Issodhos @aol.com wrote:

>    Now, in response to the first half of your first question:
>Your use of the word "is" implies reality.  There IS not, nor has there ever
>been, a relationship between "fairness" and the law.  Dan Koenig's posting
>provided an excellent encapsulation of this reality.

Fairness is an entirely subjective notion, as you seem to hint at
this same post.

>
>     Rather than have you and others sit back and let me carry the tune to
>YOUR claims, premises, and questions I will require you, or Larry, or Vunch
>to provide a specific definition for how you are using the terms "fairness"
>and "law".  For example, are you referring to the application of the law,
>origination of the law, or the law itself?  But most importantly, what do you
>mean by "fairness"?
>
>   To save time on your second question, what do you mean by "deriving some
>sort of authority"?  Do you mean "the people" must be engaged in creating the
>law, simply respecting the law, or something else?

What is meant here is that the law in modern society is subject to
the consent of the people. This is explained succinctly in the famous
George Orwell quote, "The parliament can make laws, but whether and
how they will be enforced will be determined according to the will of
the people." (Actually, I can't remember the exact words, I just
paraphrased. But that is the gist of it.)

The people will withdraw their consent if they do not regard it as
"fair'. And as we have already seen, "fair" is a subjective notion.
But the 'will of the people' is probably a better way of putting it,
it is what the majority of people subjectively think is fair that
matters, not the letter of the law. In the end this is what will
determine how, and even if, the law is enforced.

For example, up until very recently, practicing homosexuality carried
a 21 year jail sentence in here in Tasmania. But it has been a very
long time indeed since the authorities attempted to enforce that law.
Because it would have offended the will of the people, it would have
been considered grossly unfair. And the authorities well knew it.
Another example is abortion, which is illegal under the letter of the
law, but the letter of the law has been ignored for many years
because that is the will of the people. There are many such examples.

In the case in point, the US electoral system, I can't say whether
most of the US population regard it as unfair. But if they did I
would expect that 'will of the people' to force a change. Perhaps not
in the letter of the law, but certainly in how it is enforced. I
don't know, but I do suspect strongly, that an electoral system in
which the candidate receiving the majority of the votes is defeated
by another candidate would have to be an electoral system (law) which
is extremely vulnerable to being regarded as offensive and unfair by
the majority. However this is complicated by the fact that only a
minority of people in the US actually vote.

Obviously yours is a country without a strong democratic culture, so
perhaps an unfair electoral system would not be considered very
important? Perhaps people there will "consent" to such a law?

If not, one of the mechanisms our society uses to cope with this is
the ability of the courts themselves to make new law, by
re-interpreting the letter of the law or simply making up entirely
new "common" law out of thin air. This is often necessary, especially
when parliament, elected politicians, are too slow or incapable of
fixing problems. Since the US has such a backward electoral system
and the conflict of interest of politicians is so blatant and
obvious, it is probably the quickest way to fix the mess there.
Nothing wrong with that, as youw assert, this is a legitimate role
for the courts, to fix bad law.

"Bad" law obviously uncludes any law which offends the will of the
people, which does not have the "consent" of the people in Chomskyian
terms.

>Yours,
>Issodhos