M L Touray wrote:

I never said that Legal Positivism is outdated; what I said is that your definition of the philosophy is primordial. Contemporary scholars of Legal Positivism do qualify the sovereign authority, while earlier versions do not.”

If I remember very well, this was what I stated in my email of the 13 August 2009, which you misinterpreted as my definition of legal positivism, just as you twisted the UDP passage. This was what I stated:

“the position of the legal positivists, which John Austin, one of the proponents of that school of jurisprudence, explained about positivism of law and the sovereign powers. He accepted that the sovereign might not be a person who by divine or natural right could tell us what we ought to obey, but he is identified by the fact that he is obeyed and his commands are in fact what we call laws. Therefore, he stated that the sovereign is he who receives habitual obedience within a political society. He further added that the sovereign could not be bound by laws promulgated by previous sovereigns and his powers to make laws could not be limited”.

 

Now tell me where in this passage did I qualify that this was the definition of legal positivism? And even if I did, how can this position be outdated. Is it a thing of the past that the sovereign states receive habitual obedience of their subjects in a political society? Or that the sovereign states are bound by the laws of their predecessors or have limits to what laws they can make? The answer here is a big no.

 

ML Touray, you therefore cannot be correct in calling this position of legal positivism as outdated, regardless how you try to twist your words?

 

As for your claim that based on my:

“definition, the primordial definition, apartheid laws and Mandela’s 27 years of incarceration would be legal because they were formed by a sovereign nation. In the same vein, the holocaust would be considered legal because it was formed by a sovereign nation.” ML Touray

Firstly, I rebut your claim that what I explained above is my definition of legal positivism and it does not sanction the laws of the Nazis or that of the apartheid regime of South Africa as morally justifiable laws.

Secondly, what you failed to understand is that no philosopher will support your supposition that the laws of the Nazis were not legal in the context of the German law, at the time of Hitler. What was argued later, was that they were morally unlawful laws, that ought not to have been enforced.

Even that justification, was not without its critics. The war trials of the Nazis war criminals in Nuremburg and Tokyo was criticised by J. N Shklar, as a pretence of legalism, which was a mere sham. She stated that “it would have been more frank to recognise them as the elimination of enemies, justified on political grounds.”

And she indeed has a point. Even not just from the political perspective, but on the legal perspective, which is that it contradicts the legal doctrine that law cannot have retrospective effect. The Nazis argued that they acted within the laws of their land at the time, but it was adjudicated that those were bad laws and the good laws which were existing at the time of the trial could sentence them for those crime. That was a retrospective application of the law. Just like making a law today to persecute those who took part in the slave trade!

From the political perspective, it was only the Nazis who were prosecuted for the Holocaust, but the Americans were not prosecuted for using the nuclear bomb on the two Japanese cities, or for their part in the slavery, which were as brutal as the holocaust? And if the trials had further set a legal precedent, why was George Bush and Tony Blair not prosecuted for the fake war in Iraq, and why has no Israeli ever been prosecuted for the killings of innocent Palestinians?

But it seems that the effect of that tribunals’ legal precedent is mainly for Africa and Africans, with the exception of certain Baltic States. It cannot apply to the US soldier, as the tribunal lacks jurisdiction of the US soldiers. Do you have an answer to this discrimination? This is a question you can’t answer.

Therefore, you will be a damned fool to think that every thing in this world is just, except the Gambia.

You further mentioned Nelson Mandela and the apartheid laws. Do you even know a similar law existed in the mighty United States called Segregation? Mandela was a legal scholar, shortly after his release, he did not set up a tribunal to prosecute the apartheid regime, but set up a truth and reconciliation commission. We cannot ponder on the legitimacy of the law locked him for such a long time, as no one was tried for its crimes; just like no one was tried in the United State for similar crimes.

But this still does not justify the immorality of such laws! And if I’m right, such laws have now been repealed in the constitutions of both South Africa and the United States.

Therefore, ML Touray, make no mistake, every law is legal at its time. They ceased to be law once repealed. If we detest the laws of Yahya Jammeh regime, we have to change him and then repeal his laws. At that time we can make laws that are morally acceptable to us. Until then it would be wronged to question the legality of his laws.

As for your question about “why do we need human right laws, African Charter, and others? There are fundamental human rights, such as the right to life, free speech, association, and many others that cannot be denied by any sovereign nation. Therefore sovereign nations cannot form arbitrary laws just to punish a certain section of society or contravene their National Constitutions”.

