#legitimacy

hinamesh:

Young Griff a.k.a. Aegon is legit

People who believe that Aegon is fake mostly ignore the fact that Golden Company is ready to support Viserys and Daenerys too. They often forget that it’s Aegon himself who manage to win their favour after he has spoken his plan to sail West rather than meet Dany like Illyrio’s original plan. Bolding the fact that Aegon has the skill to persuade people that will come handy later in his ruler and that’s impressive as getting GC’s favour is hard to gain.

Gaining Ilyrio’s doesn’t mean he is a fake one, it’s not unsual for an adoptive father comes to love his adoptive children, I mean it’s in their human nature to feel attach to one another.

The mummer’s dragon and the Sun’s son can also refer to the same person, as Aegon is Varys’s dragon and Elia’s son. A cloth dragon in the midst of cheering crowds can also refer to anything it can be about Aegon brought back the Targaryen banners after he gains Westeros. Prophecies are not a certain thing it can be a red herring or as a plot device why would Dany later see him as a pretender, because often the Targaryen misinterpret their own vision that end up dooming.

Aegon not comes out of nowhere, GRRM is already telling about his importance when Dany see him in House of the Undying in the first book and Dany first chapter, hinting about the dragon has three heads. He always brings up by certain character about his death and how it was “unrecognizable”. It’s pretty telling I must say.

The switching babies is also make sense, Aegon is the heir to the throne after Rhaegar had been killed, his life is more at danger than anyone else in that house. A mother who had said to be a clever would do that especially in a time of danger. I believe Elia had tried to protect Rhaenys too, maybe it was Elia who told her to hide that’s why they were at different rooms, but unfortunately she was founded by Tywin’s man. Also there is rumor that Elia had killed her own son herself, perhaps it was Elia who is in the end smash the fake baby face after he died to make it look unrecognizable so they wouldn’t search for her actual son. Who knows right after all there is a rumor of her killing her own son in terror.

Varys’s sentiment when talking about Rhaeny’s death on some occasions but oddly he never mentioned of Aegon’s death. He is one of the Targaryen loyalist, if he’s a Blackfyre that everyone would like to believe then he wouldn’t mind if Targaryen getting destroy in the Sack of King’s Landing and yet it’s him who told Aerys not to open the gate when the lannister comes.

Varys has no reason to lie to a dying man.

The Blackfyre plot is not useless if Aegon being real, it just show that Dany and future enemies have their legit reasons to doubt Aegon’s legitimacy, but what makes it will become a better story is if Aegon is real that Dany’s action will be question, again putting her on the morally grey area between right and wrong. Aegon being real gives closure to the Martell’s plots and many things. Beside the Blackfyre plot never really matter in the main plot, so I bet most general readers wouldn’t even aware of that. Aegon being real has much more impact to the narrative rather than him being a fake one.

God, I love this post! There is so much about the Blackfyre-Theory that does make absolutely no sense to me.

ao3commentoftheday:

Nothing feels more free than the realization that canon, fanon, and headcanon are all 1000% fake and made up and therefore all equally true and equally false. None are better or worse than the other. They just either appeal to you or they don’t.

tanadrin:

In the history of jurisprudence generally, and in German law in particular, the royal intervention in the Millers Arnold case is infamous for being a violation of judicial independence and thus an act of executive overreach that threatens the foundation of rule of law; that it corrected a manifest injustice is not seen as bearing significantly on the problems of the case, and you may draw what parallels you like with yesterday’s exploration of suo motu actions by courts in South Asia, especially as they converge with public interest litigation in India.

Rule of law is a crucial element of not only a just society in general, but the Great Compromise of liberalism in particular. It’s important to the former, because it’s a component of a predictable rules-based system that ensures equal protection under and equality before the law, and to the latter because a predictable and institutions-based system where avenues of reform are known and consensus-building methods available allows for social systems where people don’t have to worry that, unless they seize power through violence and maintain it by repression, they might suffer intolerably or actually be killed. This is a massively important component of why we don’t, for instance, have to have a succession war every time the executive changes, and in just about every case of violent upheaval in previously peaceful societies I would argue that you can show that either the Great Compromise failed or was never operative.

