The Bangus Ultimatum

There was a recent blog flare-up in multiply. A U.P. Law student wrote that Cris Mendez is partly to blame for his death. The blog post has already been withdrawn from public access, but the Jester-in-Exile has a copy of the substantial parts.

The reasoning is akin to the doctrine of assumption of risk. In tort law, it is a defense that goes something like: “Plaintiff knew exactly what he was getting into, and willingly put himself in harm’s way”.

The theory makes sense in cases where human agency is not present, or is so diffuse so as to be negligible.

If I climb a mountain and I fall to my death, or if I handle a wild animal with no owner and get gored, these are valid cases of assumption of risk because no human agency is involved (except my own). It’s just the way mountains and wild animals are built, and since they’re not capable of legally recognizable agency, I assume the risk.

But human agency and choice is involved in hazing. Frats are not, and should not be automatically violent the way mountains are automatically tall and risky. At some point, specific persons, real individuals chose to adopt and maintain physical violence in hazing rituals. At some point individuals choose to “sell” the benefits of frats, and incentivize violent behavior within the organization (or at least, not disincentivize it enough).

There seems to be something real seriously fu**d up with me. Upon hearing of the tragedy at the Ultra, one of the first things I thought of was how the whole thing looked like legally: the standard of care that should have been exercise, the corresponding degree of negligence, liability corporate or individual, the possible payoff.

I am only beginning to realize that real people died. That this will leave a hole in the lives of families. That no compensation can fully make up for this loss.

A prof of mine once said that there is little love in law—it’s contracts and property and succession that the law recognizes in human relationships.

There is, however, much law in love. The unwritten rules of engagement of human coupling can be as complex as the legal ramifications of any other corporate merger. Fortunately, The Restatement of Love (an actual Yale Law Journal article — 104 Yale L.J. 707) outlines and codifies those unwritten rules. My favorite parts:

In recent history, the blind date model was paramount, and in fact it still remains strong in homogeneous urban and suburban communities.7 A blind date may be arranged or may be initiated by one of the parties; in any event, this model is characterized by a mutual lack of familiarity. While blind dates are often decried as expensive, time-consuming, and futile, the model persists because, each time, parties’ hopefulness overcomes the disenchantment brought on by previous disappointments.

…

e. Three-date rule. Parties often query how many dates it is reasonable to go on in order to assess the possibilities of a relationship. The three-date rule is now standard.15 More than three dates, without the promise of a relationship, poses the risk of abusive practices, especially when one party insists on paying.16 Even in the absence of bad-faith dealings, however, the three-date rule is a viable period of limitation that allows both parties to a “nonstarter” to proceed with their life business. Any shorter period may pose potential risks as well. A party may foreclose otherwise promising opportunities before discovery is complete.17 It is the exceptional, albeit possible, case, where parties know they can settle the matter after the first date.

…

c. Standing doctrine. The standing doctrine–which concerns whether an individual can fairly be said to have cause to complain–presents some of the most complicated procedural issues that arise in the law of love. A party who freely enters into a relationship necessarily grants the other party some degree of standing. The scope of standing depends very much on the stage of the relationship, expanding as the relationship develops and increasing dramatically upon engagement. Yet in certain matters, such as one party’s relationship with his or her parents, the other party may never have standing to intervene.

…

. Sex within an established relationship. The most common context for sexual intercourse is between two parties to an established relationship. While sexual intercourse is commonly considered a medium by which the parties advance the relationship, this perception is false; sexual intercourse merely reflects the bona fides of the relationship. Sex cannot remedy or compensate for the weaknesses in a flawed relationship, nor can it be used to circumvent the laborious process of establishing emotional intimacy.54 A fortiori, the introduction of sex into a strong relationship simply reenforces the parties’ established emotional attachments.

…

a. Grounds commonly invoked. It is common for the moving party to justify the proposed dissolution on several grounds, both procedural and substantive.76 Often, moving parties take refuge in procedural, rather than emotional, grounds, and elevate form over substance to avoid a painful confrontation on the merits. Procedural grounds may include: timing,77 distance,78 statute of frauds,79 and outside pressures.80

Of course, the time is ripe for an evaluation of these rules within Philippine jurisdiction. We have very interesting precedents pertaining to “relationship by estoppel” and the much dreaded “kuya-clause”.

