Wednesday, October 04, 2006

Worth Noting

"In free and democratic societies, my right and your right to remain outside the state's detention centers does not depend solely on the judgment of the state's executive. It really is that simple. And the legislation passed last week eviscerates that right fully. All that stands between us and the worst tyrannies in human history are the non-legal norms of the background public culture and the possibility that the courts may at some point strike down portions of this legislation. How long these forces may provide protection from tyranny is hard to predict. But in a genuinely democratic society, with robust commitment to the rule of law, we shouldn't have to engage in this guessing-game."

More here.


  1. hmm...
    with the anti-smacking (full adult rights to children) legislation it seems to rest solely with the police force.

    But i guess in a sense it always did like with the executive and the police.

  2. I don't think that's comparable to the U.S. situation -- at least in NZ the police still have to convince a jury of your peers that you smacked a child. But yes, you may recall I've argued before that greater discretion (e.g. to judge whether the smacking involved "reasonable force") should lie with juries rather than police. So our legal system isn't perfect. But at least it can't be sidestepped by those in power. (Can it? I sure hope not, anyway!)

  3. Actually in the smacking case, the police do not have to prove that a child was smacked to the jury, as any unwanted physical touching is counted as assault under the law. So if the police charge you, without 'reasonable force', if the child says it is unwanted you are guilty.

    Just have to hope police have common sense, or that a judge decides a charge is too trivial to trial... but these are background forces that protect us from the word of law, like the US article mentions.


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