment, that’s more important than any of her concerns.

#captain swan #cs ff #my writing #Swan's Seven #ocean's 8 AU #I've been sitting on these introductions for a long time and I'm just so happy to share them

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marymosley · 4 years

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Concept of Law and Schools of Jurisprudence

INTRODUCTION

The word ‘jurisprudence’ derived from the Latin word ‘jurisprudentia’ which means knowledge of law. The Latin word ‘juris’ means law and ‘prudentia’ means skill or knowledge. Thus the term jurisprudence signifies knowledge of law and its application. Jurisprudence means the interpretation of the general principles based on which actual rules of law are recognised. Jurisprudence is concerned with the rules of external conduct which people are forced to obey. Some of the notable definitions of jurisprudence as expounded by jurists are as follow:

As per Cicero, “Jurisprudence is the philosophical aspect of knowledge of law.”

According to Salmond, “Jurisprudence is the science of the first principles of civil law.”

According to John Austin, “Jurisprudence is the philosophy of positive law.”

In the views of Holland, “Jurisprudence as the formal science of positive law.”

As per H.L.A. Hart, “Jurisprudence is the science of law in a broader perspective by co-relating law and morality.”

Rosco Pound defines Jurisprudence as “the science of law denoting the body of principles recognised or enforced by public and regular tribunals in the administration of justice”.[1]

Law is the subject matter of jurisprudence since the latter deals with the study of law. Austin thought it is necessary to define law in order to establish the province of jurisprudence. The history of the concept of law discloses that jurisprudence has dissimilar meanings at different periods. Therefore it is difficult to attempt a singular definition of the term.

CONCEPT OF LAW

Wherever the concept of law is examined, as it occurs, for example, in mathematics, logic, and the physical sciences, one surrounded by puzzles and confusion. Laws are acknowledged to be very queer things; baffling questions about them arise on every side. Nowhere, however, is the thicket of intellectual difficulties more tangled than it is about the concept of law in jurisprudence. Some of the main questions that require answers are: (1) what is a law? (2) What is the legal system? (3) What are the criteria for good laws? (4) Who or what is the authority behind the law? Many of the troubles and falsehoods which a philosopher of law is appropriate to encounter, initiated by a tendency to confuse two or more of these questions. However, even when he avoids that kind of error, the tasks of determining the precise meaning of these questions and their answers remain formidable ones. H. L. A. Hart, Professor of Jurisprudence in the University of Oxford, discusses these and related problems in his new book[2]. Hart, being a lawyer, is also a fine philosopher: in short, just the man for the job. Moreover, he has done it exceedingly well. Hart expressed hope that “it may also be of use to those whose interests are in moral or political philosophy or sociology, rather than in law” is amply fulfilled. There is an introductory chapter which explains the “persistent questions” of legal theory, three chapters dealing critically with the views of John Austin, three in which he expounds his positive theory of the law itself, one concerning justice and morality, another on the relationship between law and morals, and a concluding chapter which deals with international law.[3]

Law can be said to be a principle and regulation established in a particular community by an authority and applicable to its people, whether in the form of legislation or custom and policies recognised and enforced by State authority. In jurisprudence, law is the subject matter.

As per Blackstone, a law in its most general and comprehensive sense signifies a rule of action and is applied indiscriminately to all kind of actions irrespective of gender, caste, language, race, birth, colour, etc.

According to Salmond, the body of principles recognised and applied by the state in the administration of justice.[4]

There are different types of law such as general law, private international law, conventional law, special law, municipal law, customary law, international law, private law, public law, constitutional law, administrative law, substantive law and procedural law.

The following are said to be the identified sources of law: legislation, custom, precedent, juristic opinion, international convention.

CONCEPT OF LAW & SCHOOLS OF JURISPRUDENCE

The schools of jurisprudence has defined law in various aspects. Many jurists have attempted to define the concept of law in clear aspects. The concept of law shall be mentioned in detail under the following schools of jurisprudence. They are as follows:

Natural Law Theory

Analytical/Positive School of Jurisprudence

Historical School of Jurisprudence

Philosophical/Ethical School of Jurisprudence

Sociological School of Jurisprudence

Marxism School of Jurisprudence

Realist Theory of Law

3.1. NATURAL LAW THEORY

There is no consensus about the definition and exact meaning of Natural Law. The term Natural Law in jurisprudence implies those standards and standards which should have started from some preeminent source other than any political or common specialist. It symbolizes Physical Law of Nature-dependent on moral standards which has all-inclusive relevance at all places and terms. It has regularly been utilized either to safeguard a change or to keep up business as usual as indicated by necessities and prerequisite of the time. For instance, Locke utilized Natural Law as an instrument of progress, however Hobbes utilized it to keep up the present state of affairs in the public arena. The ideas of ‘Rule of Law’ in Britain and India and ‘due process’ in USA are built up dependent on Natural Law.

Natural Law is eternal and unchangeable, as having existed from the commencement of the world. Man does not make natural Law; he only discovers it. Any external agency cannot not enforce natural law. Natural Law is a law which does not have legislation backing. Basically it is an outcome of preaching of the philosophers, prophets, saints etc. and thus it is a higher form of law. Natural Law is also known as Divine Law, Law of Nature, and Law of God. Divine Law implies the order of God forced upon men. Natural Law is likewise the Law of Reason, as being built up by that reason by which the world’s governed, and furthermore as being routed to and seen by the sensible idea of man. It is additionally the widespread or Custom-based Law as being of universal validity, the equivalent in all spots and authoritative on all people groups, and not one thing at Athens.

Ultimately in present day times we think that it’s named as “moral law” just like the declaration of the principles of morality. The Natural Law prevents the probability from claiming any inflexible partition of the ‘is’ and ‘ought’ part of law and accepts that such a detachment is pointlessly causing confusion in the field of law. The supporters of Natural Law contend that the thoughts of ‘justice’, ‘right’ or ‘reason’ have started from the idea of man and the Law of Nature and, hence this perspective can’t be disposed of from the domain of law.[5]

3.1.1. Heraclitus The idea of Natural Law was created by Greek thinkers around fourth century. B.C. Heraclitus was the primary Greek logician who pointed at the three principle highlights of Law of Nature, to be specific, (I) destiny, (ii) order and (iii) reason. He expressed that nature is definitely not a scattered heap of things, however there is a clear connection between the things and a definite order and rhythm of occasions. As per him, ‘reason’ is one of the basic components of Natural Law. 3.1.2. Socrates Socrates has stated that a man can distinguish between good and bad and can appreciate the moral values. This human ‘insight’ is the foundation to review the law. He did not deny the ability of the Positive Law. Socrates pleaded for the necessity of Natural Law for the safety and stability of the nation, which was one of the major need of the age. His apprentice Plato supported the same theory. However, it is in Aristotle that we find a proper and logical elaboration of the theory. 3.1.3. Aristotle According to Aristotle, man is a part of nature in two means. Firstly, he is a part of the creatures of God, secondly, he possesses awareness and reason by which he can form his will. By this reason, man can determine the eternal norm of justice. The man’s reason being the part of nature, the law discovered by reason is called ‘natural justice’. The Law should be reformed or amended rather than being broken.

3.1.4. Natural Law and Roman law The Romans did not confine their study simply to theoretical thoughts but carried it to give an applied shape by transforming their rigid legal system into a living law. Natural Law implemented a very constructive influence on the Roman law through separation of Roman law into three divisions namely ‘Jus civile’, ‘Jus gentium’ and ‘Jus naturale’. Civil law called ‘Jus civile’ applied only to Roman citizens. The law which governed Roman people as well as foreigners was said to be ‘Jus Gentium’. Jus Gentium is encompassed of the universal legal doctrines which comply with Natural Law. Later, both these were combined to be known as ‘Jus naturale’.[6] 3.1.5. Natural Law: Indian Scenario Hindu legal system is perhaps the most ancient legal system of the world. The Hindus established a logical and comprehensive law at early times. According to the Hindu understanding, Law owes its existence to God. Law is provided in ‘Shruti’ and ‘Smritis’. The king is to execute that law, and he is bound by it, and the king is disobeyed if it goes against this law. The puranas are full of occasions where the kings were dethroned and beheaded when they went in contradiction of the recognised law. 3.1.6. Medieval Period The opinions of Thomas Aquinas are regarded as a representative of the fresh theory. His society opinions are comparable to Aristotle’s opinions. Law is, according to Acquinas, ‘ an ordinance of reason for the common good produced by him who cared for and proclaimed the community.’ St. Thomas Aquinas classified laws, namely, (1) Law of God or external law, (2) Natural Law disclosed through “reason,” (3) Divine Law or Scripture Law, (4) Human Laws that we now call “Positive Law.” Natural law is component of the law of God. It is that component that in natural reason shows itself. He considered the power of Church to interpret Divine Law. Therefore, it also has the power to give judgment on Positive Law’s goodness.

3.1.7. Hugo Grotius (1583 – 1645)

In the concept of natural law advocated by Grotius, there is inconsistency. Grotius says a ruler must follow the ‘ natural law ‘ and, on the other hand, he argues that the ruler should not be disobeyed. However, it was evident that Grotius feared the stability of political order and maintenance of international peace which was the need of that particular point of time. 3.1.9. Rudolf Stammler (1856 – 1938) Stammler described the law as “species of will, other-looking, self-authoritative and inviolable.” For him, the greatest expression of the social existence of man was a just law aimed at preserving individual freedom. According to him, the two basic principles needed for a just legislation were: (1) respect principles, and (2) community engagement principle. The law of nature, he believes, implies ‘ just law ‘ which harmonizes the aims of society. The aim of law is not to safeguard one’s will, but to unify everyone’s objectives. 3.1.10. Kohler Kohler described the law as “the norm of conduct that emanates from the whole and imposes on the person as a result of the internal impulse that urges people towards a decent type of life.” He claims there is no eternal law, and in the course of evolution the law forms itself as society advances morality and culture.

ANALYTICAL/POSITIVE SCHOOL

Legal positivism is seen in legal jurisprudence around the globe as one of the most important schools of thought. This theory was created around the 18th and 19th centuries by jurists like John Austin and Jeremy Bentham. Subsequently, influential jurists such as Herbert Lionel Adolphus Hart and Joseph Raz advanced this school of thought.

The above-mentioned jurists have substantial differences of opinion, but the prevalent concept that all the above-mentioned jurists have is to analyse law as it is. Therefore, they have the common objective of helping people understand the law of the land as it is and not as it ought to be. Therefore, the legal positivist school only aims to identify the law as it is laid down by a superior body and not how it should have been.[7] The major exponents of this school are Jeremy Bentham, John Austin, Holland, Salmond and H.L.A Hart.