But rule of law on its own is not justice. This is something that in modern times German jurists have had to struggle with quite notably, because authoritarian systems of government in the 20th and 21st have often been very particular about preserving the forms of rule of law, while getting the outcomes they wanted. This is true of all manner of personalist and populist regimes, and can be seen in Hungary, Poland, and Russia today, but it’s also true of ideological regimes who, even if they may contest specific principles that are seen as integral to rule of law in other countries, like free speech, an independent judiciary or free elections, are still at pains to frame their overall institutions as legitimate, democratic, and principled.

In the postwar era, this principle had to be grappled with in Germany as pro-democracy politicians and jurists had to struggle to articulate what exactly had failed in 1933, how the German state afterward could be treated as illegitimate, even though the formal institutions of the Weimar constitution had remained intact, and how they could build a just and democratic system going forward, which necessarily required repudiating a period of bloody lawlessness, no matter how much it had tried to cloak itself in the law. This is especially important for academic jurisprudence, which as I understand is more important in a civil law system, because legal principles are less often derived directly from judicial decisions (which are far weaker in their precedent-setting capacity) and more often derived from academic writing about the law (which influences and is influenced by the actions of the judiciary and the legislature).

Thus, modern German jurisprudence distinguishes rule of law from rule bylaw. Rule by law may conform to the appearance of rule of law, but it does not owe allegiance to more fundamental principles of justice: the law is an expedient to get the outcome you want, and not reflective of a set of deeper principles you’re trying to uphold through the rules and institutions you put in place. Rule oflaw requires that allegiance, and real rule of law might require opposing institutions or rules–even when procedurally correct–if they violate fundamental principles of justice. You might pass a law somewhere tomorrow, through all the correct methods of constitutional amendment and parliamentary procedure, declaring all left-handed people must pay the government $500 as a one-time tax on their stubborn and immoral behavior of writing with the wrong hand. Under real rule of law, such a law is invalid no matter how popular, how procedurally correct, or how evenly it is implemented, because it’s an inherently unjust act of oppression. No amount of legalistic procedure can rescue it, because it adheres to no principle other than “fuck left-handed people.”

This distinction is really important, because it goes to something about courts that the reams of commentary on Millers Arnold missed, which is that no court can be legitimate unless it actually renders good decisions. Yes, by ordering his courts to rule differently, Frederick II undermined the independence of the Prussian judiciary, and this may have weakened confidence in Prussian courts in the aftermath. It’s hard to have a rules-based system of government if the king often arbitrarily reverses decisions of his courts. But the real problem is deeper: it was a bad decision. If courts cannot be expected to render good decisions, a crisis of legitimacy will follow, because manifestly unjust courts are an equal or bigger problem for rule of law than judicial independence. In the modern world, where we rely on things like the Great Compromise to prevent violent revolution (Prussia did not have that; there’s a reason the Prussian monarchy no longer exists), courts that make bad decisions violate a fundamental tenet of the Compromise.

An intervention like Frederick’s, or like the suo motu actions of Indian courts, doesn’t really protect rule of law at the expense of rule by law; the best it can do is correct a unique injustice in a non-systematic way, and in that case it might be an individually positive outcome, albeit one that comes at a notable institutional cost. Ideally, it could help improve faith in systems of justice (or in the Compromise itself), while reform is pursued through other avenues, to prevent long-term harm and to reduce the need for such interventions in the first place. In practice it doesn’t seem to do that, unfortunately, meaning the downside is even greater, though correcting the individual injustice is still very good. If you do not have the opportunity for these one-off interventions by a higher authority to correct injustices, you improve the resilience of your institutions, which is usually a good thing. But you also lose an important valve for letting off pressure if those institutions are dysfunctional.

With the preliminaries out of the way, let’s talk about the US Supreme Court.

The US Supreme Court is going to overturn Roe v Wade, a decision which even many supporters of the political outcome think is decided on shaky theoretical grounds. Because of the way law is created and interpreted in common law systems, the theoretical grounds of a decision like Roe are more important than they would be in a civil law system, though my understanding is that the picture is more complicated than just a decision creating law: in principle two different decisions might reach the same conclusion based on different rationales, and it would be up to future judges in future cases to negotiate exactly which rationale they should use when interpreting the law going forward. Overturning a decision outright is rare, especially when you have the option of saying “okay, Case A rendered the right decision for the wrong reasons; in this case, we’re going to alter the reasoning a little bit to make interpretation of the law more consistent going forward.”

