07 July 2011

Book Review: Unplugging the Constitution

Florin T. Hilbay is an assistant professor of law at the University of the Philippines, College of Law.

I have to tell you that I debated whether to do a book review of this book at all (or not). As you may wonder, why this kind of a book would be on my blog since I have only once before reviewed a book by a Filipino author and only once before reviewed a book with a minor, tangential LGBT theme.

I totally disliked Hilbay's language. It was unnecessarily complicated. His choice of words did not add clarity or precision to the ideas he was trying to convey. Rather, it just showed that he has a wide command of obscure English words (or can intelligently use a Thesaurus) to produce obtuse phrases that shroud his texts in near meaninglessness.

That being said, it was a non-LGBT chapter I found the most interesting. I agree with many of the points he makes throughout the book. I don't agree with some of the reasoning. I don't know if I would call him a post-structuralist, in the Foucauldean or Deleuzean sense, but he has the social science structuralist reasoning down. I also believe the over emphasis on the language of things itself is overly deterministic and improperly allocates too much of the truth and the good life to the neocortex.

His essay on eliminating the publication of rank of bar exam finishers and reducing the breadth of the bar exam, I agree with. In the first instance, I don't believe the results of any professional licensing exam should be publicized other than to list those that passed. No other information should be given out. It has no logical connection to the purpose of the examination, assessing entry level competence. It says nothing about future competency levels, or competency level in a particular area of practice (even for professions like nursing). Ranking of an entry-level competency exam is absurd and runs counter to the purpose of professionalization through entry-level competency exams.

With respect to the legal profession and bar examination content, I also agree. The purpose of the bar examination should be to determine whether the potential lawyer has adequate legal reasoning and has a fundamental knowledge of the major aspects of law. A four day, all day bar examination with hundreds of subjects doesn't do that at all. It only tests for competency as a medieval Spanish scribe. It has the corrosive effect of having law schools teach to the exam as opposed to developing critical, legal reasoning skills and competency in areas of interest (commercial law, public law, tax law, etc.,.) The first five years of a legal practice should not be learning to be a lawyer in a particular subject area of the law. It should be developing experience!

Now this is the controversial part of my review and if you think I've become a counterrevolutionary with what I'm about to say, so be it. Get your bundle of sticks, fire and stake ready for me. I thought I'd have tremendous affinity for his essay "Undoing Marriage". First, his convoluted, unnecessarily complicated language makes it difficult to get to the bottom of things. Second, he repeatedly states that there are no reasons why the state should or would prefer life-time heterosexual partnering.

Look, I spent most of my adolescent and adult life opposed to the institution of marriage for legal and political reasons (although I have off and on supported same-sex marriage causes around the world when the practical debate has been either for or against it). Nevertheless, I can write down a long list of reasons why the state might prefer life-time heterosexual partnering over a libertarian free for all. The most relevant part (in my mind) is consistency and tradition. That's right, I said it. Not every human being can be a bar topnotcher post-structuralist law professor who idealizes two-women/one-man threesome relationships like Hilbay does.

Most people do not have the capacity or interest in exploring creative ways of human intimacy. And that's okay! At present, all the law needs to do is recognize the fact that the range of human intimate relations is much more expansive than life-time heterosexual marriages. Let's look at American jurisprudence for a moment to show how a small change in the law can have major impacts in the span of two generations. In the 1960s, the U.S. Supreme Court held that marriage couples have the right to medical information and medicine about family planning and contraception from their doctors.

That little case opened the flood-gate to recalibrating the landscape of socially permitted sexual and intimate expression: the right to contraception, the right to possess pornography, the right to have an abortion, the right to privacy, the right to be free from discrimination against homosexuality, the right to same-sex marriage, right to be free from discrimination based on illegitimacy, etc.,. That original case about the right of a married couple to medical information and contraception from their doctor can be found at the beginning of precedent all over the world where children's women's and gay rights are concerned.

You see, the law, in many cases doesn't need to have such sweeping changes in order to affect major changes in social policy. Allowing divorce, de-genderizing the Family Code and modernizing estate law may be enough to effect the change that Hilbay appears to be seeking. Of those three goals, allowing divorce and modernizing estate law are really the only two that need legislative approval. The other problems that are associated with our current system of marriage, if they cannot be legislatively cured, are all matters that can and should be adjudicated in the constitutional realm. All of the provisions intertwining the church with the state in marriage are unconstitutional. Case law developing the reasoning behind that may other areas of church state separation problems. Discrimination based upon legitimacy is a clear violation of the Due Process clause and developing case law on the reasoning for finding such a violation will help to support other areas of freedom of intimacy. But its not necessarily logical or complete but the process remains open and moving towards a new way of living life. That is the promise of jurisprudence as opposed to statutory utopian visions.

I believe that it is the process of developing jurisprudence that is in line with the more primitive parts of the brain (like the mammalian limbic system) that demands incremental changes in this manner over wholesale systematic changes. Sometimes the incremental changes in the soul are unnoticed but when the moment comes, the conservative inertia is swept aside for a new beginning and then, the long peace. This method also allow minimizes the fascist potential. Look at something like the RH bill (which is really incremental itself, but you see how revolutionary something so simple can be?). Apparently not incremental enough for the reactionary right and their followers. It is true that we constantly and unconscious depoliticize much of how we structure our life.

Critical awareness is needed to counter that and to develop ways to live a more meaningful life. But a meaningful life does not come from the Family Code and therefore its abolition or reformation will not increase the chances of a meaningful life.

The version I read was a 316 page paperback published by the University of the Philippines (January 30, 2010), ISBN-13: 978-9715426206. It is written in English. I bought it at the Diliman campus and well, at P380, it looks a lot cheaper than online.

4 comments:

  1. The inflated use of language is typical to Filipino professors. That's how we know they're "smart" lol

    ReplyDelete
  2. i should have been more specific. his language was like inflated on top of inflated. lol

    ReplyDelete