Jeremy Bentham

Jeremy Bentham is said to be the father of the Analytical school of jurisprudence. Bentham rejected the natural law and expounded the principle of utility with scientific accuracy. He partitioned jurisprudence into censorial and expository. The former handles the law as it is, while the latter handles the law as it ought to be. Analysis of censorial jurisprudence by Bentham is indicative of the reality that the effect of natural law had not disappeared entirely. That is why he talked of utility as the governing rule. Bentham believes that law is a product of state and sovereign. As per Bentham’s concept of law, law is an imperative one for which he referred the term ‘mandate’. A law may be defined as an association of sin declarative of a violation conceived or adopted by the sovereign in a state concerning the conduct to be observed in a certain case by a certain person or class of persons who, in the case, in question are or supposed to be subject to his power. [8]

John Austin

John Austin, the father of the Analytical School of Jurisprudence, limited the scope of jurisprudence and prescribed its boundaries. As per Austin, analysis is the principal technique of study in jurisprudence. He built on the foundation of expository jurisprudence laid by Bentham and did not concern himself with extra-legal norms. Austin differentiated the science of legislation and law from morals. Austin divided Jurisprudence into general jurisprudence and particular jurisprudence. According to Austin’s opinions, the assessment of positive law is to be achieved through the operation of logic on law without consideration of law, and he stressed that it is difficult to figure out the universal components in law through the operation of logic. Austin’s approach is applicable to a unitary polity based on parliamentary sovereignty. It does not have the relevance to legal systems as in India and the USA.

In common use, Austin defines law, means and includes things that cannot correctly be called ‘ law. ‘Austin described law as ‘ a rule laid down by an intelligent being having authority over him to guide a smart being. Law are of two kinds: Law of God and Human Laws:

This is again divided into two parts: Law of God – Laws set by God for men. Human Laws – Laws which are set by men for men. Human laws of two types can be split into two groups: 1. Positive law; these are the rules set by political superiors as such, or by individuals who do not act as political superiors but act in pursuit of the rules granted by political superiors. Only these statutes are the appropriate matter of jurisprudence. 2. Other Laws; legislation not established by political superiors (set by individuals who do not act in the ability or personality of political superiors) or by individuals pursuing legal rights. The law correctly so-called the positive law relies on the sovereign political power. Therefore, every law is a command according to Austin. So correctly so-called laws are a command species.

Commands are of two types: Las or rules and Occasional commands. A command is a law or guidelines where it usually requires individuals to act or forbear. It is occasional or particular when it requires action or forbearance from a particular person. Law is a command that imposes a course of behaviour on an individual or individuals. It needs significance and can therefore emanate only from a determinable source or author (a person or individual body). Laws come from superiors, binding and compelling inferiors. Superiors invested with authority: the power to inflict pain or evil on others and thus force them to adhere to their commands.

Thomas Erskine Holland

Holland is another exponent of the Analytical school of jurisprudence. He followed the footsteps of Austin. He varies from Austin as to how the word positive law is interpreted. According to Holland, all laws are not sovereign’s command; instead, he describes law as rules of internal human action enforced by a sovereign political power.

John Salmond

There are differences between the predecessors and Salmond. These difference of opinion are as follows:

Salmond gives up the attempt to find the universal elements in law by defining jurisprudence as the science of civil law. As per Salmond there is nothing like universal element in law because it is the science of the law of the land and is thus conditioned by factors which prevail in a particular state.

He deals with law as it is but law to Salmond is to be well-defined not in relation to the sovereign but in terms of the courts. Law is something which originates from courts only.

Salmond did not agree with Austin that analysis of law is done with the assistance of logic only. According to him the study of jurisprudence which disregards ethical and historical aspects will become a barren study.

L.A. Hart

According to Hart, the law is a system of two types of rules the union of which provides the key to the science of jurisprudence. These rules, he called as ‘primary’ and ‘secondary’ rules. Hart rejects Austin’s view that law is a command and Austin’s command theory failed to encompass the variety of laws.[9] Hart stated that primary rules are duty imposing while secondary rules confer power and the union of the two as the essence of law. Hart stated that primary rules are those who lay down standards of behaviour and are rules of obligation.[10] The secondary rules are additional to and concern the primary rules in numerous ways. For instance, they specify the means in which the primary rules may be determined, introduced, rejected or varied, and the manner in which their violation may be finally determined. Hart considers legal system is a set of social rules. These rules are social in two senses: first in that they regulate the conduct of members of societies (they are guides to human conduct and standards of criticism of such conduct, secondly, in that they derive from human social practices).[11]

Hans Kelson’s Pure Theory of Law

Kelson’s pure theory of law states that law must remain free from social sciences. Kelson aimed to establish a science of law which will be pure in the sense that it will strictly abstain from all metaphysical, ethical, moral, psychological and sociological elements. According to Kelson law is an order of human behaviour. The theory is summarised as under:

The aim of the theory of law as of any science is to reduce chaos and multiplicity and to bring unity.

It is knowledge of what law is not of what the law ought to be.

Law is a normative, not a natural science.

Legal theory is a theory of norms. It is not concerned with the effectiveness of legal order.

A theory of law is formal, of the way of ordering changing contents in a specific way.

The relations of legal theory to a particular system of positive law is that of possible to actual law.

The theory of Kelson is basically about the concept of norms. For Kelson, an understanding of a hierarchy of norms is jurisprudence. A norm is merely a hypothetical preposition. Jurists like Friedman criticise his idea of norms as the concept of grund-norm is vague. A grund norm derives its efficacy from the fact of its minimum effectiveness. Kelson does not provide the criteria for minimum of effectiveness measurement.

HISTORICAL SCHOOL

The historical school follows the concept of human-made law. Law is framed for the individuals and by the individuals ‘ means the law should be in line with people’s evolving requirements. The Historical School of Jurisprudence’s fundamental source is people’s habits and customs that change according to their requirements and needs. It’s also called the Jurisprudence Continental School.

The Historical School believes that, according to their evolving requirements, law is created by individuals. Habits and customs are the primary sources of the Historical School. Historical school has emerged as a response against the theories of natural law, according to Dias.[12] The following are the jurists of the Historical School of Jurisprudence. They are:

Montesquieu

According to Sir Henry Maine, Montesquieu was the first jurist to embrace the historical method of understanding the legal institution. He laid the foundation for the historical school in France. According to him, it is irrelevant to discuss whether the law is good or bad, because the law depends on the social, political and environmental conditions that prevail in society. Montesquieu discovered “The law generates climate, local situations, accidents or impostures,” He believed that law had to alter according to society’s evolving requirements. He has not established any theory or philosophy of the law-society relationship. He proposed that the law should respond to the location’s requirements and alter according to people’s time, location, and needs. One of Montesquieu’s best-known works was his book “The Spirit of Laws.” He reflects his views in political enlightenment concepts in this novel and indicates how laws are needed to change according to people’s and society’s requirements.

Friedrich Carl Von Savigny

Savigny is the Historical school’s founder. He asserted that the legal system’s consistent nature is generally due to a lack of understanding of its history and origin. According to him, the law is “a result of moments the germ of which, like the germ of the State, remains in the nature of people as being produced for culture and which grows different types from this germ, depending on the environment of the factors that perform on it.” Savigny thinks that it is not possible to borrow the law from outside. Moreover, the main source of law is the consciousness of the people. He was of the opinion that the law of the state grows with the strengthening of the nationality of the state and that law dies or fade away when nationality loses its power in the state.

Volksgeist means “national character”. According to Savignty’s Volksgesit, The law is the product of the people’s general consciousness. The Volksgeist idea was used as a warning against the hasty legislation and brought the abstract revolutionary thoughts on the legal system unless they supported the people’s general will. Savigny believed that law should not be discovered from intentional legislation, but should be created and arise from people’s general awareness.

Henry Maine

Sir Henry Maine was the founder of the English Historical School of Law. Savigny’s views of Historical school was carried forward in England by Sir Henry Maine.

Maine studied the Indian legal system deeply as he was law member in the Council of the Governor-General of India b/w 1861 to 1869. The best things incorporated Maine’s ideas in the theories of Savigny and Montesquieu and he avoided what abstract and unreal Romanticism was. Maine favoured legislation and codification of law, unlike Savigny.

Maine describes development of law:

It is thought that the rulers act under divine inspiration. The laws are also created on the rulers ‘ instructions. For instance, Themistes of Anicent Greek. The King’s judgement was regarded as God’s judgement or some divine body. King was just an executor of God’s decisions, not the legislator. Then King’s orders became customary law. In the ruler or majority class, the custom prevails. Customs appear to have succeeded the king’s right and officials.

The understanding and administration of customs comes into the hands of a minority, the understanding of customs comes into the hands of a minority class or normal class because of the weakening of the law-making power of the initial lawmakers like Priests. So the ruler is superseded by a minority who obtain control over the law. In the fourth and last stage, the law is codified and promulgated.

Georg Friedrich Puchta

Puchta was a German Jurist. He was a disciple of Savigny and a great jurist of Historical School of Jurisprudence. Puchta’s ideas were more logical and improved than Savigny’s ideas. He traced the development and evolution of law from the very beginning. His ideas mainly focused on the situation when conflict arises between the general will and individual will. In the conflict between general will and individual will, the state came into existence and find out the midway to resolve the conflict.

The main concept of Puchta’s ideas was that “neither the people nor the state alone can make and formulate laws”. Both State and individual are the sources of law. Contributions:

Puchta gave twofold aspects of human will and the origin of the state.

Despite some points of distinction Puchta and Savigny, he improved the views of Savigny and made them more logical.

PHILOSOPHICAL SCHOOL

The Philosophical School is not concerned with what the actual law of the past and the present is. Their effort is to develop the idea of justice as an ethical principle and consequently to create an ideal system of law.

In the eighteenth century, they put their faith in the law of nature which could be discovered by human reason. In the nineteenth century they engaged themselves in the metaphysical discussions of the existing law and in attempts to create a perfect system of law in codes and legislation.

In the twentieth century, they devoted themselves to social interests and ideals and the formulation of theories of social justice.

The jurists of the Philosophical School have always considered law as an abstraction and based it upon abstract ethical principles of justice. A law, as such, is removed from objectivity whereas it ought to be definite and precise, capable of universal application. Idealism must be mixed with realism. The following are the viewpoints of jurists:

Hugo Grotius

Hugo Grotius worked as a jurist in the Dutch Republic and laid the foundation for international law, based on natural law. Grotius removed the natural law from the jurisdiction of moral theologians and made it the business of lawyers and philosophers, by asserting their very nature, natural laws were authoritative in themselves, with or without faith in God. He prompted the concept of ‘just war’ as are which was required by natural, national divine law under certain circumstances. He developed a series of rules for ‘right conduct’ of war, based on the principle that actions in a war should ‘serve the right’.

Jean Jaques Rousseau

Rousseau thought that the enslavement of modern man to his own requirements was accountable for all kinds of social ills, from the exploitation and domination of others to poor self-esteem and depression, Rousseau thought that good government must have as its most basic goal the liberty of all its people. In specific, the social agreement is Rousseau’s effort to imagine the type of government that best affirms all its citizens ‘ individual liberty, with certain limitations inherent in a complicated, contemporary, civil society. Rousseau recognized that as long as property and regulations exist, individuals in contemporary culture can never be as completely free as they are in the state of nature, a point that Marx and many other communist social philosophers echoed later.