Maintaining Roe in some form is supported by an absolutely silly proportion of the US population, AFAICT; something like 65%, in an era when 65% of Americans can’t agree that the sky is in fact blue. Support for specific restrictions on abortion is much more varied, because this is a subject that politically the country is fairly ambivalent on, but the Supreme Court has many tools in its toolkit besides “let one court case from 1973 stand or fall on its own,” and outright reversal of that decision is likely to be broadly seen as a bad move. This, on its own, is not necessarily a problem: courts often have the job of making merely unpopular decisions in the name of justice. That doesn’t mean they’re failing to abide by higher principles. Sometimes–as in Loving v Virginia–it just means popular opinion is unprincipled.

I’m not actually concerned with Roe directly here, but I do think that Roe bears on the idea of a crisis of legitimacy in the Supreme Court, which the Court is rightly worried about. Unfortunately, the Court does not understand what the source of this crisis is: it is the fact that the Court has become concerned almost solely with rule by law, rather than rule of law. Much more indicative of this trend than Roe is Shinn v Ramirez, in which the court ruled that a mere probability of innocence isn’t enough to void a conviction, even in a capital case; more fundamental procedural violations must have occurred to prevent the penalty from being carried out (in this case, execution).

This is a huge problem. Isolated from external concerns–that is to say, in an abstract and theoretical void, which is where SCOTUS seems to dwell–procedure is indeed of great importance. Procedure is a component of an equal application of the law, a way to instrumentalize more fundamental principles in a way transparent to those who are subject to a court’s authority. But those fundamental principles still matter; indeed, they matter more than procedure, because rule of law is not the same as rule by law.

The fundamental principle at stake in a criminal trial is the guilt of the accused. If procedure cannot accommodate overturning a verdict which is incompatible with this principle, the procedure is unsalvagable. It is a violation of the very purpose of law; we may as well revert to mob violence, which at least doesn’t require paying bailiffs or maintaining expensive neoclassical buildings on valuable downtown real estate. If the Supreme Court cannot see the underlying principle beyond the screen of procedure, then the Supreme Court is setting its own legitimacy on fire. Overturning Roe is relevant here only insofar as it’s a manifestation of a broader trend of the Supreme Court setting its own legitimacy on fire, then complaining about the smell of smoke.

Moreover, this is not a new phenomenon. Shinn v Ramirez is part of a long line of tough-on-crime court decisions and legislative acts (especially in capital cases) that sacrifice fundamental principles in favor of smoothing procedure for state actors; on the basis of “reforming the death penalty” the right to habeas corpus was severely curtailed in 1996, with the fundamental principle of protecting the rights of the accused being sacrificed to the much more contingent procedural question of how easy it should be for the state to kill someone. Note also the raft of cases as the drugs commonly used in executions have become less available in the US; SCOTUS has repeatedly opted to weaken principles against cruel and unusual punishment rather simply require the state not to torture prisoners to death or not kill them if it can’t do it in a way compatible with the constitution, which is a startling reversal of principle is supposed to govern the law. Most peoples’ moral intuition, I suspect, is that while the law may permit the state to do a thing, if it cannot do the thing in a just manner, it should not do it; SCOTUS seems to think, however, that if the law permits the state to do a thing, then by definition it is possible to do in a just manner, regardless of the facts on the ground.

It is increasingly difficult to escape the conclusion that, especially as it pertains to criminal law and the death penalty in the US, the single most significant opponent to the rule of law is the Supreme Court. An institution as defensive and insular as the Supreme Court will not reform itself, nor do I expect external pressure to cause it to reform. If the rule of law is to be maintained in the United States–if the fundamental principles on which the law is built and which it is necessary to preserve to prevent that rule from being replaced by empty ritual that can reach arbitrary conclusions–then the Supreme Court must be destroyed. I do not believe it can be reformed. I do not believe any of its current justices are redeemable, since they are the product of a selection process which has consistently produced lawless outcomes. It must be replaced by an institution which hears cases more consistently, and therefore which has many more justices; this would also  prevent the highly variable outcomes that result from selection effects and reduce the political fracas around individual appointments. Its members, and all federal judges, should be nominated through non-political means. And if nominees for the federal judiciary cannot agree that, as a matter of first principle, the state should not execute those who are actually innocent of the crime they are accused of, and should strive to its utmost ability to avoid that outcome, they should be entirely disqualified.