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“I never said that Legal Positivism is outdated; what I said is that your definition of the philosophy is primordial.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 And even if I did, how can this position be outdated.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ML Touray, you therefore cannot be correct in calling this position of legal positivism as outdated, regardless how you try to twist your words?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
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
But it seems that the effect of that tribunals’ legal precedent is mainly for Africa and Africans, with the exception of certain
Therefore, you will be a damned fool to think that every thing in this world is just, except the
You further mentioned Nelson Mandela and the apartheid laws. Do you even know a similar law existed in the mighty
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
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
Be advised that even in the
As for my quote below:
[If we say the law in the
It means; if I agree with what you are claiming that the law in the
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
Nemesis 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