Immanuel Kant

Immanuel Kant is one of the most influential philosophers in the history of western philosophy. He developed his metaphysical method further and held that ethics and law are not the same thing. According to Kant, ethics relates to man’s spontaneous acts while law deals with all those acts to which a man be compelled. Kant states that law regulates man’s external conduct. He stated that compulsion should be exercise man’s conduct. As per him, Law is the total of the conditions under which the personal wishes of man be reconciled with the personal wishes of another man following a general law of freedom. Thus Kant considered compulsion as an essential element of the law, and a right is nothing but a power to compel.

SOCIOLOGICAL SCHOOL

Auguste Comte (1798-1857) was a French Philosopher. Comte used the word “Sociology” for the first time and defined sociology as a positive social facts science. He said society is like an organism, and when it is guided by Scientific Principles it could advance. Thus, he is making excellent attempts to use the law as an instrument through which human society retains itself and advances.

Sociological School’s concept is to demonstrate a law-society relationship. This school put more emphasis on the legal view of every issue and diversity that occurs in society. Law is a social phenomenon and there is a main or indirect relationship between law and society. The Sociological School of Jurisprudence focuses on balancing the state benefit and the realization of the person. The Sociological School of Jurisprudence examines the law-sociology connection. There are two distinct elements to each request or idea. One is sociological, and the other is legal.

The sociological method of jurisprudence that resulted from the change in the political shift from the doctrine of laissez-faire, the industrial and technological revolution and, finally, the centred historical school. The connection between the law and the social welfare state of the modern century sought to study law as seeking the social source of law and legal institutions, to examine law as a specified social phenomenon, and finally to judge law by its social usefulness.[13]

Montesquieu

Montesquieu was a French philosopher, and he paved the way of the sociological school of jurisprudence. He was of the view that the social condition of society somehow influences the legal process. He also acknowledged the significance of history as a means of understanding society’s composition and clarified the significance of studying society’s history before formulating law for that particular society.

In his book ‘ The Spirit of Laws, ‘ he wrote, ‘The features of a country should be determined by the law, so that they should relate to the climate of each country, the quality of each soul, its situation and extent, the main occupations of the natives, whether they are husbandmen, huntsmen or shepherds, the degree of freedom that the constitution will bear on the religion of the residents, their inclinations, wealth, numbers, trade, customs and manners.’

Eugen Ehrlich

Eugen Ehrlich is regarded as the sociology of law founder. Sociology of Law is the law study from the sociological point of view. Ehrlich saw society as the main source of law, and by society he meant “men’s association.” Ehrlich had written that “the centre of gravity of all legal developments is not in law or judicial decisions but in society itself.” He asserted that society is the primary source of law and a stronger source of law than law or judgment.

Rosco Pound

Pound was an American Legal Scholar. His view is that law should be studied in its actual working and not as it stands in the book. Roscoe Pound gives the theory of Social Engineering in which he compared lawyers with the Engineers. Engineers are required to use their engineering skill to manufacture new products. Similarly, social engineers are required to build that type of structure in the society which provides maximum happiness and minimum friction.

According to Pound, “Law is social engineering which means a balance between the competing interests in society,” in which applied science is used for resolving individual and social problems.

Social Engineering is balancing the conflicting interest of Individual and the state with the help of law. Law is a body of knowledge with the help of law the large part of Social engineering is carried on. Law is used to solve the conflicting interest and problems in society. He mentioned that everybody has its interest and considered it supreme over all other interest. The objective of the law is to create a balance between the interests of the people.

Leon Duguit

Leon Duguit was a French Jurist and leading scholar of Droit Public (Public Law). Duguit was greatly influenced by Auguste Comte and Durkheim. He gave the theory of Social Solidarity which explain the social cooperation between individuals for their need and existence.

The word ‘ Social Solidarity reflects society’s power, cohesiveness, collective awareness, and viability. ‘Leon Duguit’s Social Solidarity explains men’s interdependence on his fellow men. Without relying on other men, no one can survive.

The law’s aim is to encourage social solidarity among people. Leon Duguit therefore regarded the law to be a bad law that does not encourage social solidarity. He also said that each individual had the right and obligation to encourage social solidarity. For example, in India, everyone follows the codified legislation. It is therefore promoting social solidarity.[14]

MARXISM

Marxist theory of law is mainly related to the doctrines of Karl Marx (1818-1883) and Friedrich Engels (1820 – 1895). It is historical in part and sociological in part. Marxist theory of law’ differs significantly from other theories and philosophies of law mentioned in the theory of law. Positivism, in its various forms, is mainly based on current legal institutions on which and from which an assessment of the law and the legal system can be drawn. The primary characteristic of the ‘ socialist legal theory ‘ is that a legal system must be based on Karl Marx’s and his successors ‘ political and economic philosophy.

Karl Marx’s Communist Manifesto, printed in London in 1848, was one of the earliest documents of great importance in the development of communism in general, and of socialist legal theory in particular. The Communist Manifesto’s argument is simple and characterized by the early statement: “The history of all society that exists hitherto is the history of class struggles.”

Since class struggle lies at the base of social conflict and social and economic development, the typical stages of a community’s development must be traced out. In a primitive stage of the exploitation of men by men there is slavery, an institution nowadays universally condemned.

In rigorous accordance with his carefully developed world outlook, Karl Marx fashioned a theory of law. The study was, for Marx, a means to an end. The end was society’s revolutionary transformation. A comprehension of the nature of social phenomena such as economics, politics, and law would guarantee proper chartering of the route to revolution. Marx said, “Up till now philosophers have merely interpreted the world, the point, however, and is to change it”. An understanding of jurisprudence demands more than a static analysis. According to Marx, it must encompass a study of the nature of law within a society in flux. There are three doctrines in Marxist jurisprudence: dialectical materialism, financial manufacturing legislation, and historical materialism.

Law & State

In order to grasp and comprehend the Marxist notion of State and Law, one must first be acquainted with the Marxist theory of the origins and significance of law and state as described by Engels in his book Origin of Family, Private Property and State (1884). In the beginning, according to Engels, there was a classless society in which all people enjoyed the same position with regard to the means of production; individuals were equal and independent from each other since the means of production were free and available to all. They respected rules of behaviour but these rules were not legal rules because they were based solely on habits and corresponded to present behaviour, neither enforced nor sanctioned by the use of force.

Later, by dividing labour and dividing it into classes, primitive society became socially divided. One of these classes took possession of the means of manufacturing itself, dispossessing the others that it then started to exploit. In moment, legislation and state were born at this movement. There is a link between these two concepts for the Marxists. Law is a human conduct rule that differs from other behavioural laws because it includes coercion that is the state’s intervention. The State is a social agency that ensures that this principle is respected either by the threat of the use of force. Without a state there is no law, and without law there is no state; state and law are two different words that describe the same thing.

State and law are the outcomes of a particular social financial framework. They are discovered only at a specific point of their evolution in a certain type of culture. Only when society is split into social classes, one of which exploits the other or others economically, do law and the State appear. In such a situation, the ruling class has recourse to law and the state in order to strengthen and perpetuate its domination.

The law is the instrument which, in the class struggle, safeguards the interests of the ruling class and maintains social inequality for its profit. It can be defined as that series of social norms which regulate the dominating relationship of the ruling class to the subjugated class, in those areas of this relationship which cannot be maintained without recourse to the oppression wielded by a solidly organised state, and the state itself, is the organization of the exploiting class in order to protect its own class interests.

Human history is mainly the history of class conflict: in other words, it is the ongoing fight of one class or another to capture the means of production and thus develop its dictatorship. History’s turning points are marked by exploited class wins that turn into the exploiting class. The emergence of a fresh social class reflects a step forward because it corresponds to a more sophisticated form of production, more in line with technological progress and society’s overall aspirations. However, society will continue to suffer from a fundamental deficiency as long as the means of production stay the property of only a few and so long as there are those who are exploiting and those who are being exploited.

REALIST THEORY OF LAW

The realist’s movement in United States represents the latest branch of sociological jurisprudence which concentrates on decisions of law courts. The realists contend that law has emanated from judges; therefore, law is what courts do and not what they say. Realist’s exponents state that judges are the lawmakers.

However, modern realism differs from sociological school as unlike the latter, they are not much concerned about the ends of law, but their main attention is on scientific observation of law, and it is actually functioning. The contention of realists is that judicial decisions are not based on abstract formal law, but the human aspect of the Judge and the lawyer also has an impact on court’s decision.

It was around 1930s that some American jurists notably Holmes, Cardozo and Gray raised their voice against legal conceptualisation and stressed on the study of law as it operates and functions. Realists combined analytical positivism and sociological ideologies in their legal approach law and social institutions. Realists uphold only Judge made law as genuine law, and they do not give any importance to laws enacted by legislatures. Realists believe that certainty of law is a myth.

It must be stated that the realist movement in United States owes its origin to pragmatic approach to law in early decades of twentieth century. The progressive legal thinkers denied to accept law as an abstract conception and tried to base it on facts and actions.

According to Goodhart, the main characteristic features of realist jurisprudence are as follows:

Realists think there can be no certainty about the law as its predictability depends on the collection of facts to be decided by the tribunal.

They do not favour formal, logical, and conceptual legislative strategy.

They lay greater stress on the psychological approach to the proper understanding of law as it is concerned with human behaviour and convictions of the lawyers and Judges.

The importance of legal terminology is opposed by realists.

They prefer to evaluate any part of the law in terms of its effects.

It presupposes that law is intimately connected with the society, and since society changes faster than law, there can never be certain about law. There is no place for idealism in law and therefore, law as it ‘is’ must be completely divorced from law as it ‘ought’ to be.[15]

Oliver Windell Holmes

The noted American Jurist Oliver Windell Holmes discussed law from “the bad man”, i.e., the person who was before the court as an accused or wrongdoer. The concern of the judge is to do justice in the case before him, and if that required a creative interpretation of existing rules, he should certainly resort to it. The judge has to apply the law as he finds it and not to seek to rectify perceived inadequacies by the use of creative interpretation. Holmes asserted that where there is a gap in the law, judges are required to take account of precedent but where this is unclear, he must decide the best way to proceed and the result may be a decision which is in some way innovative, but the fundamental principles are always part of the law.[16]

Scandinavian Realism

Besides the American realist movement, a simultaneous wave of realism also developed in Sweden. There was, however, one material difference between American realism and the Swedish realistic movement. Pointing out the difference between the two, Dr Allen observed, If American realism is ruling skeptic, Scandinavian realism may be described as metaphysical sceptical.

There is no place for a priori pre-conceptions for which there is no scientific basis. Thus Scandinavian realists discard from law all a priori notions of natural law, abstract conceptions and idealism because they are all purely theoretical precepts without any practical utility. Supporting this contention of Olivecrona, Professor Ross also projected a view that “law in all its forms is a social reality devoid of doctrinal conceptions like morality, idealism, natural law and theoretical (metaphysical) conceptions such as right, duty, sovereignty etc. which formed the core of analytical school of jurisprudence in England.

According to Bodenheimer, Scandinavian Realism differs from the American realist school in two major aspects, namely, (1) it is more speculative in approach to legal problems and (2) it does not devote as much attention psychological behaviour of Judges as the American realists do. However, both adopt an empiricist attitude towards law and life and give more weight to the social effects of law with emphasis on judicial decisions. For Julius Stone, Realist movement is a gloss on the sociological approach to jurisprudence.