HAPPY VALENTINE’S DAY, EVERYONE!!!

No new entries this weekend. Working on a paper for CMC; Midterms looming; and I’ve been pushing pixels for these babies, hopefully just in time for Constitution Day:

(Nayna has promised to post a response to Mon’s answer. The debate ain’t over yet.)

I agree that people should be able to marry whoever they want. None of our laws define what a man and a woman are, even if the Family Code defines a marriage as a special contract between the two.

But I wouldn’t say that there isn’t anything in our laws that specifically disallows us to make such definitions. The Constitution recognizes the family as the basic unit of society, and though it doesn’t proscribe any sort of regulation on that institution, I don’t think it isn’t there for a reason. Our Constitution is (and is not) many things, but one thing’s for sure: the framers always had a reason for doing what they did.

And this where the problem comes from. The fact that the Constitution does in fact recognize the family gives both the legislature and the judiciary license to interfere, whether for good or bad. If our Supreme court were to hear the Ganzon case, it would have to decide it along lines that take into consideration these provisions. Why? Simply because its there. It’s in the law, fundamental and statutory. And what does this law reflect? The values of the framers, who were basically church-going, god-fearing men steeped in post-colonial spanish and american thought. these are men who have never thought of changing their sex, or at least would never admit in public to having done so.

I have nothing against church-going, god-fearing men. I have everything though against anyone who thinks that their moral values should apply to everyone else. The problem with our Constitution (as well as many of our laws) is that they are precisely one group’s version of right and wrong imposed on the rest of the country. Which, allow me to qualify, may not be so bad if we had a political system that could prevent the moneyed few from controlling everything. But the reality is: we don’t. And for as long as that’s the case, I believe the premium must be placed on the protection of individual liberties.

[UPDATED: First, a background: 4 law nerds decided to have a web-based debate. Just like this. Topics were bounced around, and we eventually zeroed in on the case of Donita Ganzon and Jiffy Javellana, and how her/his appeal should pan out under Philippine Law, assuming our SC hears the case on certiorari, to decide on questions like "what is a woman?" in light of the provisions of the 1987 Constitution (if any). Two of us will argue for Ganzon, the other two, against.]

Initially, the question was: What can you say about the constitutional regulation, if any, of sex and marriage?. Which is still relevant, generally. I hope we can discuss things like abortion and divorce (Consti-wise)

The first post (from Nayna and Remir) on this topic is due on Monday, January 10, 2005. The reply 7 days after that and so on and so forth. This should be interesting. Comments are open, so just let ‘em rip

Whenever I go home via the expressway, I go through the Bocaue exit and pass by row upon row of firecracker stalls. The whole thing was a clusterfuck waiting to happen: Firecracker stalls side by side with other firecracker stalls, gas stations, and (I kid you not) auto repair shops and open-flame carinderias. Forget the fact that all this right beside a major highway, prone to stray sparks from vehicles and maybe the occassional cigarette butt from random motorists.

Against all probability, nothing happened. Until this morning, when I woke to the sound of explosions, and the sight of smoke against the dawn. The firecracker stalls by the Bocaue exit have been razed by fire, taking with them 8 lives and affecting close to 1,000 homes. It took one more act of stupidity on top of all this bozosity to blow up on our faces: “a buyer tested a type of firecracker called “higad” and its sparks reached a display of firecrackers …” Kinda reminds you of the gas station scene in Zoolander don’t it?

This isn’t a fortuitous event, this is something that could have been avoided with a rat brain’s worth of diligence. But there’s none of it in the factories where they kill child laborers slowly, (or through an equally moronic lack of safeguards, blow them to smithereens), none of it among municipal officials who were supposed to prevent this with proper zoning, and certainly none among the proprietors of these establishments.

And yet the firecracker industry has the temerity to bemoan how they’re being slaughtered by smuggling. In a rational democracy, that should be the least of their problems. What we have here is a classic externality problem: A wide gap exists between the private marginal costs to the firecracker industry, and the inevitable social marginal costs to everyone. Legal liability helps bridge that gap by “internalizing” such externalities, transferring the costs back to the guilty parties. But that’s assuming the system works. The laws are in place, yes. But 1) lax/no enforcement and 2) relative inaccessibility of the courts translate to no law at all.