The question I want to ask you is that, what will you do, if the sovereign’s breach their conventional obligations. The simply answer is nothing. Simply because what you failed to understand is that all these conventions, you are referring to, were all craftily drafted; such that they are all subjected to the condition of none interference with the sovereignty rights of a contracting state.

You still seem oblivion to the concept of sovereignty. No state bargains its sovereignty!

As for your further claim that I defended Yahya Jammeh, I think even in Jammeh’s sweetest dream, he will not see me his defending him. I guess that’s one of your cheap charges.

As for the claim that I call Gambia a democratic society, well that is what it’s meant to be. However, I can accept that my choice of phrase was a bit inappropriate. Only that I seriously, don’t believe that the Gambia is in fact a democratic society. However, I also don’t believe that China, is democratic society, nor do I believe Iran to be democratic society, or North Korea, or even Saudi Arabia. However, I do not believe that democracy is a prerequisite for a sovereign’s right to make legal laws for its subject, whether moral or immoral.

Be advised that even in the United Kingdom there are immoral laws, such as the Inheritance Tax. I mean, how immoral can it be to tax the dead? But you will be surprised to note that it is the law that exists in the UK.

As for my quote below:

[If we say the law in the Gambia is corrupted as you are supposing, then even the mere fact that people don’t kill each other in the Gambia is wrong. Because by them not killing each other they are obeying the illegal laws of Yahya Jammeh or Gambia government. Laws are to be obeyed for the good of every one; and it is through the obedience of law that we identify the bad ones.] Yanks

It means; if I agree with what you are claiming that the law in the Gambia is bad law and that law states that Gambians should not kill each other, and no one is killing each other, at present, means that Gambians are obeying that bad law of Yahya Jammeh. If not they would be killing each other. That is the impression you give when you start challenging the legal system of the Gambia as simply illegal.

On that note I reiterate again that the sentencing of the six journalists is morally wrong, which the UDP statement condemned. The UDP further calls for it to be repealed and I believe if it ever wins election in the Gambia, it will repeal that law, so that no journalist will ever be prosecuted for it again. However, as long is not repealed it remains the law, whether morally right or not.

Nemesis Yanks


 

Date: Fri, 14 Aug 2009 14:25:03 -0700
From: [log in to unmask]
Subject: Re: Rantings of an Angry Despot
To: [log in to unmask]

Yanks,

I never said that Legal Positivism is outdated; what I said is that your definition of the philosophy is primordial. Contemporary scholars of Legal Positivism do qualify the sovereign authority, while earlier versions do not. Based on your definition, the primordial definition, apartheid laws and Mandela’s 27 years of incarceration would be legal because they were formed by a sovereign nation. In the same vein, the holocaust would be considered legal because it was formed by a sovereign nation. We don’t think like that anymore in the 21st century. If legality of laws was just based on being formed by a sovereign authority, why do we need human right laws, African Charter, and others? There are fundamental human rights, such as the right to life, free speech, association, and many others that cannot be denied by any sovereign nation. Therefore sovereign nations cannot form arbitrary laws just to punish a certain section of society or contravene their National Constitutions.

 

Moreover, you defense of Yahya Jammeh and the APRC is exceptionally good; I have not seen a better defense of this rotten regime. I cannot believe you said the following about the Jammeh regime:

 

[The Gambia is further a democratic society. Jammeh was elected by the majority, though difficult to verify, but that is what we were told by the electoral commission. The Gambian people empowered him to make laws. Who is the UDP or we to deny the people’s choice from making laws for them?] Yanks

 

How many innocent Gambias and UDP supporters are still languishing in prison? And you dare to say that the Gambia is a democratic state. How and When? In fact right after the last presidential election, UDP/NRP filed a complaint at the High Court accusing APRC of election malpractice. Furthermore, who empowers Jammeh to make laws? I thought the legislature is responsible for making laws, not the executive?

 

Please help me to understand what you mean by the following quote.

 

[If we say the law in the Gambia is corrupted as you are supposing, then even the mere fact that people don’t kill each other in the Gambia is wrong. Because by them not killing each other they are obeying the illegal laws of Yahya Jammeh or Gambia government. Laws are to be obeyed for the good of every one; and it is through the obedience of law that we identify the bad ones.] Yanks

 

ML Touray





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