Karl Olivecrona

Professor Olivecrona emphasised the study of law as a social fact. According to him, law is nothing but a ‘set of social facts’. He rejected the view that laws are commands or an expression of the will of the state and argued that they are independent imperatives issued by constitutional agencies of the state from time to time and they operate in the mind of the judge while reaching a particular decision. He propagated the view that law is a set of independent imperative prescribed by law agencies such as Courts, Parliament etc. producing a set of social facts based on the application of organised force of the State.[17]

CONCLUSION

The concept of law is still a developing area where it can have various abstracts as per the current scenario. The schools of jurisprudence have provided their views on the concept of law as per their ideologies and thinking. There are various criticisms for the schools by different jurists. Thus concept of law is a difficult concept to be explained as to have a clear definition. Hence the viewpoints of various jurists and their school of thought may be considered for further development of this area and its practical application.

REFERENCES

Dr. N.V. Paranjape, Studies in Jurisprudence and Legal Theory, (Seventh Edition,2014) Central Law Agency

M.D.A. Freeman, Lloyd’s Introduction to Jurisprudence, (Ninth Edition,2014), Thomson Reuters

V.D. Mahajan, Jurisprudence and Legal Theory, (Fifth Edition, 2006), Eastern Book Company

G.C. Venkata Subbarao, Jurisprudence and Legal Theory, (Ninth Edition, 2019), Eastern Book Company

H.L.A. Hart, The Concept of Law, Clarendon Law Series

George Pitcher, Review: On the Concept of Law, JSTOR, (August 19th 2019), https://www.jstor.org/stable/25086885

Saurav Bhola, Sociological School of Jurisprudence, ipleaders, (September 14th 2019), https://blog.ipleaders.in/sociological-school-of-jurisprudence/

Saurav Bhola, Historical School of Jurisprudence, ipleaders, (September 12th 2019), https://blog.ipleaders.in/historical-school-of-jurisprudence/

Analytical School of Juisprudence, legalbites, (September 14th 2019), https://www.legalbites.in/analytical-school-jurisprudence/

Pragalbh Bhardwaj & Rishi Raj, Legal Positivism: An Analysis of Austin and Bentham, ijlljs, (September 13th 2019), http://ijlljs.in/wp-content/uploads/2014/10/Legal-Positivism-An-analysis-of-Austin-and-Bentham.pdf

Lakshyander, Natural Law, legalservicesindia, (September 12th 2019), http://www.legalservicesindia.com/article/519/Natural-Law.html

Mahesh Patil, Conceprt of Law, slideshare, (September 12th 2019) https://www.slideshare.net/maheshjp05/concept-of-law

Llewellyn, K.N. Some Realism About Realism, heinonline, (September 14th 2019) https://14.139.185.174/sslvpn/PT/https://heinonline.org/HOL/Page?public=true&handle=hein.journals/hlr44&div=82&start_page=1222&collection=journals&set_as_cursor=0&men_tab=srchresults

Citations:

[1] Dr. N.V. Paranjape, Studies in Jurisprudence and Legal Theory, (Seventh Edition,2014) Central Law Agency, Pg. 3-7

[2] H.L.A. Hart, The Concept of Law, Clarendon Law Series

[3] George Pitcher, Review: On the Concept of Law, JSTOR, (August 19th 2019), https://www.jstor.org/stable/25086885

[4] Mahesh Patil, Conceprt of Law, slideshare, (September 12th 2019) https://www.slideshare.net/maheshjp05/concept-of-law

[5] Lakshyander, Natural Law, legalservicesindia, (September 12th 2019), http://www.legalservicesindia.com/article/519/Natural-Law.html

[6] Lakshyander, Natural Law, legalservicesindia, (September 12th 2019), http://www.legalservicesindia.com/article/519/Natural-Law.html

[7] Pragalbh Bhardwaj & Rishi Raj, Legal Positivism: An Analysis of Austin and Bentham, ijlljs, (September 13th 2019), http://ijlljs.in/wp-content/uploads/2014/10/Legal-Positivism-An-analysis-of-Austin-and-Bentham.pdf

[8] Analytical School of Juisprudence, legalbites, (September 14th 2019), https://www.legalbites.in/analytical-school-jurisprudence/

[9] H.L.A. Hart, The Concept of Law, Clarendon Law Series, Chapter 3

[10] H.L.A. Hart, The Concept of Law, Clarendon Law Series,, Pg. 82-88

[11] H.L.A. Hart, The Concept of Law, Clarendon Law Series, (‘postscript’), p.249

[12] Saurav Bhola, Historical School of Jurisprudence, ipleaders, (September 12th 2019), https://blog.ipleaders.in/historical-school-of-jurisprudence/

[13] Saurav Bhola, Sociological School of Jurisprudence, ipleaders, (September 14th 2019), https://blog.ipleaders.in/sociological-school-of-jurisprudence

[14] V.D. Mahajan, Jurisprudence and Legal Theory, (Fifth Edition, 2006), Eastern Book Company, page no. 605, paragraph 1

[15] Llewellyn, K.N., Some Realism about Realism, 1931 44 Harvard Law Review. 1222; https://14.139.185.174/sslvpn/PT/https://heinonline.org/HOL/Page?public=true&handle=hein.journals/hlr44&div=82&start_page=1222&collection=journals&set_as_cursor=0&men_tab=srchresults

[16] Dr. N.V. Paranjape, Studies in Jurisprudence and Legal Theory, (Seventh Edition,2014) Central Law Agency, Pg.117

[17] Dr. N.V. Paranjape, Studies in Jurisprudence and Legal Theory, (Seventh Edition,2014) Central Law Agency, Pg. 118-119

Author: Ijas Muhammed, Legal Writer at Legal Desire Media & Insights

The post Concept of Law and Schools of Jurisprudence appeared first on Legal Desire.

Concept of Law and Schools of Jurisprudence published first on https://immigrationlawyerto.tumblr.com/

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psychvictims · 6 years

Link

German singer and actress Nina Hagen supports the psych victim cause. She refers to her grandfather who was labeled as "mentally ill" for disagreeing politically with the Nazis in Germany and how he was killed in a concentration camp as a result.

Disagreeing with "mental illness" doesn't mean that we don't think there are varying emotions or reactions. We do not think that it should be a "disease" to be sterilized. She wishes for non-violence and sees these people as humans whose rights were taken.

True freedom is without coercion or consequences to force a decision.

"Freedom at least means to be free of it, to not be coerced or blackmailed by others into a certain decision. The fact that a decision has consequences is a joke..."

We are happy to show an advocate for us who is accomplished. Frequently, we only see pro-"mental health" and coercion proponents in the media. Those who want freedom and are against psych are often overshadowed.

Nina Hagen on Wikipedia: https://en.wikipedia.org/wiki/Nina_Hagen

youtube

Full Pro-Psych Victim View by Nina Hagen: https://www.patverfue.de/nina-hagen-ueber-die-patverfue

"Since my earliest childhood I was raised by my parents to a conscious and independent thinking humanist. I know from my father Hans Hagen that he and his family had to endure many traumatic experiences during Nazi dictatorship, the Holocaust and World War II. He had to cope that he could no longer help his Jewish father. My grandfather Herman Hagen was deported to a psychiatric hospital by the Nazis and then to a concentration camp. He was tortured and murdered. Later, they also interned my father in a detention center, where he was severely abused and tortured for months in a huddle and tortured. Thankfully, this darkest chapter in our history of humanity ended on May 8, 1945. And I fight for the implementation of human rights and human dignity, as I can imagine. Meanwhile, I am not only on the road as an actress and singer, but also as a patron of several charitable organizations and clubs.

As the patron of www.PatVerfü.de, I am committed to the human rights demanded by the United Nations at all times and try, as far as possible, to strengthen other people and to speak, sing, inform and discuss our rights. If I could wish something: I wholeheartedly wished for a non-violent psychiatry in our country. For example, as it is already practiced at the Klinikum Heidenheim in Baden Württemberg. I think that only out of ignorance do those people have no patronage, who are now in an emergency constrained to their will, deprived of their most basic human rights and human dignity. The PatVerfü is very important for every citizen of our country! PatVerfü ensures self-determination!

Freedom at least means to be free of it, to not be coerced or blackmailed by others into a certain decision. The fact that a decision has consequences is a joke, but being hit without compulsion is at the same time the necessary precondition for being responsible for its consequences. Contracts should make the consequences calculable. Although that is all a matter of course, but unfortunately we can discriminate against people of medical people as allegedly "mentally ill" and then be disenfranchised by means of special laws. They can be locked up in the closed or semi-open departments of psychiatric hospitals - yes, They must even regularly undergo a violent intervention in the body through psychiatric coercion. Instead of being protected by the state from deprivation of liberty and personal injury, state and human rights are systematically violated by a government of doctors, courts and alleged "caregivers". This is especially perfidious because people who were slandered as "mentally ill" were the first to be murdered in gas chambers in Germany in 1939. Until 1949, even when the Nazis did not protect the doctors, they continued to kill in the psychiatric hospitals. Thereafter, coercive psychiatry in East and West continued to be detained and tortured, as if that were self-evident.

Whom human rights are a concern, had to welcome that on 1.9.2009, the Law on the Relocation of Patients Act § 1901a BGB came into force. It offers the possibility of a real alternative to this system of psychiatric debasement.

For the first time it was by law - thus legally effective! - possible to prohibit a psychiatric examination and thus diagnosis. So as to make any psychiatric imprisonment and forced treatment individually for itself impossible that needs in a specially formulated advance directive, the PatVerfue ®, have been prohibited in writing. Previously, the silence with the psychiatrist had not used either because either old files were simply copied, so a write-off "report" made or silence was declared, for example, as "symptom-weak autistic psychosis", as the famous "wrong" senior physician Gert Postel from the circles of doctors has made known. You can believe him when he says, "Psychiatry is a subject that lives on word acrobatics. You can justify any diagnosis by means of the psychiatric language and in each case the opposite and the opposite of the opposite - the imagination knows no bounds. "And:" Who masters the psychiatric language,

A prime example of this is how, in 1994, the head of the psychiatric university clinic in Munich, Prof. Hans-Jürgen Möller, diagnosed a mental illness with "self and other endangerment" by the well-known carpet art dealer Eberhart Herrmann without ever having spoken to Herrmann himself , In his "specialist psychiatric certificate for placement in a psychiatric hospital" was claimed that an immediate briefing Herrmanns is required (see Higher Regional Court Munich, judgment of 4 February 2010, Az. 1 U 4650/08).

The prerequisite for the conviction of Prof. Hans-Jürgen Möller after a 16-year-long trial was that Herrmann had received wind of his planned capture, he understood the danger he was in, and had immediately set off abroad. Few are likely to have both the financial and endurance resources to lead a 16-year struggle to rehabilitate psychiatric defamation.

Because psychiatric diagnosis is an arbitrary slander, psychiatry, as opposed to all medical disciplines, must regularly seize the coercion and violence of its patients. Only then can the victims be forced into the so-called "illness insight", so that through this confession forced by pressure or direct force, the whole process can be spent as a supposedly "medical". If, on the other hand, those who are coerced affirm that they are mentally ill, but the doctors do not want to believe that, then they diagnose the "feigned illness insight" as a particularly stubborn "disease" symptom and the extortion continues.

Due to a lack of "insight into the illness", lawyers have since distilled their "illness-related inability to consent" in order to rightly bend their justification of coercion and violence. In principle, no one who denies the existence of a disease can still consent to its treatment. No matter which additional conditions may be formulated, every attempt to legalize this confession violates the absolute prohibition of torture!

Meanwhile, it should have become understandable why the question of whether there is a "mental illness" at all, or whether the claim of its existence is a category error, because human action has reasons and is not a bioelectrochemical reaction, is not an incidental dispute. Although it may seem ideological, the special laws that are to be justified with "mental illness" are the worst penalties before the death penalty: forced psychiatric treatment, especially with mind-altering drugs and electric shock. But one is locked up and tied up, the so-called "fixation". The current laws that allow doctors-Richter-felt to legalize this serious maltreatment

16 "public law" state laws on compulsory placement and compulsory treatment, in most federal states the so-called "mental illness laws" (PsychKG), in Bavaria and in the Saarland "accommodation law".

The "care" mentioned incapacitation, § 1896 BGB a civil law federal law, with which a court can impose on the persons concerned a guardian called guardian as a legal representative even against their declared will. Maintainers are loyal followers of the court, in particular, if they practice this business as a "guardian", as the court gives them the orders. By "caregivers" make it the courts then permanently easy. Their request for a compulsory introduction according to § 1906, they only need to check, then to give it off. Since 22.7.2017, the new, tightened § 1906a has come into force in the FRG, so that "cared for" in all diseases in all hospital inpatient departments, can be treated with coercion and violence against the will - if they do not have PatVerfü. No one should expose themselves to such a risk and renounce a PatVerfü! There are no plaintiffs and defendants in an incapacitation procedure, whose arguments the judges should (fairly) weigh in order to reach a verdict. The judge is the powerful and opponent of the person concerned in such proceedings, as judges regularly seek ways to disregard the self-determination of those affected. That's why my friends from the Werner-Fuß-Zentrum recommend that PatVerfü be notarised. Each judge then respects such a document because it has already been certified by another lawyer. In addition, if any doctor at the time of authentication attested to business ability and the PatVerfü was registered with the Federal Notaries, then the PatVerfü is, so to speak, "bombproof".

§ 63 of the Criminal Code, instruction in a forensic psychiatry (prison sentence), a so-called "special sacrifice", the Nazis on 24.11.1933 introduced psychiatric slander victims of a criminal offense as mentally insane for an indefinite period lock and forcibly treated. Again, the examination and diagnosis is the central element to justify this arbitrary capture with torture-like bodily harm with the help of the corresponding psychiatric reports. Regularly "63ers" are imprisoned here many times longer than for the same offenses in prison. This is easily done by an illegal reversal of the burden of proof, because the prisoner has to prove in a forensics to his release for a prognosis "harmlessness", which is simply impossible, but only amounts to medical astrology. That the PatVerfü in a criminal case protects against a compulsory medical examination because of § 63, has not yet been definitively proven, but a good basis to deny such, is thus laid in any case. A cartel of lawyers against § 63 is ready for an appropriate defense. Important: NEVER voluntarily participate in such a psychiatric examination, never try to justify yourself, but always keep silent. The defending lawyer can then argue with the PatVerfü to prevent the worst, § 63.

The named are all special laws. Contrary to the laws, which apply to all adult citizens, they are special legislation for the special deprivation of allegedly or actually "mentally ill" diagnosed. All have as a necessary condition for their application the opinion of a psychiatrist. In order to prevent this, the PatVerfü is the only living will to specifically use this part of the Act on the Relocation of Patients' Law § 1901a BGB, first paragraph:

" If a consenting adult has written consent in the event of his incapacity to consent to consent to specific medical examinations which are not imminent at the time of determination, medical treatment or interventions (living will), the caregiver shall examine whether those conditions exist the current life and treatment situation apply. If this is the case, the supervisor must express and enforce the will of the person being looked after. "

Beyond the controversy over whether or not there is any mental illness, the legislator has acknowledged that any examination and diagnosis of an actual or supposed mental illness can thus be legally prohibited by a (usually written) living will in accordance with Section 1901a. The PatVerfü also has provision for the appointment of pension fund representatives. Thus, the judge is deprived of the opportunity to impose even a care, as a precautionary power is principally priority to a "care". The fact that the PatVerfü the review of the medical attribution of a mental illness has put a stop anyway, the judge in his request, to incapacitate a person, additionally discourage. In addition, there are one or even several persons in one or more beneficiaries who can assist one in refusing to undergo psychiatric examination and treatment, and if need be add more emphasis to the claim.

To use these possibilities of the law of patient administration is the unique feature of the PatVerfü in contrast to practically all other living wills. This makes it the drug of choice to prevent forced treatment, etc., as it locks the gate of all further restraints. Without diagnosis no mental illness and without mental illness none of the above-mentioned special disenfranchisement laws can be applied.

At the same time, the possibility of making a patent proves that it is a personal decision to become mentally ill at all, because physicians are only allowed to detect such a disease in persons who are not protected by PatVerfü, and therefore can only diagnose mental illness under this condition. Therefore, the PatVerfü is the spearhead of self-determination even in difficult situation. It ensures an adult the right to effectively say no.

I would like to prevent two possible misunderstandings as a preventive measure:

Those who deny that there are mental illnesses do not deny that there is conspicuous behavior and others disturbing thoughts and feelings. The only denial is that it is a disease and should be consulted medical art. Since the constitutional state can sanction any possible angle of conduct that violates or endangers the rights, property, or body of others, even without the special rights construction of "mental illness," there are no gaps in the law that make these much more extensive and arbitrary Discrimination and humiliation in psychiatry could justify.

Forced psychiatry offers the medicine of state violence only an additional punishment device for breaking the will, monitoring, coercion, intimidation, threat and frightening of adult citizens - a kind of thought police.

Anyone who thinks that a stay in a psychiatric hospital is good for themselves should, of course, be able to use it like a customer on a voluntary and contractual basis. Whether that part of the benefits of a health insurance must be, is an open question.

It should also be left undone to decide to be diagnosed as "mentally ill" - mentally ill? Your own decision!

In each case one should be able to agree in advance by a corresponding living will also psychiatric coercive measures - although I would advise against it, but it must be allowed as masochistic sexual practices, if one day the psychiatric special laws will be abolished and we have a non-violent psychiatry."

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stillness-in-green · 3 years

Text

Ahistorical, Absurd, and Unsustainable (Introduction and Part One)

An Examination of the Mass Arrest of the Paranormal Liberation Front

INTRODUCTION

The title states my premise here: the breezy way My Hero Academia presents and resolves the mass arrest of the Paranormal Liberation Front is ludicrous. If taken as presented and allowed to stand without being further addressed, it serves as a breaking point from which the series will be incredibly hard-pressed to recover. Why, you ask?

From a logistical standpoint, it strains credulity. From an ethical standpoint, it suggests deeply troubling problems with the state of Hero Society. From a thematic standpoint, it unravels whole portions of the narrative’s spine. I’ll be looking at each of these facets in turn to discuss the questions they raise which My Hero Academia has not yet seen fit to answer. Many in fandom don’t seem to be thinking about it too hard, so I’d like to lay out—in exhaustive detail—all the reasons I find this plot element so wildly out of touch with causal reality.

Please note that while they are discussed when relevant, this essay is not principally about the named characters in the League of Villains or the erstwhile high command of the Metahuman Liberation Army. The sorts of consequences Shigaraki Tomura or Re-Destro would and should be facing in a courtroom are orders of magnitude beyond what Random Liberation Warrior X would be, but it’s the mass numbers of Random Liberation Warrior Xs that this essay is most concerned with, as they are the ones most in danger of being swept under a rug and forgotten by the series in its current state.

Further, be advised that this essay in its full form is both very long (about 21K words excluding Sources and Further Reading) and will contain extensive discussion of real-life Japan—comparisons to historical events, minutiae of its legal and carceral systems, and general cultural views on criminality. This will include references to imprisonment, government oppression, and incidents of terrorism both real and in the context of My Hero Academia.

Being as it is about quite a recent event in the series, it will also contain heavy spoilers all the way up through the most recent chapter as of this writing, Chapter 310. It likewise contains spoilers for the spin-off series My Hero Academia: Vigilantes up through Chapter 95.

The essay will be posted in parts on tumblr and in full on AO3. For the tumblr posting, I will provide links to other tumblr posts as I reference them; however, as I would like this to actually show up in the tags, outside links containing my sources and further reading will be provided in a separate post following the conclusion of the essay.

Lastly, I spent an entire month writing this as a fan who is sympathetic to the villains in general and the MLA in particular. If your response to the very concept of this essay is anything to the tune of, “Who cares what happens to a bunch of disgusting quirk eugenicists?” know that you and I have radically different views on the MLA, and the role of the justice system in general. You are, of course, welcome to read the essay anyway, but, having said my piece about the MLA and their relationship with quirk supremacy elsewhere, I will not be engaging with arguments or gotchas on that subject here.

PART ONE: The Facts at Hand

Before we get too deep into things, let’s lay out the basic facts: how many people are actually involved in the arrest, as well as some comparisons to real-life events to contextualize that number and provide some referents for the issues the arrest raises.

Re-Destro gives the numbers of the Metahuman Liberation Army as 116,516. A lot of people go on to die in Deika, though we’re never given a solid count. The biggest batch we see killed in a single go are the press of sixty or so people Shigaraki decays, then the sixteen-ish Toga drops, though some of those might possibly have had quirks that allowed them to survive. Any number of people certainly died as well simply in the moments we didn’t see, and who even knows how many were caught in the radius of Shigaraki’s last attack.

Further, there may well have been a measure of organization bleed when the MLA became the PLF (though I imagine trying to leave was a very dangerous proposition, giving an additional reason to stick it out on top of the general cult-like mindset the MLA displays); likewise, I find it hard to believe that there wouldn’t have been some deaths at the Gunga Villa, be it from Gigantomachia’s departure, Geten cutting loose, or combatants—be they hero or comrade—overcompensating somewhat in the middle of a chaotic melee.

I suspect it’s overestimating the depletion, but for the purposes of simplicity, let us call it 115,000 remaining members at the time of the raid.[1]

We are told that, in all, 16,929 people were captured at the villa—just about 17,000. 132 escaped in the confusion; this is a fairly negligible number, save for the fact that it includes high-ranking advisors, but not Machia and those of the Front that were with him.

We are further told, and I quote, “Their bases scattered around the country were hit too, and the sympathizers rounded up.” Horikoshi did not provide any solid numbers for this,[2] but if we’re to assume that it is just the rest of the group (more on the logistics of that bit of spycraft later), “the sympathizers” would be 98,000 additional people.

However, 98,000 may be a significant underestimation. It’s based, after all, on a number Re-Destro cites to describe “warriors lying in wait, ready to rise to action.” This begs the question: is Re-Destro quoting the entire membership of the group, or only those who actually are ready to take action? In other words, does his number account for non-combatants? Is he counting young children? I tend to assume the MLA doesn't have a retirement age as such,[3] but if they do, does his number account for the elderly?

How many more people might be “sympathizers” to the PLF insomuch as they are e.g. the six-month-old infant daughter of an MLA couple? What about the ninety-year-old man in the retirement home whose only real act of war these days is tying up the phone line at City Hall to complain about repressive quirk use laws? How about the fired-up fifteen-year-old that was going to get their official code name next month, just in time to join the first wave of attacks? If he’s being literal in his usage of “warrior,” the actual count of the MLA could easily be twice as high as the number he actually gives.

But okay, maybe Re-Destro’s number does include absolutely everyone. Maybe he’s just being rhetorical—maybe, in his mind, even the six-month-old is waiting to rise to action; she’s just going to have to wait a bit longer than the rest, is all. For simplicity’s sake, let’s stick with the numbers we have: a low-end of 17,000, a high-end of 115,000, captured not merely in a single day, but allegedly in the span of a few hours.

I’m sure I don’t need to stress that that is a lot of people. But how many people is it, practically speaking? Is there a precedent? Anything we can look to for guidance on how this kind of thing would go in real life?

Comparative Analogues

The PLF is tricky to categorize for the purposes of real-life comparison, especially compared to how they’re treated in-universe. In some lights, they resemble a protest movement; in others, a terrorist group. Just looking at the way the government reacts to them—and certainly in terms of their combat capabilities—they might as well be an all-out insurrectionist uprising! Below, I’ll examine a handful of historical incidents that cover that spectrum; they will continue to provide useful reference points throughout the rest of this essay.

The March 15 Incident

In the first half of the 20th century, Japan saw a huge uptick in socialist and communist activity, much to the general dismay of the ruling powers. In response, they passed a series of laws commonly referred to as the Peace Preservation Laws, designed to better enable authorities to suppress political dissent and freedom of speech, particularly that of leftists and labor movements.

The Japanese Communist Party was founded in 1922, but outlawed in 1925. This merely drove members underground, however, from which position they pointed supporters towards the numerous other parties with more legally tolerated leftist policies that had cropped up in the wake of the JCP’s dissolution. Following the February 1928 General Election (the first in Japan held with universal male suffrage), those parties supported by the JCP saw enormous gains in representation in Japan’s National Diet. Alarmed, the Prime Minister declared the mass arrest of known communists and suspected communist sympathizers. Accordingly, on March 15, 1,600 people were arrested throughout Japan.

Over the course of twenty years, some 70,000 people would be arrested under the auspices of the Peace Preservation Laws, the majority of them in 1925 through 1936. The laws would eventually be repealed by American occupation forces after WWII, and the JCP allowed to operate openly once again.

The Rice Riots

In 1918, an inflation spiral had driven the price of rice out of control, exacerbating economic insecurity and hardship. Farmers were being paid a pittance of the market value of their crop by rice buyers and government agents, while urban consumers were being charged an exorbitant price for the staple food, as well as a great many other consumer goods, and their own rents. In response, a series of riots ripped across Japan in late July through September. Beginning with peaceful protesting in a small fishing town in Toyama Prefecture, the unrest escalated to involve riots, strikes, looting, even bombing in demonstrations that reached major cities like Tokyo and Osaka. The scope was and remains unprecedented in modern Japanese history, seeing some 25,000 people arrested.

The Sarin Gas Attacks

If you’ve heard of any of them, it’s probably this one. On March 20, 1995, members of the cult Aum Shinrikyo released sarin gas on five different Tokyo Metro trains in the middle of morning rush hour. Thirteen people were killed and over 5500 injured, about a fifth of them moderately to severely so. If not for small errors in the production of the gas and the rudimentary distribution method thereof, loss of life might easily have been catastrophically higher.

Aum Shinrikyo was a doomsday cult, but the motives for that particular attack were much baser than bringing about the Apocalypse: at the time, the organization was under police investigation for its involvement in the kidnapping of a public official. Its leader, Asahara Shoukou, hoped that the attack would divert police’s attention from a planned raid.

It did not do so; police executed raids on numerous of the cult’s compounds, arresting many of its senior members both immediately and over the course of the following months as the investigation unfolded. In all, over 200 members were arrested of an organization that counted its membership prior to the attack as numbering 11,000 people in Japan.[4]

The February 26 Incident

There have been a significant number of uprisings and violent protests in Japan’s modern history; when looking for a representative example, I focused my attention on the military coups of the 1930s and 40s, largely because they took place in what was closest to the modern Japanese legal context.[5] Of that subset, I chose the February 26 Incident for the severity of the government response. The others disintegrated before they could be properly carried out or were met with sympathy for the dissidents despite the obvious illegality of their actions. The February 26 Incident, however, was when they finally became too troublesome to dismiss, and the Emperor himself ran out of patience.

In this period, the Japanese military had become drastically factionalized into two main groups—an ultra-nationalist group, largely powered by a group of young officers, which supported the Emperor and wanted to purge Japan of Western influences, and a more moderate group mainly defined by their opposition to the above faction.[6] Occurring in 1936, the February 26 Incident involved the young officers, believing that they had tacit approval from higher-ranked officers of their own faction, launching assassination attempts against the nationalists’ most prominent enemies in the government (six assorted Ministers and former Ministers in the Emperor’s Privy Council and the Diet) and a bid to seize control of the administrative center of the capital and the Imperial Palace, after which they planned to demand the dismissal of more officers and the selection of a new Cabinet.

The seven ringleaders had convinced eighteen other officers to lend their forces to the attempted coup, a total of around 1,500 men, calling themselves the Righteous Army. Several of their assassination attempts failed, however, and while they succeeded at taking the Prime Minister’s residence and the Ministry of War, they did not manage to secure the Palace. The outraged Cabinet demanded the Emperor take a hard line with the rebels, and by the 29th, the Righteous Army was surrounded by 20,000 government troops and 22 tanks. In this hopeless situation, the officers dismissed their troops; two committed suicide (a third attempted it unsuccessfully) and the remainder were arrested by military police.

International Examples

For obvious reasons, I prefer to limit my examples to events that happened in Japan. However, I will also be briefly referring to a few international incidents of mass arrest, taking place in India, the U.S., and Egypt, respectively.

In the following parts, I'll use these facts and comparative analogues to take a closer look at what readers were told became of the Paranormal Liberation Front.

Part Two

-----------------------------------------------------

Footnotes (Part One)—

[1] Over three months’ time, they likely gained some new blood also, simply in the course of their usual recruitment tactics. You don’t get an underground organization that size by sitting back and waiting for people to come to you, after all. I don’t know a practical way to calculate that, though, so just bear it in mind for when I talk about new members later.

[2] Possibly because he was aware that 17,000 people captured in one fell swoop was difficult enough to swallow without adding on more than five times that number.

[3] We do, after all, see some very aged people fighting in the streets of Deika.

[4] They were considerably more international than you may have heard. They had 50,000 members at the time, some 30,000 of them based in Russia.

[5] The Meiji Constitution was ratified in 1889; universal suffrage (for men) was granted in 1925. The modern constitution was enacted in 1947.

[6] More moderate, mind, in the context of the Imperial Japanese military. Neither of these factions had any time whatsoever for leftist movements, hence all those suppressive crackdowns.

#bnha analysis #bnha meta #paranormal liberation front #meta liberation army #boku no hero academia #my hero academia #bnha #bnha spoilers #my writing #plf arrests #stillness has salt

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Introduction to Law, 7th Edition PDF by Beth Walston-Dunham and John D. DeLeo

Introduction to Law, 7th Edition By Beth Walston-Dunham and John D. DeLeo Contents TABLE OF CASES | xv PREFACE | xvii ACKNOWLEDGMENTS | xxi 1 CHAPTER 2 THE HISTORICAL BASIS AND CURRENT STRUCTURE OF THE AMERICAN LEGAL SYSTEM THE HISTORICAL BASIS OF AMERICAN LAW | 3 Before the Government | 3 The Results of the Revolution | 5 The Influence of Political Theories | 10 Balance as the Key to Success…

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Download [ebook]$$ Introduction to Law (Epub Kindle)

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Discover an appreciation for today's law as you learn how law affects virtually every facet of modern life and society with Walston-Dunham's best-selling INTRODUCTION TO LAW, 7E. You begin with a detailed look at the organization of the U.S. system of government. This edition's timely, clear presentation guides you through each of the primary substantive areas of law as you complete realistic assignments, examine relevant ethical issues and review easy-to-understand judicial opinions that reinforce the topics within each chapter. From fundamental concepts to emerging legal topics, INTRODUCTION TO LAW, and accompanying print and digital MindTap resources, help you thoroughly understand legal terminology, principles of law and key cases that are impacting society -- and so many professions -- today.

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MISCONCEPTION OF WOMEN’S POSITION IN ISLAMIC INHERITANCE LAW

[this paper is a rough version of a paper that will be published by Center of Islamic Law, Faculty of Law University of Indonesia in its Journal of Islamic Law Studies]

I. Introduction

Coincided with the emergence of a powerful movement of feminism that endorses gender equality in the 19th and 20th centuries, concerns were also raised about the status of women in Islamic law. Many misrepresentations and misconceptions about how women are treated under sharia law are used to argue that Islam is misogynistic; consistently a controversy with Islamic inheritance law.[1] The perception of unfair rules and a discriminatory treatment based on gender was built on initial reading of some Quranic verses, especially Surah An-Nisa verse 11 that states: “God has enjoined you concerning your children: a male shall inherit twice as much as a female. If there be more than two girls, they shall have two-third of the inheritance; but if there be one only, she shall inherit the half….”[2]

However, Islamic inheritance law is stipulated in many verses, generally, under Surah An-Nisa (Women) Chapter number 4 verses 11, 12 and 176, and several hadiths.[3] ��Those inheritance verses arguably are the most linguistically difficult, complex, and extensive verses in the Quran. Therefore, to reach an accurate conclusion on any issues relating to the inheritance, it is crucial to have a comprehensive understanding of the rules and application of the rules in the system in which it occurs; i.e., system of Islamic financial responsibilities within the family or society. The piecemeal application of certain practices without having a holistic view and context may lead to an erroneous judgement and an impression that Islamic inheritance law is biased towards women.

This paper serves as a primer in examining common misinterpretation of Islamic inheritance law by delving into the fundamental idea of the rules and examining detail application of the rule based on research of the classic literature and modern fatwas from Muslim jurists. This paper seeks to argue the notion that Islamic inheritance law provides gender-based unfair treatment.

II. Discussion

While it is interesting to discuss the Islamic law from a comparative historical perspective such as examining the fact that Islam’s declaration of inheritance for women preceded the western world by a millennium, where “until the end of the sixteenth century, women in western world were basically denied having the right to inherit property”[4], in this section, we will only examine the issue from legal and regulatory perspective. This section is divided into three parts.

The first part will discuss the kalala case. The Quran provides various inheritance rules for various scenarios. Remarkably, there are two rules of inheritance that are virtually contradicting with one another i.e., rules under Quran 4:12 and 4:176 that regulate the distribution of shares to brothers and sisters if the deceased person leaves neither parent nor child (mentioned as kalala under the Quran). One rule is favorable towards man whilst the other rule does not. This first section will show that gender is not a determinant factor in solving the issue. The second section will examine the validity of common generalization that “women always get half of what men get” through examining every single possible scenarios in Islamic inheritance law and review whether in those scenarios, women always get half or less than men. In the last section, we will review the fundamental reasons on why in some cases women get half (or less than) of what men get.

A. Muslim jurists’ interpretation on “Kalala” showing that gender is not the determination aspect

The word kalala is a dis legomenon, a word that occurs twice in the Quran, both times in Surah An-Nisa verse 12 and 176.[5] During the early period of Islam, the Muslim community devoted considerable effort to defining the meaning of this word as there was an absence in Arabic language of term “kalala”.[6] For many years, Muslim jurists debated on the definition of the term. Some jurists such as Ibn Abbas is of the view that the term refers to “a man died leaving no child (al-walad) (but could probably still has parents)”.[7] After a long period of debate, majority of the Muslim jurists, reached consensus that the term should be defined as “a man dies leaving neither parent nor child”.

The word kalala was first mentioned in An-Nisa verse 12 which vocalized as follows:

وَإِنْ كَانَ رَجُلٌ يُورَثُ كَلَالَةً أَوِ امْرَأَةٌ

wa-in kana rajulun yurathu kalalatan aw imra’at

If a man or woman leave [kalala] (dies without) neither parent nor child,

وَلَهُ أَخٌ أَوْ أُخْتٌ

wa-lahu akhun wa ukhtun

and he or she has a brother or sister,

فَلِكُلِّ وَاحِدٍ مِنْهُمَا السُّدُسُ

fa li kulli wahidin minhuma al-sudusu

each one of them is entitled to one-sixth (1/6),

فَإِنْ كَانُوا أَكْثَرَ مِنْ ذَٰلِكَ فَهُمْ شُرَكَاءُ فِي الثُّلُثِ

fa in kanu akhthara min dhalika fa hum shurakau fi al thuluthi

if they are more than that, they are partners with respect to one-third (1/3),

Under this verse, it is clear that the Quran provides a same portion of shares to a brother and sister of the deceased person which is one-sixth of the total assets (after any legacy that is bequeathed, and debt is paid). Furthermore, if the brothers and sisters of the deceased consist of more than one person, they will have equal shares of one third of the assets. Therefore, regardless of the number of brothers and sisters of the deceased, this provision under verse 12 provides that, in this scenario (kalala scenario), a man (the brother) will inherit the same portion of shares with a woman (the sister).

The second Quranic verse in which kalala appears is in the verse 176 of Surah An-Nisa. The word was mentioned in the first line of the last verse in Surah An-Nisa. According to the companion al-Bara ibn Azib (d. AH 72/691-92 CE), this verse was the last verse of the Quran to be revealed to the Prophet.[8] This verse awards shares of the estate to siblings in the same scenario under QS 4:12 which is kalala scenario. The verse stated as follows:

يَسْتَفْتُونَكَ قُلِ اللّهُ يُفْتِيكُمْ فِي الْكَلاَلَةِ

yastaftoonaka. kulilleahu yufteekum fil kalalati

(when) they ask you for a ruling, say: God gives you a decision concerning the kalala,

إِنِ امْرُؤٌ هَلَكَ لَيْسَ لَهُ وَلَدٌ وَلَهُ أُخْتٌ فَلَهَا نِصْفُ مَا تَرَكَ

inimruun halaka laysa lahoo walad(waladun), wa lahoo uhtun fa lahea nısfu mea taraak(taraaka)

if a man dies without a child, and he has a sister, she is entitled to half of what he leaves,

وَهُوَ يَرِثُهَا إِنْ لَمْ يَكُنْ لَهَا وَلَدٌ

wa huwa warisuhea in lam yakun lahea walad(waladun)

he is her heir if she does not have a child,

فَإِنْ كَانَتَا اثْنَتَيْنِ فَلَهُمَا الثُّلُثَانِ مِمَّا تَرَكَ

Fa in keanatasnatayni fa lahumeas suluseani mimmea taraak(taraaka)

if they are two, they are entitled to two-third of what he leaves.

وَإِنْ كَانُوا إِخْوَةً رِجَالًا وَنِسَاءً فَلِلذَّكَرِ مِثْلُ حَظِّ الْأُنْثَيَيْنِ

Wa in keanoo ıkhwatan rijealan wa niseaan fa liz zakari mislu haazzıl unsayayn(unsayayni)

if they are brothers and sisters (emphasis added), a male is entitled to the share of two females.

Unlike QS 4:12 which stipulates various scenarios for inheritance including kalala scenario, QS 4:176 from the beginning indicates that the verse will discuss specifically the kalala scenario by saying that “God gives you a decision concerning the kalala”. The subsequent line seems to provide the term that kalala defined as a man who dies without a child. Further, the verse provides several scenarios including a scenario where a man or woman leave neither parent nor child, but brothers and sisters, the brothers and sisters will inherit jointly with the male (brother) receives twice the share of a female. Interestingly, this scenario is identical with QS 4:12 in which the brothers and the sisters will equally inherit one third of the estates.

According to the abovementioned, we took note that there seems to be a contradiction between QS 4:12 and QS 4:176 - If a man or woman leave neither parent nor child but has brothers and sisters:

1. according to QS 4:12, the brothers and the sisters will have the exact number of shares, equally divided from one third of the estates; however,

2. according to QS 4:176, the brothers will obtain shares twice as large as the sisters who inherit together with him.

Contradictory rulings of Islamic revelation under the Quran are arguably one of the common issues in Islamic law. To solve this kind of issue, Muslim jurists introduce the concept of “naskh mansukh" or “abrogating-abrogated”. In Islamic legal exegesis (tafsir), naskh is a theory developed to resolve contradictory rulings of Islamic revelation by superseding or canceling the earlier revelation.[9] In the widely recognized and "classic" form of naskh, an Islamic regulation/ruling (hukm) is abrogated in favor of another, but the text the is based on is not eliminated.[10] Some examples of Islamic rulings based on naskh include a gradual ban on consumption of alcohol (originally alcohol was not banned but Muslims were told that the bad effects outweighed the good effects in drinking), restriction to provide bequest (al-wasiat) to the heirs (originally the heirs can receive bequest under Q 2:180) and a change in the direction (the qibla) that should be faced when praying salat (originally Muslims faced Jerusalem, but this was changed to face the Kaaba in Mecca).[11] The concept of naskh mansukh is identical with the concept of “lex posterior derogat legi priori” in western civil law system which means a later law revokes/amends an earlier law. According to the naskh mansukh doctrine, the provisions under QS 4:12 that contradict with QS 4:176 should be revoked and replaced with the provisions under QS 4:176. Nonetheless, the Muslim jurist never used naskh mansukh doctrine to solve the contradiction between QS 4:12 and QS 4:176.

Due to the limited guidance from the Prophet about the kalala, it takes years for Muslim scholars to answer the discrepancy between QS 4:12 and QS 4:176 without using the naskh mansukh doctrine. According to Ibn Rushd and Sheikh Ali Gomaa (the former Grand Mufti of Egypt and a member of Al-Azhar University high council), the Muslim scholars have reached a consensus on how to deal with the contradiction with the following solutions:[12]

1. QS 4:12 (which provides that brothers and sisters obtain equal portion) applies to siblings that have the same mother but do not share the same father;[13] and

2. QS 4:176 (which provides that brothers get twice more than sisters) applies to siblings that share the same father.

The conclusion comes from an understanding where sharing the same father would cause the male child to inherit the father’s financial responsibilities if the father passed away (or are unable to take the responsibilities). Therefore, the portion of the brother is larger in order to support his family’s financial including the sisters. Conversely, in a case where the siblings do not share the same father, the brother does not have the financial burden, therefore the sister is equally entitled.[14]

As seen in the example, it demonstrates that in determining the portion of shares between individuals (men and women), the gender of the individual does not play as the main factor, but it is more so on the individual’s financial responsibilities. If Islamic law merely decides shares proportion based on gender, the Muslim jurists should easily be able to conclude by eliminating provisions under QS 4:12 and replace it with provisions under Q 4:176, which are generally more favorable to men (especially the revocation is supported by the doctrine of naskh mansukh). Given the fact, that applicability of both verses is maintained it is clearly misleading that Islamic inheritance law implements gender-based rulings.

B. Statistics on Islamic inheritance law scenarios – Twenty-eight scenarios in which a woman inherits either the same or more than a man

The most popular rule on the Islamic inheritance is that “a women inherits half that of a man” which implies that Islamic inheritance law is biased towards woman. The fact is that such a rule does not exist in Islamic inheritance law. There is no single Quran verse that stipulates shares proportion based on gender and instead the Quran regulates the matter by considering the position of the individual in the deceased’s family. For example, the Quran does provide in QS 4:11 that “the share of the male will be twice of the female.” However, it should be noted that the verse starts by saying “regarding your children….” Therefore, the provision does not discuss the general inheritance rules for men and women but limited to sons and daughters. As we have discussed in the section relating to kalala previously, we understand that there is a scenario in which a woman receives an equal share with man. Therefore, a generalization to the inheritance law based on one or two scenarios should not be accepted.

In this section, we will investigate and classify every possible scenarios of Islamic inheritance that researchers have compiled to have a holistic understanding about women’s position in Islamic inheritance law. The statistics that Muslim scholars have compiled shows that an assumption that a woman always inherit half that of or less than a man is entirely incorrect and inaccurate. As a matter of fact, the research presents that:[15]

1. there are only four (4) scenarios in which a woman inherits half that of a man;

2. there are nine (9) scenarios in which a woman inherits an equal share with a man;

3. there are fourteen (14) scenarios in which a woman inherits more than a man; and

4. there are five (5) scenarios in which a woman inherits, and the male does not inherit.

In summary, there are twenty-eight from thirty-two scenarios in Islamic inheritance law in which a woman inherits either the same amount as a man or more than him.[16] Even in some cases, a woman could receive the shares while her male equivalent does not inherit at all.

The scenarios in which a woman inherits half that of a man:[17]

1. A daughter who inherits with her brothers along with the granddaughter and grandson of the deceased.

2. A mother who inherits with the father when the deceased has neither children nor spouses.

3. Sisters who inherit alongside her brothers from the same father.[18]

4. A daughter with brothers from the same father and a different mother.

The scenarios in which a woman inherits a share equal to that of a man:[19]

1. A mother and a father who inherit with the son of the deceased. The mother and the father each inherit one sixth of the total estates.[20]

2. Brother and sister who shares a mother but have different fathers. Each inherit one sixth of the total estates. However, if there are more than two siblings, the brothers and the sisters will share one-third of the estate equally.[21]

3. A daughter who inherits with her paternal uncle or the closest agnate of the father, in the absence of another child who would bar her from inheriting. The daughter and the uncle or the closest male agnate inherit one-half, respectively.

4. When a husband, mother, and two (or more) sisters of the same mother but different fathers inherit along with a male sibling. This ruling is based on the ijtihad or verdict issued by Umar ibn Al Khattab in which he argues that two sisters of one mother and different fathers, the male sibling are to share one third of the inheritance.[22]

5. When a man or a woman is the sole heir. For example, the son inherits the entire estate if he is the sole heir based on agnation (line of descent traced through the paternal side of the family), while a daughter would inherit one half of the legacy based on cognation (line of descent traced through the maternal side of the family), but then receive the remainder by default because she is the sole heir.[23]

This shows equality between the genders; were the deceased to leave his/her father as the sole heir, he would inherit the entire legacy by agnation. Likewise, were the deceased to leave behind a mother, she would inherit one third of the legacy based on cognation and the rest would be hers by default due to the absence of any other heirs.[24]

6. If a woman leaves behind a husband and a female sibling. In this case the female sibling and the husband of the deceased receive the same portion.[25]

The shares distribution would be the same if the woman leaves behind a husband and a male sibling. The husband would take a half of the legacy and the brother would take the rest by agnation.[26] Another scenario that shows an equality between the genders (in this case, male and female siblings).

7. When the woman leaves behind a sister who shares her mother but has a different father, and a male sibling. This scenario occurs when the deceased woman leaves behind a husband, a mother, and a sister and brother from the mother’s side. The sister of the deceased (from mother’s side) and the brother take one sixth, respectively.[27]

8. If there are no direct descendant of the deceased, the those of blood relation on the mother’s side of the deceased inherit the same amount regardless of gender.[28]

9. This scenario is not relating to the calculation; however, to the rights of inheritance. According to the Quran, it is clear that there are six people who are never barred (mahjub) from inheritance, three male and three female. They are husband, son, father, wife, daughter, and mother.

In the following scenarios, a woman inherits more than a man:[29]

1. When the husband inherits with his only daughter. The husband takes one-fourth (twenty five percent) of the estate, the daughter receives one half plus (fifty percent) of the estate.[30]

2. When the husband inherits with his two daughters. The husband takes one-fourth (twenty five percent) of the estate, each daughter receives thirty eight percent of the estate.[31]

3. When the daughter inherits with her (paternal) uncles. The daughter takes one half while the uncles only receive one forth, respectively. Even if the daughters are more than one, the shares portion for the group of the daughters is 2/3 while the group of uncles only receives one third.

4. If a woman dies and the heirs are her husband, her father, her mother and two daughters. The daughters will inherit more than half of the estate (each more than one forth which is higher than the husband and father).

5. If a women dies and the heirs are her husband, two female siblings and her mother. The two sisters inherit two third of the inheritance.

6. The same situation with previous number, but the deceased left behind two sisters from the father’s side: they would inherit more than two brothers from the father’s side.

7. If a woman dies and leaves behind her husband, father, mother and daughter, then the daughter will inherit half of the estate.

8. If a woman dies and leaves behind her husband, mother, and sister. The sister inherits forty five percent of the estate. However, if instead of the sister there had been a brother, he would only inherit around fifteen percent of the estate. In this case, it is clear that a sister inherits more than double her brother (in an identical circumstance).

9. If a man dies and leave behind a wife, a mother, two sisters from his mother’s side and two brothers and, for example, his estate is forty-eight acres, then two sisters from his mother’s side would inherit around sixteen acres total (eight acres each). This portion is higher than the brothers who only receive six each.

10. If a women dies and leaves behind her husband, her sister from her mother’s side and two brothers and her inheritance, for example, one hundred twenty acres, the sister from the mother’s side would receive one third which is forty acres. The two brothers inherit a total of twenty acres. In this situation, two sisters from mother’s side inherit four times the brothers.

11. If a man dies and leaves behind his father, mother, and a wife, then the wife inherits half, the mother inherits one third and the rest which is one sixth is the portion of the father.[32]

12. If a woman dies and leaves behind her husband, mother, a sister from mother’s side and two full brothers. The sister’s share is double than the full brothers, even though she is a more distant relative to the deceased.

13. If a man dies and leaves behind his wife, father, mother, two daughters and a son’s daughter, and the inheritance, for example, is five hundred sixty-eight acres, then the daughter of the son inherits ninety-six acres. If the deceased had left a son of his son, he would only take twenty-seven acres.

14. If the deceased leaves a mother, maternal grandmother, and paternal grandmother, then the mother inherits one-sixth as her allocated share and the remainder by the method of return (radd). For the same scenario, however the position of the mother is changed to a father, the father if he were in her place, would receive smaller portion of share.

In the following scenarios, a woman inherits, and the man equivalent does not inherit:[33]

1. If a woman dies and leaves behind her husband, father, mother, daughter, and the daughter of her son, then the daughter of the son would inherit one sixth. However, if the son had a son instead of a daughter, the son would not receive anything.

2. If a woman dies and leaves behind her husband, a full sister and a sister from her father’s side, and, for example, the inheritance is eighty-four acres, then the sister from the father’s side would inherit one sixth (twelve acres). However, instead of a sister, there was a brother from the father’s side, he would inherit nothing, as half goes to the husband and the other half goes to the full sister.

3. In general, grandmothers inherit while grandfathers do not. A grandfather who inherits is one who does not have a woman between him and the deceased. The grandmother who inherits is one who does not have between her and the deceased a person who does not inherit. In other words, it is every grandmother who does not have between her and the deceased a father between two mothers.

4. If a person dies and leaves behind a maternal grandfather and a maternal grandmother, then the grandmother inherits the entire estates. The grandfather does not inherit.

5. If a person dies and leaves behind the father of the mother of his or her mother, the mother of the mother of his or her mother, then the great-grandmother inherits the entire inheritance.

As indicated in the beginning of this section, we have seen that there are almost thirty cases where a woman receives the same portion of shares as or more than a man, as well as where she has received a share, and the man does not. In contrast, there are only four cases where a woman inherits half the share of a man. Therefore, it is undoubtedly false that the Islamic inheritance law provides unfair treatment towards the women is incorrect.

C. The difference in shares portion is not based on the gender of the heir but mainly on responsibilities

Based on the first section, we have come to an understanding that financial responsibility of an individual is one of the conditions that affect the distribution of shares. Muslim jurists generally have concluded that there are two other primary conditions, as follows:

1. The degree of kinship to the deceased: Regardless of whether the heir is male or female, the closer the relationship to the deceased, the more an individual will receive. For example, a deceased woman’s daughter is entitled to half the inheritance while the husband of the deceased only receives one fourth. In this case, the daughter gets double than what the husband gets. The reason of the ruling is that the daughter is a direct blood descendant of the deceased, which is closer with the deceased than the husband.[34]

2. The generation to which the heir belongs: grandchildren usually receive more inheritance than grandparents as the former will likely have more financial burdens in the future.[35] At the same time, the grandparent’s needs generally should also be supported by other members of the family. The system works without consideration of gender. For example, the daughter of the deceased inherits more than the deceased’s father.[36]

In regard to the financial responsibility, it is undeniable that the Islamic law differ according to gender. For example, in the above sections, we understand that brothers that share the same father with the sisters would receive more shares than his sisters. Another example is that when the individuals in a group of heirs are equal in both their relation to the deceased and their age, the son of the deceased will receive twice as much share as the daughter. However, this disparity is not intended to cause injustice to the female. On the contrary, the reason is that to provide financial advantage for the female from any circumstances that would place her in financial difficulty. The idea of providing advantages for female is similar with the idea of modern feminism.[37]

To understand the point above, we have to understand the financial responsibilities of men and women in Islamic law, as follows:

1. A man is required to financially support his wife even if his wife is extremely wealthy.[38] Further, majority of the Muslim jurists agree that in a case where the wife needs a maid(s) to handle the household affairs[39], then the husband is required to provide and bear the cost of the maid.[40] Moreover, majority of the Muslim jurists agree that if the wife thinks that she does not have capacity to handle household affairs or herself, the husband must provide at least one maid to assist the wife and handle the household affairs. Some jurists even argue that the wife has the right to demand her husband to provide a maid if she does not want, for any reasons, to handle domestic affairs.[41] This discussion, among others, stems from the Quranic verse that states: “Mothers may nurse [i.e., breastfeed] their children two complete years for whoever wishes to complete the nursing [period] (وَالْوَالِدَاتُ يُرْضِعْنَ أَوْلَادَهُنَّ حَوْلَيْنِ كَامِلَيْنِ ۖ لِمَنْ أَرَادَ أَنْ يُتِمَّ الرَّضَاعَةَ).”[42] Some jurists argue that the word “أَرَادَ (a ra da)” that means “want or wish” indicates that the nursing the children and handling domestic affairs (this matter is being analogized to the verse as there is no verse in the Quran that mentions responsibilities to handle domestic affairs in the family)[43] is not absolute obligation of the wife, but the wife could do that voluntarily or based on her willingness.[44] In such a case, the responsibility to take care the household affairs falls to the husband by, among others, providing a maid to the wife. This position is acknowledged by classic and modern authoritative jurists but, unfortunately, few understand this finer point.

On the other hand, the female or the wife has no obligation at all to financially support her husband or their family’s needs (as the needs must be funded by the husband) again even if the wife is extremely wealthy.[45] All of the wife’s assets belong to her and under her full authority to dispense.

2. Men are also required to financially help the members of their extended family if the circumstances risen.[46] This is particularly true if they inherit money, since they then are required to assume the deceased’s societal and family role.[47] While majority of the Muslim jurists agree that a man should at least be responsible to his mother and sister, some even argue that a man must also support his distant relative if necessary (this view if from some Hambali and Maliki scholars).[48]

The responsibilities are attached to the wealth of the man including the assets that he receives from inheritance. In contrast, in any inheritance scenarios (especially where a woman receives half of the man’s inheritance), the woman’s new income is protected by the Sharia and is hers to dispense with as she wishes as she has no responsibilities to her family members.[49]

As a separate but important note, the protection for women’s wealth does not mean that the women do not have the right to be independent and actively involve in the society (including having a business or holding public position) as many women in early Islamic era took important roles in the community. For example, Khadija who were one of the most successful entrepreneurs in Mecca and Aisha who were acting as a military general during the last period of Rashidun Caliphate. Those powerful women assumed significant roles in the community since around 600 AD while, as a comparation, the United States granted women the right to vote in 1919 AD. However, the matter would not be further discussed in this paper.

According to the above, it is clear that Islamic inheritance together with its system of financial responsibilities in the family provide more favorable provisions to women than men and grant preferences to women over men.

III. Conclusion

While some group of people argue that the Islamic inheritance law provides gender-based unfair rules to the women, according to the above discussions, we understand that the fact is the opposite. The above has shown that Islamic inheritance law is not formed based on consideration of gender but on the responsibilities of the relevant individual in the family as well as his/her relationship with the deceased person. In fact, we note that there are twenty-eight scenarios (from thirty-two scenarios) in which a woman would inherit same or higher number of shares than man. By having a comprehensive understanding on Islam, one can clarify misinformation, propaganda, and ignorant stereotypes that may be revolving in the society. One can also actively involve eradicating gender-biased practices that essentially is in contradiction with the teachings of Islam.

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